Shawn Vestal: ‘Constitutional sheriffs’ who reject new gun laws are a threat to democratic principles

March 13, 2019 GMT

Are you tired of democratic principles?

Bored with the worn-out notion that when most people vote for something, it should be law? Are you weary of the time-consuming requirement that courts, not elected officials, determine whether laws are constitutional?

Do you yearn for the yoke of an authoritarian? A tiny, puffed-up king ruling over you in a tiny kingdom?

If so, then good news for you. There are a number of Washington counties that might be right up your alley – counties where the sheriffs are puffing out their chests and declaring themselves monarchs who unilaterally decide which laws they will and will not enforce.

All in the name of the Constitution.

What’s happening in a lot of rural Washington counties – as well as rural counties around the West – is a bad old idea from the radical, anti-government right that is seeping dangerously into the offices of elected sheriffs. It’s an ideological outgrowth of the “constitutional sheriff” movement, which holds that county sheriffs are the ultimate authority and can act unilaterally as a bulwark against the overreaching federal government by simply refusing to follow laws or regulations they believe are unconstitutional.

It’s one thing when this crackpot idea is bandied about in the fever swamps. To see elected, oath-swearing sheriffs buy into it is a much bigger problem.

Recall that Washington voters passed Initiative 1639 with a 60 percent majority. The new law raises the minimum age of purchasing a semi-automatic weapon to 21, expands the background check system and imposes penalties for failing to safely secure a gun, among other things.

Under our constitution, this makes it a law, though most of the provisions don’t actually kick in until this summer.

This is not how at least 13 Washington sheriffs see it.

Columbia County Sheriff Joe Helm said in a statement last month that he “feels” I-1639 is unconstitutional and therefore won’t enforce it. Adams County Sheriff Dale Wagner said I-1639 “appears” to violate the Constitution; Okanogan County Sheriff Anthony Hawley concluded it “appears” to be unenforceable.

Stevens County Sheriff Brad Manke said that, in refusing to enforce the law, he joined “the 73 percent of Stevens County voters who voted against this initiative.”

Klickitat County Sheriff Bob Songer said he considers it his job to “follow the rule of law when I believe it’s constitutional.”

Chelan County Sheriff Brian Burnett has a similar take: “I am committed to serving the citizens in a way that both protects their Constitutional right while being both fair and impartial while upholding the rule of law.”

Republic Police Chief Loren Culp has attempted to declare his town a “sanctuary city” for the Second Amendment, declaring on Facebook he won’t enforce any law that he believes violates that amendment – “PERIOD!”

These statements are just silly. Is a sheriff supposed to decide which law to enforce based on his feelings? His beliefs? His gut? Is a police chief the one who gets to shout “PERIOD!” at the “gun-grabber” laws he instinctively doesn’t like?

The peacocking cops are giving oxygen to a radical, discredited view that has long thrived on the anti-government right: sheriffs are the ultimate authority under the Constitution, little monarchs empowered to decree and depose when the government overreaches. The constitutional sheriff movement has roots in the Posse Comitatus days of the 1970s, and has grown branches among extremist Western anti-government groups.

It’s been dusted off and polished up lately, and migrated into places where it didn’t used to have traction: into the elected offices of rural counties around the West, according to Robert Tsai, a law professor at American University and author of “Forgotten Constitutions: Defiant Visions of Power and Community.”

“The modern constitutional sheriff movement has revived the idea of sheriff supremacy envisioned by the Christian Patriots, tried to shed its anti-Semitic and racist origins, and now seeks to ‘take back America county by county, state by state,’ ” he wrote in a 2017 op-ed at Politico.

“Today, its ideology has gained traction with the militia movement, so-called sovereign citizens, separatists wary of centralized government – and increasingly, landowners, county commissioners, veterans and law enforcement figures. Cliven Bundy, who has clashed for years with the Bureau of Land Management, is an adherent of sheriff supremacy.”

It’s a ridiculous notion – the idea that the framers of an elaborate system of government based on checks and balances, majority rule and minority protection, intended to invest every sheriff in America with the authority to pick and choose among the laws based on their gut feelings and coffee-shop conversations about constitutionality.

Our own county sheriff, Ozzie Knezovich, has said he also believes the law is unconstitutional. But he has joined the law-abiding side of the argument, noting it is not a sheriff’s job to rule on constitutionality and that – given that most of the law doesn’t formally take effect until summer – these sheriffs are just grandstanding.

Attorney General Bob Ferguson sent a letter to county sheriffs, reminding them that it is their sworn duty to enforce the state laws. He emphasized that this is not a hypothetical debate, noting that starting in July – barring a court decision overturning the law – they will be legally required to conduct enhanced background checks for assault rifles.

“These enhanced background checks keep guns out of the hands of dangerous individuals who lawfully cannot own firearms because of a mental illness or criminal record. As far as I know, no Washington sheriff or police chief has refused to perform these enhanced background checks for handguns. Why refuse to perform them for semi-automatic assault rifles?” he said.

“I am deeply concerned that the failure of local law enforcement to perform Initiative 1639’s background check requirement will jeopardize public safety in our state by allowing the sale of semi-automatic assault rifles to dangerous individuals not lawfully allowed to own a gun.”

In the end, it will be the courts that determine the constitutionality of I-1639. The NRA has sued, and we’ll see how that goes.

If the law is upheld, these sheriffs will face a serious reckoning, one that cannot be resolved with bluster and bluff: Whether to do the duty to which they swear an oath, or pay lip service to the Constitution while ignoring its essential values.