The Persecution of Gilbert Arenas

How gun prohibitionists and an image-conscious NBA scapegoated a basketball star

On December 19, 2009, NBA star Gilbert Arenas and fellow Washington Wizards player Javaris Crittenton got into a heated argument over a card game, exchanging violent threats. (Arenas maintains that his were made in jest.) After Crittenton challenged him to a fistfight, Arenas told his younger teammate he was too old to fight him, but he'd burn his SUV or shoot him in the face instead. Crittenton answered that he'd shoot Arenas in his surgically repaired left knee.

Two days later, before practice at Washington, D.C.'s Verizon Center, Arenas placed four unloaded handguns on the chair in front of Crittenton's cubicle in the team's locker room with a note that read, "PICK 1." 

"You said you were going to shoot me," Arenas reminded Crittenton. "So pick one." Crittenton then flung one of the tendered guns across the floor and withdrew from his backpack one of his own (whether it was loaded is unclear), which he displayed for Arenas, holding it "below his waist and pointed downward," according to the government's proffer of facts. Any tension quickly dissipated, and soon the two were bantering together in the Jacuzzi.

That's what Arenas did. Here are some things he did not do:

• hurt anyone;

• fire a gun; 

• own illegal firearms;

• bring a loaded gun into D.C. or the Wizards' locker room, let alone brandish one in a threatening manner. He didn't even own any ammunition for the weapons in question.

On January 15, 2010, Arenas pled guilty to one felony count of carrying a pistol without a license in the District of Columbia, punishable by up to a $5,000 fine and five years in jail. On March 26, D.C. Superior Court Judge Robert Morin sentenced the player to 30 days in a halfway house, two years of probation, 400 hours of community service, and a $5,000 fine.

The judge got it about right—but only after three months of overkill from the other featured performers in the Arenas morality play: the overreaching prosecutors who pressed to lock him up, the tabloid heckler who mousetrapped the player with reckless smears, and the NBA commissioner who peremptorily wiped out Arenas' season.

You don't have to support gun control laws to see that Arenas committed a stupid act that could have ended far worse than it did. But you don't have to support gun rights to see that he has paid a price grossly disproportionate to his mistake. 

The Law After Heller

Arenas' crime was jurisdictionally specific. His acts would likely have been legal at his home in Virginia, where no license is required to own a handgun and concealed-carry permits are issued based on criteria that Arenas seems to have satisfied. Even in D.C., if Arenas had been found with guns in his home or "place of business," it would have been only a misdemeanor, punishable by a $1,000 fine and/or up to a year in jail. (Counterintuitively, the Wizards' locker room did not qualify as Arenas' "place of business," which D.C. law defines as the place where the owner of an enterprise transacts its affairs.)

In 2008 the Supreme Court's landmark ruling in District of Columbia v. Heller struck at the heart of D.C.'s blanket ban on gun possession. Explicitly recognizing an individual right to keep handguns in the home for self-defense, the majority opinion sowed doubt, among the general public and constitutional scholars alike, about the continuing viability and extent of the city's highly restrictive gun laws. Arenas says he mistakenly believed that as a result of the decision he no longer needed a license to carry unloaded handguns in the city, when in fact D.C.'s post-Heller regulations continued to prohibit public possession of firearms in most situations. In an unusually broad 26-page sentencing memo making their case for a prison sentence, prosecutors ridiculed this "feigned ignorance of the law excuse," noting that Arenas had attended a compulsory November 2009 briefing in which law enforcement officials explained D.C. gun laws to Wizards players.

It's hard to evaluate the efficacy of the briefing—did it, for example, directly address the issue of unloaded guns?—without access to the unidentified (and un–cross-examined) players the prosecution cited as witnesses. But if the new gun rules were as easily mastered and non-controversial as the prosecution implied, why was a special briefing needed to explain them? The Heller ruling and the D.C. government's recalcitrant response to it left the city's comprehensive gun ban suspended in a confused and contentious atmosphere of constitutional limbo. Arenas' misunderstanding of the law could have been feigned—who knows?—but in this shifting legal environment there is surely no reason to assume that it must have been.

