Stop Saying Illinois Sheriff’s Should Ignore The Constitution On What They Enforce – Wirepoints

By: Mark Glennon*

Can law enforcement officers decline to enforce laws they believe are unconstitutional while they wait for clear answers from the courts?

These are sad times for us who’ve long believed that it’s axiomatic that they can – and should in the right circumstances. A viewpoint is now being widely expressed to the effect that the Constitution should be of no consequence to law enforcement – that police must blindly enforce whatever is legislated.

That simplistic opinion is being stated openly and often in the controversy over refusal by at least 74 of Illinois’ 102 county sheriffs to enforce parts of the state’s new ban on certain semiautomatic weapons.

Those holding that opinion are defying the supremacy of the Constitution and are saying, in effect, that “just following orders” should be the sheriffs’ mentality. That’s a mentality one would hope had been confined to the dustbin of legal and ethical history.

Let’s first be clear that this should not be about whether you think the new law is wise or unwise or whether you think courts should find that it’s constitutional.

Instead, this is about how blithely so many sheriffs’ critics are dismissing the obligation of law enforcement to consider the constitutionality of laws they are asked to enforce. There’s more at issue here than Illinois’ new gun law. Reasonable minds can differ about exactly where the lines should be drawn, discussed below, but it’s disappointing to see so many officeholders, media commentators and legal analysts endorsing a dangerous rule that so flippantly ignores the exceptions to when police can, and should, decline to enforce the law.

Those voices include the following:

• JB Pritzker threatened to fire the sheriffs who won’t enforce the law and said, “Well, the first thing I’d say is they took an oath of office to uphold the law…. They don’t get to choose which laws they enforce.”
• DuPage County’s 16 Democratic lawmakers said in a statement they were “dismayed and angered” by their sheriff. “The sheriff has no authority to determine the constitutionality of a law – that is up to the courts,” they said.
• “Their job is to enforce the law, it’s not to interpret the Constitution,” the Illinois ACLU said. “We leave that up to the courts.”
• U.S. Reps. Sean Casten, Delia Ramirez, Bill Foster, Raja Krishnamoorthi, Mike Quigley, and Jesus “Chuy” Garcia have sent DuPage County Sheriff James Mendrick a letter chastising him for saying he won’t enforce the ban. “As Sheriff, you do not have the authority to set enforcement priorities based on your personal views of a law’s constitutionality, their letter says.
• Columnist Rich Miller said the sheriffs’ position is just “performative ‘virtue signaling.’”
• The Chicago Tribune editorialized that law enforcement officers “violate their sworn duty when they decide a particular law doesn’t fit their politics, and therefore should go unenforced.”

The list of similar claims is long, and many say sheriffs are violating their oaths to uphold the law.

They are wrong.

For starters, Pritzker and many are mistaken about oaths of office. The oath says nothing about enforcing Illinois statutes but does say “I will support the Constitution of the United States, and the Constitution of the State of Illinois.”

More importantly, those claims are wrong about what sheriffs can legally do. Illinois sheriffs are subject to no enforcement mandate, with some narrow exceptions that don’t apply to the new gun law. In Illinois and most states, sheriffs and most enforcement authorities have exceptionally wide discretion to focus on what they choose, even for reasons aside from constitutionality. Marijuana offenses, for example, were often ignored before legalization and sodomy laws, still on the books in many places, have rarely been enforced.

Sheriffs’ broad autonomy in Illinois and most states has roots that are centuries old, and the Illinois Constitution grants them “the duties, powers or functions derived from common law or historical precedent unless altered by law or county ordinance.” A few states, such as Connecticut, have enacted legislation to reduce sheriffs’ power and discretion, but not Illinois.

That wide discretion given to enforcement officials is perhaps far too wide when it comes to matters beyond constitutionality, which accounts for the trouble caused by prosecutors like Cook County State’s Attorney Kim Foxx, who fail to prosecute violent criminals for their own political reasons or personal philosophies. It’s not the job of a prosecutor to substitute his or her judgment for the policy judgment of a legislature or city council as to what’s fair or equitable (though somehow the sheriffs’ critics have no problem with Foxx and her ilk).

