Littwin: Never mind secession, we got sheriffs
December 22, 2013
Welcome to Colorado, where (some) gun laws are not laws at all.
I know this because I read it on the front page of The New York Times on Monday: "Sheriffs Refuse to Enforce Laws on Gun Control." It's no secret. It was just a little off-putting to see it in print. First it was secession, and now it's nullification.
And here's the thing: There seems to be little we can do about it other than to be mildly embarrassed. And, in the days so soon after the Arapahoe shooting, more than a little sad.
Let's see if we can follow the logic here. Both houses of the Colorado Legislature passed a few modest — if controversial — gun bills. The governor then signed them into law.
That's how we make laws in the state. But if only it were as simple as that.
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Some people who didn't like the laws decided to try to recall a few of the senators who voted for them. The recall laws are generally understood as a way to rid ourselves of legislators who are guilty of misfeasance or malfeasance or some other kind of feasance. But that's not the way the recall laws are written.
Meaning, if people want to get rid of their legislators, they can. You can argue that too many recalls make for bad governing — that it means our legislators must be even less brave in the face of tough votes. But still, that's how democracy works, more or less.
So, to recap. The Legislature passes the modest — if controversial — gun bills. The governor signs them. Two senators get recalled. The laws, though, remain in effect.
Except they don't. Not necessarily. Not everywhere.
Which brings us to the sheriffs. As you may remember, 55 of 62 Colorado sheriffs joined a lawsuit to overthrow the new gun laws, saying they violate (salute when you say it) the Second Amendment. They don't think the laws are constitutional, not that they're experts on the Constitution. They don't think the laws are enforceable, which is debatable. They say enforcement is, in any case, a low priority, which is the kind of discretion that we allow law enforcement.
And so, many of the sheriffs particularly in rural Colorado, are simply not enforcing the laws. I checked with some law professors who say there isn't much anyone can do about it — except for the voters who elect these sheriffs. And, in rural Colorado, it's just possible that many voters may not be unhappy with the direction these sheriffs are taking.
But do we really think sheriffs should be allowed to nullify laws? To learn more, I called Weld County Sheriff John Cooke, who's been a leader in the anti-gun-laws camp and whose picture ran in The New York Times along with the article. He's in the non-enforce coalition. He's in the gun-laws-are-low-priority group. He's also in the these-laws-are-unconstitutional-but-that's-just-his-opinion camp.
When I ask him about it, he goes into a long speech about how the new gun laws are poorly written, too vague and unenforceable. And so he won't enforce them. But you can almost make out the wink in his voice, even over the phone, all the way from Greeley. A judge has ruled that the laws aren't vaguely written, but I'm pretty sure it's not whether Cooke thinks the laws are enforceable but whether he wants to enforce them.
We discuss the background-check law, which, if you look at the statistics, seems to work. So far, 70 applicants who have been checked on private sales have been turned away. That's 70 people who shouldn't have guns but who would have if not for the law. But Cooke says the law is pointless. And also unenforceable, saying (in an argument you may have heard before) criminals will buy guns illegally if they can't get them legally. So there's that.
We discuss the law limiting magazine size to 15 rounds in response to the massacres in Aurora and Newtown. That one's easy, Cooke says. It's not just that the law is unenforceable, but that no one is breaking it — not that he's checked. "If someone was selling them illegally, I'd be getting complaints," he says, "and I haven't had one." So there's that.
Desperate, I try a hypothetical. They're always handy in these situations. I ask, what if John's Gun Shop started advertising 30-round magazines, knowing that Cooke says he's not going to enforce the law? What would he do? Would he arrest old John?
"You can come up with all the hypotheticals you want," he says. "But I'm not going to answer that."
He laughs. We both laugh. We both know.
The Times story cites an Arizona sheriff who founded an organization that insists sheriffs are the final arbiter of what is and isn't constitutional. I ask Cooke if he agrees.
"I don't agree with that," Cooke says. "I don't belong to that organization. I never once said I get to decide what's constitutional. That's above my pay grade. But if a reporter asks me if I think a law is unconstitutional, I'm allowed to say, aren't I? I'm allowed to say that I think there are more heinous crimes than a guy who sells his shotgun to his next-door neighbor that he's known for 20 years."
I try another hypothetical. What if the sheriff in the neighboring county decides not to enforce civil rights laws because he says they're unenforceable? Wouldn't that be a problem?
Cooke thinks for a minute. He says he doubts that would ever happen in Colorado. He says the voters wouldn't put up with that. He doesn't quite admit that it could be worrying, but he seems to come close. Then he points out that there are many laws that officials choose not to enforce. He points out correctly, for example, that the feds have decided not to enforce marijuana laws in Colorado because of a conflict with state laws. He doesn't say how exactly that should lead to unenforced gun laws.
But this is what he told the Times: "In my oath it says I'll uphold the U.S. Constitution and the Constitution of the state of Colorado. It doesn't say I have to uphold every law passed by the Legislature."
And yet I wonder if that's how the Founding Fathers would have seen it. Because I looked, and I couldn't find anywhere in either the U.S. Constitution or Colorado Constitution where it says that if all else fails a sheriff shall decide.
Mike Littwin's column runs Sundays in The Aspen Times. A former columnist for the Rocky Mountain News and Denver Post, he currently writes for ColoradoIndependent.com.
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