By Dan Kenney
Like most Californians, I am a fervent supporter of meaningful efforts to combat elephant poaching and cracking down on the black market trade for ivory.
However, as an attorney and resident Californian, I am very concerned about a bill moving through the state legislature that disingenuously claims to attack the illegal ivory trade while at the same time tramples on the most fundamental of constitutional rights.
Specifically, Assembly Bill 96 (Atkins) aims a proverbial elephant gun at the world of ivory by making the sale of nearly any and all ivory illegal – no matter if it was legally acquired or possessed a generation ago. By shifting the focus from importation and sale of new ivory in future commerce, AB 96 essentially devalues property owned by Californians.
For example, if I own or inherit a valuable and entirely legally acquired antique or family heirloom containing ivory, I am free to sell that item to a collector, auction house or antique dealer. Those buyers in turn are currently allowed to sell what they buy from me.
Under AB 96, though, such transactions would be considered illegal. This translates as a government taking – one day my property is valuable and the next it is worthless. Under the United States Constitution it is illegal for the government to strips citizens of their property without due process.
This fundamental tenet was underscored in May when the U.S. Supreme Court unanimously ruled that a convicted felon should be able to sell his personal gun collection to a third party even though felons are not allowed to own firearms.
The decision in Henderson v. United States clearly recognized the sanctity of personal property rights. The case focused on Tony Henderson, a former U.S. border patrol agent who was busted for dealing small amounts of marijuana. He was sentenced to six months in jail and served his time. The former officer had turned his personal gun collection over to the court during his legal proceedings, and the government kept his weapons after his conviction because felons are barred from possessing firearms.
Since the firearms – some of them family heirlooms – had no connection to his crime,
Henderson asked the government to transfer them to a third party who could then pay
him for them. His request was denied – a decision the Supreme Court overturned.
Even if AB 96 were not in conflict with the U.S. Constitution, it would still do nothing to combat the illegal ivory trade or add anything to the multiple layers of state, federal and international laws already in place.
California has had aggressive laws on the books since 1977. What is needed is more enforcement of existing laws – not an illogical and unconstitutional law demonizing old ivory and criminalizing residents who currently own ivory legally. That will not protect future poaching but will rather open a Pandora’s box of unforeseen problems:
• Costly lawsuits against the State of California challenging the constitutionality of AB 96;
• Harm to families or non-profits who would not be allowed to auction off valuable antique heirlooms – jewelry, artwork and furniture containing ivory;
• Financial losses to antique dealers currently in possession of legal ivory who would not be able to sell such items;
• Time-consuming raids in urban areas by Department of Fish & Wildlife officials – an activity afield from the department’s mission to protect California wildlife against poaching right here at home.
If our legislators are intent on passing an ivory bill, they should at the very least amend AB 96 to make the bill prospective so property rights aren’t violated. Enforcement should be aimed at any new ivory illegally entering the California market – not legal antiques and family heirlooms.
Daniel E. Kenney is a partner in the Los Angeles office of Harrington, Foxx, Dubrow & Canter.