Today, Explained - Power-tripping sheriffs

Episode Date: December 7, 2022

A growing number of county sheriffs believe they hold ultimate power in their jurisdictions. Some have even stopped enforcing state and federal laws they deem unconstitutional. The Marshall Project’s Maurice Chammah explains. This episode was produced by Hady Mawajdeh, edited by Matt Collette, fact-checked by Laura Bullard, engineered by Paul Robert Mounsey, and hosted by Noel King. Transcript at vox.com/todayexplained   Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

Among the thousands of state ballot measures that passed during the 2022 midterms was Oregon's Measure 114. It's a gun control bill. It passed narrowly, 51 to 49 more or less. But it's the law. It requires people to get permits when they buy guns, ensures police keep a database of gun owners, and bans some high-capacity magazines. But after the law passed, some sheriffs in Oregon made a declaration. I don't want people that currently have those types of magazines with their guns to be fearful that we're going to just start pulling people over and confiscating them and arresting it for it. They don't like the law. They aren't going to follow it. Elected officials, which sheriffs for the most part are, saying they're only going to follow it. Elected officials, which sheriffs for the most part are,

saying they're only going to enforce the laws they feel like enforcing sounds outrageous, but it's happening more and more in the U.S. We'll tell you why coming up on Today Explained. The all-new FanDuel Sportsbook and Casino is bringing you more action than ever. Want more ways to follow your faves? Check out our new player prop tracking with real-time notifications. Or how about more ways to customize your casino page with our new favorite and recently played games tabs. And to top it all off, quick and secure withdrawals. Get more everything with FanDuel Sportsbook and Casino. Gambling problem? Call 1-866-531-2600.

Visit connectsontario.ca. It's Today Explained. I'm Noelle King. Maurice Chama is a staff writer for The Marshall Project. He's been looking into the precise role that sheriffs play in a country where most places also have police forces and police chiefs. Maurice told me a sheriff is different. They've come to have this very distinct role in American law enforcement where almost every county in the United States has one. There's a few states that don't, a few cities that don't, but mostly every county has one. And then within the county, their role can vary. So in some cities,

they're primarily running the jail. They are the kind of warden of the large facility where people who are under arrest are held pending trial and sometimes after they've been convicted. is the chief law enforcement officer, and is in some ways effectively the police chief. He or she is overseeing the deputies who do the bulk of the policing in the community, and that's everything from traffic stops to homicide investigations. Maurice has been tracking the evolution of a group of people who have come to be known as the constitutional sheriffs. The constitutional sheriffs, there has been a movement that has adopted that term in the last 10 or so years. And they essentially believe that their power and their authority within their counties

is greater than that of the state legislature, the governor, Congress, the president, et cetera, any other level of government. And they, because of that, argue that their duty is to the citizens that elected them and then to the Constitution. And what that means at a practical level is that they are choosing to enforce laws based on what they think the Constitution says. But it comes down to the term meaning essentially sheriffs who police based on their own interpretation of the Constitution.

In early 2020, a lot of governors started to issue lockdown orders. Moments ago, I signed an executive order directing Arizonans to stay home, stay healthy, and stay connected. And often, you know, the legality of the lockdown orders was contested. People were filing lawsuits. It was a very chaotic time. And you started to see a number of individual sheriffs in states across the country come out on Facebook, on Twitter. They often have a really direct line of communication to their constituents because they are effectively politicians. And they said, I am not going to enforce this law. The governor is saying, you know, close your businesses, close your

barbershops, etc. And we're not going to do that. We're not going to arrest anyone who is opening up their shop to customers during the statewide lockdown. We are not going to arrest anyone who is opening up their shop to customers during the statewide lockdown. We are not going to ticket anybody who is not wearing a mask. And they functionally made their own law within their counties when it came to COVID-19 restrictions. I have no problem informing the governor that I am not going to arrest people or cite them over his illegal orders, unconstitutional orders. It's not going to happen. The majority of my job is to protect the citizens, civil liberties,

and their God-given rights under the Constitution. That's the sheriff's job. And I take it serious. You know, when I started doing this reporting on sheriffs, I would just ask friends, family members, can you name a sheriff? And by and large, the names that tend to come up are Joe Arpaio from Arizona. Nobody is higher than me. I am the elected sheriff by the people. I don't serve any governor or president. And David Clark, who was a regular presence on Fox News about five years ago, he was the sheriff of Milwaukee, Wisconsin. So when these Trump supporters come in, they have to be in a better position to be able to defend themselves. I would tell them, arrive in packs, travel in packs, make sure you have a couple of enforcers in those packs in case something gets out of hand. Arpaio and Clark would regularly repeat this rhetoric that we've been describing, saying that they are the