There is wide agreement that the D.C. Council responded to the ruling with a minimalist compliance strategy designed to buy time until the Heller majority is supplanted by one more friendly to gun control. By creating formidable bureaucratic obstacles to gun ownership, George Mason law professor Ilya Somin wrote in a 2008 Legal Times article, the District's new regulations "eviscerate the individual Second Amendment right that the Supreme Court has recognized."

D.C. authorities argue that "the right to keep and bear arms" recognized in Heller does not include the right to have guns outside the home. But in keeping with its originalist approach to constitutional interpretation, the Heller majority looked for the meaning of "the right to keep and bear arms" in the ordinary usage of the Framers' day, when "to bear" meant "to carry." In a 2008 Syracuse Law Review article, Cornell law professor Michael C. Dorf wondered why the Framers would have crafted a constitutional amendment to protect the right of citizens to carry firearms from one room to another.

Writing for the majority in Heller, Justice Antonin Scalia sketched out a range of permissible exceptions to Second Amendment rights, including "laws forbidding the carrying of firearms in sensitive places such as schools and public buildings." But "if it were possible for the government to ban all firearms possession outside the home, there would be little point in singling out 'sensitive places,'?" wrote Dorf. "There could be exceptions to the right to public carriage, but a complete ban on carrying firearms outside the home would appear to violate the Second Amendment as understood in Heller." (Dorf isn't grinding an ideological axe here. He personally favors trying to limit Second Amendment rights to possession within the home.)

Taken at face value, the Supreme Court's ruling opened the door to a broad, though not unlimited, right to carry handguns in the District of Columbia, inside and outside the home. And why would Arenas have taken it any other way? Like many of us, he had probably heard or read something about the widely publicized Heller decision—and little or nothing about the inside-page story of the D.C. government's response. Now there may be a broad public understanding of the District's new gun rules. But if so, that's largely thanks to Arenas' own highly publicized arrest and prosecution.

Gilbert Arenas was just what D.C. needed, a celebrity athlete with all the requisite signaling power to drown out the Court's message with one of its own: Heller, schmeller. If we catch you carrying a gun, we'll put you behind bars.

Overreaching Prosecutors

It's a tall order to win a jail sentence for an admired member of the community with no violent prior offenses after nothing more than a nonviolent, jurisdiction-specific offense under an ambiguously worded law in a shifting legal environment. It's less of a reach if he's a bullying, gun-slinging sorehead laughing at his crime with all the arrogance we've come to loathe in the bubble world of sports superstardom. That wasn't Arenas' reputation, but perhaps that could be fixed.

In recommending a jail sentence for the single count of carrying a handgun without a license, prosecutors labored to paint Arenas as an unremorseful offender deceitfully downplaying his guilt. To do this, they pounced on an ill-advised attempt by Arenas to take the fall for his teammate. Early on in the Wizards' own investigation of the locker room incident, Arenas briefly changed an element of his story. In an effort to shield Crittenton—a younger, more vulnerable player—from punishment, Arenas texted a team official: "I'll take full responsibility for everything. I had the guns and nobody else. Javaris wasn't even in the locker room when I showed them."

The altered story, soon abandoned, would not have lessened Arenas' own criminal exposure. He had immediately admitted bringing guns into the locker room and never denied it through multiple investigations. Yet the prosecution argued that in attempting to assume sole rather than shared blame for the incident, Arenas was trying to evade responsibility.

In the prosecution's theory of the case, Arenas was the Wizards' alpha male, bent on preserving his supremacy against all rivals. Accordingly, his actions in the locker room were part of a dangerous, darkly motivated plan to intimidate an upstart benchwarmer. In stubbornly insisting the incident was no more than a "misguided prank," the prosecutors claimed, Arenas was refusing to own up to the seriousness of his crime. Because the act was premeditated, they argued, it must not have been a prank—as if the two concepts are mutually exclusive.

