Having a practicing Constitutional Sheriff in every county in the United States is an ambitious, vital and worthwhile goal for Liberty organizations to pursue in each county. Here is a plan for doing so.
Introduction
Second only to Renewal of the Republic at the Citizen level is the goal of ‘re-constituting’ the role of the Constitutional Sheriff in every County in America. Having the Citizens realizing and re-taking their role as the true Rulers of the Republic is required to begin working in every public forum, not just showing up on election day. To facilitate development it should be pursued in a responsible, accountable and proactive manner in all public venues. That is the highest priority in any overall plan for Renewal and Restoration of the Republic.
However, even with more Citizens functioning properly again with government councils, commissions and legislatures at the local, state and federal level, the next priority is having County Sheriffs working correctly with the Citizens and the other local officials to restore and effect the Republic in law.
Today, most County Sheriffs have no better understanding of the organizing principles of the Republic, the State and federal Constitutions or their own County charters, than the average citizen. Tragically, most also have no understanding of their historic or actual role as Sheriff today. That is both tragic and unacceptable. To be elected Sheriff is one of the most important and direct offices for anyone to obtain in order to insure the protection and prospering of the County and the Republic.
Contrary to popular myth in the inverted Republic, the correct functioning at the base of the system determines the stability and proper functioning of the top. Stated that way seems much more obvious, doesn’t it? If there is no solid foundation, the whole building collapses.
History, the ‘P.O.’ vs. the ‘LEO’
The Office of County Sheriff is an Institution of long standing. It began in Old English tradition as the “Shire Reeve.” The Shire Reeve was the King’s Protector of the land and the people. The Shire Reeve or ‘Sheriff’ was usually also responsible for collection of taxes on behalf of the King. Most Americans are familiar with the story of the Sheriff of Nottingham and the Robin Hood legend. In that case, an absent, distant or authoritarian King could allow a Sheriff to take advantage of the People and the King’s land (the ‘shire’) to serve his own interests. Or, in the case of a benevolent monarch, the Sheriff could work more on behalf of the people and their use of the King’s land.
In America, the concept of the Sheriff as established in English law evolved with the change in the system of government where the King was no longer the Sovereign, the People were. The Sheriff was still the Protector of the land and the People with the People as the sovereign entity. Now the Sheriff was responsible for protecting the Rights of the People in their use of the lands in the legal entity of the County instead of the shire. The Sheriff was established as the ‘peace officer’ of his county. He no longer collects the taxes.
In a Republic, first, the role comes down to understanding the difference between the Peace Officer (PO) role versus the contemporary view of the Law Enforcement Officer (LEO). The traditional PO role model had as its primary responsibility upholding the Constitutions and keeping the peace through the enforcement of all laws involving actual property and injury crime. Those of us that are over 50 years old are more familiar with this PO role.
It is extremely important to understand the distinct difference between the PO and LEO models. The PO model is tasked to first uphold and defend the Constitutions and to “keep the peace and order” regardless of any specific violation of law. Unless the Sheriff, as a PO, has a specific warrant or court order from a court of proper jurisdiction to execute, the PO determines whether “keeping the peace and order” overrides a particular enforcement of law. The PO, in lieu of a specific warrant or court order, effectively is the law officer, judge and jury in determining how any law will be immediately enforced in each specific instance.
That is a very specific and unique role and a historic protection function for citizen’s rights in any county. If a Sheriff, in the PO model, determines it is more important to keep the peace and order rather than to enforce a specific law that is his/her decision alone within the county. It is also why they are elected rather than appointed. More on that further on.
If one were to review most state constitutions, codes or statutes they would find that almost all the original references were to Sheriffs and police as “peace officers” not “Law Enforcement Officers.” This author knows of no original establishment of local and state policing powers where the term “Law Enforcement Officer” was ever used. Mainly, because the concept didn’t exist.
