“Constitutional” Coppery

I should have seen it coming. In retrospect, it’s obvious. If elected progressive district attorneys can simply choose which duly enacted laws they prefer to prosecute and which they can ignore because, legislative action notwithstanding, they fail to conform to their ideological vision of their jurisdiction, why not a sheriff?

Lomax embraces the unique powers of elected sheriffs, who report directly to voters, unlike police chiefs, who are generally hired and fired at will by city councils. “You pretty much have no authority above you government-wise; you answer to the voters,” Lomax said, adding that despite this freedom he plans to be “a sheriff who enforces the laws.”

The rationale is little different than that used to justify a prosecutor who announces that she will no longer prosecute cases of petty theft, usually theft below a threshold of $1000 (which may not sound very petty to most people, but that’s the dividing line between misdemeanor and felony), and gets elected anyway. If the people knew what the prosecutor would do and elected her anyway, did she not have a mandate to ignore the law as enacted?

If so, then why not the “Constitutional” sheriff?

The stakes go beyond local policing issues, as sheriffs who follow the ideology have refused to enforce mask mandates and several have announced plans to resist President Biden’s impending rule that all businesses with 100 or more workers must be fully vaccinated against the coronavirus or face weekly testing.

“We will not become the mandate police,” Knox County Sheriff Tom Spangler said at a news conference in Tennessee as he discussed his Oct. 25 letter to Biden calling the vaccine mandate “unconstitutional” and “government overreach.”

Battles that were once fought in statehouses, and then moved into courthouses, are now being fought at local polling booths. As controversial as local mask mandates may be in certain areas, they are secondary to the more fundamental question of what the job is and who gets to decide whether locally-elected sheriffs are doing it?

The constitutional sheriffs movement has gained momentum at a time when sheriffs are playing an outsize political role as lawmakers debate bills to overhaul policing in the wake of George Floyd’s murder.

Were they key to the Senate failure to reform qualified immunity? It appears they exerted a great deal of influence.

In several states, local and state sheriffs’ associations threatened to pull their support for policing bills if lawmakers didn’t remove provisions that called for banning qualified immunity, a legal defense that provides broad protections for officers in civil lawsuits. And in Congress, sheriffs — who number about 3,000, compared with 13,000 appointed police chiefs — were given significant negotiating power on the George Floyd Justice in Policing Act when Sen. Tim Scott (R-S.C.) said he would not sign off on legislation that was opposed by the National Sheriffs’ Association.

Cato’s Jay Schweikert asserts that “They were essentially given veto power.” It’s a shame that they were so riled by the anti-QI hype as to flex their muscle to oppose reform that had no real impact on them except in the overwrought rhetoric of actvists.

Like ‘being a king’

There is a long history of local sheriffs ruling their fiefdom with unfettered control, applying or ignoring law at their leisure. Some were openly corrupt. Some were flagrantly racist. Some were brutal. Not all sheriffs were Andy Griffith or Mud Lick’s Sheriff Roy. There was Maricopa’s Crazy Joe and Milwaukee’s David Clarke. Then there are the sheriffs whose names are unfamiliar outside their rural turf but whose power within is undisputed.

Now, there’s a name for sheriffs who reject the duty of their office, the efforts to reform their unilateral control and, too often, brutal force used to maintain that control. Constitutional Sheriffs. And the rationalization for their legitimacy, for their dereliction of duty if not violation of law and constitutional rights, enjoys the imprimatur of progressive positivity as it was handed to them on silver platter by prosecutors who also believed they were unbound by legislation.

And like so many candidates for sheriff in recent election cycles, Lomax is emphasizing his desire to use his unique ability to set his own agenda, absent the overriding power of a city council or city manager.

“In our country, this is a very divisive time between law enforcement and communities of color. I wanted to be part of the solution,” he said. “I want to get down in the weeds and talk to schoolteachers, students and communities of color to formulate new policies based on what they tell me, as opposed to having it filtered and decided by another entity.”

If the rhetoric sounds familiar, it should. It’s little different than other elected officials who argue that they, too, shouldn’t be bound by the duties of their positions, by the laws duly enacted by another branch of government charged with the creation of law to be executed by the branch with guns. And like its thought predecessors, the argument can be easily framed as being for the benefit of marginalized communities, as they were elected to their positions and can just as easily claim their choices are the people’s choices.

