# Sheriffs, federal law enforcement, & the Constitution **URL:** \ **Category:** Factual Questions\ **Created:** [May 17, 2014, 3:07pm UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635 "2014-05-17T15:07:41Z")\ **Posts on this page:** 15\ **Page:** 2
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 17, 2014, 9:06pm UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/21 "2014-05-17T21:06:45Z")
> [@robert\_columbia](#): > > Interesting. If a sheriff expelled a Federal law enforcement official under the honest but mistaken belief that the authority by which the Federal law enforcement official was operating in his (the sheriff’s) jurisdiction was unconstitutional and therefore void, what would happen? Sure, he’s probably _civilly_ (i.e. lawsuit) liable for tortuous assault and/or unjust imprisonment, but would he necessarily be guilty of a crime? What about the _mens rea_? _Mens rea_ refers to to guilty state of mind necessary for most crimes – in addition to the guilty act, you must generally intend either the specific result or have a generally negligent intent. Beyond that, I can’t answer, because we’d have to look at the specific crime with which the sheriff was charged and the facts surrounding it. ---
**Author:** ![SeldomSeen](https://avatars.discourse-cdn.com/v4/letter/s/7ba0ec/32.png) [@SeldomSeen](https://boards.straightdope.com/u/SeldomSeen)\ **Post date:** [May 17, 2014, 11:09pm UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/22 "2014-05-17T23:09:09Z")
> [@Lacunae\_Matata](#): > > [http:// http://constitutionallawenforcementassoc.blogspot.com/?m=1](http://constitutionallawenforcementassoc.blogspot.com/?m=1) > > Here’s a five-year-old opinion on the matter, but there are thousands of similar posts lurking around the internet. I started researching because I’ve heard a couple of deputies make this statement. One of the people who informed me of the sheriff’s super powers is an idiot, but the other is a very conscientious LEO who “knew” this because he’d heard it from more than one peer that he trusted to be well-informed. :eek: There is a blatant falsehood in the 5th paragraph of that screed that causes one too wonder if the blogger in question really understands how government or law enforcement works: > [@](#): > > The office of sheriff has a long and noble history. It dates back over a thousand years and originated in England. The sheriff is the only elected law enforcement official in America. Where I live, and, I think in many states the Attorney General is an elected official and is considered the highest LEO at the state level. Among other things, the AG is in charge of the state police. And, just as federal law trumps state laws, the state trumps county and local authority. This old and mistaken meme about the sheriff having some kind of ultimate authority is, as has been pointed out, a mistaken interpretation of the posse comitatus act and I think it has been debunked at various times. If LEO’s are actually taught to believe this sort of thing, there needs to be some serious reworking of the POST academy training. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [May 17, 2014, 11:43pm UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/23 "2014-05-17T23:43:27Z")
> [@SeldomSeen](#): > > And, just as federal law trumps state laws, the state trumps county and local authority. Even more so, since it’s the opposite case to the state/fed relationship – the county and municipality have no sovereignty of their own, their authority is vested in them by the state. ---
**Author:** ![BrotherCadfael](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@BrotherCadfael](https://boards.straightdope.com/u/BrotherCadfael)\ **Post date:** [May 17, 2014, 11:55pm UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/24 "2014-05-17T23:55:23Z")
> [@robert\_columbia](#): > > Is the high bailiff allowed to take on a more traditional LEO role if he so chooses? E.g. can he check out a sidearm and squad car and go around writing tickets, or is that not allowed? Is this theoretically allowed, but practically impossible due to bureaucratic procedures? The high bailiff is not a law enforcement officer; he is more like a process server with just one target. ---
**Author:** ![rbroome](https://avatars.discourse-cdn.com/v4/letter/r/838e76/32.png) [@rbroome](https://boards.straightdope.com/u/rbroome)\ **Post date:** [May 19, 2014, 1:06pm UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/25 "2014-05-19T13:06:41Z")
> [@JRDelirious](#): > > Even more so, since it’s the opposite case to the state/fed relationship – the county and municipality have no sovereignty of their own, their authority is vested in them by the state. Again, I think this varies by state. The State is sovereign, but it is possible that the county is created and derives it’s powers from the state constitution. ---
**Author:** ![commasense](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/commasense/32/3017_2.png) [@commasense](https://boards.straightdope.com/u/commasense)\ **Post date:** [May 19, 2014, 2:18pm UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/26 "2014-05-19T14:18:51Z")
[Rachel Maddow](http://www.msnbc.com/rachel-maddow-show/watch/radical-racist-context-missed-in-rancher-hype-236481603620) did an extensive piece on the racist origins of this bizarre theory. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 19, 2014, 2:47pm UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/27 "2014-05-19T14:47:11Z")