Nor, apparently, can pranks be susceptible to misinterpretation. Although there "may have" been evidence (as the prosecution's grudging formulation had it) that Arenas (among others) was laughing during both the initial verbal sparring over a card game and the later locker room incident, he could not have been joking because some witnesses took his threats literally and Crittenton felt "endangered" in the locker room. "They did not take it as a joke because it was not a joke," the prosecution concluded. 

But chances are witnesses did not take it as a joke precisely because it was. Misdirection—induced misunderstanding—is the essence of a gag. A practical joke briefly sells its victim a false reality, often one that provokes temporary confusion, stress, and even fear, before bringing relief with the reveal: Ha ha, they weren't loaded. Clowns have long understood the uses of instantaneous, involuntary stress aroused by the form of a gun. Hence the gag gun familiar from vaudeville acts: When fired, it ejects a banner that says, "Bang!"

Arenas' guns, though unloaded, were real, not fake. The illusion was too convincing. When the prosecution says "it was not a joke," the argument rings true at first because we recognize that the prank was "no laughing matter." But the phrase "no laughing matter" is not typically applied to, say, divorce proceedings, sick children, or funerals. It's a term of rebuke reserved for inappropriate jokes, pranks, or laughter. 

The worst thing about what Gilbert Arenas did is that he was joking. The prank's main social harm lay in the message it sent: that guns are harmless props to be toyed with while clowning among friends. Those most apt to use guns in imaginary play are children, who don't always appreciate the difference between real and fake, locked and unlocked, loaded and unloaded. Children idolize professional athletes. In its pointless obsession with proving Arenas wasn't joking, the government wasted its best opportunity to salvage from this sorry affair an instructive moral for those most in need of moral instruction.

The mainstream press provided little useful context to help readers gauge the severity of Arenas' offense. In trying to supply some background, a March 23 Associated Press story that appeared in a vast array of print and online outlets only confused matters further. "A survey of similar cases over the last two years in the district indicate [sic] that about half of the defendants convicted of Arenas' crime receive some amount of jail time," the A.P. reported.

The "similar cases," it turns out, were a miscellany of loosely defined "felony gun possession" cases, with wide disparities in the underlying offenses. The sample encompassed cases involving loaded as well as unloaded guns. It also grouped cases in which a gun was used to threaten somebody with cases in which it was not. In other words, it conflated the very sorts of differentiating factors most relevant to judges in weighing whether jail is merited in individual cases. (Judge Morin, for example, cited unloaded weapons and nonviolent intentions as mitigating factors when he decided against jail for Arenas.)

And because it was restricted to felony gun possession, the survey didn't tell us if prosecutors typically opted to prosecute cases like Arenas' as felonies or as misdemeanors. Nor could it have: The number of cases involving unloaded, legally owned guns employed in some kind of bluff, joking or otherwise, would have been too small to yield statistically meaningful patterns. Anecdotal evidence, however, suggests that roughly comparable cases in the District are likely to be settled with misdemeanor convictions on a lesser charge, possession of an unregistered firearm. 

One example of a defendant who pleaded guilty to that charge: Javaris Crittenton. Witness testimony and the logic of Crittenton's own story—he says he brought his gun to the Verizon Center for self-defense—suggest his gun was loaded. But Crittenton denied this (a denial prosecutors seemed eager to credit) and was let off with a year of unsupervised probation. 

The Tabloid Heckler

If Arenas, a sometimes exasperating but often endearingly free-spirited man-child, was recast as an unhinged, gun-slinging score settler, it was thanks largely to a stream of sloppy and sensationalized reporting by the influential New York Post NBA columnist Peter Vecsey and various collaborators. Among the falsehoods that did the most to distort perceptions was his report, published on January 1, that Arenas and Crittenton had actually drawn guns on each other, with Arenas drawing first. (The co-written "exclusive" also incorrectly claimed that the incident took place on Christmas Eve.)

