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TAKING THE FIRSTtm
TAKING
THE FIRSTtm is a brand new commentary column
written by Martin C. Brhel, Jr. This allows him to vigorously
exercise his free speech rights, guaranteed by the First Amendment
of the United States
Constitution.
If accused criminals
can "take the Fifth," without fear of reprisal, retired prosecutor
Marty Brhel believes he can exercise another sacred Constitutional
right, just as equally, by "taking the First." President Abraham
Lincoln said it best many years ago: "...it's a sin to remain silent
when it's your duty to
protest..."
TAKING THE
FIRSTtm makes its official debut this month.
And, every month, a new commentary column will replace the current
one.
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Here's the inagural edition of
TAKING THE FIRSTtm. I hope you enjoy
it!
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Gangbangers...Right or
Privilege?(c)
Here's
something I've learned along the trail as a lawyer. If it's not a
right, it's a privilege. The constitutionally protected rights I
refer to herein spring from the United States Constitution.
Privileges, on the other hand, are granted by folks like lawmakers,
in the form of statutes. "So," you wonder, "what's the difference in
real life terms?" Let me
explain.
Are you familiar with the
Bill of Rights? It lists the first ten rights spelled out in the
U.S. Constitution. Included are such rights as freedom of speech and
religion, the right to keep and bear arms, freedom from unreasonable
searches and seizures, the right to due process of the law, right to
counsel, and so on.
Privileges are
not protected by the Constitution. In this bundle, we find things
such as the privilege to operate a motor vehicle. The California
Department of Motor Vehicles, or its equivalent in your state,
regulates your privilege to operate a motor vehicle. This means the
state that issued your driver's license can also take it away. So,
what does this have to do with
gangs?
America is infested with
criminal street gangs, akin to the way certain residences are
infested with a variety of other pests. Does a parallel exist? Hmmm,
let's see. Not pretty to look at...no redeeming social
qualities...anyhow, you be the judge. But, either way, no one seems
to know how to get rid of this problem, once and for all. Actually,
that may not be entirely true. I think I may have an
answer.
Many years ago,
California's lawmakers created the S.T.E.P Act. The acronym stands
for Street Terrorism Enforcement and Prevention. S.T.E.P. was meant
to deal with criminal street gangs. Although it points in the right
direction, at this time in its life, it's also like half a loaf of
bread.
S.T.E.P. includes specific
findings and declarations made by the California Legislature. In
essence, these lawmakers concluded being a gang-banger is not
constitutionally protected activity. The significance of this is
most elemental. It means gang-bangers are not afforded the "right"
to sling dope, do drive-by shootings, and so
on.
So, what does S.T.E.P. prevent
gang members from doing? Candidly? Not much. The relevant statute,
California Penal Code section 186.22, mandates all sorts of things
must be proven before a gangster can be convicted of committing
crimes---as a gangster. For starters, one must prove the gang member
"...actively participated in any street gang..." before this section
has relevance. But, hold on. There's
more.
There must also be sufficient
proof the gang member has "...knowledge (their gang's) members
engage in or have engaged in a pattern of criminal gang activity..."
I suppose this means the dope dealer's excuse for beating the rap,
under this law, is that he was an independent business person, and
was not selling dope for the
gang.
But, don't run away just yet.
There's even more. You must also prove he or she "...wilfully
promotes, furthers, or assists in any felonious criminal conduct by
gang members..." If you're thinking this is nothing short of legal
gobbledy-goop, dreamed up by some pointy-headed liberal, you're not
alone.
Is it really necessary to
make the police and prosecution jump through all these hoops? Does
the actual safety of law-abiding people even matter to some
lawmakers, in the overall scheme of things? If being a gang-banger
is but a mere privilege, I have another
question.
Can we really afford, as
a peace-loving people, to bestow such "privileges" on the hoodlums
who belong to these groups for the sole purpose of participating in
the commission of significant felonies to further the interests of
their gang?
This is somewhat akin
to digging our collective graves, wouldn't you say? Sort of like the
feller who shoots himself in the foot, then complains it hurts to
walk. President Bush talks of removing evil from the planet. Fine,
but let's not overlook gangs and dope cartels, in our quest for
foreign terrorists in far away
lands.
My solution? Let's persuade
the lawmakers in each of our 50 states to pass legislation with some
teeth. Let's make it a crime to even belong to a criminal street
gang. Remember, if it isn't a right, it's a privilege. Your
thoughts, my fellow citizen?
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NOTE: TAKING THE FIRSTtm IS A
TRADE NAME. EVERY TAKING THE FIRSTtm
COLUMN IS COPYRIGHTED AND AWAITING TRADEMARK. NO REPRODUCTION OR
USAGE OF ANY TYPE OF THE NAME TAKING THE FIRSTtm, OR ANY OF THE MATERIAL CONTAINED HEREIN, IN ANY
MANNER WHATSOEVER, MAY BE LEGALLY DONE WITHOUT THE EXPRESS WRITTEN
PERMISSION OF MARTIN C. BRHEL,
JR.
Please feel free to share your thoughts on TAKING THE
FIRSTtm. You can do so by going to our
FEEDBACK page and sending me an E-mail. Or, you can reach me
by snail mail at:
Martin C. Brhel, Jr.
A Professional Law
Corporation
P.O. Box 2108
Palm Springs, CA
92263
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