On the other hand, the LEO role is a more technical, bureaucratic one of insuring the technical enforcement of statutory infractions along with true criminal law. There is much less emphasis on first “keeping the peace and order” and much less reliance on maintenance of Constitutional rights and liberties. There are many reasons why the evolution of the Sheriff from being a Peace Officer, the role identified in State Constitutions, Code and Statute, to LEO, has occurred.
Foremost, it has come about from the explosion of so-called “laws” in the last few decades by state and federal legislators. Most of these laws have been initiated through the creation of “statutory offenses” that are not actually crime. I suggest reading Harry A. Silverglate’s “Three Felonies a Day,” if you think I’m kidding. Virtually every citizen likely commits an average of three felonies a day without even knowing it, just in going about their daily lives. That ‘criminalization’ of the population is not without consequences.
Perversely, the United States has reached the highest imprisonment rate of any country on the planet (so this is how we’re free?). There are currently more than 3 million inmates incarcerated in local jails, state and federal prisons. There is another 8 million under supervision and probationary control. By far and away the vast majority of those in both categories are for victimless crimes of all types due to the explosion of statutory ‘law.’ We have a far larger population of “cons and ex-cons” than we do active duty and military veterans. Think about the consequences of that.
Legal-fictional creations of such so-called ‘crime’ effect statutory laws of “prior restraint,” i.e., drunken-driving and substance use or abuse ‘offenses.’ Those and the many traffic, property (zoning) and other administrative and regulatory infractions have many downsides (such as the social and actual cost of imprisonment) to go with very few upsides. They are not truly ‘laws’ but statutory infractions. Actual ‘laws’ deal with real crime where identifiable harm, injury or property damage has actually occurred to another citizen at the point of committal. Many are subjectively or emotionally based creations, not objective-harm laws.
In statutory infractions another citizen is not the complainant but the entity of the state. They are laws of ‘potential’ harm where no actual harm (and thus, no true crime) was present at the point of statutory infraction. Such processes speed a Criminalization of the population, for what are really minor infractions and where no harm has come to another. The Drug War is just one perfect example.
Secondarily, has been the huge explosion in the last four decades in the similar types of Federal statutory ‘crime.’ Here again, there is no actual crime that causes harm or property damage to another citizen, only the abstract of some unidentifiable or vague potential harm against the ‘people or state’ in the form of the federal government. A vague description to say the least. Those federal statutory infractions come in the areas of environmental, food, health, occupational and other administrative safety, ‘security’ and regulatory ‘law.’
Of particular significance regards the upsurge of federal drug and ‘security’ law that has taken place since 2001 with the ramping of the Drug War and Global War on Terror It also lies in the legislation of such things as the PATRIOT Act and “Intelligence Reform and Terrorism Prevention” (IRTP) Act (2004). Then there is the creation and/or expansion of Homeland Security, TSA, FBI, BATFE, IRS, etc.
Do you know how many LEOs there are in agencies such as the Dept. of Interior? I’ll bet you’d be surprised of the change in numbers since 1970. How many total personnel of the US Government are authorized to carry firearms and use deadly force? Why has that occurred with no change in Constitutional authority? As explained further on, it’s all about “Mission Creep.”
With that explosion of such so-called federal and state statutory ‘law’ has come a significant expansion in the ranks and supposed jurisdiction of federal Law Enforcement Officers. Also, with the ranks of newly-minted federal LEOs and their presumed jurisdiction, has come federal funds flowing into local police and Sheriff departments to supplement their staffing, equipment and training budgets. Many times those funds augment as much as a third or more of those local budgets over the past 15-20 years. With that money comes both strings and training. Hence, the growth of the same LEO mentality over the traditional PO mentality among the ‘sworn’ officers so affected.
Of particular note is the expansion in the militarization training and equipment budgets for both imagined and real threats faced by local policing agencies.
If one agency is funding or granting to another there not only are certain defined expectations but also a natural affinity that develops. An affinity naturally develops between those paying the money, buying the equipment and providing the training with those who are receiving those things. The concept of “don’t bite the hand that feeds you” develops further.
