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Tuesday, December 02, 2008
The Legal Woes of Plaxico Burress

I have a new column on Plaxico Burress. I hope you have a chance to check it out.

Update 12/2: I have a new column up on Burress and I'll be interviewed on CNN tomorrow morning in a segment that will air several times between 6 a.m. and 9 a.m., hope you have a chance to watch.



I don't understand NY's statute and what "possession" means. Does he have a defense if he doesn't own the gun? For example, if somebody asked Burress to give the gun back to its rightful owner, and he was in the process of doing that and shot himself, does that meet the possession requirement? The "without a license outside the home or business" requirement strongly suggests that the statute was intended to apply only to owners without permits. If the state can't prove it was Burress' gun, I don't see how he could be convicted.

So having said that, I definitely don't see how Pierce could possibly be charged under this particular statute for merely having the gun in his possession (unless it was his gun and he doesn't have a permit).

My second question is why you think Goodell will probably not discipline without a conviction or its equivalent. That was Tagliabue's policy. But obviously Goodell has not hesitated in the past to discipline without a conviction.

Blogger Rick Karcher -- 12/02/2008 7:17 AM  

Bookmarked it.. I'll read it tomorrow! I did a skimming of the article and I find it interesting.

Anonymous Pacquiao VS De La Hoya FREE Live Stream -- 12/02/2008 8:06 AM  

I agree with Mr. Karcher's points. However, New York Mayor Michael Bloomberg's comments yesterday have converted this from a legal case to a political one -- Buress will be convicted on the mayor's orders to "make an example" out of someone.

The mayor's comments about how "nobody is above the law" is particularly galling when Bloomberg himself decided to ignore the law that prevents him from seeking a third term in 2009. He expressly had the law changes to accommodate him, yet now it must be applied literally to Mr. Buress (and perhaps Antonio Pierce.)

Anonymous Rachel Neri -- 12/02/2008 9:30 AM  

Prof McCann:

You said that one of the hurdles for the prosecution would be to establish that Burress did in fact have the gun in his possession.

Now, SUPPOSE that indeed Antonio Pierce took that gun from the scene of the shooting. Could the prosecutors use Pierce's testimony that he took the gun because he saw Burress accidentally discharge it into his leg as the basis for establishing possession?

If so, might that be the basis of a plea bargain for Pierce?

Anonymous The Sports Curmudgeon -- 12/02/2008 10:46 AM  

Thanks for the comments, sorry for the delay in responding, been a busy day.


The NY case law, from what I have seen, has not addressed what specific elements are needed to establish actual possession of a gun, though I spoke with a couple of criminal defense attorneys in NYC who believe that Burress could argue that someone else had the gun and then handed it to Burress who fumbled it and shot himself. It seems like a hard, even quixotic, argument to make, but as we know, we haven't heard his side of the story yet.

In terms of Goodell waiting, my instinct is that he'll follow the Vick chain of events, and wait until the player is convicted or pleads guilty. He obviously doesn't have to wait, and as you note he hasn't always waited, but if the facts against Burress are as damming as they appear to be (and I know that's a big "if"), I suspect Goodell will wait to act until the legal system ends with a conviction or guilty plea by Burress, and Goodell would seem to have even more time to wait now that the Giants have suspended Burress.


Thanks for the nice words, though I concede that the title of your Blogger account seems like spam!


I agree that Mayor Bloomberg's comments risk the politicization of the case, and his decision to go back on the term limit pledge is a good observation. In his defense, though, I do think a lot of people don't want to see Burress receive preferential treatment by the justice system, and in that respect his comments could be construed as voicing what his constituents believe.

The Sports Curmudgeon,

I agree. I think the prosecutors could use that kind of testimony by Pierce to establish possession by Burress. And like you note, it would seem to offer prosecutors a card in offering a plea deal to Pierce (assuming all of these reported "facts" are indeed true).

Blogger Michael McCann -- 12/02/2008 8:42 PM  

"In his defense, though, I do think a lot of people don't want to see Burress receive preferential treatment by the justice system, and in that respect his comments could be construed as voicing what his constituents believe."

Michael, I don't quite buy that given Mr. Bloomberg's long political history of opposing the individual right of self-defense and his relentless demonization of firearm owners and sellers. Clearly he's looking at this case as an opportunity to advance a personal political agenda rather then see "justice" done.

