Enforcement of gun laws hinges on local sheriffs' interpretation of Second Amendment



After the SAFE Act passed, many rural New York residents expressed discontent with the law, saying it was unconstitutional and unnecessary in that part of the state. A year and a half later, signs remain against the act, which restricts certain types of assault weapons and the carrying capacity of ammunition magazines. 

Emilie Eaton/News21.

This project was produced by News21, a national investigative reporting project involving top college journalism students across the country and headquartered at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University

Sheriff Mike Lewis considers himself the last man standing for the people of Wicomico County.

“State police and highway patrol get their orders from the governor,” the Maryland sheriff said. “I get my orders from the citizens in this county.”

With more states passing stronger gun control laws, rural sheriffs across the country are taking the meaning of their age-old role as defenders of the Constitution to a new level by protesting such restrictions, News21 found.

Some are refusing to enforce the laws altogether.

Sheriffs in states like New York, Colorado and Maryland argue that some gun control laws defy the Second Amendment and threaten rural culture, for which gun ownership is often an integral component.

They’re joined by groups like Oath Keepers and the Constitutional Sheriffs and Peace Officers Association, both of which encourage law enforcement officers to take a stand against gun control laws.

The Role of a Sheriff

Lewis and some other sheriffs across the nation, most of them elected by residents of their counties, say their role puts them in the foremost position to stand up to gun laws they consider unconstitutional.

“The role of a sheriff is to be the interposer between the law and the citizen,” said Maryland Delegate Don Dwyer, an Anne Arundel County Republican. “He should stand between the government and citizen in every issue pertaining to the law.”

While the position of sheriff is not found in the U.S. Constitution, it is listed in state constitutions: Article XIV of Colorado’s, Article XV of Delaware’s, Part VII of Maryland’s and ARTICLE XIII of New York’s. Nearly all of America’s 3,080 sheriffs are elected to their positions, whereas state and city police are appointed.

When Lewis was president of the Maryland Sheriffs’ Association, he testified with other sheriffs against the state’s Firearms Safety Act (FSA) before it was enacted in 2013. One of the strictest gun laws in the nation, the act requires gun applicants to supply fingerprints and complete training to obtain a handgun license online. It bans 45 types of firearms, limits magazines to 10 rounds and outlaws gun ownership for people who have been involuntarily committed to a mental health facility.

After Lewis opposed the FSA, he said he was inundated with emails, handwritten letters, phone calls and visits from people thanking him for standing up for gun rights. He keeps a stuffed binder in his office with the laminated notes.

“I knew this was a local issue, but I also knew it had serious ramifications on the U.S. Constitution, specifically for our Second Amendment right,” said Lewis, one of 24 sheriffs in the state. “It ignited fire among sheriffs throughout the state. Those in the rural areas all felt the way I did.”

In New York, the state sheriff’s association has publicly decried portions of the SAFE Act, legislation that broadened the definition of a banned assault weapon, outlawed magazines holding more than 10 rounds and created harsher punishments for anyone who kills a first-responder in the line of duty. The act was intended to establish background checks for ammunition sales, although that provision hasn’t taken effect.

A handful of the state’s 62 sheriffs have vowed not to enforce the high-capacity magazine and assault-weapon bans. One of the most vocal is Sheriff Tony Desmond of Schoharie County, population 32,000. He believes his refusal to enforce the SAFE Act won him re-election in 2013.

“If you have an (assault) weapon, which under the SAFE Act is considered illegal, I don’t look at it as being illegal just because someone said it was,” he said.

Desmond’s deputies haven’t made a single arrest related to the SAFE Act. Neither has the office of Sheriff Paul Van Blarcum of Ulster County. Van Blarcum said it’s not his job to interpret the Constitution, so he’ll enforce the law. But he said police should use discretion when enforcing the SAFE Act and determining whether to make arrests, as they do when administering tickets.

In Otsego County, New York, population 62,000, Sheriff Richard Devlin takes a similar approach. He enforces the SAFE Act but doesn’t make it a priority.

“I feel as an elected official and a chief law enforcement officer of the county it would be irresponsible for me to say, ‘I’m not going to enforce a law I personally disagree with,’” he said. “If someone uses a firearm in commission of a crime, I’m going to charge you with everything I have, including the SAFE Act. I won’t do anything as far as confiscating weapons. We’re not checking out registrations. People that are lawfully using a firearm for target shooting, we’re not bothering those people.”

Colorado made national headlines when 55 of the state’s 62 sheriffs attempted to sign on as plaintiffs in a lawsuit challenging the constitutionality of several 2013 gun control bills in the state. The most-controversial measures banned magazines of more than 15 rounds and established background checks for private gun sales.

A federal judge said the sheriffs couldn't sue as elected officials, so Weld County Sheriff John Cooke and eight other sheriffs sued as private citizens. Cooke was the lead plaintiff in the lawsuit, which a federal district judge threw out in June. He and the other plaintiffs are preparing an appeal.