In this environment it is easy to see how the LEO mentality has migrated into local policing agencies and Sheriff’s offices, at the expense of the PO attitude. That may have been more acceptable if a near complete disregard for issues of jurisdictional responsibility had also not migrated with the attitude, money, training and equipment. Also, a complete reversal of authority roles has taken place with the migration. In such an environment, the LEO attitude becomes completely unacceptable.
That explains some of the shift from the PO to LEO model to a degree. Perhaps more importantly, though, is how that has happened against the original Constitutional role set-up for the County Sheriff. If one remembers movies or stories like Tombstone, True Grit, McClintock!, etc., of the Old West, there was always a jurisdictional tension present between County Sheriffs and Federal Marshals. That was not just a movie device, it had and has a real basis.
First, was the very real and extremely restricted role that the federal government has in any kind of law enforcement. Read the Constitution and count the number of crimes of Federal jurisdiction to be found there. Right, very, very few. That limited role did not change with technology as some pretend, it came with Constitutional usurpation by clever bureaucrats such as J. Edgar Hoover of the FBI and Harry J. Anslinger of the FBN. Both needed a new job after Prohibition was repealed and so went out to find several. Since then, federal LEO positions have exploded in number.
However, it was very clear any US Marshals or Agents only had a very limited jurisdictional role to play whenever they came into a County. The role was limited by the nature of the US Constitution itself and the Republic it created. If the US Marshal came into an inhabited, established county to serve a federal warrant, he was required to check in with the County Sheriff and get his permission to execute any warrant.
Without a Constitutional, legal warrant a federal Marshal had no authority to execute any law within the County. Unless deputized in that county by the Sheriff for the duration of the Service to the Sheriff a Marshal had no other service to perform. Otherwise, only outside of inhabited, established counties was the US Marshal within federal jurisdiction.
That usually meant Indian Lands, Reservations and Territories before they became states, any federal possessions and military jurisdictions where military law did not apply to a specific case. It also applied to any place in a state that was not yet a designated county where the Marshal had received permission from State officials or an order with a federal court in coordination with a state court of proper jurisdiction.
Such instances were not uncommon in the West early-on in the conversion from Territories to States and early Statehood. Of course, many federal Marshals and Agents chaffed (as LEOs do today) under such requirements. Quite a number tried to ignore the requirements until the Sheriff got a federal circuit judge to discipline them. The People need to invoke the same discipline today.
The key point, though, is that jurisdictional tension and the authority chain was specifically created by the construction of the US and State Constitutions. A quick review will explain why:
- The People were created and endowed with rights.
- The People created the entity of the State first to be part of a Confederated Republic.
- The States in Constitutional Convention then created a new federal government as an agent, subservient government for that Republic to accomplish very specific, enumerated tasks known as “delegated powers.” Entities (States, Territories, Counties or the federal government have no rights, only delegated powers)
- The individual states themselves created counties or parishes as political subdivisions of the States and have organized elected and appointed officials for each of their proper branches and offices. The counties are ‘chartered’ to elect their own officials including the separate office of the County Sheriff.
- The federal elected officials of the government appoint officers to run and administer the various branches and their respective functions. Those officers and their subordinate officials hire employees to carry-out those specific enumerated functions.
- Those officers and employees are administratively and ministerially subordinate to the County Sheriff when operating within the jurisdiction of a county on any issue of constitutional authority. They act only operationally to execute lawful orders and warrants within the county when approved to do so.
In the hierarchical order the federal government works for the states, not the other way around. Even under an issue of federal jurisdiction, when an Employee or official of the federal government enters a county to perform on issues of law, they report to the Sheriff. In all cases the states and the feds are ultimately subservient to the People. It is the responsibility of the Sheriff to insure the rights and liberties of the Citizens are upheld and to protect the land of his county under the law prior to any execution of state or federal law.
For the other elected offices in a County, none are responsible for the direct enforcement of local, state or federal laws. Commissioners can only create local ordinances to follow. State legislators create state code or statute. Only the Sheriff is fully charged with the responsibility of enforcing county ordinances, state law and insuring the proper execution of federal law within his/her County. Fairly unique, that position.