Arenas had real reason to fear the impact such articles would have on the audiences that mattered most to him. The Post quoted Billy Hunter, executive director of the NBA Player's Association, calling the incident "unprecedented in the history of sports" and taking the paper's account of the incident at face value: "I've never heard of players pulling guns on each other in a locker room." Disconcerting words for Arenas, given that the players association would have responsibility for representing him in any NBA disciplinary proceedings. 

Not merely inaccurate, Vecsey's coverage was taunting, the rhetorical equivalent of bear-baiting. In a particularly provocative passage, he gratuitously floated a scenario—betting on NBA games—that would have triggered the lifetime ban he thought Arenas deserved.

Arenas took the bait. In a series of sarcastic Tweets, the Wizards star ridiculed Vecsey's emerging caricature of him and the faulty reporting underlying it. After Vecsey's first story appeared, for example, the player tweeted: "i wake up this morning and seen i was the new JOHN WAYNE…Imao media is too funny."

On January 5, before a game with the Philadelphia 76ers, a smiling Gilbert Arenas was photographed pretending to fire imaginary pistols at laughing teammates gathered around him in a circle. The image and the rest of his behavior that night are properly understood only in the context of his growing obsession with Vecsey's serial smears. 

Arenas received some exceptionally angry heckling and booing during the Philadelphia game, evidence of how badly the playful superstar's image had eroded since the locker room escapade. He, of course, knew the Post's tales of "shocking locker-room gunplay" and a "duel…unprecedented in sports history" were wild distortions. So, it's fair to assume, did his teammates, some of whom had witnessed the prank. By January 5 the Wizards season, disappointing even before the gun episode, was on the verge of unraveling as the result of the incident's ongoing unpredictable repercussions. His teammates must have been studying Arenas' moods and body language: How would their go-to player hold up under the mounting pressure? Their response to this crisis hinged on his.

In a bid to lighten the atmosphere—and with a little prompting from teammates—he reenacted a touchdown dance from Oliver Stone's football movie Any Given Sunday, parodying the two-fisted gunslinger he was not. Arenas and his teammates weren't laughing at fears of gun violence in the NBA. They were laughing at fears of Gilbert Arenas. A nonviolent "goofball" (as the player called himself in one tweet) had been morphed into a hothead who threatened violence to settle gambling disputes. Arenas was laughing, and his teammates were laughing with him, because the revised portrait was simply laughable to those who knew him.

After the Philadelphia game, Arenas told reporters he was less worried about the criminal case, since the legal authorities knew the facts, than he was about league punishment, because, he said with a twinkle in his eye, NBA Commissioner David Stern "is mean." More seriously, he explained, "Most likely he's getting a lot of pressure, because there are a lot of stories going around, to…act before" prosecutors decide whether to bring charges.

The next day, as if in fulfillment of his fears, Stern suspended Arenas indefinitely, saying, "His ongoing conduct has led me to conclude that he is not currently fit to take the court in an NBA game." League sources told ESPN.com that the player's actions and words in Philadelphia had prompted Stern to act immediately rather than let the legal process run its course.

Stern's statement was short on specifics, but there was something chilling about the commissioner's emerging motives. "League officials," ESPN.com reported, "were incensed by the way Arenas mocked the reactions of the media and public toward his behavior on his Twitter page and in comments to reporters—even before Tuesday's actions in Philadelphia." 

With both the criminal and league investigations of what happened in the Wizards locker room still unfolding, the commissioner must have realized that he lacked a solid factual basis for umpiring the dispute between Arenas and his tabloid accuser. Yet with public anger at Arenas cresting, Stern pressed his own thumb on the scales. In sidelining Arenas for mocking the press's distortions, he implicitly vouched for their veracity.

Consequences

Arenas escaped a prison sentence, but he has not escaped punishment. The star has forfeited more than $7 million in salary and lost a shoe contract with Adidas worth an estimated eight figures. He has been stigmatized with a felony conviction. He has been humiliated with publicity proportional to his fame: After endorsing his suspension, his own team excised him from its pre-game video introductions, pulled down a large banner of him displayed outside the arena, stopped selling Arenas jerseys, and (according to press reports) even explored the option of voiding the remaining four years of his six-year, $111 million contract, despite an NBA rule prohibiting punishment of a player by both the league and the team for the same violation.

