This is the first piece from Jordan McNamara, a lawyer who will be contributing pieces on the legal ramifications of off-field actions by football players for ITP.
Reuben Foster was formally charged on April 12, 2017 by the Santa Clara County District Attorney’s Office for his involvement in a domestic violence incident with his girlfriend in February. The District Attorney’s Office noted in a press release, Foster faces three felony charges:
- Domestic violence with an allegation that he inflicted great bodily injury
- Forcefully attempting to prevent a victim from reporting a crime
- Possession of an assault weapon
A fourth charge, possession of a large capacity ammunition magazine will be dismissed by the District Attorney’s Office on legal grounds.
The press release noted the Foster’s maximum exposure is 11 years.
What to Take Away
Foster will not do 11 years in prison for this incident. However, Foster is in significant trouble.
Domestic violence cases are notoriously hard to prosecute. The crimes usually take place in private and rarely have witnesses. At the same time, the victim has a romantic interest with the perpetrator. As a result, they may be hesitant to call the police, and when they do, they often will not wish to cooperate with the prosecution.
As domestic violence cases go, based on the public reporting, this is a strong case for three reasons. First, the victim promptly called the police. Prompt complaints, while not themselves proof of an incident, tend to make investigations better. If the victim has marks, or injuries, law enforcement can corroborate the victim’s account of the events. Also, when a victim promptly reports an incident, there is less ability for the perpetrator to say the allegation is fabricated.
Second, the victim was injured and treated for a ruptured eardrum at a hospital. This provides physical proof there was an injury to the victim and likely corroborates her account of the events. Injuries tend to make charges more serious and easier to prove by prosecutors or the NFL.
Third, Foster was charged with possessing an assault weapon. This is significant, because even if the victim becomes uncooperative, the prosecutors can still prosecute Foster for the weapon possession. The weapon was likely discovered based off a search of the resident with some form of consent by the victim or a warrant based on her account of the incident. Either way, the search is not invalidated if she later becomes uncooperative.
While Foster has not been clean off the field, he does not have any reported criminal convictions. This is important because he could be eligible for diversion programs. For example, such programs could include domestic violence classes, anger management classes, or counseling. In fact, this was the resolution of the Ray Rice elevator incident.
Even if Foster does not take part in diversion program, incarceration is not a likely outcome of this case. If Foster pleads guilty, he likely faces some type of probationary sentence.
Foster’s problems on the NFL front are two-fold. First, the 49ers are not allowing him to participate in team activities while the legal process is ongoing. Second, even if the 49ers welcome Foster back, he is likely going to be suspended under the NFL Personal Conduct Policy. The punishment for a first offense is six games, with the flexibility to modify the suspension for aggravating or mitigating circumstances. The aggravating circumstances under the policy include “repeated striking”, which is a possibility given reports Foster struck his girlfriend “eight to 10 times.”
It is important to note that even if Foster does take part in a diversion program or for some reason he is acquitted of these charges, that does not prevent the NFL from suspending Foster.
The best-case scenario for Foster would be to enter a diversion program, show contrition and accept a six-game suspension with the hope the 49ers are willing to allow him to return to the team. A worst-case scenario for Foster would be an extended legal proceeding which keeps him away from the 49ers. The NFL could view such a scenario as the time to deem these aggravating circumstances and suspend Foster for more than six games. Such a scenario could complicate his future with the 49ers. If he is cut by the 49ers, he will have a hard time finding work in free agency.