April 28, 2018

"There are roughly three thousand sheriffs in America, in forty-seven states. Arpaio and Peyman are among the dozens aligned with the 'constitutional sheriffs' movement.'"

"Another is David A. Clarke, Jr., the cowboy-hatted Wisconsin firebrand who considered joining the Department of Homeland Security.... There are even more followers of constitutional policing across America among law enforcement’s rank and file. One group, the Constitutional Sheriffs and Peace Officers Association, or C.S.P.O.A., claims about five thousand members.  C.S.P.O.A. members believe that the sheriff has the final say on a law’s constitutionality in his county. Every law-enforcement officer has some leeway in choosing which laws to enforce, which is why it’s rare to get a ticket for jaywalking, for example. But, under this philosophy, the supremacy clause of the Constitution, which dictates that federal law takes precedence over state law, is irrelevant. So is the Supreme Court. 'They get up every morning and put their clothes on the same way you and I do,' Finch told me. 'Why do those nine people get to decide what the rest of the country’s going to be like?' To the most dogmatic, there’s only one way to interpret the country’s founding documents: pro-gun, anti-immigrant, anti-regulation, anti-Washington.... When [Richard] Mack launched the C.S.P.O.A., around 2010, he described it as 'the army to set our nation free.'... Mack personally disavows discrimination and infuses his lectures with the language of the civil-rights era. He likes to say, 'We should have never heard of Rosa Parks,' explaining that a constitutional sheriff wouldn’t have arrested her...."

From "The Renegade Sheriffs/A law-enforcement movement that claims to answer only to the Constitution" by Ashley Powers in The New Yorker.

It was the mention of the Sheriff of Malibu (in "The Big Lebowski") in the previous post that reminded me I wanted to blog that article. Remember that scene?



"We got a nice quiet beach community here... Stay out of Malibu, deadbeat! Keep your ugly fucking goldbricking ass out of my beach community!" Malibu is a city, not a county, so that guy is not a sheriff, but — as the screenplay says — the chief of police.

57 comments:

Achilles said...

The difference between a Peace officer and a Law Enforcement officer is huge.

Bob Boyd said...

"Mr. Treehorn treats objects like women."

Rob said...

Interposition was a theory often advanced during the era of desegregation, and of course the federal courts rejected it absolutely. It lives on these days not only in the hearts of constitutional sheriffs but also in those of sanctuary city advocates.

Achilles said...

Rob said...
Interposition was a theory often advanced during the era of desegregation, and of course the federal courts rejected it absolutely. It lives on these days not only in the hearts of constitutional sheriffs but also in those of sanctuary city advocates.

The constitutional sheriffs recognize that federal law was at one point limited by the constitution to a narrow set of issues.

The feds absolutely have a constitutional direction to pass laws on immigration. That is explicitly mentioned. They have no directives to pass laws on alcohol, tobacco, or pot. Those laws were made up out of whole cloth.

Bob Boyd said...

I hate to go there, but Trump has some Dudeness about him.

Inga...Allie Oop said...

“C.S.P.O.A. members believe that the sheriff has the final say on a law’s constitutionality in his county. Every law-enforcement officer has some leeway in choosing which laws to enforce, which is why it’s rare to get a ticket for jaywalking, for example. But, under this philosophy, the supremacy clause of the Constitution, which dictates that federal law takes precedence over state law, is irrelevant. So is the Supreme Court.”

Which means there are extremists who get to interpret the Consitution in the way they see fit, similar to those who interpret the Bible in their own twisted ways.

Achilles said...

After the 14th amendment was passed laws against discrimination were explicitly added to federal powers.

Prohibition was an attempt to add alcohol interdiction as a federal power. It was a bad idea. It was replaced.

Immigration and control of our international borders is a federal issue. Definition of.

Bob Boyd said...

Which means there are extremists who get to interpret the Consitution in the way they see fit, similar to those who interpret the Bible in their own twisted ways.

Yup. Things get kinda crazy when people put on robes.

Ann Althouse said...

Mack was one of the plaintiffs who successfully challenged the federal law that required local law enforcement officials to do background checks on gun purchasers. The case is Printz v. United States, which established that the federal government can't force the local officials to do federal law enforcement. It can only attempt to procure consent.

Ann Althouse said...

"After the 14th amendment was passed laws against discrimination were explicitly added to federal powers."

