Sheriffs damage claims to our trust

Written by Kevin Cahill January 31, 2013 08:50 am

As I read how some Oregon sheriffs have written letters pledging to refuse to enforce federal gun regulations they deem unconstitutional, I found myself wondering what exactly sheriffs are sworn to do in fulfillment of their duties.

According to ORS 206.010, Oregon sheriffs have five general duties:

General duties of sheriff

1. Arrest and commit to prison all persons who break the peace, or attempt to break it, and all persons guilty of public offenses.

2. Defend the county against those who, by riot or otherwise, endanger the public peace or safety.

3. Execute the process and orders of the courts of justice or of judicial officers, when delivered to the sheriff for that purpose, according to law.

4. Execute all warrants delivered to the sheriff for that purpose by other public officers, according to law.

5. Attend, upon call, the Supreme Court, Court of Appeals, Oregon Tax Court, circuit court, justice court or county court held within the county, and to obey its lawful orders or directions. [Amended by 1985 c.339 §1]

After having read this list many times, I still cannot find the one where sheriffs are supposed to judge the constitutionality of laws before deciding whether to enforce them. I don’t want to come across as completely naive so let me say up front that I’ve always assumed that law enforcement officials winked and nodded at certain things when trying to decide what was the best path to keeping the peace. I hope we never lose our reliance on individual judgement and initiative. But when the sheriffs publicly advertise that certain laws or regulations will not be enforced, they have, in my view, damaged their own claim to our trust.

These sheriffs call for strict and literal readings of the Constitution; they speak about “absolute rights” even as they routinely (and constitutionally) limit people’s rights  to speak freely in certain venues, to make loud noises beyond a designated hour — all as part of their legitimate duties as keepers of the peace. Apparently some rights are absolute while others are not. Do they really think that we do not see the inconsistencies in their position (some might use a stronger word for it)? Or do they simply have a blind spot for the provisions having to do with guns or with provisions establishing different branches of government and the separation of their powers?

Rights, responsibilities

Even a cursory reading of the history of Constitutional decisions on guns over the years proves that interpreting the Second Amendment has never been a simple matter. Trying to balance rights and responsibilities and public safety is tricky.

The gun owners I know are overwhelmingly a conscientious and responsible group of people. I trust them. But they are not immune from the law. There are plenty of very conservative gun rights advocates like Eugene Volokh who acknowledge this fact. I don’t begrudge these sheriffs their personal positions on constitutional law, but I do mind them redefining their job descriptions to accommodate those positions.

The average citizen should worry about sheriffs becoming judge and jury in their local communities. Maybe you agree with them on this issue, but what about the next issue? And what if they change their minds? The average citizen may not find out until it’s too late, unfortunately.

Kevin Cahill is a La Grande resident.