Sheriff's Candidate Forum: What should a sheriff do if ordered to enforce an unconstitutional law? | Eastern North Carolina Now

    Publisher's Note: This article originally appeared in the Beaufort Observer.

Most candidates got this question wrong at a recent candidates' forum

    At the Sheriff candidates' forum sponsored by the Beaufort Patriot TEA Party on January 16 the question that got the most attention was the one that was asked several different ways, but essentially was this: "If you were put in a position of cooperating with an unconstitutional order from an agent of the Federal or state government would you do as you were told to do or not?

    The responses of the candidates present could be divided into two approaches. One approach was to say: "no, I would not cooperate with or enforce an unconstitutional order or law." The other was "I would obey the law..." implying that the Sheriff has no discretion in whether or not to enforce "the law." Two candidates indicated that they just could not envision ever being put in that position as Sheriff of having to decide whether to take action they felt was a violation of the constitution. The correct answer, of course, is: "No. I would not enforce or cooperate with the enforcement of an unconstitutional order or law unless by order of a court of competent jurisdiction."

    Now, let us break down this issue.

    First, on the point of not being able to envision being put in a position of having to decide whether to enforce a law or order that was contrary to the constitution, let us just say this to those candidates. It is not only conceivable that you will be faced with such a dilemma, it is inevitable.

    Unless there is a major paradigm shift in Washington, every law enforcement official in America is likely to be confronted with the inevitable dilemma of whether to "preserve and protect the constitution" or obey Federal laws and orders from Federal executive officials. If one doesn't believe this then you need to read the National Defense Authorization Act. Major parts of that law are patently unconstitutional. It provides for indefinite detention (a violation of the Right of Habeas Corpus) and warrantless searches. That law applies to North Carolina. Thus, by definition, every Sheriff in North Carolina will be faced with whether he is going to cooperate with implementation of the NDAA in his county. For example, if the Department of Homeland Security detains a Beaufort county resident as they have already done in several other counties (under guise of "preventing terrorism"), what is our Sheriff going to do? What does the Sheriff do if a Federal officials demands that he seize records from Beaufort County businesses based on a general "administrative letter" as opposed to a search warrant? We would suggest he will have three choices: cooperate, resist (protect the citizen) or turn a blind eye. There is only one honorable choice and that is resist.

    Another inevitable probability: Within the next four years (the term of office for a sheriff) some Federal or state agency will employ the use of drones for surveillance of specific individuals (as opposed to generalized surveillance). That is clearly a violation of the Fourth Amendment (non-particularized, warrantless searches). Is our Sheriff going to cooperate, resist or turn a blind eye?

    And it is not just the Fourth Amendment. The example discussed at the Forum was the possibility of a Federal order to confiscate weapons  -  a clear violation of the Second Amendment. To the candidates who said they could not imagine that happening we would point out that it has already happened. Federal agents ordered the seizure of weapons from everyone in New Orleans after Hurricane Katrina. And right here in North Carolina the Beaufort County Manager imposed a "State of Emergency" that included an order that banned weapons in public during that emergency. While that state law has since been repealed by the Republican Legislature, it did happen.

    And a number of people (most TEA Party folks) would ask these candidates: What do you think the Department of Homeland Security bought a billion rounds of .223 ammunition for? They have bought more ammunition than the Marine Corps has bought in the last five years! What do you think they are preparing for?

    Obviously DHS is preparing for massive civil unrest. If so, why should a candidate for Sheriff not be considering how he is going to interact with DHS if an emergency is declared?

    We presume we do not need to belabor this point. If you still doubt that our Federal government officials, including our President, will grossly violate the Constitution simply watch the videos at the Beaufort Patriot TEA Party website. They are entitled "The Constitution I and II".

    The point is: Both the Federal and State government, or their agents, have already presented the dilemma to our sheriffs in this state.

    Fortunately, the candidates at the Forum understand the uniqueness of a county sheriff in North Carolina. The Sheriff is an elected constitutional officer. As such he answers to the people. He takes an oath to support and defend the Constitution of the United States and the State of North Carolina. The office is unique in that it is the only law enforcement office that is not directly accountable to a higher civilian authority. The same is true with other constitutional positions such as Register of Deeds and Clerk of Court. While it is true that the County Commission controls the sheriff's budget, as with the Register of Deeds and to some extent the Clerk of Court, and a sheriff can be removed from office by a Superior Court Judge for six reasons, historically sheriffs have had great discretion in how they administer their duties.

    Many people, and unfortunately apparently some of the candidates at the Forum, view the role of the Sheriff as that of "enforcing the law." And while that is true, it is equally, and perhaps more importantly, true that it is the Sheriff's duty to protect law abiding citizens from having their rights violated. And because of the unique authority and position a Sheriff is given by our Constitution, the Sheriff is in a unique position to prevent illegal violations of law by government officials. There is even a term for it. It is called violation under color of law.

    None of the candidates at the Forum addressed this point.

