‘No’ Sheriff in Town: Some Lawmen Refuse to Enforce Federal Gun Laws
With more states passing stronger gun control laws, rural sheriffs across the country are taking their role as defenders of the Constitution to a new level by protesting such restrictions and, in some cases, refusing to enforce the laws.
Sheriff Mike Lewis considers himself the last man standing for the people of Wicomico County, Maryland.
“State police and highway patrol get their orders from the governor,” the sheriff said. “I get my order from the citizens in this county.”
Lewis and other like-minded sheriffs have been joined by groups like Oath Keepers and the Constitutional Sheriffs and Peace Officers Association, both of which encourage law enforcement officers to take a stand against gun control laws.
The role of a sheriff
While the position of sheriff is not found in the U.S. Constitution, it is listed in state constitutions. Nearly all of America’s 3,080 sheriffs are elected to their positions, whereas state and city police officials are appointed.
Lewis and other sheriffs, and their supporters, say that puts them in the best position to stand up to gun laws they consider unconstitutional under the Second Amendment, which guarantees the right to bear arms.
“The role of a sheriff is to be the interposer between the law and the citizen,” said Maryland Delegate Don Dwyer, an Anne Arundel County Republican. “He should stand between the government and citizen in every issue pertaining to the law.”
When Lewis was president of the Maryland Sheriffs’ Association, he testified with other sheriffs against the state’s Firearms Safety Act (FSA) before it was enacted in 2013. One of the strictest gun laws in the nation, the act requires gun applicants to supply fingerprints and complete training to obtain a handgun license online. It bans 45 types of firearms, limits magazines to 10 rounds and outlaws gun ownership for people who have been involuntarily committed to a mental health facility.
After Lewis opposed the bill, he said he was inundated with emails, handwritten letters, phone calls and visits from people thanking him for standing up for gun rights.
“I knew this was a local issue, but I also knew it had serious ramifications on the U.S. Constitution, specifically for our Second Amendment right,” said Lewis, one of 24 sheriffs in the state. “It ignited fire among sheriffs throughout the state. Those in the rural areas all felt the way I did.”
In New York, the state sheriff’s association has publicly decried portions of the SAFE Act, state legislation that broadened the definition of a banned assault weapon, outlawed magazines holding more than 10 rounds and created harsher punishments for anyone who kills a first-responder in the line of duty.
A handful of the state’s 62 sheriffs have vowed not to enforce the high-capacity magazine and assault-weapon bans. One of the most vocal is Sheriff Tony Desmond of Schoharie County, population 32,000. He believes his refusal to enforce the SAFE Act won him re-election in 2013.
“If you have an (assault) weapon, which under the SAFE Act is considered illegal, I don’t look at it as being illegal just because someone said it was,” he said.
Colorado made national headlines when 55 of its 62 sheriffs attempted to sign on as plaintiffs in a lawsuit challenging the constitutionality of several 2013 gun control bills in the state. The most-controversial measures banned magazines of more than 15 rounds and established background checks for private gun sales.
“It’s not (the judge’s) job to tell me what I can and can’t enforce.”
A federal judge said the sheriffs couldn’t sue as elected officials, so Weld County Sheriff John Cooke and eight other sheriffs sued as private citizens. Cooke was the lead plaintiff in the lawsuit, which a federal district judge threw out in June. He and other plaintiffs are preparing an appeal.
“It’s not (the judge’s) job to tell me what I can and can’t enforce,” Cooke said. “I’m still the one that has to say where do I put my priorities and resources? And it’s not going to be there.”
Lewis, who is running for re-election in Maryland this year, said sheriffs have a responsibility to push against what he sees as the federal government’s continual encroachment on citizens’ lives and rights.
“I made a vow and a commitment that as long as I’m the sheriff of this county I will not allow the federal government to come in here and strip my law-abiding citizens of the right to bear arms,” he said. “If they attempt to do that it will be an all-out civil war. Because I will stand toe-to-toe with my people.”
“It’s not up to a sheriff to decide what’s constitutional and what isn’t. That’s what our courts are for.”
But Maryland Sen. Brian Frosh, a sponsor of the Firearms Safety Act and a gun-control advocate from suburban Montgomery County, said Lewis’ understanding of a sheriff’s role is flawed.
“If you are a sheriff in Maryland you must take an oath to uphold the law and the Constitution,” said Frosh, now the Democratic nominee for Maryland attorney general. “… It’s not up to a sheriff to decide what’s constitutional and what isn’t. That’s what our courts are for.”
Frosh also noted that sheriffs are generally not lawyers or judges, which means they often are following their convictions instead of the Constitution.
