Posse Comitatus and the Constitutional Sheriff

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If you attended either of the Charter Review Committee’s hearings on the Sheriff’s Office, you could be forgiven if you were bewildered by the frequent references to the sheriff’s power to protect the constitutional rights of citizens.  
Curious, I checked it out, and I would like to share with you what I’ve learned.
The office of sheriff is entirely a creature of state law, and has powers and responsibilities for law enforcement and civil process that are laid out in state law and can be limited or eliminated by a home rule charter municipality/county such as Los Alamos.  
Because we have a police department it would be a mistake, widely recognized as such by law enforcement practice in New Mexico and elsewhere in the country, to have a sheriff exercising the same law enforcement authority in the same geographical area.
Obviously, we should either keep the office with its civil duties only or abolish the office and transfer the civil duties elsewhere.  
End of story. The present charter does the former, though the current sheriff seems reluctant to acknowledge it.
So what’s this business about the sheriff protecting our constitutional rights  in some way the police do not?
In the wild 1960s and 1970s there emerged in this country an underground movement that espoused a doctrine called Posse Comitatus, latin for “county power,” which holds that county government is the highest legitimate government and the county sheriff is the highest law authority, who can be removed by the citizens ­—  by hanging ­— if he refuses to carry out their will.  
The federal government is illegitimate because it is controlled by international Jewish interests, and the sheriff’s duty is to protect county citizens from federal agencies such as the IRS, the FBI and the U.S. Forest Service.  
This doctrine was adopted and extended by many anti-government groups including Christian Identity, the survivalists and militias, Minutemen, Patriots, and Sovereign Citizens.  
While the evolution of the theory as it was incorporated into the ideologies of those various groups is an interesting academic study in political fantasy,  in some parts of the country its proponents presented serious problems to the courts and law enforcement.  
One member of the Posse Comitatus group killed two federal marshals and later died in a shootout with police.  
Two Arkansas cops were killed by a Posse Comitatus activist and his son after a traffic stop.  
Government officials and judges found weird liens filed against their properties, and courts were tied up by “common law” theorists.
All these movements declined somewhat through the 1980s and the early 1990s.  
But there has been a resurgence,  a new and refined (laundered?) version of the Posse Comitatus doctrine propagated by some elected county sheriffs – for example, the sheriff of Montezuma County, Colo., a little northwest of here, is associated with “constitutionalists” and “patriots,” and is claiming that he can arrest federal officials to halt implementation of certain Forest Service management policies.  
But the biggest voice belongs to Sheriff Richard Mack of Graham County, Ariz., who was one of the plaintiffs in a suit that challenged provisions of the Brady Bill (Handgun Control Act) that went to the Supreme Court.  
In 1997, the court ruled that the federal government could not direct chief law enforcement officials (mostly sheriffs but also chiefs of police) to do the administrative tasks associated with the Act.  
The decision has little more legal impact than that.
Mack capitalized on his victory by separating from their context a number of statements of the wonderfully quotable Justice Anthony Scalia, and using them to bootstrap his very own Posse Comitatus theory:  that “local governments will issue our new Declaration to the Federal Government regarding abuses that we will no longer tolerate or accept. Said declaration will be enforced by our constitutional sheriffs and peace officers...”  (from Mack’s website).  
The abuses he’s talking about include EPA rules, Endangered Species Act, IRS Rules, Forest Service and Department of the Interior technicalities... (from Mack’s other website).
It should be pointed out, as it was by Police Chief Wayne Torpy at a recent CRC meeting, that every law enforcement officer, sheriff or otherwise, local state or federal, as an agent of government has a duty to observe the constitutional rights of citizens they encounter.  
True, but that’s not what Sheriff Mack is talking about.  
Mack’s idea is that every sheriff has the duty to decide for himself what the constitution allows the federal government to do in his county.   
When southern states made a similar argument in the early nineteenth century they called it Nullification, and it led to the Civil War.
To distinguish it from “Posse Comitatus,” I call the Sheriff Mack approach the “Constitutional Sheriff.”  
The ideas are basically the same, the latter version having been laundered to eliminate the association that the former has with a fair amount of domestic terrorism.  
I hasten to add that I have no reason to believe that the people who expressed these ideas at the CRC meetings or our sheriff are in any way associated with the groups I named.   
These ideas float around the Internet without attribution and one who uses them should not necessarily be associated with an unknown source, and of course the sheriff should not be blamed for who shows up at a CRC meeting or what they say.  
I hope it’s clear from the above that both the Posse Comitatus and Constitutional Sheriff doctrines are bogus, pseudo-legal theories propagated by fringe groups with agendas I’d rather not contemplate at this point.  
And that these theories should have no bearing on our decision on the future of the office of sheriff.

George Chandler
Los Alamos