National LEOs Have Legal Cause To Ignore Enforcement Of Laws That Violate Our Constitutional Rights

[arakboss]

I proposed this idea in another thread but it deserves it's own. This Federal law prohibits LEO's from violating our Constitutional rights: Law Enforcement Misconduct

The federal criminal statute that enforces Constitutional limits on conduct by law enforcement officers is 18 U.S.C. § 242. Section 242 provides in relevant part:

"Whoever, under color of any law, …willfully subjects any person…to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States [shall be guilty of a crime]."

It could provide legal cover for those LEOs who don't want to enforce laws which they determine to be unconstitutional. This includes Sheriff's in SAPO counties. Let's push this idea big time so every LEO in the nation is aware that they don't have to follow orders to violate our rights and that they'll have legal justification (including civil payouts if they are fired) to ignore those orders.

Here is my email to Oregon Sheriffs Assc:

"Good morning,

Would you please remind your members of the Federal Statute 18 U.S.C. § 242. Section 242. The important part of the Statute to highlight is this:
The federal criminal statute that enforces Constitutional limits on conduct by law enforcement officers is 18 U.S.C. § 242. Section 242 provides in relevant part:

"Whoever, under color of any law, …willfully subjects any person…to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States [shall be guilty of a crime]."

This Statue will provide legal justification for those LEO's who do not want to violate the Constitutional rights of Oregonians. I would hope that would be a 100% of your members.

If the AG attempts to threaten Oregon Sheriffs with penalties for not enforcing unconstitutional State laws as has happened in Washington State, please let your members know that they will be justified in ignoring these threats. It will be necessary for them to ignore these orders, so they do not violate Federal Statute 18 U.S.C. § 242. Section 242"

Read More

 

[dcfranzen]

This might apply to the military too.

I took this oath when I joined the Army and again when I joined the police department. Technically, I remained obligated to that service until discharged.

BUT, our Oath never expires. It is our duty to defend the Constitution against all enemies, foreign and DOMESTIC.

 

[arakboss]

This might apply to the military too.

I took this oath when I joined the Army and again when I joined the police department. Technically, I remained obligated to that service until discharged.

BUT, our Oath never expires. It is our duty to defend the Constitution against all enemies, foreign and DOMESTIC.

Maybe, it will really only be useful for LEOs who don't want to violate our rights. For those LEOs that don't give a damn they can argue they didn't know they were violating our rights. This law should provide the legal cover the WA Sheriffs need to rebuff AGs threats.

 

[Ura-Ki]

Outstanding! Good on you for doing this amd reminding our sheriffs of their sworn duty!

May i also recomend reaching out to the State Adjunct General ( person in charge of the State National Guard) amd remind them of the oath they took, and that they also answer to the Sheriff's before the Gov'ner!


Also, contact the U.S.C.G. commandant for west coast (Oregon) region with the same info! remind them that they answer to both the people and the peoples commander in chief as well as the D.O.J. and same, they also took an oath!

Best to get all the ducks in a row soonest!I

 

[mrblond]

If I remember right, and I just may not, but is not enforcing a unconstitutional law itself an illegal act?

Of courser though we have clowns in black robes always giving an opinion on what is constitutional or not, seems to change every few years

 

[Ura-Ki]

LEOs aren't judges. They don't get to determine if laws are unconstitutional. They enforce the laws in effect unless and until a court determines a law is unconstitutional. That U.S.C. provides for prosecution of LEOs who deny rights that are clearly protected such as right to an attorney, right against unreasonable search and seizure, etc.

Technically yes, but.........
Just like in the armed forces, you have a duty to disobey an unlawful order! There are serious consequences to this if you are found wrong, but the other side of that usually brings the hammer of Thor down upon those who issued said unlawful orders!

 

[CamoDeafie]

A possible work around if the State AGs are going to make use of the State Police and possibly get the help from ATF and FBI (as in who would provide them with the information from the NICS to target those who refuses to register or surrender certain arms)...is to have the Sheriff hereby deputize those specific people as volunteers of a "posse" (militia) and declare that their personal arms are for their use for self defense as volunteer deputy LEOs, and thus cannot be confiscated. Again, this depends on if it really is legal for that to happen. I seem to recall that the Sheriffs do have that authority, but not sure if there are procedural rules/regulations governing such authority? If it is indeed legal, and the State has to sue the Sheriff Departments for "obstruction of justice" or some similar B.S.; then the Sheriffs can use that federal statute in defense?