> [@Bricker](#): > > This means that when Congress passes a law within their enumerated powers and federal authorities seek to enforce that law, that law trumps any state law to the contrary. That much seems clear. > [@](#): > > As was said in Martin v. Hunter (1 Wheat. 363), ‘the general government must cease to exist whenever it loses the power of protecting itself in the exercise of its constitutional powers.’ It can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offence against the law of the State, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection,-if their protection must be left to the action of the State court,-the operations of the general government may at any time be arrested at the will of one of its members. The legislation of a State may be unfriendly. It may affix penalties to acts done under the immediate direction of the national government, and in obedience to its laws. It may deny the authority conferred by those laws. The State court may administer not only the laws of the State, but equally Federal law, in such a manner as to paralyze the operations of the government. And even if, after trial and final judgment in the State court, the case can be brought into the United States court for review, the officer is withdrawn from the discharge of his duty during the pendency of the prosecution, and the exercise of acknowledged Federal power arrested. > > We do not think such an element of weakness is to be found in the Constitution. The United States is a government with authority extending over the whole territory of the Union, acting upon the States and upon the people of the States. While it is limited in the number of its powers, so far as its sovereignty extends it is supreme. > > Tennessee v. Davis, 100 U.S. 257, 262-63 (1879) What’s less clear is what happens when federal officials act outside Congress’ power - or when federal officials are alleged to be acting outside the scope of their congressional authorization. There is a fascinating discussion of the issue in [this law review article](http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1279&context=facpub), which discusses [Idaho v. Horiuchi](http://caselaw.findlaw.com/us-9th-circuit/1471745.html) (the state prosecution of the US Marshal who shot and killed Randy Weaver’s wife during the “Ruby Ridge” standoff, and shot and wounded Weaver’s friend, the crime he was on trial for): > [@](#): > > The briefs filed in Horiuchi illustrate those views quite nicely. > > On one end of the spectrum was Idaho, whose brief, long on colorful metaphor, characterized the assertion of immunity as a claim that the United States “is the king and [Horiuchi] is its Sheriff of Nottingham, who may do no wrong when he does its bidding.” Idaho’s curious legal team argued that the very idea of immunity in this context is “an archaic anomaly” unfit for American democracy. Alternatively, they contended, to the extent Supremacy Clause immunity exists at all, it does not shield federal officers whose actions were objectively unreasonable. And Horiuchi, they argued, had not acted reasonably in firing the second shot. > > At the opposite end of the spectrum was a group of former United States Attorneys General who filed a brief amici curiae. They took the position that federal officers should be entitled to complete immunity for any and all acts within the scope of their federal authority. On this view, while a federal officer might be subject to federal criminal or civil penalties for his actions, he should be immune from state prosecution provided he was acting within the broad scope of his federal employment. And because Horiuchi was unquestionably doing so, he should be immune. > > Interestingly, the United States, and Horiuchi himself, took a middle position. They contended that federal officers acting within the scope of their employment are immune from state prosecution for any action they reasonably believe is necessary and proper to the performance of their federal functions. On the one hand, that standard affords considerable deference to the federal officer: it provides immunity unless no reasonable officer could have concluded that the actions were necessary and proper to the performance of his federal functions. At the same time, this position certainly leaves room for state prosecution when federal officers either act outside the scope of their employment or take measures so extreme that no reasonable officer could have deemed them appropriate. > > Seth P. Waxman, _Federalism, Law Enforcement, and the Supremacy Clause: The Strange Case of Ruby Ridge_, 51 U. Kan. L. Rev. 141, 148-49 (2002). We never found out what the answer was because Idaho dropped its prosecution. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 19, 2014, 2:51pm UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/28 "2014-05-19T14:51:15Z")
> [@rbroome](#): > > Again, I think this varies by state. The State is sovereign, but it is possible that the county is created and derives it’s powers from the state constitution. The normal state of affairs is that counties established by charter may exercise some of the state’s powers as sovereign, while non-charter counties cannot. I am not aware of any state where the state cannot withdraw any devolved powers, though (perhaps Louisiana). ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [May 19, 2014, 4:07pm UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/29 "2014-05-19T16:07:25Z")
> [@Lacunae\_Matata](#): > > There’s a very durable rumor floating around, even within law enforcement communities, that sheriffs in the US are all-powerful within their own jurisdictions, even to the point that a duly elected county sheriff can expel federal law or state law enforcement from that jurisdiction. NO! A COUNTY is a “Subdivision” of the state itself, therefore is governed by it’s respective Constitution and or State law, and no such authority exists for a Sheriff, anywhere. In Ohio I have heard only the Coroner can arrest the Sheriff. I am assuming only for a warrantless arrest, but not for a felony committed in presence? Need more research there! As an example, in Ohio, the Ohio Highway Patrol has “traffic” jurisdiction statewide, by law, therefore a Sheriff can not banish them from his County. Although their criminal law jurisdiction is limited, their traffic authority is not. As another comparative example, for Double Jeopardy purposes, a city and County/state law is the “same sovereign”, although territorial in nature, all powerful does not apply. ---