“We had lots of people come in (to testify against the bill) and without any basis say, ‘This violates the Second Amendment,’” Frosh said. “They can cite the Second Amendment, but they couldn’t explain why this violates it. And the simple fact is it does not. There is a provision of our Constitution that gives people rights with respect to firearms, but it’s not as expansive as many of these people think.”
Sheriffs do have the power to nullify, or ignore, a law if it is unconstitutional, Maryland Delegate Dwyer said. He said James Madison referred to nullification as the rightful remedy for the Constitution.
“The sheriffs coming to testify on the bill understood the issue enough and were brave enough to come to Annapolis and make the bold stand that on their watch, in their county, they would not enforce these laws even if they passed,” said Dwyer. “That is the true role and responsibility of what the sheriff is.”
Oath Keepers and CSPOA
If former Arizona Sheriff Richard Mack had it his way, there wouldn’t be a single gun control law in the U.S.
“I studied what the Founding Fathers meant about the Second Amendment, the right to keep and bear arms, and the conclusion is inescapable,” said Mack, the founder of the Constitutional Sheriffs and Peace Officers Association (CSPOA). “There’s no way around it. Gun control in America is against the law.”
Mack’s conviction is central to the ideology of CSPOA, which he founded in 2011 to “unite all public servants and sheriffs, to keep their word to uphold, defend, protect, preserve and obey” the Constitution, according to the association’s website.
CSPOA grabbed media attention in February with a growing list of sheriffs — 484 as of late July — professing opposition to federal gun control.
Mack and CSPOA also have ties to Oath Keepers, an organization founded in 2009 with a similar goal to unite veterans, law enforcement officers and first-responders who pledge to “defend the Constitution against all enemies, foreign and domestic.”
The website of the Oath Keepers, which has active chapters in 48 states and the District of Columbia, and an estimated membership of 40,000, features a declaration of “orders we will not obey,” including those to disarm Americans, impose martial law on a state and blockade cities.
“I want to have the image that I protect gun owners, but I’m not fanatical about it.”
Some sheriffs perceive Oath Keepers and CSPOA as too radical to associate with. Desmond, of Schoharie County, New York, is known around his state for openly not enforcing provisions of the SAFE Act that he considers unconstitutional. Still, he’s not a member of either organization.
“I don’t want to get involved with somebody that may be a bit more proactive when it comes to the SAFE Act,” Desmond said. “I want to have the image that I protect gun owners, but I’m not fanatical about it.”
Mack is familiar with that sentiment. He suspects it’s hindered the growth of CSPOA.
“This is such a new idea for so many sheriffs that it’s hard for them to swallow it,” Mack said. “They’ve fallen into the brainwashing and the mainstream ideas that you just have to go after the drug dealers and the DUIs and serve court papers — and that the federal government is the supreme law of the land.”
The Southern Poverty Law Center, a civil rights nonprofit that classifies and combats hate and extremist groups, included both CSPOA and Oath Keepers on its list of 1,096 anti-government “patriot” groups active in 2013. Both groups have faced criticism for their alleged connections to accused criminals, including individuals charged with possessing a live napalm bomb and a suspect in the shooting and killing of two Las Vegas police officers and a bystander in June.
Representatives from the law center did not return phone calls and emails requesting comment.
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Franklin Shook, an Oath Keepers board member who goes by the pseudonym “Elias Alias,” said the organization doesn’t promote violence, but rather a message of peaceful noncompliance.
“What Oath Keepers is saying is … when you get an order to go to somebody’s house and collect one of these guns, just stand down,” Shook said. “Say peacefully, ‘I refuse to carry out an unlawful order,’ and we, the organization, will do everything in our power to keep public pressure on your side to keep you from getting in trouble for standing down. That makes Oath Keepers extremely dangerous to the system.”
Self-proclaimed constitutional sheriffs hope that courts will overturn gun control measures in their states — but they recognize that may not happen. Lawsuits challenging the constitutionality of gun control legislation in Maryland, New York and Colorado have been, for the most part, unsuccessful.
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“My hope is that the governor will look at it now that it’s been a year plus and say, ‘We’ve had some provisions that have failed. Let’s sit down and look at this and have a meaningful conversation,’” said Otsego County, New York, Sheriff Richard Devlin, who enforces the SAFE Act but doesn’t make it a priority. “I personally don’t see that happening, but I’d like to see that happen.
Emilie Eaton is a News21 Hearst Fellow. Jacy Marmaduke is a News21 Peter Kiewet Fellow. Sydney Stavinoha is an Ethics and Excellence in Journalism Foundation News21 Fellow.
This report is part of a project on gun rights and regulations in America produced by the Carnegie-Knight News21