most powerful and important figure in their county and that they will go their own way and refuse to enforce laws that are passed by state legislatures or Congress. They're not going to scare me away, make me stop enforcing all the laws. I took an oath of office to enforce all the laws. Now, the vast majority of sheriffs who subscribe to this movement are not household names. And really, I would say the movement arose primarily in rural areas, places with, you know, fewer than 100,000 people in the county, sometimes even fewer than 10,000 in the county, really being kind of bold figures in this movement and really voicing the rhetoric and sometimes even attracting national attention here and there

in the media for their beliefs. So one example that comes to mind is Nick Finch. He was the sheriff of appropriately titled Liberty County in Florida. Nick Finch was one of these sheriffs who got some attention for basically freeing people from his jail who'd been arrested on firearms violations. And the sheriff deputy arrests this person, but then the sheriff comes along and says, you know what? No, I believe in the Second Amendment. And my interpretation of the Constitution and of the Second Amendment is such that I don't think anybody should be arrested for owning a weapon. And so the phrase that was used in that county, I recall very specifically, was unarrested, that it was getting unarrested. I made my decision based on the Second Amendment and

what the Second Amendment says. How many constitutional sheriffs are there in this country? So there's a formal organization, the Constitutional Sheriffs and Peace Officers Association, or the CSPOA for short. And they claim to have trained as many as 800 law enforcement officials. Some of these are now former sheriffs who have not been reelected. But my colleagues and I at the Marshall Project, we teamed up with a pair of political scientists who had studied sheriffs, and we devised a survey and we sent it out to upwards of 3000 sheriffs around the country, we got about 500 responses. And of those responses, only a small number of sheriffs claimed that they were members

of the Constitutional Sheriffs Association formally, but nearly half of those who responded agreed with the key idea that that organization promotes, which is that their authority as sheriff within their counties supersedes the authority of the state or the federal government. Maurice, that's a lot of people. What is the evolution of this? Who does it start with? It all goes back to a man named Richard Mack.

This is Graham County, where I used to be sheriff. This is where my battle against the Clinton administration to stop the Brady Bill, it all started right here. In the early 1990s, the Clinton administration passed laws that were essentially aiming to restrict access to firearms. This day is the beginning, not the end, of our effort to restore safety and security to the people of this country. And one provision of that law, which was called the Brady Bill, asked that sheriffs and other local law enforcement officials play a role in performing background checks on

people who wanted to buy guns. And Richard Mack says, I don't want to do that. And he, in fact, teams up with several other sheriffs and the National Rifle Association. And they mount this lawsuit where they sue the federal government and it goes up to the Supreme Court and the Supreme Court sides with the sheriffs. Listen to this. This is the order of the court. The federal government may neither issue directives nor command the state's officers to administer or enforce a federal regulatory program. And basically, Richard Mack, in that moment moment develops a reputation as the sheriff who was willing to stand up to the federal government in court. And he isn't reelected, but he parlays that Supreme Court victory into a speaking career where he's going around to various conservative groups.

This is around the rise of the Tea Party movement in the late 2000s. He starts to appear in all of these conservative forums and over time comes to found the Constitutional Sheriffs and Peace Officers Association and become the primary mouthpiece for this idea about sheriffs on their own power. And so he starts carrying out trainings for sheriffs. A few states start to say that he can be allowed to train their sheriffs for continuing education credits to remain, you know, licensed as a law enforcement officer. And his brand over time builds and builds to the point where you start to hear his rhetoric showing up in all sorts of forums and sheriff elections, debates, what have you.

The Constitution is the supreme law of the land. It has been since it was ratified in 1789. I don't understand why it would seem radical to uphold the Constitution and abide by it. We have to trust our law enforcement, our peace officers to protect our rights. That is the sole purpose of government. I have seen Richard Mack speak. I've interviewed him over the phone at some length, watched a lot of videos of him talking. I mean, he is charismatic and he's a good speaker

and he's a great deliverer of his message. Do you know the president of the United States cannot tell your sheriff what to do? Do you know who your sheriff's boss is? It's you and only you. He doesn't report to anybody else. The governor is not your sheriff's boss. He only answers to his constituents. There are many communities where you have a sheriff that feels like they don't have enough resources to do their job properly. They are the kind of local spokesman for the