It’s a different matter entirely when enforcement officials have a constitutional basis for declining to prosecute. The Constitution is supreme. What a governor and the legislature say, through laws they enact, is not the end of the story. It has been that way since 1803, when the Supreme Court reaffirmed in Marbury v. Madison, that a law made in violation of the Constitution is void.

A similar principle applies at the federal level where the executive is essentially the sheriff, being in control of the FBI and the rest of the Department of Justice. There, the principle that the president may decline to enforce laws, laws it believes are unconstitutional, while the issue is being litigated is “unassailable” as explained here in a memo by then-Assistant Attorney General Walter Dellinger. Presidents from both parties have often declined to enforce parts of laws pending constitutional challenges, even laws signed by the same president. (Widespread misuse of that power for what are actually political and not constitutional reasons is a very different matter.)

What’s the right view on whether Illinois sheriffs can refuse to enforce the gun law for constitutional reasons?

Sheriffs are right to decline enforcement of any law they reasonably think, in good faith, is unconstitutional, provided they go to court quickly and abide by the results.

Unquestionably, sheriffs should use the discretion not to prosecute extremely sparingly. Personal preferences or unfounded concerns about unconstitutionality must not guide their enforcement. Their constitutional objections must be objectively reasonable.

To address that reasonableness requirement, I’d say it’s incumbent on both sides to get to court fast in cases where constitutionality is contested, as with Illinois’ new gun law.

The sheriffs and their allies opposing the law certainly met that obligation. Their lawsuits in both federal and state courts were filed within a week of Pritzker’s signature on the law.

It’s Attorney General Kwame Raoul and Pritzker who failed to take that initiative. If Pritzker wants to threaten reprisals against sheriffs, as he did, Raoul should have sought a writ of mandamus or a declaratory judgement to compel the sheriffs to enforce the law. (He’d have lost anyway because he could never have gotten authority to fire the sheriffs, as he threatened, because they are elected officials.)

Opponents of the law won their first court fight on Friday. A state court concluded that they are likely to succeed on the merits of all four of their state constitutional objections to the new law and issued a temporary order restraining enforcement.

It’s important to note that the court on Friday ruled in favor of the law’s opponents on four state constitutional grounds. Those four challenges to the law are in addition to the big, federal one getting all the attention, which is alleged violation of the Second Amendment to the U.S. Constitution. The Second Amendment claim is in a separate lawsuit in federal court. It may well be appealed all the way to the U.S. Supreme Court, as some legal analysts have said.

The state-level problems with the new gun law include the Three Readings Rule of the Illinois Constitution which the court said the General Assembly “unequivocally and egregiously violated” when it passed the new gun law. They also include the state constitutional Equal Protection rule, as to which the state didn’t even offer any evidence to support its position, according to the court.

Given Friday’s ruling and the yet-to-be-heard Second Amendment matter, it certainly seems fair to say that the sheriffs have good faith, reasonable objections about the constitutionality of the law.

Going forward, maybe Friday’s ruling will be overturned and maybe the Second Amendment claim will fail. If so, the sheriffs should back off and accept the constitutionality of the law. Exactly when that point should occur in the appeals process is open to debate. We won’t know for sure if the law is constitutional until all appeals are exhausted on all issues. For now, however, Illinois sheriffs appear to be on firm ground.

Think what you want about Illinois’ new gun law, but recognize the importance of the real point stated at the outset: It’s wrong to say that law enforcement should simply enforce all laws as they are written with no regard to constitutional concerns. “Just following orders” is no way for police to think. In the right circumstances, they can and should defer to the higher law they’ve sworn to uphold.

*Mark Glennon is founder of Wirepoints.

This column was updated to correct “automatic” to “semiautomatic.”