No. Read Boerne and the line of cases that follow it. The 14th Amendment recognizes a set of rights and Congress only has the power to enforce those rights, not just to pass any anti-discrimination law it wants.

Inga...Allie Oop said...
This comment has been removed by the author.
Inga...Allie Oop said...

.“Yup. Things get kinda crazy when people put on robes.”

Good thing they’re not out patrolling the streets with guns then, eh? Oh and what color are the robes you speak of, white or black?

Big Mike said...

On the one hand we have a sheriff like Israel down in Broward County, who famously did nothing to deal with Nikolas Cruz (how many times were deputies called to the house where Cruz was living?) and furthermore let him keep his AR, and a sheriff like Dupnik down in Pima County, AZ, who did nothing to stop Jared Lee Loughner from getting a Glock despite frequent (I have read 16) calls for deputies to come to the Loughner residence to deal with the increasingly schizophrenic young man.

On the other hand we have sheriffs like Arpaio and Clarke, who want to keep the ordinary citizens of their respective counties safe.

Tough choice.

Joe Biden, America's Putin said...

Then there's leftwing governors and mayors who don't think laws about illegal immigration apply to them.

SDaly said...

There are certain federal criminal procedure affirmative requirements that all law enforcement must follow, e.g., Miranda warnings, and some federal prohibitions, like the prohibition on arrest without probable cause and equal protection, but other than that, I local law enforcement has very little to do with federal laws.

Henry said...

And why does the Sheriff get to decide constitutionality and not the individual? Aunt Bee should tell Andy Griffith to go suck eggs.

johns said...

Malibu wasn’t a city when the Big Lebowski was written

Achilles said...

Ann Althouse said...

No. Read Boerne and the line of cases that follow it. The 14th Amendment recognizes a set of rights and Congress only has the power to enforce those rights, not just to pass any anti-discrimination law it wants.

Apologies. I forgot.

Instead Congress has to pass some vaguely worded statute funding a non-elected bureaucracy that writes all the regulations it wants instead of laws.

Because lawyers and judges said so.

Dust Bunny Queen said...

I may be wrong, but I believe that the Oath Of Office that the Sherrifs and other law enforcement officers is the same one that I as a Notary Public and as an elected Director of a small County District....is basically the same..and includes the verbiage that I will Defend and Protect the Constitution of the United States.

Ca law: A notary public must file an oath of office and bond with the county clerk's office in the county where their principal place of business is located. This must be done within 30 calendar days from the commencement date of the commission. This 30 day period cannot be extended.

Sample Verbiage of a typical Notary Oath of Office: Do you solemnly swear that you will support the Constitution of the United States and the Constitution of this State, and that you will discharge the duties of the office of Notary Public in and for said County to the best of your ability? Mine said defend and protect. Which gave me a mental image of being dressed in camo and like Rambo defending!!!! with my notary stamp no less!

Since the US Constitution is listed first, I would think it has the primary duty and when there is a conflict, the US Constitution "trumps" the State when there are conflicts....like 2nd amendment or immigration issues :-)

The fact that the oath is pretty vague on how you defend the Constitution is not the fault of the Oath Taker. The laws are pretty vague too. Don't like the vague? Fix it.

Achilles said...

Speaking of sheriffs.

Disgraced Broward county sheriffs interrogate student who went to the range with his father.

Probably one of the 94 pieces of crap that voted in support of Sheriff Israel.

Additionally:

And a history teacher called him the next Hitler in class.

Many law enforcement people tend to have a fascist streak like all of the other gun grabbers.

Yancey Ward said...

If you want local law enforcement to enforce federal laws, you need to hire them and pay them at the federal level- it really is that simple.

Also, in the case of local enforcement of laws- there is benign neglect and active denial of federally recognized rights- just about every example I have seen described in the sheriff thing is of the benign neglect kind, which is unobjectionable to me.

Birkel said...

Were northern sheriffs who refused to return escaped slaves wrong not to follow the Supreme Laws of the Land?

If sheriffs spoke out against the Alien & Sedition Acts, were they violating their respective oaths of offices?

Martin Luther King, Jr wrote his letters from the Birmingham Jail because he had rejected immoral laws and he was willing to be punished. Same with Gandhi. Same with Solzhenitsyn.

