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A lawyer’s take on the charges against Marshon Lattimore

Here are my thoughts on the Lattimore incident.

NFL: New Orleans Saints at Carolina Panthers Bob Donnan-USA TODAY Sports

Just like the coronavirus pandemic made everyone on social media suddenly an expert in infectious diseases, there are a lot of “Twitter attorneys” out there any time anything in the legal world becomes news.

With the news Friday that New Orleans Saints cornerback Marshon Lattimore was arrested in Cleveland, it’s a unique moment where my two worlds - my job as an attorney and my role writing about the Saints - intersect. So here are my thoughts, as both a lawyer and a Saints fan, on the Lattimore news after taking the weekend to digest all of the information out there.

When the news first hit that Lattimore was arrested for possession of stolen property, my very first thought was “gun.” This isn’t necessarily because the arrest was done by the Cleveland gang unit, but rather because of the nature of the crime involved. That’s one of the reasons I put the thought of a gun out there as the “stolen property” at issue before the news actually broke on this point.

So let’s look at all of the facts, make predictions about what happens next, and talk about both the big picture for the Saints and the specific ramifications for Marshon Lattimore.

NFL: New Orleans Saints at Carolina Panthers Bob Donnan-USA TODAY Sports

What are the crimes Lattimore has been charged with?

The first crime that Lattimore was reported as having been charged with was receiving stolen property under Ohio Revised Code (“ORC”) 2913.51.

This law makes it illegal for a person to “receive, retain, or dispose” of property that the individual knew - or had “reasonable cause to believe” - that the property was stolen. This is collectively called “receiving stolen property,” even if the person charged with the crime wasn’t in the act of actually “receiving” it, but was rather simply “retaining” it (meaning it was just in their possession).

But let’s look at the ‘knew or had reasonable cause to believe the property was stolen’ language. Rarely will you have definitive proof a person knows something is stolen. They will basically never admit to knowing something was stolen, and finding text messages or something of the sort that says, “I know this is stolen” is only true in crime TV shows. Instead, a prosecutor is able to prove that a person is guilty of “receiving stolen property” not because the person had actual knowledge of it being stolen, but rather that they had “reasonable cause to believe” it was.

What does this mean? It means that there are some set of facts which exist that, a prosecutor could argue, should make a person believe property was stolen. Let’s think through an example.

In one scenario, you’re going to buy a used car, so you go to the used car lot and the salesperson has the title in-hand ready to sign over to you, two sets of car keys, and a Carfax history report of the car if you’re willing to pay the $10,000 listing price. Nothing fishy there, right? Now in scenario two let’s instead say you find a similar $10,000 car on Facebook marketplace, but the buyer is asking for $3,000. He’s insistent the payment be made in cash, he’s said he lost the title, and he doesn’t have keys, but instead there’s a screwdriver jammed into the ignition that’s used to turn the car on and off.

You can see now there are potential red flags surrounding this second example that should give a reasonable person pause.

Basically, the reason the law says “reasonable cause to believe” is because the law doesn’t want someone to purposefully turn a blind eye to a whole bunch of potential red flags and let them escape criminal liability by simply saying, “Well, no one ever told me it was stolen...” Maybe not, but you should have known it was.

The reason I thought the property involved could be a gun is because, like with a car, there are a lot of potential red flags that could come up during the purchase or acquisition of a handgun. I’m making up facts here and not saying these applied to Lattimore’s case, but maybe the handgun was purchased for a price far below market value. Maybe the seller didn’t run a background check and fill out all of the transfer paperwork required by law. Maybe the serial number was filed off. Those are all just examples, but there is potentially some set of facts out there that make the prosecutor think Lattimore should have had reason to question whether the gun in his possession was stolen.

The second charge against Lattimore is far simpler to explain. He was charged with “failure to notify” under ORC 2923.12(B)(1), which requires a person to promptly notify a law enforcement officer that he or she is carrying a concealed fireman if stopped by police for “a law enforcement purpose.” Basically, in Ohio, if you’re carrying a gun and get stopped by police, you have to promptly notify the officer of the fact that you’re lawfully exercising your right to conceal-carry. Lattimore allegedly did not. You might be asking yourself what exactly “promptly” means under this statute, and if you are, bonus points to you! You’re thinking like a lawyer! Under Ohio law, “[w]hile “promptly” does not mean immediately, it is pretty close.” State v. Lyle, 161 N.E.3d 718 (Ohio 2020).

What are the potential criminal punishments?

Failure to notify of a concealed firearm is a first degree misdemeanor under Ohio law. This carries a maximum possible jail sentence of 180 days and a maximum possible fine of $1,000.00. It would theoretically be possible to be both fined and sentenced to a term in jail. Examples of other first degree misdemeanors would be driving under the influence, domestic violence, and theft of property valued under $500.

