Sheriffs Refuse to Enforce Gun Laws & Executive Discretion

December 16th, 2013

The Times reports that many elected Sheriffs in Colorado are refusing to enforce the recently-enacted gun laws.

Some sheriffs, like Sheriff Cooke, are refusing to enforce the laws, saying that they are too vague and violate Second Amendment rights. Many more say that enforcement will be “a very low priority,” as several sheriffs put it. All but seven of the 62 elected sheriffs in Colorado signed on in May to a federal lawsuit challenging the constitutionality of the statutes. 

This raises an interesting issue: where law enforcement officials deem a law to be unconstitutional (violating the Second Amendment), and refuse to enforce it. This has shades of Printz v. United States, which as you may recall began when the Chief Law Enforcement Officer in Ravalli County, Montana refused to comply with provisions of the Brady Bill. There is no commandeering issue here, but the official refuses to enforce a law he deems unconstitutional (even under Heller, most of these laws would be constitutional, but I’ll leave that aside for now).

The Times article cites the other plaintiff from Printz, Sheriff Richard Mack (I’ve talked to him, and he insists the case be called Mack v. United States, because his name comes first alphabetically).

At their extreme, the views of sheriffs who refuse to enforce gun laws echo the stand of Richard Mack, a former Arizona sheriff and the author of “The County Sheriff: America’s Last Hope.” Mr. Mack has argued that county sheriffs are the ultimate arbiters of what is constitutional and what is not. The Constitutional Sheriffs and Peace Officers Association, founded by Mr. Mack, is an organization of sheriffs and other officers who support his views.

“The Supreme Court does not run my office,” Mr. Mack said in an interview. “Just because they allow something doesn’t mean that a good constitutional sheriff is going to do it.” He said that 250 sheriffs from around the country attended the association’s recent convention.

Now, this is not to say that Sheriffs can flagrantly violate the Fourth Amendment, or ignore Miranda. I think what the point is, is that they will not enforce laws they deem unconstitutional. Is there a precedent for this? Well, the President’s decision not to enforce drug laws, or immigration laws would support this. Really, declining to enforce a law because it is unconstitutional seems to be a much stronger basis than mere policy decisions. POTUS’s decision to enforce DOMA, but not defend it in court is also relevant.

Though, in one sense, making gun-law enforcements a “low priority” is better than deeming an entire class of people outside the scope of the enforcement power. The article quotes another Chief Executive who is not happy with such discretion.

In New York State, where Gov. Andrew M. Cuomo signed one of the toughest gun law packages in the nation last January, two sheriffs have said publicly they would not enforce the laws — inaction that Mr. Cuomo said would set “a dangerous and frightening precedent.”

Refusing to enforce the laws is a bad precedent.