Return of the sheriff

If there is one uniquely American institution still held in high regard, even as general trust in American institutions has cratered, it is the elected office of sheriff. The office of sheriff has its roots in the Anglo-Saxon tradition and centuries of English common law, but the sheriff who keeps the peace with a steely gaze and a steady hand, not in the interest of some far-flung ruler in a distant capital but at the request of his neighbors, is surely a uniquely American icon.

When you talk with elected sheriffs—as I am frequently blessed to do at the annual Claremont Sheriffs Fellowship and when I provide briefings to various sheriff departments around the country—you hear repeatedly two main points that emphasize why American faith in this storied office is not misplaced.

The first thing regularly heard from sheriffs is that they are “peace officers” not “law enforcers.” Often responsible for large territories (whether urban, suburban, or rural), and with minimal staff, most sheriffs have neither the time nor the inclination to be the blunt enforcement mechanism of nanny state regulations and other intrusive government tedium. And when everyone involved in an incident is a member of the electorate, sheriffs are incentivized to resolve disputes between neighbors with prudence and compromise.

The second thing regularly heard from sheriffs is that “We are the top vote-getters in our county.” Americans still turn out in force to vote for sheriffs. On a bipartisan basis, county commissioners, judges, state legislators, and even congressmen routinely seek the endorsement and support of the sheriff come election time. Indeed, few politicians of any rank are anxious to get crosswise with the sheriff(s) of their district. There is an awareness among sheriffs that, despite the badge and the gun, their primary influence is political (in the best sense of that word) and flows from the respect the community still maintains for the elected office. They thus see the importance of maintaining the institutional trust in the office, and they conduct themselves accordingly.

As institutional credibility has crumbled, the people turn to elected sheriffs, asking them to intercede as reliable representatives against institutions perceived as corrupt or ineffectual. This has especially been true as confidence in the premiere federal law enforcement agency, the FBI, has deteriorated following controversies over politicized intelligence and the aggressive prosecution of January 6 protestors—including utilizing counter-terrorism capabilities to target individuals suspected of even nonviolent misdemeanors.

Sheriffs will tell you that they are repeatedly asked, “What will you do if the state or federal government acts unconstitutionally, in ways that infringe on my rights, property, or even life?” Many sheriffs find themselves asking the same question, “What can, or should, I do in such a case?”

Unfortunately, despite what large numbers of Americans believe, in many states sheriffs no longer enjoy the full panoply of rights and duties ascribed to them under common law as it existed at the time of the American founding.

This places sheriffs in a difficult position. While in some states sheriffs may have their rights and duties enshrined in state constitutions, others are more heavily constrained by positive law passed by state legislatures. Such differences are state by state, and often strongly regional.

Sheriffs in the Northeast or Mid-Atlantic do not operate in the same way that many Southern or Western sheriffs do. “Frontier” sheriffs may not be as constrained by a century of progressive legislation that minimized the rights of the elected office in favor of “professional” law enforcement—though elected sheriffs do typically have significant law enforcement experience before running for office.

Additionally, sheriffs are constrained by a variety of federal laws and regulations, especially those sheriffs who oversee jails. Additionally, many departments rely on federally-approved grants, not just for outfitting themselves as quasi-military units as critics claim, but simply to maintain sufficient staffing to provide coverage for their whole counties. And few sheriff’s departments maintain an independent legal counsel able to advise them when a federal or even a state law enforcement grant may come with undesirable hidden strings.

The Biden Administration has been especially assiduous in using federal law to intimidate or coerce local law enforcement, including sheriffs. In February 2022, the administration authored a massive 10,000 word Executive Order that reads like a wish list from Black Lives Matter, instructing nearly every branch of the federal government to find ways to meddle in local law enforcement, including beefing up the branch of the DOJ that investigates local law enforcement for “Deprivation of rights under color of law,” the law most commonly used by the DOJ to prosecute law enforcement officers and force local agencies into “consent decrees” which restrain their lawful authorities.

Biden himself tweeted out support for the George Floyd Justice in Policing Act, which as the National Police Association noted, would go even further, essentially stripping law enforcement officers of the presumption of innocence when the DOJ prosecutes “deprivation of rights” cases. In a recently viral video press conference, an Ohio sheriff pointed out that the Biden Administration has refused to even meet with the National Sheriffs’ Association.

Meanwhile, some federal lawmakers in recent years have even taken to denouncing local law enforcement, and especially sheriffs, as “extremists.” So, while many Americans still hold to the pleasant picture of an elected sheriff paternalistically maintaining the peace, the true situation is more precarious.

But sheriffs in most states, if they have the support and backing of their constituents, retain authority in cases where they believe government (state or federal) is acting in an unconstitutional or illegitimate manner. The pandemic response, and also various gun control schemes, have seen many sheriffs refuse to participate in enforcing laws or decrees which infringe upon the rights of their citizens.

Specifically, in regard to overreach by federal agents, sheriffs may also have options for legal local resistance. Federal agents often seek to be deputized by a sheriff or other state law enforcement officer to exercise arrest powers related to state laws—to stop and search, for example, the speeding vehicle of a federal narcotics suspect. Depending on the state, sheriffs may be the primary officials with extensive state-wide deputization power; they can be selective in their exercise of this power, and refrain from deputizing federal officers from agencies that violate the constitutional protections of the people.

The FBI maintains relatively few field offices across the country. In some cases, the local field office can be many hours from the actual location of a long-term investigation, and local law enforcement may be asked to provide office space and other conveniences, which are often extended out of collegiality, but this need not be in cases where the Bureau’s behavior strikes the local sheriff as inappropriate.

Likewise, as recent FBI whistleblowers have attested, the FBI is a heavily statistics-driven agency, and often will take the “collars” achieved by local law enforcement and charge them federally in order to drive up numbers. It is sometimes advantageous for local law enforcement to acquiesce to this practice, in order to take advantage of federally mandated minimal sentences for certain crimes. But there are often state criminal statutes which may equally serve, even in terrorism cases, and so sheriffs may determine justice is better served by keeping cases in state court.

In applying any of these potential options sheriffs are likely to find that prudence dictates how best to respond. Certainly no one wishes to see a dangerous terrorist, drug trafficker, or child rapist go free because of disputes between federal and local law enforcement.

But if Americans want their sheriffs to operate as local representatives with real authority, they need to emphasize their support for these kinds of policies when they vote. They must also do more to demand strong pro-sheriff legislation from state legislatures. This may even require seeking constitutional amendments and other enabling legislation to more firmly secure the rights and duties many Americans assume their sheriffs already have. They may also need to roll back statutes which have accumulated to constrain and eliminate the traditional sheriff’s role.

Voters must make clear they support local law enforcement and insist on appropriate funding so that they are not dependent on state or federal grants to meet budgetary demands.

In 2022, Americans across the country went to the polls to cast their ballots in school board elections, emphasizing discontent with “woke” education policies. Let’s make 2024 the year of the American sheriff and see a wave of voters seeking to elect and empower sheriffs to defend their rights and communities.