I think we must reject the hypothesis that fealty to immoral laws is always required. (And I type this as somebody uncomfortable with the broad application of this idea. I think it must be extremely narrowly applied.)

Dust Bunny Queen said...

the federal government can't force the local officials to do federal law enforcement. It can only attempt to procure consent.

Isn't the converse of this decision what is in play now. The Federal Government can't force the States to enforce Federal Laws and expend State resources to do so. Enforcement (consent to enforce) is hoped for but can not be demanded or forced. This has been decided.

However, the States cannot command that Officers who have taken the Oath of Office to support and defend the US Constitution and who feel that being commanded to ignore or flaunt federal laws is contrary to their Oath, should break that Oath. This hasn't been decided yet?

I believe this is the issue in California faced by many local law officers. Especially in the venue of the 2nd Amendment and in Federal Immigration laws. I know that our County Sheriff has express his support of the Constitutional Sheriffs organization and is why he will be elected yet again.

Hagar said...

"Interposition" was James Madison's term; Jefferson called it "nullification."
This is not a new argument.

Michael K said...

Jack Dunphy has a post on a police chief that Inga would love.

“Police more likely to use force against black Wichitans,” said the headline. “Chief looks for fixes.” And the story, by Eagle writer Nichole Manna, was blunt from the outset. “Black residents,” it began, “find themselves at the receiving end of force by Wichita police at a rate higher than any other race.” Manna went on to “analyze” data on police contacts in which people were subjected to various levels of force. Anyone familiar with this theme as presented in the press for the last several years already knows that Manna came to the ominous conclusion that, because the use-of-force statistics in Wichita do not mirror the city’s demographics, something must be amiss.

Good thing there are no blacks in Wisconsin or Inga might get a lesson.

Drago said...

Inga goes "full Maddow" (sorry LLR Chuck) and decides to suddenly become suspicious of $Resistance and not following the Constitution and having only Peace Officers/Law Enforcement officers carrying guns.

Fen's Law....all the way down.

Michael K said...

The Federal Government can't force the States to enforce Federal Laws and expend State resources to do so.

In fact, Obama's DOJ prevented Arizona from trying to enforce federal law on its own.

Of course, Obama was not enforcing it either.

Birkel said...

DBQ,

I believe they call it "Anti-Commandeering" and it was part of why the federal government could not force states to set up exchanges for ObamaInsurance. The Obama Administration lost that part of the case.

Dust Bunny Queen said...

I think we must reject the hypothesis that fealty to immoral laws is always required.

The acceptance of the idea that immoral laws should be enforced or the blind eye to enforcement is what brings us to situations that allowed the Nazi Extermination Camps. The excuse that they were "just following orders".

Not all immoral laws are so egregiously immoral, however it is a slippery slope we stand upon especially when we throw our morality overboard for blind compliance.

Birkel said...

DBQ,

If you've read anything I've written about slippery slopes, you will know that I share your concern. It is often difficult to know how slippery, what off-ramps are available and exactly how steep the slope actually is.

I don't write in support of these particular sheriffs.

I would be more comfortable if Leviathan withdrew from the many areas where its involvement is not required. I favor more local control. Dispersed power is safer than concentrated power.

Hagar said...

A visitor once remarked to Catherine the Great that it must be nice to be Empress of All the Russias and be able to command instant compliance with one's every command, even in the farthest reaches of the empire.
Catherine sighed and said that no, the order had to be something they could do when the order reached them, and then it had to be something they would do, and it really was all quite difficult, she said.

mccullough said...

Reminds me of that quote of Sam Rayburn to LBJ, who was talking about Kennedy’s Ivy League “best and brightest” advisers.

“I’d feel a lot better if some of them had run for Sheriff just once.”

The Best and the Brightest are neither.

Sal said...

there’s only one way to interpret the country’s founding documents: pro-gun, anti-immigrant...

Anti-immigrant? Really? Really? Really?

Birkel said...

Sal, pardon me if I suggest that the author's paraphrase of the sheriffs' positions is delivered in the light least favorable to the accused.

I think you would do well to assume everything in The New Yorker is written with an intense bias.

bagoh20 said...

Having had a few friends like The Dude, who can be really obnoxiously self-indulgent, it would be nice to have a friend around sometimes like this Chief of Police.

AllenS said...

