Expert: Utah sheriffs don't have to enforce federal gun laws

Published January 28, 2013 7:40 am

Gun control • Salt Lake's Winder counters police are duty-bound to enforce all laws.
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It was only supposed to be a conversation starter.

Well, it worked.

The Utah Sheriffs' Association — made up of 28 of Utah's 29 sheriffs — told President Barack Obama in a letter that they won't allow any federal official to "descend upon our constituents and take from them what the Bill of Rights — in particular Amendment II — has given them." In the week since, the association's letter about the prospect of stricter regulation of gunshas generated no shortage of attention.

The letter raised questions, not only about whether it threatened physical confrontation, but also whether the sheriffs, who are elected and sworn to uphold the law, can refuse to do so. Of the 21 association members contacted by The Tribune, all said they agree with the letter, though not everyone had a chance to sign off on it before it went out. The other seven did not immediately respond to a request for comment.

The letter was emailed to every sheriff, but Carbon County Sheriff James Cordova and Emery County Sheriff Greg Funk said they missed it in their in-boxes. Nonetheless, Funk said he agrees with the letter, while Cordova takes a "neutral" stance on it.

"You look over there in Colorado, they have legalized the use of marijuana [even though] it's illegal federally," Funk said, citing an example where local law enforcement might act contrary to federal statute.

Salt Lake County Sheriff Jim Winder, the only sheriff who is not a member of the association, believes his colleagues have a responsibility to enforce federal law. In a prepared statement, he noted that it does not fall to any one person or group to determine a law's constitutionality, and once "a law has been determined to be constitutional, every law enforcement officer has the duty to enforce it."

Paul Cassell, a law professor at the University of Utah and a former federal judge, said a sheriff does not have to enforce any federal law — a legal opinion that appealed to at least several sheriffs who don't want to enforce a law unless it has been upheld by the U.S. Supreme Court.

"Utah sheriffs are not required to run around and affirmatively enforce federal law," Cassell said. "They have the right to decide what [takes priority in] their respective counties."

At the same time, Cassell said, sheriffs cannot obstruct federal law enforcement.

But Utah's sheriffs have no intention of doing so, said Utah County Sheriff James Tracy, who is vice president of the sheriffs' association.

"We're not threatening to arrest anybody or anything," said Tracy.

However, Rep. Brian Greene, R-Pleasant Grove, believes they should. He's proposing that local sheriffs be given the power to arrest federal agents attempting to seize guns from Utahns. Sheriffs who were asked about the proposed legislation declined to comment.

Meanwhile, at his monthly news conference Thursday, Gov. Gary Herbert said people are overreacting. "We don't have to have confrontations at the border," he said. "Go to court and we'll find out whether it's the law of the land or not, but Utah will adhere to the law of the land."

The Colorado sheriff whose county was the site of a mass shooting at a movie theater last year in Aurora, has been critical of the handful of law enforcement officials who have said they would not enforce gun-control laws they consider unconstitutional.

"Public safety professionals serving in the executive branch," he said, "do not have the constitutional authority, responsibility, and in most cases, the credentials, to determine the constitutionality of any issue."

Utah sheriffs who signed the letter said their strong words were merely meant to express support for the Second Amendment while legislators and the courts deliberate potential new laws.

"The letter has been criticized, it's been demonized, it's been held up as a sacred document," when all it was supposed to be was a discussion starter, said Summit County Sheriff Dave Edmunds, who is president of the association.

Though the letter cites the oath the sheriffs took as officers to defend the Constitution and said "they are prepared to trade their lives for the preservation of its traditional interpretation," the sheriffs interviewed for this story clarified that they have no desire for physical confrontation, but will stand with the constituents who elected them rather than federal officials.

When asked what steps they would take to defend that oath, the sheriffs declined to comment on hypothetical situations.

Davis County Sheriff Todd Richardson called a town hall meeting on gun control Thursday night in an effort to alleviate residents' concerns that federal agents would go door to door to take their guns.

Any stricter regulations that might be enacted by Congress are a long way off, Richardson said, and there will be plenty of discussion and debate until then.

The Associated Press contributed to this story.

mmcfall@sltrib.com

Twitter: @mikeypanda