Now notice something else unique in that entire arrangement. Who is also the only elected law officer in that structure? The Sheriff. The Governor of a state or the President of the United States are not law officers but executive officers who are also charged with insuring the proper ‘execution’ of the laws. The same with the US or State Attorneys General. They are not charged with direct enforcement of Laws only their proper ‘execution’.procedurally, as part of due process. The highest calling and the greatest responsibility lies with those charged with direct enforcement amongst the Citizens, not the executives and bureaucrats in the system.
Also, who is the only elected officer who swears or affirms to defend and protect both the federal and state Constitutions as a direct law and peace officer? Right again. The Sheriff. In so doing, the Sheriff is performing their first responsibility of defending and protecting the people and the lands of his/her county.
The Attorneys General of the US, the State Patrol Commander or any municipal Police Chief are not elected. They are appointed. How about all the FBI, DEA, IRS, BATFE, Directors and agents or the State Patrol Officers or municipal police? They are all either appointed or hired as employees. They are not elected and not directly accountable to the People.
County-by-County Plan
The Sheriff then, by definition, is the highest Law Officer on the land (or, originally, “shire”) they are elected to cover, jurisdictionally within each County. As such, any Federal, State or local PO or LEO must report to the Sheriff for jurisdictional review/approval. The US Supreme Court and other courts have only confirmed in their decisions what already pre-existed. That was done on purpose. It’s not a fluke or an oversight, it’s by design.
As was explained earlier, the PO role has largely mutated into the LEO one, through a process known as “mission creep.” Mission creep is a term that evolved first in the military. From Wikipedia:
Gradual increase in scope: a tendency of military operations in foreign countries to increase gradually in scope and demand further commitment of personnel and resources as the situation develops.
When applied to the realm of rights and liberties, the Founders understood this process long ago:
“The natural progress of things is for liberty to yield, and government to gain ground.” -Thomas Jefferson to Edward Carrington, Paris, 27 May 1788
In order to restore the Republic then, it is extremely important to restore the proper role of the various offices to proper order.
The following are the key elements needed for a comprehensive Plan to insure the proper operation of a Constitutional County Sheriff’s Office (SO):
- Obtain Citizen’s meeting with the County Sheriff and key Deputies to discuss, determine degree of compliance and agree to this outline Plan.
- Review with SO all relevant agreements between federal agencies (DEA/NFS/BLM/FBI, etc.), other State/Local Law Enforcement and the SO. Those agreements include Memorandum of Understanding/Agreement (MOU/MOA), Intergovernmental Agreements (IGA) and the like. From that review determine Constitutional level of cooperation/interaction/compliance present with SO and those other agencies.
- Review the applicable law and jurisdictional issues to discover areas of unlawful jurisdictional intrusion or over-reach in practice or policing/’law enforcement.’
- Develop and provide specific training and educational materials for SO personnel. Also discuss understanding of materials as they apply to interaction with County citizens and federal agencies/law enforcement.
- If the SO doesn’t have an active Posse and Sheriff’s Auxiliary, build a plan for the revitalization and/or strengthening of those functions within the office.
- Develop simple metrics to measure completion of educational training and compliance through contact tracking with citizens, federal agencies and other law enforcement.
- Set up periodic review to insure staff changes are reflected in training to keep all SO personnel up-to-date on Constitutional compliance and is complimentary to Oath of Office.
- Develop simple scorecard/dashboard compliance output for regular publication in the Journal of Record for each County.
- Provide links to both Sheriff Mack.com, http://www.sheriffmack.com/ and Oathkeepers,http://oathkeepers.org/oath/
- Provide contact info for Sheriff’s in Grant and Josephine counties in OR, San Miguel, CO, etc., and all relevant counties currently employing principles of Constitutional Sheriff. This will facilitate training and exchange of information to promote Constitutional Sheriff Project Plan.