community. You know, they try to really keep up with what the community says that they need. So they're really at the heart of community sentiment. And then you have a conflict with the federal government and they're going to be conflicts. So, you know, a lot of land in the Western United States is owned by the federal government. There are often conflicts with ranchers about grazing rights, let's say. So these conflicts are inevitable. They're often pretty low stakes. But I think that Richard Mack came along at a time and took those conflicts and gave them a more distinct partisan flavor. So at the same time that these conflicts exist, there's increasing partisanship in America. There's increasingly no way to see any political figure from sheriff to secretary of

state to dog catcher as beyond partisanship. And Richard Mack was sort of the man who swooped in at that moment and helped give language to these frustrations and sort of bestow these sheriffs with a rhetoric that could help them see their own role in a more partisan and more righteous path. Is Richard Mack a dangerous person? I think that his rhetoric is absolutely dangerous in the sense that he, whether or not he actively thinks that his rhetoric is going to lead to violence, it frequently feels as though it is edging towards it. You know, when you're talking about ideas and rhetoric, it's easy to call something dangerous, but it's also easy as a speaker to just stay on this side of preaching violence.

And Mack, for his own part, actually claims to preach nonviolence. But it's also easy as a speaker to just stay on this side of preaching violence. And Mack, for his own part, actually claims to preach nonviolence. He will say things that I think he knows liberals or people on the left would want to hear. So he'll say that when George Floyd was murdered by a police officer in Minneapolis a couple of years ago, that a sheriff in his movement or a sheriff's deputy trained in his way of seeing the world would have potentially intervened and saved that man's life because they would have seen that you know the constitution doesn't condone escalating a situation and killing somebody with with a chokehold in the street this should have never happened the peace officers of this country have got to re-examine

the way we are trained. This should have never happened to Mr. Floyd and his family. And of course, it's always easy after the fact to make these claims. But then on the other hand, he's constantly warning that if our election system isn't secure, very much repeating Trump's rhetoric here, that you may see more violence because people are so fed up. So there's this sort of like rhetorical move of almost predicting violence, but not saying you're condoning it yourself.

But it's also ginning up this picture, the sort of apocalyptic picture that violence could be coming down the pike. And so in a way, I think it's fair to say that it edges awfully close to condoning violence. Support for Today Explained comes from Ramp. Thank you. your pocket. Ramp says they give finance teams unprecedented control and insight into company spend. With Ramp, you're able to issue cards to every employee with limits and restrictions and automate expense reporting so you can stop wasting time at the end of every month. And now you can get $250 when you join Ramp. You can go to ramp.com slash explained, ramp.com slash explained, R-A-M-P.com slash explained. Cards issued by Sutton Bank, member FDIC, terms and conditions apply. Bet MGM, authorized gaming partner of the NBA,

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to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. It's Today Explained. We're back with Maurice Chamas, a writer for The Marshall Project who's been reporting on sheriffs, which seem like a uniquely American phenomenon. But in fact, they're not. We inherited sheriffs from England originally. The term goes back to the phrase shire reeve. So you imagine a shire being like a equivalent of a county in England at some point. And this was a person who was appointed by the king to collect taxes, do some forms of law enforcement, etc. That role then came over the United States. And as we were

trying to gain independence from the British crown, we started electing sheriffs to give them more independence from the crown. So baked into the role at the very outset is a sense of independence and a sense of being closer to the members of a community than people at more sort of higher levels of government. And over time, that develops culturally. I'm sure you and I can settle this little matter. I hope you're reaching for a comb or a handkerchief or something, because we take a very dim view of bribery in Mayberry. See, bribery is one of the things we like to watch on account of there ain't much else to do. So even people who have

grown up in cities, if they have any sense of a sheriff, they're maybe imagining John Wayne. You can keep your guns, Colorado. Thanks, Sheriff. I don't want any trouble. Well, then don't start any. I won't. Unless I tell you first. That's good enough. Or, you know, I grew up with the film Toy Story, Woody, the main character in Toy Story, as a sheriff. Reach for the sky. This town ain't big enough for the two of us.

And you have these little folksy phrases you associate with sheriffs, like, you know, get out of my town or grab a rope. And sheriffs, I think, come to play this uniquely American role that is baked into how Americans see ourselves, which is to say, as very locally oriented. Tell me, Sheriff Taylor, why don't you carry a gun? Oh, I don't know. When a man carries a gun all the time, the respect he thinks he's getting might really be fear. So I don't carry a gun because I don't want the people of Mayberry to fear a gun. I'd rather they would respect me.

