January 6, 2010

Gilbert Arenas Gun Charges, Jail Time, and Indictment - Legal Analysis

So obviously Gilbert Arenas doesn't get it based upon his little pregame dance last night, despite his carefully-scripted apology issued by his attorneys ...errr, I mean... him... earlier in the day.

Driving into work this morning, I heard none other than ESPN's favorite legal "expert" Lester Munson offer "expert insight" into the criminal sanctions which Gilbert Arenas could face. I thought to myself, "Gee whiz, who better to listen to about the District of Columbia's complex gun laws than somebody who is licensed to practice law in the State of Illinois (not in the District of Columbia) and whose license has been suspended on no less than three occasions (not counting other investigations which did not result in formal grievance charges).

Some of you may know by now that in addition to being a blogger-by-hobby, I am a full-time attorney by day (and sometimes night and sometimes weekend). I also happen to be licensed to practice in the District of Columbia. So, Lester Munson, eat your heart out... I'm ready to give some actual legal analysis of what Gilbert Arenas could be facing. Even though I'm not a criminal attorney, I'm at least licensed to practice law in the jurisdiction where Arenas is facing indictment and am familiar with that jurisdiction's laws.

Two things are undisputed: (1) Gilbert Arenas brought weapons (classified as "pistols" under D.C. Code Section 22-4501(a) becaue they are under 12 inches in length) into the Wizards locker room at Verizon Center; and, (2) Gilbert Arenas did not have a license issued by the District of Columbia to carry these weapons.

The catchall D.C. law prohibiting the carrying of unlicensed firearms reads as follows:

"No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law." (D.C. Code 22-4504(a)).

Persons who are found guilty of this crime are convicted of a misdemeanor and face a maximum $1,000 fine and/or 1 year in prison.

However, if you are not licensed to carry a firearm and you carry that firearm outside of your home or place of business, you face a much stiffer penalty and a felony conviction:

"No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law [and] a person who violates this section by carrying a pistol, without a license issued pursuant to District of Columbia law... in a place other than the person's dwelling place, place of business, or on other land possessed by the person, shall be fined not more than $5,000 or imprisoned for not more than 5 years, or both." (D.C. Code 22-4504(a)(1))

All accounts are that Arenas had four guns in his locker. Therefore, he could be indicted for four counts (one for each weapon) of either of the above offenses. Therefore, in his best case scenario, assuming he is indicted by the grand jury, he is looking at a minimum indictment on 4 misdemeanor counts seeking a total of a $4,000 fine and/or 4 years in prison. There would very likely be no prison time based upon a plea deal.

If, however, the U.S. Attorney's Office (responsible for prosecuting crimes in the District of Columbia because D.C. does not possess statehood and its own prosecutorial agency) goes for the home run indictment, which all indications point to them doing, they will attempt to get a grand jury to indict Agent Zero for a violation of the second statute listed above for each weapon, which is Arenas' "doomsday scenario." If such an indictment comes down from the grand jury, Arenas would be looking at a four-count felony indictment seeking a $20,000 fine and/or 20 years in prison.

Therefore, if you've read the above carefully (and noticed the highlighted bold type), you can already probably guess what I believe Arenas' legal troubles hinge on - whether his locker room at the Verizon Center will be construed as his "place of business." If it is construed as his place of business, he would face the lesser penalty. If it is not construed as his place of business, he would face indictment on four felony counts and the significantly steeper 20/20 maximum sentence. Obviously whether or not the locker room is his place of business is debateable (and one of the reasons why being a lawyer can be fun). One would likely immediately argue that the Wizards locker room at Verizon Center is Arenas' "place of business" as it is the location where he earns his primary income and engages in regular vocation. However, on the other hand, an equally persuasive argument can also be made that it is not his "place of business" as a very quick review of D.C. law by yours truly demonstrates that the "place of business" exception generally applies to those who own the business and not the employees of that business (i.e. the storeowner who keeps a gun under the counter of his corner carryout in case he gets robbed - not the guy in the back who is flipping burgers at the corner carryout).

I hope this sheds some light on the issue and remember, when in doubt, never, ever, ever listen to a "legal expert" on the Worldwide Leader in Sports.

22 Responses:

riccardino said...

Great Work. He shows no common sense and no remorse, and thinks it is a big joke.

Anonymous said...

Gilbert wasn't "carrying" a gun on his person, so the statute you cited may not apply.

Jeremy said...

I would agree that you are correct that he was not "carrying" a gun on his person at the time the guns were found, but of course, the argument of the U.S. Attorney's Office is that undoubtedly by virtue of the guns coming into the locker room (and by virtue of Arenas' own admissions), he had previously "carried" the guns on his person into the District of Columbia. I think that you raise a likely defense but I don't think it will be a successful one - in general, in the District of Columbia, unlicensed gun possession is a strict liability crime, even though it can be punishable as a felony. D.C. has extraordinarily tough gun laws.

Brien said...

Are they likely to pursue assault charges? Isn't there a big difference between carrying a gun and pointing it at someone in a threatening manner?

Anonymous said...

Another issue is whether Arenas's locker (I assume he has a key for it) could be "other land possessed by the person."

Jeremy said...


It's possible, but unlikely. I can't imagine that the government would want to put themselves in a position where they are calling other Wizards as witnesses to what took place, given both the circus that would take place, and given the fact that it is very unlikely that teammates of Arenas would cooperate. It seems far more likely that they will proceed on weapons charges because they have plenty of evidence already from Arenas' idiotic Tweets and other admissions.

