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Posted: Tuesday December 2, 2008 5:14PM; Updated: Wednesday December 3, 2008 8:27AM
Michael McCann Michael McCann >

Burress faces uphill battle in court

Story Highlights

Plaxico Burress was charged with second-degree criminal possession of a weapon

NYC Mayor Michael Bloomberg has urged he be prosecuted to fullest extent

Letting Burress off could water down New York's tough new gun law

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Plaxico Burress' accidental shooting and subsequent arrest for gun possession has dominated news the past few days.
Getty Images

A day after New York Giants receiver Plaxico Burress was charged with second-degree criminal possession of a weapon, the public's interest in his legal woes has only grown. Why do we care so much about Burress' alleged crime -- a crime of mere possession for which no one but Burress was hurt -- and how might that level of attention affect how the law treats Burress?

Consider those questions from the lens of three audiences implicated by Burress' alleged behavior: New York City Mayor Michael Bloomberg; NFL commissioner Roger Goodell and Giants' owners John Mara and Steve Tisch, and advocates for firearm ownership rights.

Based on his comments over the last 24 hours, Bloomberg seems to think that he has much at stake in how the legal system treats Burress. As I see it, Bloomberg has at least two compelling reasons to demand that Burress be treated as any other defendant.

First, there is a widespread belief among the general public that athletes, and more generally celebrities, receive preferential treatment in the justice system. The last 15 years have provided numerous examples of perceived favoritism. For many Americans, the not guilty verdict in the O.J. Simpson murder trial represents the most glaring example. Albeit it less serious circumstances, other players and ex-players have likewise received what some consider "kid glove" treatment by courts and, more generally, the legal process. Bloomberg is likely aware of that public sentiment and his stern comments about Burress needing to be prosecuted "to the fullest extent of the law" probably reflects that awareness.

Second, the credibility of New York's new law on possession of a loaded gun without a proper license may be largely influenced by whether Burress is prosecuted -- to borrow Bloomberg's phrase -- "to the fullest extent of the law." Prior to the change in the law in 2006, prosecutors were required to show that the defendant intended to use the loaded gun unlawfully against another person. Since the change, mere possession counts as a felony commanding a sentence of at least three-and-half years in prison. The state of New York, and Bloomberg himself, received much attention for this change in law, a change that was premised on the belief that possession of unlicensed loaded firearms increases the likelihood of crime, and thus possession itself should warrant a stiff penalty. If Burress were to escape the reach of this relatively new law, be it because of his celebrity or because some persons may be uncomfortable with an individual being sentenced to three-and-half years in prison for a crime of possession, critics may wonder whether this law should be reconsidered and possibly amended.

The NFL and the Giants also have a stake in how the legal system treats Burress, as well as in how the public reacts to that treatment. Players feeling as if they were "above the law" offered a leading rationale for the NFL's adoption of the personnel conduct policy in 2007. Although the vast majority of NFL players appear to be law-abiding and good citizens, a small group of deeply troubled players, including Adam "Pacman" Jones, Chris Henry, and Tank Johnson brought much disrepute to the league in 2006 and 2007 and jeopardized the public goodwill long cultivated by the league. With the approval of the National Football League Players' Association, the NFL enacted a policy that empowers the commissioner to sanction any player whose conduct is "detrimental" to the league, with "detrimental" determined by the commissioner. Given the intensifying public outcry over Burress, commissioner Goodell is likely evaluating whether immediate action against Burress is warranted -- such as a suspension for the remainder of the season -- even though Goodell knows that Burress is innocent until proven guilty.

The Giants are in a similar boat. Less than a year removed from a stunning victory in the Super Bowl XLII, the alleged actions committed by Burress, and perhaps also Antonio Pierce, threaten to tarnish the Giants' much improved image and also distract an 11-1 team poised to repeat as Super Bowl champions. Those considerations may lead the Giants to release Burress, or to suspend him indefinitely.

The broader issue of legal restrictions on gun possession offers a third and final lens from which to view the alleged crime committed by Burress. In a controversial ruling earlier this year in District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment guarantees the right of individual U.S. citizens to keep and bear arms while at home. The decision was a victory for advocates of firearm ownership rights and those who believe that U.S. citizens should be able to protect themselves through possession and use of guns. Although Burress' alleged possession of a gun concerned possession outside of his home, Burress may argue that the spirit of Heller nonetheless justifies his decision to carry a gun: he had a gun because he felt that he needed protection. Although advocates for firearm ownership rights may distinguish Burress from other gun owners, the law being used to prosecute Burress is one that advocates for firearm ownership rights likely disfavor, and thus Burress bringing light to the law may offer those advocates a stake in the story.

At the end of the day, however, the reactions of the public and interested parties to Burress' situation will be trumped by the legal realities of the situation: assuming the prosecution can prove, beyond a reasonable doubt, that Burress possessed the gun, the New York law is painstakingly clear: possession of a loaded gun without a proper license outside the home or place of business is a Class C felony which warrants a prison sentence of at least three-and-half years.

Along those lines, the apparent strength of the prosecution's case against Burress, coupled with the unmistakable views of Bloomberg, would seem to diminish the need for prosecutors to seek any kind of plea deal, such as Burress pleading guilty to a less serious degree of criminal possession of a weapon (Burress has been charged with the crime in the second degree, which is a felony requiring at least three-and-half years in prison; a plea to the same crime in the fourth degree would only warrant a misdemeanor and a maximum prison sentence of one-year), or pleading guilty to obstruction of government administration, which refers to efforts to impede the process of legal justice and which can be a misdemeanor. Indeed, if the prosecution's case against Burress for criminal possession of a weapon in the second degree is as air-tight as we have been led to believe, then for Burress to be prosecuted on lighter charges could cause the public to lose confidence in the legal system. Legal Analyst Michael McCann is a visiting law professor at Boston College Law School, a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

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