    Two of the candidates expressed very troubling positions on the question of "would you enforce an unconstitutional law/order?" They said "I would enforce the law." One equivocated and ultimately did not give an unqualified answer. Only one said "absolutely" he would not enforce an unconstitutional law.

    With all this background, let us take a stab at what we view as the "correct response" to the question asked of these candidates.

    A Sheriff should stand on the position that "I will enforce a law or order, and cooperate with the enforcement by another agency, only if it is a legal and legitimate law or order. If it is an illegal violation of a citizen's constitutional right(s) I will not only not enforce it, but will do everything in my power to protect the citizen from their constitutional rights being violated, under color of law. If they don't like my position, they can go to court to get it overturned."

    With all due respect to the candidates who seemed to be saying that "if it's a law, then I will enforce it," that is exactly the argument that Nazis war criminals offered at Nuremberg. "I was ordered to do it..." is not an acceptable answer as a basis for exercising police authority over people. Every candidate for Sheriff should repudiate that idea in the strongest possible terms and with the most stringent actions available to him.

    That then brings us to the question of "how does a Sheriff know whether a law or order is unconstitutional?" "Is it not just a matter of opinion?"

    The answer to that is clear. He is expected to exercise his discretion using his best judgment. He does that in many ways, many times a day. No Sheriff enforces every law all the time. It is patently absurd to contend otherwise. Consider, for example the law against "disturbing the peace." There are all kinds of nuisance laws that require discretion in enforcement. Clearly they require the exercise of discretion. The list is nearly endless of such examples.

    In this regard, the position of Sheriff is no different from that of any law enforcement official, whether they wear a badge, carry a gun, wear a robe or hold a title such as (school) Principal or School Superintendent, Building Inspector, CAMA permit agent etc. All have a duty to enforce the law. All have to exercise discretion in the enforcement of the laws that apply to their jurisdiction.

    There is even a long established procedure for dealing with the exercise of discretion in law enforcement. There are two kinds of official duties: Discretionary and ministerial. A ministerial duty is one that the official has no discretion whether to administer or not. If a school board authorizes a contract, the superintendent has no discretion as to whether or not to execute the contract. That is a ministerial duty.

    Of course the discretionary duties are those in which he uses his judgment of whether to or how to enforce. If someone views the official as not performing a duty he has no discretion as to whether or not it is enforced then the aggrieved party can go to court and apply for a Writ of Mandamus. If a judge determines it is a ministerial duty and the official is not fulfilling that duty then he can issue an order compelling him to do so. But if it is found that the duty is not a ministerial duty then the Sheriff has discretion in whether or not or how to enforce the duty.

    So translated, if a Federal official orders a Sheriff to confiscate the weapons of those legally entitled to possess those weapons and the Sheriff refused, then the Federal official would be obliged to go to a judge to get a Writ of Mandamus against the Sheriff. Otherwise, the Sheriff can refuse to follow what he deems to be an illegal order.

    The same principle applies in the military. We have all heard that in the military subordinates must obey their superior's orders. But that is true only if the order is lawful. That is, the superior issuing the order has the authority to issue the order and the exercise of that authority does not violate the law (constitution).

    So clearly a Sheriff can refuse to enforce an illegal law or order. That is why the candidates who did not give the correct answer at the Forum were wrong.

    The fundamental legal theory upon which all this is based is that a government official has a duty to protect and defend the Constitution. And he is obligated by duty to exercise his discretion in doing just that. And if the one issuing the order thinks the Sheriff is wrong then they can get a judge with competent jurisdiction to order the sheriff to fulfill his duty. Absent such a court ruling the sheriff should not lend support or resources to enforce what he deems to be an unconstitutional mandate from either a Federal or state official or agency.

    So the correct answer to "will you enforce unconstitutional laws or orders?" is simply: "No. If I deemed the law or order to be illegal I will not enforce it and I will protect any citizens from being deprived of his constitutional rights by an official acting illegally under color of law."

    Now we might add, none of this is to say that a sheriff is omnipotent. He can be voted out of office. He can be removed for cause. In fact, all it takes to institute removal proceedings is a petition signed by five citizens. But the major restraint on the sheriff's power is the control of his budget by the County Commission. The County Commission can even take his law enforcement duties away and assign them to a county police force, although the Sheriff remains responsible for serving court papers and being custodian of the county jail.

    Thus, if one of these candidates is elected and ever does stand up to an unlawful order he would be well advised to consult with the County Attorney and get approval from the County Commission. After all it is the Commission that will have to agree to pay the legal bills to defend the Sheriff's position in court. But that is precisely how a sheriff should deal with it. Stand up to an unlawful order and then defend that position in court with the support of the County Commission.

    When you stop and think about it, while it may not be a perfect system it is a pretty good way to protect our constitutional rights  -  if we have a wise and courageous Sheriff. Let us pray that we will elect such a person.

    Editor's note: We will post the video of the sheriff candidates' forum shortly. Check back to watch the actual presentations by the candidates.