Trumpness. The art of winning.

Big Mike said...

What Birkel said.

And anyone who’d rather have Sheriff Israel instead of David Clarke, Jr. is welcome to him.

cassandra lite said...

Malibu is policed, per contractual arrangement, by the LA County Sheriffs--specifically, the Lost Hills station located in Calabasas. Before it was a city, there used to be a sheriff's station in Malibu, but it was closed even before the residents voted for cityhood. Nothing's changed except the response time to a call.

Michael K said...

Reminds me of that quote of Sam Rayburn to LBJ, who was talking about Kennedy’s Ivy League “best and brightest” advisers.

“I’d feel a lot better if some of them had run for Sheriff just once.”


Sam Rayburn is another hero of Caro's biography of Johnson. He had an amazing life.

there used to be a sheriff's station in Malibu, but it was closed even before the residents voted for cityhood.

Years ago, I was working in the ER of St Joe's hospital in Burbank. One night a guy came in who had driven his car off a cliff in Malibu. He crawled back up tp the street and walked to the Sheriff station. They told him they could do nothing for so he got somehow to Burbank and walked into the ER.

We worked him up and his neck xrays showed a C 2 fracture. If he had sneezed he would have died.

A friend of mine has been Mayor of Malibu multiple times. I have never told her that story.

Joe Biden, America's Putin said...

Mr. Treehorn treats objects like women, man.

Gospace said...

My county sheriff is one of many who've told Cuomo the unconstitutional SAFE Act won't be enforced in his county. If he changes his mind we'll have a new sheriff next election.

Having the chirf law enforcement officer of a jurisdiction directly answerable to the people is a good thing.

Having the courts declare the act constitutional doesn't make it so. Also why I tell people they want to serve on jury duty as the jury is the ultimate decision maker on what laws should be enforced and which ones ignored.

Mark Jones said...

"And why does the Sheriff get to decide constitutionality and not the individual? Aunt Bee should tell Andy Griffith to go suck eggs."

And the individual CAN do so...when he's a juror. Not that the state, the judge, the prosecutors, or most anyone involved in law enforcement wants you to know that. In fact, judges will lie to you, telling you you have so such right or authority.

But you do. You're entirely within your rights to refuse to convict someone because you think the law is unconstitutional, vague, unjustly applied or for any other reason you like.

Bilwick said...

Constitution? What's that? Oh, that's right--that thing that was written--what?--a hundred years ago? And no one can understand because the language is so archaic? Wow. . . what a concept.

FIDO said...

One:

This is nothing new. Sheriffs have been selective about the law, as have prosecutors, since time immemorial. In fact, a very famous lawman said recently that 'since H-----y didn't have INTENT to violate the law, well, gosh howdy, that law wasn't actually in fact VI-O-LATED.' (Spits baccy)

And if it's good enough for the head of the FBI, why should this 'selective application' not be more widespread?

And frankly, I'd rather have a sheriff only abide by the Constitution as opposed to so called Academics who freely flout the First Amendment.

So why is one better than the other.

But I've already put forth my 2): that this is a well deserved change that Hawaiian justices have earned in their seemingly headlong rush into destroying social cohesion and trust.

I mean 'the executive has final authority over immigration' might seem pretty clear, but we actually have 9 people arguing over it right now! And if we don't get a unanimous decision, well, we are probably going to get Jacksonian here pretty soon. The SC can rule...and Ol' Giddy can hitch up her skirts there and enforce them laws herself!

This is what Liberals get from uneven legal application.

Limited blogger said...

I forgot how fucking great that scene was. Thanks.

PJ said...

@Mark Jones, I have often heard confident assurances that jurors have a right to vote as they please regardless of the law and anyone who says otherwise is lying, but I have never heard whether that’s supposed to be in the Constitution or a common-law rule or a matter of state law or what. I get that nobody can stop jurors from behaving that way (as long as they don’t announce that they’re engaging in racial discrimination or something). But I don’t think that’s the same thing as having the right. The specific examples you give of situations where jurors might feel justified in ignoring the law — they think it’s unconstitutional or vague or unjustly applied — are easy for principled people to defend, but “any other reason you like”? Really? If a juror has no doubt that the defendant is guilty of lynching the victim, but he thinks people like the victim ought to be lynched, the juror has the right to vote to acquit? Or are you just saying nobody can stop that juror as long as he keeps his mouth shut about his real motives?

