Last fall, voters in Washington state approved a package of firearms restrictions, generally called I-1639. It raises the minimum age for buying semi-automatic rifles, tightens background checks and makes it a crime to fail to store a gun safely, if the gun ends up in the wrong hands.
The restrictions have raised the ire of some county sheriffs. “My plan is not to enforce it,” says Klickitat County Sheriff Bob Songer. Songer is one of about a dozen sheriffs, mostly in rural parts of the state, who have come out against the law. Some say they will apply certain measures — for instance, the background checks — but will ignore others. One sheriff said he is not going to arrest a 20-year-old farmer who happens to have a semi-automatic rifle with him on his tractor.
Songer is more absolutist: “As an elected sheriff and a constitutional sheriff, I believe it violates the Second Amendment of the U.S. Constitution,” he says, “and, more specifically, violates the Washington state Constitution.” Songer adds he won’t enforce it unless — and until — the Supreme Court says it is constitutional.
Does a sheriff really have the right to do this? That depends on who you ask. Robert Wadman, a former police chief and a professor emeritus at Weber State University, says professional discretion is a constant feature of policing, as cops decide, for example, whether to arrest someone for simple drug possession or wait to see if they can follow the little fish to a bigger drug dealer. “There’s a litany of decision-making processes in almost every phase of policing, from the street to the leadership,” Wadman says. While he believes there’s no “recipe” for figuring out when discretion crosses an ethical line, he thinks publicly refusing to enforce a law on constitutional grounds goes too far.
Richard Mack, on the other hand, says the Washington sheriffs are doing their duty. Mack is a former Arizona sheriff who in the 1990s successfully challenged a federal law requiring state officers to do gun purchase background checks. Since then, he has popularized the term that Songer uses to describe himself, “constitutional sheriff.” “Sheriffs standing for freedom have the responsibility to interpose — it’s the ‘doctrine of interposition’ — whenever anybody is trying to diminish or violate the individual rights of our counties,” Mack says.
The notion of an autonomous, elected law enforcement chief is uniquely American, and some wonder whether it still makes sense. “They have an enormous amount of autonomy,” says Mirya Holman, an associate professor of political science at Tulane University. “I’m not sure that there is another office that is a common office that has anywhere like the level of autonomy that sheriffs have.”
Last year, an analysis of the institution of sheriff in the Virginia Law Review by James Tomberlin concluded that the office of elected sheriff had outlived its usefulness. “What perhaps made the sheriff attractive during westward expansion makes it obsolete at best and dangerously anachronistic at worst today by preventing local governments from acting as a meaningful check on the office’s powers and holding the sheriff accountable,” Tomberlin wrote.
Few states have curbed sheriff autonomy. One exception is Connecticut, where voters in 2000 eliminated the office of “high sheriff” after a series of scandals.