“It’s not (the judge’s) job to tell me what I can and can’t enforce,” Cooke said. “I’m still the one that has to say where do I put my priorities and resources? And it’s not going to be there.”

Cooke has won fans with his opposition. He, like Maryland's Sheriff Lewis, keeps a novel-thick stack of praise and thank-you notes in his office. He’ll run for a Colorado Senate seat in November and is endorsed by the state’s major gun lobby, Rocky Mountain Gun Owners.

Lewis, who is running for re-election this year, said sheriffs have a responsibility to push against what he sees as the federal government’s continual encroachment on citizens’ lives and rights.

“Where do we draw a line?” he asked. “I made a vow and a commitment that as long as I’m the sheriff of this county I will not allow the federal government to come in here and strip my law-abiding citizens of the right to bear arms. If they attempt to do that it will be an all-out civil war. Because I will stand toe-to-toe with my people.”

But Maryland Sen. Brian Frosh, an FSA sponsor and gun-control advocate of Montgomery County, said Lewis’ understanding of a sheriff’s role is flawed is flawed.

“If you are a sheriff in Maryland you must take an oath to uphold the law and the Constitution,” said Frosh, now the Democratic nominee for Maryland attorney general. “You can’t be selective. It’s not up to a sheriff to decide what’s constitutional and what isn’t. That’s what our courts are for.”

Bronx County, New York, Sen. Jeffrey Klein, who co-sponsored the SAFE Act, agreed that sheriffs who refuse to enforce laws they disagree with are acting out of turn. Constitutional sheriffs are not lawyers or judges, Frosh said, which means they are following their convictions instead of the Constitution.

“We had lots of people come in (to testify against the bill) and without any basis say, ‘This violates the Second Amendment,’” Frosh said. “They can cite the Second Amendment, but they couldn’t explain why this violates it. And the simple fact is it does not. There is a provision of our Constitution that gives people rights with respect to firearms, but it’s not as expansive as many of these people think.”

But sheriffs have the power to nullify, or ignore, a law if it is unconstitutional, Maryland Delegate Dwyer said. He said James Madison referred to nullification as the rightful remedy for the Constitution.

“The sheriffs coming to testify on the bill understood the issue enough and were brave enough to come to Annapolis and make the bold stand that on their watch, in their county, they would not enforce these laws even if they passed,” said Dwyer, who has recognized the sheriffs for their courage. “That is the true role and responsibility of what the sheriff is.”

Rural versus Urban Divide

Some rural sheriffs argue that gun control laws are more than just unconstitutional — they’re unnecessary and irrelevant. In towns and villages where passers-by stop to greet deputies and call local law enforcement to ask for help complying with gun laws, they say, firearms are less associated with crime than they are with a hunting and shooting culture that dates back to when the communities were founded.

Edward Amelio, a deputy in Lewis County, New York, shares that sentiment. There’s no normal day for Amelio, who has patrolled the 27,000-person county for eight years. But he usually responds to domestic disputes, burglaries and car accidents. That’s why he considers the SAFE Act unnecessary.

“We issue orders of protection and some contain a clause the judge puts in there saying a person’s guns are to be confiscated,” Amelio said. “That’s mostly when we deal with guns.”

Zachary Reinhart, a deputy sheriff in Schoharie County, New York, said he responds to a wide variety of calls, too.

“Our calls range from accidental 911 dials to domestic disputes to bar fights,” he said. “You can’t really typify a day at the Schoharie County Sheriff’s Office. It’s all pretty helter-skelter.”

Violent crime also isn’t common in Wicomico County, Maryland, where Lewis is sheriff. He receives daily shooting reports from the Maryland Coordination and Analysis Center, which are not available for public disclosure.

“You always see ‘nothing to report’ in the eastern region, in the southern region, in the northern region, in the western region,” Lewis said. “But the Baltimore central region? Homicide after homicide after homicide.”

Even though there are few gun crimes in rural areas, Sheriff Michael Carpinelli in Lewis County argues that people need guns for self-defense.

“People rely on the police in an urban environment to come and protect you all the time,” he said. “People who live in a rural area also rely upon the police, but they realize that they live further out from those resources and that they may have to take action themselves.”

Duke law professor Joseph Blocher said gun culture has varied in urban and rural areas for centuries.

“It has long been the case that gun use and ownership and gun culture are concentrated in rural areas. whereas support for gun control and efforts to curb gun violence are concentrated in urban areas,” he said. “In the last couple decades we’ve moved away from that towards a more-centralized gun control.”

Lewis bemoaned lawmakers who craft gun-control legislation but are ignorant about guns. “They have no idea between a long gun and a handgun,” he said. “Many of them admittedly have never fired a weapon in their lives.”

But Klein, the Bronx County senator, said he does understand the gun and hunting culture in upstate New York.

“Growing up, my father was in the military,” Klein said. “When I was younger, I had a .22-caliber gun. In the past, I’ve gone pheasant hunting, quail hunting. It’s great," he said. "I mean, there’s nothing that we do in Albany, especially with the SAFE Act, that in any way takes away someone’s right to own a gun for hunting purposes.”