To echo Professor Karcher's favorite subject, Mr. Bloomberg was deliberately stirring up the media pot to ensure *more* coverage of the Buress case compared to the average person charged with illegal firearm possession.

Anonymous Rachel Neri -- 12/02/2008 8:52 PM  

Have we forgotten about Sean Taylor? It was only a few months ago when we were shocked to hear about his tragic death, yet the issues surrounding Taylor's death and Plaxico's ignorance are directly related.

What has the NFL done in the wake of Taylor's death to protect its players? I am not implying that Plaxico is innocent or that he should receive a reduced punishment, what I am pointing out is that NFL players and other sports figures are clear readily identified targets. Targets for criminals, the media looking for a juicy story, and for law enforcement officials looking to make an example.

Do we expect many of these sports figures to stay within the confines of their homes? Even their homes have not proven to keep many out of harms way.

Perhaps partying at the Latin Latin Quarter was not the wisest of decisions, but i think their are greater issues within the NFL that need to be addressed in light of this situation.


Regardless of any legal and policy arguments that can be made, I think that this should certainly raise Amani Toomer's fantasy football numbers...

Anonymous william -- 12/02/2008 11:50 PM  

Another gun control in the NFL link:

Anonymous william -- 12/03/2008 1:23 AM  


I see that the Giants ended up suspending Burress (for the remainder of the season and playoffs) after I asked you yesterday morning why you think Goodell would decide not to discipline without a conviction. This presents an interesting situation because, since it is the team that suspended him and not the league, the union and Burress have the right under the CBA to appeal that suspension to a neutral arbitrator for a just cause review. If the arbitrator rules in their favor (or reduces the suspension), presumably Goodell could just suspend him again, which highlights the inherent problem with the NFL's new personal conduct policy that gives the commissioner unfettered discretion to impose any disciplinary action (combined with the fact that the CBA does not afford the right to appeal his decisions to a neutral arbitrator).

Blogger Rick Karcher -- 12/03/2008 7:55 AM  


Any arbitrator that rules for Mr. Buress would undoubtedly be called before "Mayor" Bloomberg to explain themselves. Never underestimate the vindictiveness of a bloodthirsty animal who happens to hold a political office.

My prediction: Mr. Buress will spend at least five years in prison or be "accidentally" murdered by police loyal to Mr. Bloomberg.

Anonymous Rachel Neri -- 12/03/2008 9:31 AM  

I'm confused as to how Burress can claim the gun was not in his possession if it went off within his sweatpants. Either he had it or he didn't. Powder burns on the inside of the pants would prove that.

Unless I am missing something, the l;aw is pretty clear that possession of an unregistered gun in public carries a 3.5 mandatory, minimum sentence. I don't see any way Burress can (or should) get out of it.

Blogger cccheel -- 12/03/2008 10:56 AM  

But isn't the more reasonable interpretation of this statute that it applies to owners of guns who fail to register them? I know nothing whatsoever about the legislative history of this statute, but my guess is that possession means "legal possession" (i.e. ownership) and not "carrying". I think the purpose of the statute is to create an incentive for owners of guns to register them (serves a tracking and background check purpose). I seriously question whether the statute's purpose is to deter people from shooting themselves, or even shooting somebody else because then the state would obviously be able to charge the person with assault/battery or possibly murder.

Blogger Rick Karcher -- 12/03/2008 12:18 PM  

Though I am normally on the player's side in these things, I think possession means the same as it does in drug cases: having it on your person or in your control. Certainly a stolen gun in the hands of a thief is still in his possession though he is not the rightful owner.
As to the comment that these players are targets and should be allowed to arm themselves when at a local nightclub: that is ludicrous.
New York has tough gun laws and I think that is a good thing. The players' agents and owners and friends should remind them of that constantly and warn them about carrying a firearm in their sweatpants.
Alan Milstein

Blogger alan milstein -- 12/03/2008 5:19 PM  

But there's no such thing as a permit to carry illegal drugs. There is no legitimate reason for anybody to have illegal drugs on their person or in their control, whereas the same cannot be said for guns. Let's say I'm in New York walking the streets and I get mugged by somebody with a gun. The mugger drops the gun, and then he pulls out a knife. Just as he's about to stab me, I pick up the mugger's gun off the ground and shoot him. While I obviously have a defense of self-defense to a murder charge, if possession is what you say it means, then I would spend a minimum of 3.5 years in prison for violating the statute. The more I talk about this particular gun law, the less I understand the purpose behind it. So if Burress had a permit on the gun he used, we wouldn't even be discussing this issue? Maybe it's the extent of the penalty under the statute that doesn't make sense to me as opposed to the definition of possession.