**Author:** ![Lacunae\_Matata](https://avatars.discourse-cdn.com/v4/letter/l/8491ac/32.png) [@Lacunae\_Matata](https://boards.straightdope.com/u/Lacunae_Matata)\ **Post date:** [May 19, 2014, 5:22pm UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/30 "2014-05-19T17:22:06Z")
The law review article was great, RNATB - thanks! (I can’t really watch videos, thanks to my terrible internet connection, so I can’t comment on the Rachel Maddow piece **commasense**. I’ll look for a transcript.) I discussed this issue again with the aforementioned LEO who had heard this myth from a “trustworthy” source, and the misunderstanding seems to be one of those cases where a fact is garbled and embellished, the farther it travels from the source. ---
**Author:** ![commasense](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/commasense/32/3017_2.png) [@commasense](https://boards.straightdope.com/u/commasense)\ **Post date:** [May 19, 2014, 6:06pm UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/31 "2014-05-19T18:06:57Z")
> [@Lacunae\_Matata](#): > > The law review article was great, RNATB - thanks! (I can’t really watch videos, thanks to my terrible internet connection, so I can’t comment on the Rachel Maddow piece **commasense**. I’ll look for a transcript.) [Here it is.](http://www.nbcnews.com/id/55035005/ns/msnbc-rachel_maddow_show/t/rachel-maddow-show-thursday-april/#.U3pHoVeaLvY) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 22, 2014, 10:36pm UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/32 "2014-05-22T22:36:41Z")
I think that one of the reasons for the durability of the rumour is that Sheriff Mack, referred to up-thread, actually won a case in the Supreme Court on a related point. As part of the transition provisions in the Brady Gun Control Bill, the federal law directed sheriffs to conduct background checks. This was just an interim measure, until a federal background check system could be put into place. Mack and another Sheriff, Printz, challenged the provisions in the courts, and won. Justice Scalia for the majority gave three different rationales as to why the provision was unconsistutional: first, that Congress could not directly impose those sorts of duties on state officials; second, that doing so infringed the powers of the President to oversee the administration of federal law; third, that it violated the principle that the federal government cannot coerce the states to carry out federal policy. None of those three factors have anything to do with the powers of a sheriff, and note that in this case, Mack and Printz didn’t “draw a line in the sand” and say “no” to the feds, based on their inherent super-sheriff powers. Rather, they did what many others who are dissatisfied with a government action have done in the past: they went to federal court and sought judicial review. However, I wouldn’t be surpised if Mack and Printz point to their major victory (and it certainly was a victory for state powers), as support in a hand-waving sort of way for the special powers and immunities of sheriffs. See: [Printz v. United States (1997)](https://en.wikipedia.org/wiki/Printz_v._United_States) ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [May 23, 2014, 1:41am UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/33 "2014-05-23T01:41:36Z")
As a counter-example to the urban legend: If it were even remotely true Sheriff “Fightin’” Joe Arpaio would have long since driven any Federal, State and local LEOs out of Maricopa County. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [May 23, 2014, 2:43am UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/34 "2014-05-23T02:43:25Z")
> [@Lacunae\_Matata](#): > > The law review article was great, RNATB - thanks! No problem! ---
**Author:** ![runningdude](https://avatars.discourse-cdn.com/v4/letter/r/e9c0ed/32.png) [@runningdude](https://boards.straightdope.com/u/runningdude)\ **Post date:** [May 23, 2014, 3:18am UTC](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635/35 "2014-05-23T03:18:31Z")
> [@Loach](#): > > It’s not really a rumor it’s one of the basic beliefs of sovereign citizens. … Oh boy. You can’t fix stupid! Well, at least they will be acquitted if the local police bring them to a courtroom with a gold-fringed flag… > [@Lacunae\_Matata](#): > > "The county sheriff is the line in the sand. The county sheriff is the one who can say to the feds, “Beyond these bounds you shall not pass.” This is not only within the scope of the sheriff’s authority; it’s the sheriff’s sworn duty. " Quoted from the [About page](http://cspoa.org/about/) of the Constitutional Sheriffs and Police Officers website. This group is purportedly made up of “hundreds” of current sheriffs, deputies, and other peace officers in the United States. > … > So apparently, this belief is not unheard-of in law enforcement circles. That website is not a legitimate professional organization for law enforcement officials. While sheriffs and peace officers have the same right to free association as anybody else, their association with _that_ group might actually undermine their apparent fitness for office. [Previous page](https://boards.straightdope.com/t/sheriffs-federal-law-enforcement-the-constitution/688635.md?page=1)