I should have seen this coming. I didn’t. But it’s all so obvious now and owes its claim of legitimacy to the same carefully-crafted rationalizations that made progressive prosecutors an acceptable alternative to prosecutors who executed the duties of their office faithfully and honorably. And there’s a good chance this isn’t where the slide will end.

H/T Rick Horowitz

17 thoughts on ““Constitutional” Coppery

  1. Howl

    Forgive my nitpicking ignorance, but must anyone not employed by the executive branch follow orders from the President, unless required by law? Isn’t it the legislature that has the power to create laws, not the President via mandates such as his rule about businesses requiring employee vaccination?

    1. j a higginbotham

      In addition to sheriffs just doing whatever they can get away with, in recent(?) years there has been a movement which believes (or claims) that “sheriffs are the highest governmental authority and that they have the power and duty to defy or disregard laws they deem unconstitutional”. Then there are no superiors whose orders to defy. [And there is(are) undoubtedly reason(s) obvious to the the legal why this wasn’t mentioned. ]

      1. SHG Post author

        There are always crazies. There are always idiots. That can’t be helped. Say hello for me at the next meeting.

  2. Hunting Guy


    “ Quis custodiet ipsos custodes?”

    Ultimately the people decide what laws to make and which ones to enforce by their votes.

    The Old Knight in Indiana Jones and the Holy Grail.

    “He chose….poorly.”

  3. ExpatNJ

    “the more fundamental question of what the job is and who gets to decide whether locally-elected sheriffs are doing it?” ~ SHG.

    If sheriffs are acting improperly, would it not be up to the electorate (some states don’t have recall) ? [Ed. Note: Idiocy about constables deleted because it was fucking idiocy.]

    1. SHG Post author

      If a sheriff is elected to act “improperly,” is it improper? Do you not grasp anything about the issue raised here?

  4. L. Phillips

    Nice to see some friends in the header to the WaPo article, even though they were set up for derision in the content below it. After all, anyone who speaks or dresses like that must be carefully watched – amirite?

    Just for the record in this venue, Trooper Lomax is, like Sheriff Roy, black. The assumption by the article that his intentions toward policing in communities of color are corrupted by his conservative political stance is shallow at best and racist at worst.

    Are there idiot sheriffs? A few. Does CI need tweaking? Maybe. Was the WaPo article a thoughtful, balanced treatise on that subject. Nope. It appears to me to be a whiney screed against a political institution that just might decide to stand athwart progress as defined by Ms. Kindy.

    As I understand it the issue raised in your comments is whether or not there is to be adherence to a rule of law. Black letter law – absolutely. If you don’t like it, run for the legislature and change it or convince a court of proper jurisdiction that it violates higher law. Bureaucratic regulation – maybe, depending on the legislative framework that supports it, or not. Executive edict – not so much, go forward with extreme caution. That’s my Levi wearing, cowboy hatted, 1911 carrying take. Let the beatings commence.

    BTW, I miss Sheriff Roy. (I’m looking at you CLS.)

    1. SHG Post author

      Why does a sarge do what a captain tells him to do (assume it’s not unlawful)? Without respect for the duties of the position and the chain of command, and assuming each of us is an “independent contactor” who needs only follow law, regulations and the edicts of those above us in the chain of command, how will that work?

      Want to be the governor? Run and win the job and then you get to give your own edicts and see whether those charged with enforcing them agree enough with you to do so.

      1. L. Phillips

        My understanding is that a sheriff is a civilian peace officer with the ability to stand up a paramilitary force (emphasis on the “para”) to apprehend those responsible for unlawful conduct in their jurisdiction. My thoughts above were from the perspective of an elected sheriff, not some rando sergeant (like me) in that organization.

        As far as running for governor, I’ll pass. Don’t have the temperament for it. Much prefer sitting in the cheap seats and bitching.

        1. SHG Post author

          The specifics of what a sheriff’s duties are varies from state to state, but my rank analogy was to point out that in the scheme of civilian authority, there remains a chain of command so that each elected official isn’t an island to himself. Except dog catcher.

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  6. Richard Parker

    Apparently the South won the Civil War. Nullification is back in style. Our history books will need to be re-written.

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