a liberal gets it!!!!!!!!!
Date: Nov 16, 2005 11:13 PM
In order to feel secure, are we throwing away our freedom?
- Ben Rosenfeld
Monday, November 14, 2005

I’m not an NRA member or gun enthusiast. I have never owned a gun and probably never
will. But I voted against San Francisco’s Proposition H. As a civil-rights attorney,
I am alarmed by people’s increasing willingness to give up other people’s rights.
This tendency is at the root of the country’s post-Sept. 11 lurch toward fascism,
epitomized in Patriot Act provisions that gut First, Fourth, Fifth and 14th Amendment
rights, authorizing government intrusions into people’s homes and private lives
as never before, all in the name of security.

Government officials assure us that they only use these awesome powers against the
“bad guys,” ignoring the fundamental principle that bad guys have rights,
too, including not being presumed to be bad guys, until proven so in court. Meanwhile,
the Washington Post reports that since the enactment of Patriot Act, the federal
government has quietly issued more than 30,000 “national security letters”
to banks, libraries and schools, demanding private details about people’s lives
without ever having to consult a judge or obtain a warrant.

The origin of a police state in this country, I believe, is this: We gradually exchange
a rights-based system, in which governmental power is limited by law, for a paternalistic
one, in which we may all be arrested for one thing or another, but authorities forebear
from doing so, or intruding in our lives, until they subjectively brand us “bad
guys.”

This is not hyperbole. In 2001, the U.S. Supreme Court held in Atwater vs. Lago
Vista that police could arrest a mother driving her children home from soccer practice
for failing to buckle their seat belts — despite the fact that, under Texas law,
the maximum penalty for the offense was a mere fine — as well as impound her car
and take protective custody of her young children (luckily, a friend came to pick
them up), without violating the Fourth Amendment’s proscription against unreasonable
seizures.

This year, in San Francisco, U.S. District Court Judge Martin J. Jenkins applied
Atwater in throwing out a civil false-arrest claim against SFPD officer Alex Fagan
Jr., the son of former SFPD Chief Alex Fagan at the center of the “fajitagate”
imbroglio that triggered the passage in 2003 of Proposition H, reforming the Police
Commission. Judge Jenkins held that because the claimant, James Henry Washburn Jr.
– who also accused Fagan Jr. of tackling and injuring him — began crossing a street
against a red light in the officer’s presence (before catching his mistake and stepping
back to the median), the officer had probable cause to arrest him for obstructing
a public street.

Under such an analysis, most of us break the law and are subject to arrest several
times in the course of a single day, for such petty offenses as jaywalking (or just
veering out of a cross walk), posting a lost-cat flyer on a utility pole, walking
the dog in a park after hours, or feeding the pigeons on a bench. This allows police
nearly carte blanche to pick their targets, based on any criteria they choose, because
another, ignominious U.S. Supreme Court case, Whren vs. U.S., held in 1996 that
a police officer’s subjective reasons for making an arrest are irrelevant to the
probable cause inquiry.

Thus, a wholesale ban on handguns in San Francisco — in addition to violating a
constitutional amendment that has no lesser standing than any of the others, despite
a majority of San Franciscans’ low opinion of it — simply creates another status
crime that law enforcement officials can use to stop and question people, detain
them, invade their homes and leverage all of these encounters by threatening people
with jail time, deportation or other sanctions, merely because they possess — or
a police officer or federal agent suspects they possess, or simply pretends to suspect
they possess — a handgun.

Perhaps we will have to keep throwing away rights that matter more to other people
for a time, until we realize that we are throwing away our own rights in the process.
Only then will we start to create a society truly founded on principles of equal
protection and mutual support.

Ben Rosenfeld is a civil-rights attorney in San Francisco.

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URL: http://sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/11/14/EDGJJFN1HQ1.DTL