And halfway houses are not B&Bs. At the Montgomery County Pre-Release Center in Rockville, Maryland, where Arenas was incarcerated, just 5 percent of the offenders were, like him, probationers sent there in lieu of prison, according to Arthur Wallenstein, the county's director of corrections. The other 95 percent were transitioning ex-cons. In the assignment of rooms, which are shared, there is no policy of segregating probationers from ex-cons, some of whom, Wallenstein says, have done "super heavy-duty" prison time.

But it's only in the context of his playing career that one sees the full impact of the punishment imposed on Arenas, a once-dominating force on the court whose skills, charisma, and crunch-time heroics often rivaled those of Le-Bron James and Kobe Bryant. His season-ending suspension fell on a player struggling to come back after having missed virtually all of the two preceding seasons in the prime of his career due to injury. Based on his pre-suspension play this season, where the rust was discernible more in his mental than his physical game, it's reasonable to expect it will take him close to half of next season before returning to form. By that time he will be turning 29, and at that age his performance probably will not return to peak levels. 

The effective loss of a season translates to perhaps 20 percent of Arenas' remaining career, maybe even more for a player with surgically repaired knees whose game depends on lightning quickness. Barring a trade—and who wants a rusty felon with an injury history and $72 million left on his contract?—Arenas will be starting over on a rebuilding team whose management has soured on him. As an already disappointing season disintegrated altogether following the loss of its star player, the Wizards blew up the once playoff-contending core that they had been patiently assembling for years, trading away their two other stars in midseason. With the team's hopes for the future vested in its number one pick in the NBA draft—likely to be John Wall, who plays Arenas' point guard position—Arenas now represents the unfulfilled expectations of its recent past.

Just imagine if his guns had been loaded.

The previous sentence is purely rhetorical. NBA Commissioner David Stern already has a track record of punishing offenses involving loaded guns, even the firing of shots. In those cases, transgressors were punished far less severely than Arenas.

The Arenas suspension is, believe it or not, the third most drastic non–drug-related suspension in NBA history, trailing only those meted out to two of the league's more notorious reprobates: 68 games to Latrell Sprewell, for choking his Golden State Warriors coach P.J. Carlesimo, and 86 games to then–Indiana Pacer Ron Artest, for triggering a near-riot at a Detroit Pistons home game when he ran into the stands and punched a fan he erroneously believed had flung a cup of Diet Coke at him.

In designing measured punishments, one compares offenses and offenders, weighing personal factors such as character and disciplinary history. Gilbert Arenas did have a previous offense on his record: a similar 2003 misdemeanor conviction for failing to obtain California registration for a gun he'd legally owned in neighboring Arizona. He is eccentric, impulsive, and childlike; a serial prankster; his own worst enemy. But comparing Gilbert Arenas to Latrell Sprewell or Ron Artest is like comparing Inspector Clouseau to Inspector "Dirty Harry" Callahan.

Previously, the longest NBA suspension for a gun-related offense lasted all of seven games. It was imposed on Stephen Jackson after he pleaded guilty to a felony count of criminal recklessness for firing five shots near an Indianapolis strip club in 2006, while he was a member of the Indiana Pacers. And this followed Jackson's 30-game suspension in 2004 for charging into the stands with Artest and throwing punches at fans.

More recently, in April 2007, Sebastian Telfair was arrested in New York after police found a loaded .45 caliber handgun under the front passenger seat of his car. He had been driving 77 miles per hour in a 45-mph zone with a suspended Florida license. After Telfair pleaded guilty in October 2008 to criminal possession of a weapon, the NBA suspended him for three games.