Recommend that this Plan can be accomplished with the appointment of a 2-3 person Citizen’s Committee in each county to conduct Plan in conjunction with each County Sheriff. Committee can report periodically (monthly, quarterly…) on progress with SO.
It is also recommended that this Plan be shared with other local elected officials such as County Commissioners and City Councils/Mayors, etc. Their input and agreement is crucial to moving the development and plan progress along in each county. Their education/participation with the SO and other policing agencies and the Citizens is important to the success of the Plan.
Attached with this Plan should be two documents. The first is a review put together by Sheriff Gil Gilbertson of Josephine County, Oregon titled, “Unraveling Federal Jurisdiction Within A State,” dated 11-08-11. The second is a “Position Paper” from the Western States Sheriff’s Association (WSSA) discussing “Proposed Rule Changes by the US Forest Service Law Enforcement,” dated 9-21-11 Those documents review and reference areas where it is clear the the US Forest Service is attempting to overstep their lawful bounds within the States and the jurisdiction of the County Sheriff in land use and law enforcement.
For that reason, it is recommended that this plan should begin its implementation within the mostly rural counties of the western states where there are large holdings of land by the federal government. It is there where the most intrusive and abusive effects on the sovereign rights and powers of the people and the states, respectively, are observed being usurped by unlawful acts of federal law enforcement.
It is also there that the critical functions of the Sheriff as PO and the ultimate elected Protector and defender of the land has to be restored first. As the understanding and development of this plan within those rural counties proceeds, similar issues in more metro counties will also become obvious and should be adopted under this plan.
Conclusion
It is obvious that, in the beginning, there may be resistance to this Plan by some County Sheriffs. That is to be expected and is simply a reflection that the Plan represents a change in the status quo and most people, by nature, are resistive to such changes even when for a positive purpose. Hopefully, that resistance will be minimal and quickly resolved.
It is almost certain such a plan as this will be resisted by federal “authorities” and LEOs. Each county and state should begin to prepare for that resistance from the outset. It should be met with patience, firmness and the necessary state laws to properly arrest and punish illegal violations into states powers through federal encroachment.
All actions by local and state authorities should always be defensive in nature and should seek negotiation over violence. If violence comes, it must always come first from federal authorities operating outside of their lawful boundaries.
However, it must be understood by all parties involved that these changes are a necessary imperative in order to restore the proper role and functioning of all policing agencies to their historic, lawful and Constitutional one. The trajectory that many government agencies are on is not acceptable in a Republic and hasn’t been for some time now.
As such, this plan, and similar ones developed to deal with similar issues, represents a reasonable due-process approach to solve the issues involved. LEOs and their agencies that would refuse to honor such plans by Citizens and their Sheriffs, and the change they represent, will require discipline through the political process to gain proper behavior. That discipline should be delivered by a growing population of active, thoughtful, knowledgeable and involved, law-abiding citizens and Sheriffs working together.
It should go without saying, but to emphasize the following may avoid attempts to misconstrue the Plan:
Nothing herein should be construed as in anyway debilitating or degrading the enforcement of laws concerning actual crime against property or persons. In no way is the Constitutional Sheriff Project Plan to hinder the proper execution and process of law against actual criminals. Nor should it be construed as to somehow effect a “Super-Sheriff” position of power.
Nothing could be further from the truth. The Sheriff will still report to the People of his/her county through the ballot box and citizen review committees. Misbehaving Sheriffs can also be recalled or voted out with the next election as with any elected position.
Also, it is still the job of executive authority such as Governor and State Attorneys General to see to the proper execution of the laws and those executing them as well. Part of the Constitutional Sheriff development process involves insuring fully-informed Constitutional offices throughout the Authority chain.
The bottom line is WE the People control the Sheriff. We control the State and Federal government. The Sheriff in turn determines how peace and order is kept in the County with regard to the People and the land. If the federal government wants to make an attack on the people of a county WE must organize the defense of the county with the Sheriff. It should be understood that all state Constitutional offices and agencies will support the people in such endeavor.