Mark Jones said...

@PJ, there are lots of common law precedents, many going back centuries in England and elsewhere. There are arguably Constitutional arguments in favor of it as well (the Sixth Amendment right to trial by jury, wherein the state--i.e., a judge--cannot simply decree your guilt. They have to convince a jury of your peers to find your guilty). My argument, though, is simply this:

Every cop, from the local deputy to the head of the FBI, has a great deal of discretion in the use of his power, and in whether he charges someone with a crime, and what charges he makes. Every prosecutor has even wider latitude is deciding whether or not to pursue charges against an individual, what charges he'll make, and whether to make deals. Every judge is virtual tyrant in his courtroom.

But--somehow--if JURORS exhibit any such discretion, if they behave as anything other than robots, the system falls apart? That is self-serving bullshit from the authorities who would rather not have to deal with citizens who ask questions and can see for themselves whether a prosecution is unjust or even outright malicious.

"But what about racists who would refuse to convict someone in a lynching?" Yes, that could happen. What about racist cops? What about 'testilying'? What about racist or malicious prosecutors, or prosecutors more concerned with their own careers and reputations than with truth or justice? And on and on. A bad juror could, yes, tank a case against someone who really deserves conviction. Once. In that one case. A bad cop, prosecutor, or judge can threaten the lives and liberty of hundreds, maybe thousands of innocent people.

I know which one I think is the bigger threat.

PJ said...

@Mark, I agree with you about which is the bigger threat, but nobody thinks cops, prosecutors, or judges have the right to use their power maliciously, discriminatorily, or arbitrarily, do they? If we catch them at it, they can be sued or fired/impeached or even imprisoned, and malicious prosecution is a ground to have a criminal charge dismissed, at least where I live. It seems to me that jurors can be said to act justifiably, and even heroically, when they use their power to put a stop to an unjust prosecution, but it’s more an act of civil disobedience than an exercise of a right. I don’t think jurors have any more right than any other participant in the justice system to exercise power maliciously, discriminatorily, or arbitrarily.

Mark Jones said...

Does anyone thing cops, prosecutors and judges have a *right* to discriminate in the use of their power? Maybe not. But in practice, they can't avoid it. The police are, theoretically, there to enforce all the laws all the time. In practice, that's impossible. There are too many laws, and the result of trying to enforce them all--as seen in occasional police labor actions, when they go on ticket blitzes--is chaos. Ditto for prosecutors, who can't possibly prosecute every individual charged with a crime. It would be a huge waste of time, money, and other finite resources to try to pursue every charge against every individual. They're expected to show some judgment about how best to use their authority.

The problems come when they use their discretion to benefit themselves and otherwise subvert the law. The same is true of jurors refusing to convict someone because they find the law in question unjust or unreasonably vague, or consider the prosecution of a particular individual to be malicious or otherwise unjust. They can and they should refuse to participate such a prosecution. The jury's power to acquit a defendant is pretty much unreviewable by design. The requirement to convince a jury of one's peers that you did what the government claims you did, AND that you deserve to be punished for it is a high bar, and it should be. It can't be if the jurors are allowed no room to make judgments of both the law (and the prosecution) as well as the facts of the case. If not, what's the point of a jury trial? A judge is better versed (or should be) in the technicalities of the law, if that's all that matters. But it isn't.

Birkel said...

Do jurors have a right?

Invert the question: Can a juror be punished for doing what they wish under the law, once in deliberations in the jury room?

The answer is a resounding no. And if nobody can punish jury nullification then each of us has the right to nullify the jury.

Gospace said...

I honestly thought this was just the right topic for a few hundred comments. And only half a hundred. I'm disappointed. I was actually interested in what some of the regulars would say.

Film Mania Gifts said...

I forgot how fucking great that scene was. Thanks.

https://www.w3schools.com/html/tryit.asp?filename=tryhtml_links_w3schools

Film Mania Gifts said...

Anti-immigrant? Really? Really? Really?

https://www.w3schools.com/html/tryit.asp?filename=tryhtml_links_w3schools

Film Mania Gifts said...
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Film Mania Gifts said...
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Film Mania Gifts said...

Do jurors have a right?

Film Mania Gifts said...

"Mr. Treehorn treats objects like women."