Opinion

'Constitutionalist sheriffs' won't enforce coronavirus restrictions

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In Snohomish County, Washington, Sheriff Adam Fortney is refusing to enforce the governor's stay-at-home order. He claims the order "intrudes on our right to life, liberty and the pursuit of happiness." On April 22, he told constituents via a Facebook post that "along with other elected Sheriffs around our state, the Snohomish County Sheriff's Office will not be enforcing an order preventing religious freedoms or constitutional rights."

These Washington sheriffs are far from alone. They're part of a nationwide group of sheriffs who feel beholden to no one but their voters. As they have on issues such as immigration and gun regulations, they will lead rebellions against higher levels of government - in this case, undermining public health efforts in the name of their interpretation of the U.S. Constitution. Here's how.

- Sheriffs are unlike other elected officials

Unlike police chiefs or commissioners who are generally appointed, sheriffs are law enforcement officials elected by residents of their counties. While research finds that police generally try to carry out their responsibilities in a nonpartisan manner, sheriffs are influenced by the desire to be reelected. Sheriffs run for office in the same way that members of Congress or the president do: they run on campaign platforms they believe will win a majority of votes. Sheriffs' campaign platforms consist of their political and law enforcement records, personal philosophies and policy priorities.

What sheriffs promise to do is quite likely to come true, because they have much more autonomy than do other elected officials. Legislators can't do much without first going through lengthy and involved policymaking efforts that involve collaborating with their fellow legislators. Governors and presidents have to work with the legislative branch of government. Because sheriffs don't have these constraints, their personal attitudes are quite likely to affect how they carry out their jobs.

For example, research finds that sheriffs choose whether and how they cooperate with federal immigration authorities. On one end of the spectrum is a group of sheriffs in North Carolina who campaigned on the promise to cut ties between their offices and Immigration and Customs Enforcement (ICE). Since their elections, they have refused to honor immigration detainers, which are official ICE requests to take custody of someone who has been arrested; these sheriffs no longer allow ICE into county jails. On the other end of the spectrum was Joe Arpaio of Maricopa County, Ariz., well known for relentlessly policing immigration status, at the expense of civil rights and neglecting other aspects of his job.

Now combine that popular mandate from being directly elected with law enforcement power. What you get are sheriffs willing and able to lead local rebellions against the government - something that for decades has been happening from a group known as "constitutionalist sheriffs."

- Constitutionalist sheriffs in charge

Constitutionalist sheriffs believe that the Constitution appoints sheriffs as the ultimate law enforcement authority, even above the federal government. The Constitutionalist Sheriffs and Peace Office Association (CSPOA) claims to have over 400 members. Constitutionalist Sheriffs vow not to enforce federal laws that they consider a violation of individual rights granted by the Constitution.

Constitutionalist sheriffs have been attacking stay-at-home orders, which elevate the rights of the community over the rights of the individual. For example, Sheriff Daryl Wheeler, who identifies himself as a constitutionalist sheriff, posted a letter to Bonner County, Idaho, Facebook page asking the governor to "reinstate the Constitution" because "Covid-19 is nothing like the Plague." This sentiment is echoed by sheriffs across the country.

Sheriff Christopher Schmaling in Racine County, Wis., released a public statement on April 17 declaring he would not enforce the governor's Safer At Home order because it intrudes on the constitutional rights of his constituents. He reminds the county that he "took an oath to uphold the constitutional rights of our citizens."

Fortney reassured his constituents via a Facebook post, "As your elected Sheriff I will always put your constitutional rights above politics or popular opinion." In less than 24 hours, the post had been liked by 7,000 followers and shared over 12,000 times.

None of this is surprising. Constitutionalist sheriffs have refused to enforce orders from above before. For instance, as the Center for Public Integrity reported at length in 2016, these sheriffs have refused to enforce state gun regulations, federal land-use rules and Internal Revenue Service demands for payment of federal taxes.

Protecting Second Amendment rights is central to CSPOA's mission. In 2013, almost 100 sheriffs went on record opposing the Obama administration's gun regulation initiatives. The group sent dozens of letters to the White House stating they would defend their constituents' constitutional rights by refusing to enforce the new gun regulations. In 2018, Washington state voters passed stricter firearms restrictions via ballot initiative. Sheriffs have refused to enforce the new laws. Political scientist Mirya Holman, who has written here at TMC about her research into sheriffs, speculates that political polarization along the urban-rural divide contributes, as predominantly rural constitutionalist sheriffs refuse to enforce gun policies promoted predominantly by city dwellers, whether those are Seattle-area voters or President Barack Obama.

My research finds that constitutionalist sheriffs use their offices to undermine enforcement of federal public lands policies, making it easier for others to illegally use public lands for such purposes as grazing livestock or driving all-terrain vehicles. For instance, they threaten and try to arrest federal Bureau of Land Management (BLM) rangers who try to keep citizens off federal lands closed to the public. Counties that elect constitutionalist sheriffs have higher rates of violence against BLM employees than other Western counties, according to my analysis of government incident reports from 1995 to 2015.

- Statewide efforts don't work without local cooperation

As with immigration, land management and gun regulations, maintaining U.S. public health involves the cooperation of many layers of government. And as with those issues, sheriffs may find it in their political interests to thwart other levels of government in trying to slow the pandemic.

Social distancing orders aim to help communities in the long run, at the cost of restricting lives and pinching wallets in the short run. People who don't believe in the promise of the former may chafe angrily against the latter. Such constituents may thank sheriffs who encourage them to travel and gather, defying state and national orders.

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Nemerever (@ZoeNemerever) is a Ph.D. candidate in political science at the University of California, San Diego.

For other analysis and commentary from The Monkey Cage, an independent blog anchored by political scientists from universities around the country, see www.washingtonpost.com/blogs/monkey-cage