Blogger Rick Karcher -- 12/03/2008 7:16 PM  


I'm inclined to believe that "possession" means exactly that. Whether you possessed it or not, without regards to ownership. In the example you gave, I would think the self-defense defense would also cover the possession charge. If I am an upstanding member of society who has gone through the legal checks to buy and own a gun (but not a carrying license), why should I be subject to this law, but if I get mugged by some ruffian who takes my gun or steals it from my house he would not be?

- Alexander

OpenID TwoStep420 -- 12/03/2008 10:06 PM  


Self-defense is a defense to battery/murder, so I doubt that self-defense would carry over to violation of a gun license statute (but that's an interesting question). But in any event, even if self-defense would carry over to the statute, then other defenses would carry over as well, right?

I don't understand how the theft example (which Alan mentioned as well) shows that possession must mean on your person under this particular statute. If a thief steals somebody's gun, he would be charged with theft, and if he injured or killed somebody with that gun in the process he would be charged with assault and/or murder (so that should alleviate your concern that the ruffian is not going to be held accountable under the law for stealing your gun). Also, if he steals it from your house as you said, you would not be held accountable under the statute for not having a license because as Michael stated in his S.I. column, the statute "prohibits the possession of a loaded gun without a proper license outside the home or place of business". So whose home or place of business is the statute referring to? Certainly not a thief. It seems to me like it's referring to somebody who buys a gun, and it permits this person to keep it at home or work without a license but that this person needs to get a license if he wants to take it away from his home or place of business.

If the statute was meant to prohibit carrying loaded guns out in public, it could have said just that. But what do I know...I do know that I need to get back to grading exams. And as usual, enjoyed the debate.

Blogger Rick Karcher -- 12/04/2008 8:48 AM  


I'm not sure I understand your interpretation of NY's statute. Under your interpretation, if A buys a gun but fails to register it, and B borrows the gun from A, puts it in his pocket and walks around NYC, A has violated the statute but not B? Why would NY create such a law that punishes only A in that situation?
In any event, I don't think there's any real ambiguity in the statute or the interpretation of the statute. New York Courts have held that "possess" means “to have physical possession or otherwise to exercise dominion or control over tangible property." It is not limited to "ownership." Burress therefore clearly possessed the gun in this situation.
As to your self defense example, NY law provides for a "temporary possession" exception in situations where a person takes a weapon from an attacker in the course of self defense.

Anonymous Gabe Feldman -- 12/04/2008 7:45 PM  

I don't know Gabe, I'm not a criminal law expert nor a NY lawyer nor do I know anything about NY law crim law. I haven't researched a thing either. I'm just asking questions. Maybe the argument is not that "possess" means "own" but that the statute applies to purchasers/owners. In your example, how could B even possibly register the gun if it's not his? Why would the legislature intend for a borrower to be able to keep it unregistered at HIS home or work. What's the purpose behind that? So people can just keep passing around unregistered guns to each other as long as they take it to their homes or work?

But in any event, I think the most valuable information on NY law here would be how many people in NY are actually sitting in jail for 3.5 to 15 years solely for failing to register a gun (accompanied with no other crime).

Blogger Rick Karcher -- 12/04/2008 9:00 PM  

What about constructive possession? The statute (McKinney's Penal Law § 265) and the jury instructions (Charges to Jury & Requests to Charge in Crim. Case in N.Y. § 83:2) seem to allow for such a finding.

"A sufficient level of control over the area in which the contraband is found establishes constructive possession." People v. Skyles (2 Dept. 1999) 266 A.D.2d 321, 698 N.Y.S.2d 286, leave to appeal denied 94 N.Y.2d 867, 704 N.Y.S.2d 543, 725 N.E.2d 1105; See also Winbush, Kimberly J., What Constitutes "Constructive Possession" of Unregistered or Otherwise Prohibited Weapon Under State Law, 88 A.L.R.5th 121 (2001).

On another note, NFLPA will file a grievance against the Giants:

Anonymous william -- 12/04/2008 11:22 PM  

Valuable resource of Plaxico Burress news summaries...