But just as an FYI, here are the crimes and penalties for assault:

DC Code 22-402: Assault with a Dangerous Weapon - 10 years

DC Code 22-404: Assault or Threatened Assault in a Menacing Manner - $1,000 fine/180 days

The latter primarily has to do with stalking. However, it seems applicable to the facts, as we know them.

Jeremy said...

Anonymous 2:

"Land possessed by the person...."

Well what would be interesting in that analysis is what Arenas' interest is in the land. There is no question that he does not own the land that the locker sits on, nor does he even own the locker himself. He seems to have been issued a license to use the land.

Let's put a parallel to this - say that you have membership in a gym and you bring your unlicensed gun with you to the gym in your gym bag. You put the gym bag in your locker at the gym, you put your Master padlock on the locker. Somehow (and let's not think about how because, like so many law school hypotheticals, you'd have to suspend belief), the gun is discovered in the locker.

Now, you were invited to use the locker. You had purchased a right of membership at the gym. You did not have a leasehold interest or any other interest in the locker other than a license to use from the gym. I think you'd have a hard argument that the gym locker is "land that you possess."

Similarly, Arenas was given a license by the Washington Sports and Entertainment (the body that owns Verizon Center) to use the locker. I don't think he could argue that he "possessed" the locker, even if it was under lock and key. I don't think that Washington Sports and Entertainment ever intended to give him a right of possession of the locker - just a right to use.

Novel argument, but I don't see it holding water.

Nick said...

Jeremy, if the prosecutors are going to argue that Gilbert must have 'carried' the gun to his locker, than they would undoubtedly argue that he 'carried' the gun outside of the arena as well. This of course is a slightly ridiculous argument because it would make the house/business exceptions irrelevant since every gun must be carried to a house or business.

Anonymous said...

Aside from the weapons charges, Plaxico Burress was charged with reckless endangerment in the second degree.

I assume Agent Zero will be charged with something similar?

On a side note, who needs 4 guns? He must have been handing em out in the locker room.

Jordan said...

Will the fact that the NBA has it's own ban on guns in NBA arenas have any bearing on this outcome? I mean, it clearly states in the NBA rules that players are not allowed to have guns at the arena. Thanks for the great post. Very informative.

Justin said...

Thanks for the piece enjoyed it quite a bit. Tracee Hamilton had a good one on WP although not the legal stuff. http://www.washingtonpost.com/wp-dyn/content/article/2010/01/07/AR2010010702504.html

She did end with the point I see most people missing, that he is in more trouble because he opened his mouth an admitted guilt than anything else. Which brings me to my question...does any proof actually exist other than hearsay and teammates eye witness accounts? If the teammates do not corroborate that he had guns would there be any legal case at all? I heard the apologies for doing something but I didn't know if they actually included admitting guilt.

Jeremy said...


At various points in his Tweets, he has admitted that the guns were his and that the guns were in the locker room. That seems to me to be enough of an admission to at least some crime because you're either licensed or you're not licensed - you don't admit to that. He's unlicensed. He's admitted to guns. He's admitted to where said guns were. Now it's a question of law as to whether he gets hit with the misdemeanor or the felony.

Anonymous said...

Look - this is a stupid waste of legal resources. Like there aren't dealers in DC that can be dealt with?

I'd tell Arenas he ditches the guns, never owns again and does a boat load of community service announcements about how stupid he was and how un cool guns are. Where is the social good in putting Arenas in jail or out of the NBA?

Big Papi said...

How many of you assholes have ever been in a situation like Gil, you know, multi-millionaeir athlete? Well, until you have or unless you were in the locker room, keep you punk ass comments to yourself. I guarantee none of you mutts would say this bullshit to Gil's face. I think all of you are a bunch of bitches.

avikorn10 said...

I don;t know very much about law but what about attempt to commit murder? isn; that a factor here?

Anonymous said...

Can you comment on his mental state? Stern left a lot open for interpertation with his "not being fit to play" in the NBA. I mean, that's saying a lot--when u consider how much the NBA has tolerated ah la Dennis Rhodman. Any knowledge on if he is Bipolar and just going through a manic phase? I root for him. I like the guy.


Jeremy said...

Nobody knows anything about his state of mind. However, because the D.C. gun charges described in the blog post are strict liability crimes (i.e. just by committing the act itself you are guilty), as opposed to specific intent crimes (i.e. first degree murder must be premeditated), his state of mind wouldn't be a defense to having committed the crime of unlicensed weapons possession. That being said, entirely assuming that he was manic depressive, and assuming that he was going through a manic episode, that would be used as mitigation at sentencing.

But these are incredible hypotheticals that are out there. There is absolutely no evidence of any form of mental disorder (aside from stupid Tweet-itis) nor has anybody really speculated as to that. I just address it because it's an interesting question that I find a lot of people ask about generally in the criminal law context.

Based upon all of the evidence and descriptions of the events that were made public, Arenas did not brandish the weapons in a threatening way, nor did he take any affirmative steps towards committing the act of murder such that he could be charged with attempted murder. Generally speaking, to be charged with an attempted crime, you have to take at least some actions consistent with the crime itself but not commit the crime itself (i.e. take some substantial actions that would be consistent with murder or further the completed act of murder such as firing the weapon, but not actually carry out the murder). That's just not in play here.

Roger said...

Thank you for providing information on the actual criminal charges Mr Arenas

Anonymous said...

Has District v. Heller actually changed any of DC's gun laws? And further, in any way that would be relevant to Arenas's possessing them?

Anonymous said...

What about reckless endangerment? If he indeed pointed the weapon at Jarvis C. and there were others in the locker room when this incident occurred, why hasn't anyone brought this topic up? Whether or not the weapons were loaded, seeing them would have brought fear to anyone.

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