“Constitutional” Coppery

I should have seen it coming. In retrospect, its 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, it fails 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 sounds 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 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 sheriff’s were Andy Griffith or Mud Lick’s Sheriff Roy. There was Maricopa’s Crazy Joe and Milwaukee’s David Clarke. Then there are the sheriff’s 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