The Enemy of My Enemy is My Friend

By Michele Hanisee

I’m not usually one to cry out for the assistance of the ACLU, defense attorneys, or “civil liberties activists” – but where are they when you need them?  Lt. Governor Newsom’s Safety for All initiative would adversely impact law abiding gun owners, but it would also strip criminals of their Constitutional Rights.  So where is the outcry from the defense bar?  Or from the ACLU?  This initiative proposes to suspend the Fourth and Fifth Amendments to the Constitution for individuals charged with unlawful possession of a firearm.  Yet the liberals — who generally care more about the rights of criminals than law abiding citizens –remains strangely silent.  Do they just not know what this initiative does?

Here is a brief summary of the particularly unconstitutional bits.

The initiative language states that a court, upon a conviction of a prohibited person shall “Require the defendant to declare any firearms that he or she owned, possessed, or had under his or her custody or control at the time of his or her conviction and require the defendant to describe the firearms and provide all reasonably available information about the location of the firearms to enable a designee or law enforcement officials to locate the firearms.”

Adios, Fifth Amendment privilege!  A defendant is just supposed to tell the court and government about all the other guns he / she possesses regardless of whether they are illegally possessed, stolen, have obliterated serial numbers, or were used in a crime.  There is no immunity from prosecution if those additional weapons are evidence of crimes other than the one defendant stands convicted of.

Moreover, the initiative goes on to say, “If the court finds probable cause that the defendant failed to relinquish any firearms as required, the court shall order the search for and removal of any firearms at any location where the judge has probable cause to believe the defendant’s firearms are located.”

Adios Fourth Amendment!  There is no need for pesky search warrants filed under oath!  A probation officer’s report is more than enough probable cause to conduct a search of a private residence.  Staleness?  Who cares!  If the defendant isn’t convicted until four years later – let’s search his / her last known residence anyway.  And judicial neutrality is treated as a mere inconvenience and kicked to the curb in favor of direct judicial instigation of searches of private property.

The ACLU, defense bar, and those who “cherish civil liberties” have been engaged in a full court press to reduce incarceration, remove penalties for repeat criminals, and critical of powers granted police.  Yet, strangely, when an initiative eviscerates constitutional protections, and imposes new criminal penalties for what has heretofore been law abiding conduct, there is silence from that crowd.

As a prosecutor, I might be expected to support new laws which claim to advance public safety and grant new powers to the prosecution.  However, in this case, I oppose Newsom’s initiative because it tramples on the rights of the law abiding while doing nothing to advance public safety.  When you add to that the wholesale evisceration of Constitutional rights of those who have been convicted of a crime, it is shocking not to see the ACLU and defense bar standing shoulder to shoulder with me in opposing this initiative.  The integrity of our judicial system is rooted in our Constitution and in the concept that society as a whole is better off with a system that protects the rights of the individual against a tyrannical government.  This concept that society is clearly better off with laws that protect individual rights, including the rights of those who comprise a minority of the whole, is clearly lost on Lt. Governor Newsom  If ever there was a law which both prosecutors and defense attorneys could proudly oppose, the Newsom initiative is it.

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