If the Arenas suspension was just about guns and, as Stern put it, the "health and safety of our players," how on earth can it be squared with the commissioner's hands-off response thus far in the case of Cleveland Cavaliers guard and D.C. native Delonte West? Last September, just months before the Arenas incident, West, driving a three-wheeled motorcycle, was pulled over on the Capital Beltway by a police officer he'd cut off in traffic. West, who has been treated for bipolar disorder, was carrying three loaded guns: a 9-mm Beretta in his waistband, a Ruger .357 magnum strapped to his leg, and a shotgun in a guitar case slung over his back while he was driving. But he has yet to lose a single game to league punishment. His trial on weapons charges has been repeatedly postponed, most recently until July 21, and Stern is awaiting the outcome before acting, as he usually does when a criminal case is pending.

As NBA commissioner, Stern is indeed charged with policing this area. Under rule 9a of the sweeping new gun restrictions added to the league's 2005 collective bargaining agreement, he is arguably bound to punish gun possession on league grounds or league business with special severity—and the Jackson, Telfair, and West cases reviewed above each took place, unlike Arenas', off-campus and off the clock. But Stern has been erratic even in enforcing rule 9a. In 2006, Telfair—him again—was suspended just two games and fined after a loaded pistol registered to his girlfriend was found in his pillowcase aboard the team plane. 

The Arenas suspension seems even more incommensurate relative to recent punishments for dangerous offenses unrelated to guns. For example, Phoenix suspended Jason Richardson for just one game after he was arrested for driving 95 miles per hour in a 35 mph zone with an unrestrained 3-year-old in the back seat. Later the same year, after his wild ride, the NBA suspended Richardson two games for a DUI bust the previous December. And the league suspended the Denver Nuggets' J.R. Smith just seven games after he pled guilty to reckless driving in an incident that resulted in the death of a passenger in his car. His previous driving record had included five license suspensions in one recent period of less than a year.

The Scapegoat

In his exchange with the press following the Philadelphia game in January, Arenas made a telling remark that attracted relatively little notice. "I've looked at some of the other charges that have been brought against other people, and they were [suspended for] three to five games," he said, according to NBAFanhouse.com.

Arenas had obviously done his homework. In studying David Stern's record, he understandably assumed his own punishment wouldn't be very severe, since there was a consistently wide gap between the commissioner's anti-gun rhetoric and his disciplinary actions. As it happened, someone else was raking over that dubious record in the first week of January and posing some embarrassing questions about it: Peter Vecsey.

In a January 3 column, the columnist derided that "measly 3-game suspension" given Sebastian Telfair for bringing a loaded gun aboard a team flight. (It was actually an even measlier two-game suspension.) "What happens if a fight gets out of hand on a plane at 30,000 feet in today's heightened hostile world," Vecsey wondered, "and a loaded gun is brandished…and used?" 

And what was to stop Delonte West, still untouched by league action, from sneaking guns into the arena "and, on a particularly moody blues day," Vecsey needled, "blasting everybody in sight?" Were players subject to bag inspections and metal detectors like everyone else, he demanded, or were they allowed to "waltz past guards at the door because they are who they are?"

It seems likely that such questions were receiving too much public attention for Stern's liking. An emerging story line needed to be nipped in the bud. Before he stood revealed as a paper tiger, Stern needed a scapegoat. Arenas fit the bill.

You can question Stern's fairness and wisdom in the Arenas case, but you can't question his authority. Under league rule 35d, Stern is free to punish any word or deed he deems "prejudicial or detrimental" to the NBA. Explaining the drastic suspension to reporters in a January 27 conference call, Stern admitted that while it was partly about "health and safety," it was also about "the overall image of our players."

Under this subjective standard, Stern had sufficient cause to punish the besmirched and isolated Arenas with a severity completely out of proportion to his offense and in defiance of all relevant precedent. Gilbert Arenas became a symbol of liberal fears about the spread of guns and conservative disgust with cosseted, anti- social pro athletes who think they're above the law. Those two blocs turned in tandem against Arenas, who became an all-too-convenient whipping boy.