Oath Keepers and CSPOA

If former Arizona sheriff Richard Mack had it his way, there wouldn’t be a single gun control law in the U.S.

“I studied what the Founding Fathers meant about the Second Amendment, the right to keep and bear arms, and the conclusion is inescapable,” said Mack, the founder of the Constitutional Sheriffs and Peace Officers Association (CSPOA). “There’s no way around it. Gun control in America is against the law.”

He knows his no-compromise stance has cost him and the CSPOA the support of some sheriffs and law enforcement organizations around the country. And it’s resulted in civil rights agencies labeling CSPOA an anti-government “patriot group.”

But Mack, the former sheriff in eastern Arizona’s rural Graham County, is not letting up. His conviction is central to the ideology of CSPOA, which he founded in 2011 to “unite all public servants and sheriffs, to keep their word to uphold, defend, protect, preserve and obey” the Constitution, according to his introduction letter on the association’s website.

CSPOA also has ties to Oath Keepers, an organization founded in 2009 with a similar goal to unite veterans, law enforcement officers and first-responders who pledge to keep their oath to “defend the Constitution against all enemies, foreign and domestic.” Mack serves on the Oath Keepers Board of Directors.

Oath Keepers is larger and farther-reaching than CSPOA, with active chapters in 48 states and the District of Columbia, and an estimated national membership of 40,000. Its website features a declaration of “orders we will not obey,” including those to disarm Americans, impose martial law on a state and blockade cities.

CSPOA grabbed media attention in February with a growing list of sheriffs — 484 as of late July -- professing opposition to federal gun control. Detailed with links beside each name, the sheriffs’ stances run the gamut from refusals to impose a litany of federal and state gun-control laws, to vague vows to protect their constituents’ Second Amendment rights, to law critiques that stop short of promising noncompliance.

Only 16 of those 484 are listed as CSPOA members.

Some sheriffs perceive Oath Keepers and CSPOA as too radical to associate with. Desmond, of Schoharie County, New York, is known around his state for openly not enforcing provisions of the SAFE Act that he considers unconstitutional. Still, he’s not a member of either organization.

“I understand where they are, I guess, but I just have to worry right here myself,” Desmond said. “I don’t want to get involved with somebody that may be a bit more proactive when it comes to the SAFE Act. I want to have the image that I protect gun owners, but I’m not fanatical about it.”

Mack is familiar with that sentiment. He suspects it’s hindered the growth of CSPOA.

“This is such a new idea for so many sheriffs that it’s hard for them to swallow it,” Mack said. “They’ve fallen into the brainwashing and the mainstream ideas that you just have to go after the drug dealers and the DUIs and serve court papers — and that the federal government is the supreme law of the land.”

The Southern Poverty Law Center, a civil rights nonprofit that classifies and combats hate and extremist groups, included both CSPOA and Oath Keepers on its list of 1,096 anti-government “patriot” groups active in 2013. Both groups have faced criticism for their alleged connections to people accused of crimes that range from possessing a live napalm bomb to shooting and killing two Las Vegas police officers and a bystander in June.

Media representatives from the Southern Poverty Law Center did not return phone calls and emails requesting comment.

Franklin Shook, an Oath Keepers board member who goes by the pseudonym “Elias Alias,” said the organization doesn’t promote violence, but rather a message of peaceful noncompliance.

“What Oath Keepers is saying is ... when you get an order to go to somebody’s house and collect one of these guns, just stand down,” Shook said. “Say peacefully, ‘I refuse to carry out an unlawful order,’ and we, the organization, will do everything in our power to keep public pressure on your side to keep you from getting in trouble for standing down. That makes Oath Keepers extremely dangerous to the system.”

The Future of Gun Control Laws

Self-proclaimed constitutional sheriffs hope that courts will oust gun control measures in their states — but they recognize that may not happen. Lawsuits challenging the constitutionality of gun control legislation in Maryland, New York and Colorado have been, for the most part, unsuccessful.

In New York, five SAFE Act-related lawsuits have yielded few results: One lawsuit resulted in an expansion of the magazine limit from seven rounds to 10, but the rest of the measures were thrown out and are awaiting appeal; a similar lawsuit was stayed; a third was thrown out and denied appeal; and two additional lawsuits have been combined but are stagnating in court.

Plaintiffs in the Colorado sheriff lawsuit are preparing to appeal the decision of a federal district judge who in June upheld the constitutionality of the 2013 gun control laws.

A lawsuit seeking to overturn Maryland’s assault weapons and high-capacity magazine bans went to trial in July, but the judge has yet to issue a ruling.

“My hope is that the governor will look at it now that it’s been a year plus and say, ‘We’ve had some provisions that have failed. Let’s sit down and look at this and have a meaningful conversation.’” New York's Devlin said. “I personally don’t see that happening, but I’d like to see that happen.”

Emilie Eaton is a News21 Hearst Fellow. Jacy Marmaduke is a News21 Peter Kiewet Fellow. Sydney Stavinoha is an Ethics and Excellence in Journalism Foundation News21 Fellow.

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