Perhaps the pinnacle of this culturally is the Andy Griffith show, you know, from 50 plus years ago. The kind of kindly local figure who, from 50 plus years ago, the kind of kindly local figure who yes, is law enforcement. Yes, he's got a badge and gun. Yes, he's incarcerating people in his jail. But the image is also somebody who's resolving local disputes, you know, in a nonviolent way and is the guy you call if your loved one is in some kind of, you know, bad situation, domestic violence, let's say, or severe substance abuse, that the sheriff is the kind of kindly figure who is going to step in. I will say that I often feel like that image is very white, and it's very attached to a gauzy

1950s image of the United States, right? So frequently, you will have these sheriffs who say, you know, I am very close to one sheriff told me, you know, the heartbeat of my community, I'm very clued in on what people think, if you know, someone's causing a crisis, they call me up just like Andy Griffith, and I help. But because sheriffs tend to be white, they tend to be male, and they tend to be conservative, and so they're often maybe getting those calls from white conservative constituents, and at the same time, they often will be policing different communities to different levels. Chuck Jenkins, the sheriff of Frederick County, Maryland, told me he still watches the Andy

Griffith show and really clearly saw himself as attuned to the local dynamics of what people in his community need. But at the same time, his department has been sued for racially profiling Latino people in traffic stops and has been accused of being extremely aggressive in teaming up with federal agents to carry out immigration, you know, stings and raids and incarcerate and help detain and deport undocumented immigrants. So what's presented to us in pop culture is compelling, even, you're saying, for sheriffs themselves. But it's not the real story, or it's not the whole story. That's right. And let's zoom back to the 1960s. It was sheriffs who were violently and vigorously beating civil rights protesters and pushing back on desegregation efforts.

You go back even further and there are countless examples of sheriffs playing a key role in lynchings. And going back, you know, 100 years, there are plenty of examples of sheriffs being active members of the Ku Klux Klan and other white supremacist organizations. And now some sheriffs are saying they won't enforce the laws. They're the laws. What is the justification for this? When confronted, what's their answer? Sir, you are not following the law. And the sheriff says what? The sheriff says, well, the law violates the Constitution and I have a higher fealty to the Constitution. What they don't say is sort of in parentheses, my interpretation of the Constitution, right? Because the Constitution often has very high-flown abstract language. It's been picked apart and debated. We have a Supreme Court and a court system that aggressively picks apart the language

and all of these pieces of the Constitution and helps us understand whether individual laws violate the Constitution or not. But the sheriffs sort of curtail that whole process and say, no, I read the Second Amendment as saying no gun control. And that means I'm not going to arrest anybody for owning an AK-47 or something. I can speak for the sheriff as well as the entire Roosevelt County Sheriff's Office, and we will not enforce any executive order gun ban. It's the oath of office, and we take it seriously, and we try to live by it at all times. Are there places in the country where a sheriff has said, I won't follow the laws, and some higher authority has stepped in and said, no, as a matter of fact, you will.

You are overreaching. It is not your job to decide what laws you will and will not follow. The movement to resist it is pretty limited. There was a ballot initiative, actually, that cut the other way in Kansas this year, where basically local county officials would have gained the right to oust a sheriff that they thought was abusing their power in some way. Now, here are the results. A vast majority of Kansans say they want to keep electing sheriffs instead of having them hired. The opposite result happened with a comparable ballot initiative in Los Angeles, just the county of Los Angeles.

Residents of Los Angeles voted to give basically a county board the power to investigate and push out a sheriff that they felt was abusing their power. So you're seeing a few counties around the country, you know, consider and adopt policies whereby local county officials could exercise some power over the sheriff to sort of push back on abuses. But it remains very hard to oust a sheriff who is abusing their power in some way. How do we fix this problem? What is the solution here? There have been a handful of solutions proposed. One is not having sheriffs or having a much more curtailed version of a sheriff or a sheriff who is not elected. So I think one way of thinking about this problem

is the fact that because sheriffs are elected officials, as the country grows more partisan, there's increasingly incentives for any elected official to bolster their ability to get elected through partisanship. To take one recent example, the sheriff of Bexar County, Texas, which encompasses San Antonio, came out and said, I'm not going to enforce any kind of abortion provisions that the state legislature passes. I'm not going to basically police people seeking abortions or providing them. You can see that he's incentivized in this hyperpartisan moment to kind of score points with his liberal base by saying these sorts of things. And then flip side of the coin, you have conservative sheriffs basically ginning up

their support by casting doubt on the 2020 election. And in both cases, it strikes me that when you have an elected law enforcement official and you have increasing partisanship, it's just an inevitably toxic mix where policing is going to get infected by partisan ideology to a greater and greater degree. Today's show was produced by Hadi Mouagdi and edited by Matthew Collette. It was engineered by Paul Robert Mouncey. Today Explains Fact Checker is Laura Bullard, and I'm Noelle King.