The crime of receiving stolen property ranges from a misdemeanor all the way to a third degree felony. Specifically for Lattimore, because the stolen property was a gun, this means it would be a fourth degree felony. A higher degree felony is less severe, so the worst crimes (like murder), would be a first degree crime, and then they go down from there, all the way to a fifth degree felony. A fourth degree felony has a maximum possible punishment of 18 months and a maximum fine of $5,000.

But here’s the kicker: Unlike with the misdemeanor charge, Lattimore’s fourth degree felony charge carries a required minimum sentence of 6 months in jail. My reading of Ohio law is that while a misdemeanor could theoretically result in theoretically 24 hours in jail or even no jail time at all, a fourth degree felony requires, at minimum, a 6-month sentence.

What happens next?

First and foremost, it’s important to remember that under the law, Lattimore is to be presumed innocent until proven guilty. Even if he’s been arrested and charged, it doesn’t mean he’s guilty of any crime. If Lattimore and his attorney(s) so desire, they could have their day in court to try to prove their innocence. It’s also possible charges get dropped before that date ever comes. Lattimore’s attorney has publicly said his arrest was simply “a misunderstanding.”

Lattimore has reportedly waived his preliminary appearance and posted a $5,000 bond.

I’ve seen some takes on Twitter with people commenting that the bond seems low for a football player who makes millions of dollars, but I think they’re potentially missing the point. The purpose of bond is to ensure a person shows up for their required court appearances. Marshon Lattimore is someone who not only has a clean criminal background as far as we know, but he’s also a professional athlete and pubic figure. This isn’t the type of situation where Lattimore disappears and moves to Cuba in the middle of the night. He can’t risk no-showing a court date or risk jeopardizing his entire NFL career. His bond amount is not nearly as effective at guaranteeing his attendance in court as is his status as an NFL player.

There are plenty of reasons why Lattimore and his attorneys could decide it’s best to waive his preliminary hearing. The most obvious reason would be to avoid the publicity of having to appear in court for a preliminary matter with TMZ cameras in his face and questions flying at him faster than opposing wide receivers.

We may never know the strategy involved with this decision, as anything right now is just speculation.

How does this affect his contract negotiations with the Saints?

My guess? Not at all.

I’ve gone on record multiple times and said that Ryan Ramczyk was always the extension priority heading into this offseason, and I don’t think that’s changed.

If anything, the optics of the charges against Lattimore could create a timing issue where, hypothetically speaking, if the two sides were close to a finished contract extension or had already reached an agreement, they would probably wait to announce it until some of the negative press dies down a bit. But otherwise, I doubt the Saints would value Lattimore any differently, and I doubt Lattimore’s camp would sell Lattimore’s service at a discount.

But don’t hold your breath for a new contract announcement any time soon.

Could the NFL issue a punishment?

You know the answer to that.

The NFL could do basically anything they want here. The powers of the commissioner under the collective bargaining agreement are pretty far-reaching. The status of Cleveland’s charges against Lattimore have little bearing on the NFL’s independent investigation.

Overall, though, unless other facts came to light to make this situation look at a worse - which is technically possible - I wouldn’t expect much of anything to come from this. Maybe Goodell and the NFL suspend Lattimore for the first few games of the 2021 season, but I would consider this a worst case scenario.

My predictions

I hesitate to include this section, but I know some of you will read this and ask “Well, what do you think happens in all of this?” And I want to try to give you an answer.

Understand first that I don’t know anything other than what’s already been reported. I don’t have any insider knowledge with Lattimore’s attorney or the district attorney’s office in Cleveland. Any prediction I make is no different than me making a mock draft for the Saints in the 2021 NFL Draft - I’m literally just guessing.

But here’s my guess:

I could foresee Lattimore’s attorney waiving the preliminary hearing primarily as a stall tactic in order to allow for some private discussions between Lattimore’s attorneys and the police department and district attorney’s office. I could see Lattimore agreeing to plead guilty to the failure to notify charge (the misdemeanor) in exchange for having the receiving stolen property charge dropped. I could see Lattimore paying a small fine and going on probation of some sort.

If he pleads guilty to the misdemeanor charge, I could then see the NFL taking action. Remember, while failure to notify of the concealed firearm is a first degree misdemeanor, so too is a DUI. We saw the NFL suspend Saints cornerback PJ Williams two games for a DUI to start the 2019 season, and I could see the NFL similarly suspending Lattimore for one or two games to start the 2021 season based off of this

Again, that is all just my guesswork there, and I’m not necessarily stating that this is “for sure” going to happen. The range of outcomes is still incredibly wide and until we know more facts, all we can do is guess. But hopefully, after reading all of this, you know enough now to be able to make educated guesses of your own.

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