Cafeteria… I Mean, Constitutional Sheriffs Promise To Pick And Choose When Laws Matter

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Magna Carta?! I hardly know her!

An easy way to differentiate a 0L from a 1L is to ask them the importance of caselaw when it comes to constitutional applications. As early as the first year of law school, students know that what is written in the Constitution and the accompanying amendments are not only starting points — they are obviously so; nobody takes serious the notion that the federal Congress is the only governing body that shouldn’t be able to abridge the freedom of speech, for example. While the average 0L — and layperson, for that matter — would begin and stop at the constitutional language, anyone past the lowest point on the grade curve would talk about how jurisprudence has modified that right, Schenck, Tinker, and their progeny. Lawyers are expected to know this. Judges are expected to know this. Unfortunately, police officers are not — which may explain why they make so many constitutional violations. That said, for some, the 0L reading of the Constitution isn’t a sign of naivety, but of strength. And that’s worrisome, especially since the people thinking this way are running to be the ones in charge.

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More than a dozen candidates campaigning to be top law enforcement officials in counties across Colorado are running on a unique platform: Not enforcing the law.

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Experts say the rhetoric has emerged among local officials as political divisions have cleaved the country in the last decade, with fights over mask and vaccine requirements and gun-safety proposals pulling once-fringe views more into the mainstream. Some of the ideas have roots in far-right extremist movements while others may reflect a loose dissatisfaction with political leadership or campaign-season pandering, experts said.

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You know, for a party that makes such a big idea about agendas being pushed, they are doing a really good job of making sure that their ideological baggage becomes mainstream. From complaining about teachers brainwashing schoolchildren to funneling millions so that PragerU can convert millennials into conservatives, or complaining about how Black Lives Matter is fostering lawlessness and and excusing lynchings with “he should have complied” while sheriffs literally run on rule of law threats as a campaign strategy, you’ve got to respect this level of commitment to gaslighting as political stratagem. Or, put otherwise:

It’s one of the only elected law enforcement positions, said Holman, the Tulane political science professor. Sheriffs wield wide discretion and have broad authority.

“They have the ability to arrest people or not arrest people. They have the ability to really damage somebody’s life if they so choose,” Holman said. There are “few checks on what sheriffs do.”

“In many ways, (it’s) a very dangerous office to have somebody that is unwilling to cooperate with basic functions,” she said.

Refusing to enforce gun-related laws is one area where the “constitutional sheriff” ideology can have a tangible impact on constituents’ lives, said Robert Tsai, a Boston University law professor who has researched constitutional sheriffs.

“If they refuse to go and pick somebody up because of a violation of gun laws, they refuse to go disarm somebody, refuse to respond to someone who is armed. That’s really where the rubber meets the road,” Tsai said.

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The Punisher problem isn’t just a police thing anymore. The sheriffs want their hand at vigilante justice too. And, despite their rhetoric, out liberties will likely be in more danger because of it. The spectre of jury nullification hangs over our prosecutorial system — there’s many a think piece on its dangers available for reading. But why is there such concern over this relatively rare phenomenon while “Constitutional Sheriffing” enjoys the light of day? Does not letting too much power collect in the hands of individuals not strike as necessary anymore?

I guess we’ll find the answer once the ballots are counted.

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Some Colorado Sheriff Candidates Have An Unlikely Campaign Promise: Not Enforcing The Law [Colorado Sun]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

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Constitutional Sheriff, Discretion, Magna Carta, Police, Rule of Law