In order to feel secure, are we throwing away our freedom?By Ben Rosenfeld
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.
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/11/14/EDGJJFN1HQ1.DTL.