Blogger ng2000 -- 12/05/2008 1:22 AM  


I think the intent of the law is pretty clear when you look at the NY statute in its entirety. Possession of an unlicensed handgun in one's home or place of business is still a violation of NY law-- it is criminal possession of a weapon in the fourth degree and is a Class A misdemeanor. The violation rises to second degree possession (and a Class C felony) if the possession takes place outside of one's home or place of business. So, to answer your question, the legislature did not intend to allow a borrower (or an owner) to possess an unlicensed gun in one's home or business. Such possession is illegal.

And, there's no question that the law is intended to apply to anyone who physically possesses a gun, regardless of whether they purchased or own the gun. I don't see any reason why a gun law would exclude non-owners/purchasers.


Based on the facts of the Burress case as I understand them, I do not think one needs to rely on constructive possession. From what I have read, Burress had actual physical possession of the gun.

Anonymous Gabe Feldman -- 12/05/2008 12:32 PM  


Licensed or Registered by WHO is the question.

Is your interpretation of these statutes that the borrower's fate is based entirely upon whether the owner licensed the gun? Under that interpretation, it would mean that an owner who registers the gun and passes all of the necessary background checks can then give his gun to a bad person who wouldn't otherwise pass the background checks who could then presumably roam the streets with the gun loaded (thus, no violation of the statute because the gun is registered). Seems like a strange result to me.

Or is your interpretation that the borrower in possession is the person required to register that gun, which is impossible for a borrower to do because he doesn't own the gun. So that seems strange to me as well because the statute would be requiring somebody to do something that is not even possible.

Blogger Rick Karcher -- 12/06/2008 8:55 AM  


A person has to apply for a license to possess or carry a gun. If A receives a license to possess a gun in his home or place of business, the license does not extend to B. So, if B borrows A's gun and then keeps it in his home (or carries it around NYC), he is in violation of NY law. So, to answer your questions, the interpretation (by NY courts, not just me) of the law is that a person cannot possess or carry a gun unless he/she has a license to do so, regardless of whether or not someone else has received a license to carry that gun.

Hope that clears things up...

Anonymous Gabe Feldman -- 12/07/2008 7:11 PM  


It may seem like I'm arguing just for the sake of arguing, but your last comment doesn't clear things up and demonstrates why there might be an interpretation issue with this gun law (which is only 2 years old, and as Michael indicated NY case law hasn't really fleshed out the necessary elements). As Michael states in his S.I. article, the statute prohibits "possession of a loaded gun without a proper license outside the home or place of business."

One interpretation would be that it requires the gun itself to be registered or licensed. This interpretation would be consistent with three different statements you made in the two comments before your most recent one whereby you said: 1) "If A buys a gun and fails to register it", 2) "possession of an unlicensed handgun" and 3) "to possess an unlicensed gun". This interpretation would only be applicable to owners/purchasers.

The other interpretation is what you said in your last comment, that this new NY gun statute requires a "license to possess a gun" (meaning any gun, similar to a requirement to have a license to drive a car) and thus would not be limited to owners/purchasers.

Blogger Rick Karcher -- 12/08/2008 7:18 AM  


A few quick responses.

1) I have no problem with arguing for the sake of arguing;

2) The changes in the 2006 law did not create a new offense. Unlicensed gun possession was already a violation. The 2006 changes only provided for harsher penalties (and less discretion for the judge).

3) I can't speak (or type) for Michael, but there's no ambiguity regarding the basic definition of actual physical possession. The possibility raised by Michael (where someone handed Burress the gun and he fumbled it, so perhaps he never physically possessed it) is interesting, but is not the issue you are raising.

4) It seemed that the terminology was causing some confusion, so I tried to be explicit in my last comment. Your third paragraph is correct. NY law (before and after 2006) requires a person to obtain a license to possess a gun in or outside of one's home. Burress did not have a license, and is therefore (under the facts as I understand them) in violation of the statute.

Anonymous Gabe Feldman -- 12/08/2008 12:43 PM  

Joey Porter empathizes with Burress:

"some NFL players feel the need to have a firearm to defend themselves and their families"

Anonymous william -- 12/09/2008 8:35 PM  

A lil off topic, but I was wondering - in the wake of Porter's comments and others regarding players being targets - is there some clause in the CBA or other a legal reason why player salaries are public information?

Anonymous Miranda -- 12/10/2008 11:48 AM  

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