 

[Ura-Ki]

With out president, however, a Sheriff can declare Martial law and set the terms with in his county, so, theoretically, he could call up all able bodied men, call upon the militia, and even swear deputies as needed! Some of this was done during WW2, but it fell under national defence, still, it does point to a possable way forward. Best case, the Sheriffs declare the AG "No Confidence" and remove them ( and any other offending persons) and seat a full tribunal under Common Law/Martial Law!

 

[CamoDeafie]

It would be pretty difficult to claim a law that has been enacted by a legislature is unlawful. By definition, a law enforcement officer who is enforcing a law on the books is following the law.

District Courts have held that the Montana Firearms Freedom Act of 2008 is invalidated/null and void, even though it is a law on the books. In the same vein, several much older Federal Laws have been found to be unlawful and unconstitutional, and thus invalidated/null and void, and usually struck or removed or amended. But it really is up to the Courts to determine... and that is where the big battles are

 

[arakboss]

LEOs aren't judges. They don't get to determine if laws are unconstitutional. They enforce the laws in effect unless and until a court determines a law is unconstitutional. That U.S.C. provides for prosecution of LEOs who deny rights that are clearly protected such as right to an attorney, right against unreasonable search and seizure, etc.

I will trust LEOs who are being ordered to enforce a likely unconstitutional law to make this determination: "Whoever, under color of any law, …willfully subjects any person…to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States [shall be guilty of a crime]."

Edit: imagine if a State legislature passed a law that allowed LEOs to enter and search any home in the State without a warrant. That law would very likely be unconstitutional and a LEO would likely be guilty under the Federal Satute I brought up if they participated in these searches. I would say they would be in the right to refuse to participate.

 

[No_Regerts]

It would be pretty difficult to claim a law that has been enacted by a legislature is unlawful. By definition, a law enforcement officer who is enforcing a law on the books is following the law.

We all know that some officer isn't going to call up the local news and stand on the hood of his car and use his PA to announce he wont enforce an unconstitutional law. It will go more like all the other behaviors that don't get referred for prosecution. Prove I didn't enforce the law today!

 

[arakboss]

We all know that some officer isn't going to call up the local news and stand on the hood of his car and use his PA to announce he wont enforce an unconstitutional law. It will go more like all the other behaviors that don't get referred for prosecution. Prove I didn't enforce the law today!

I agree except some of the sheriffs have been pretty vocal about their intent.

 

[BSG 75]

District Courts have held that the Montana Firearms Freedom Act of 2008 is invalidated/null and void, even though it is a law on the books. In the same vein, several much older Federal Laws have been found to be unlawful and unconstitutional, and thus invalidated/null and void, and usually struck or removed or amended. But it really is up to the Courts to determine... and that is where the big battles are

I don't know what all the eyerolling is about. You just confirmed what I said earlier. Courts determine that a law is unconstitutional, not LEOs. "On the books" wasn't meant literally; it was shorthand for a law that hasn't been nullified by a court decision.

Edit: imagine if a State legislature passed a law that allowed LEOs to enter and search any home in the State without a warrant.

That's a pretty silly hypothetical, since no legislature would pass such a law knowing it would instantly be ruled unconstitutional.

That's like saying "imagine if a State legislature passed a law re-instituting slavery...". That's never going to happen.

LEOs can use "discretion" on a case by case basis to not arrest someone for violating a law. They can issue a warning or do nothing at all (unless a warrant for arrest has been issued). But that's different from "determining" a law is unconstitutional. They don't get to "determine" if a law is unconstitutional. That's for the courts to decide.

 

[arakboss]

I don't know what all the eyerolling is about. You just confirmed what I said earlier. Courts determine that a law is unconstitutional, not LEOs. "On the books" wasn't meant literally; it was shorthand for a law that hasn't been nullified by a court decision.



That's a pretty silly hypothetical, since no legislature would pass such a law knowing it would instantly be ruled unconstitutional.

That's like saying "imagine if a State legislature passed a law re-instituting slavery...". That's never going to happen.

The point I was trying to make was that if an LEO believes an anti-gun law is as unconstitutional as a no warrant search, he should not enforce it or he might be violating the federal statute.

 

[arakboss]

I appreciate the offer but I think I'll stick with the internet and save some trees. Did you try to connect with WasrNwarpaint?

 

[arakboss]

No warrant searches (with certain exceptions for exigent circumstances) are established as unconstitutional. It's not a matter of "belief". So of course he wouldn't enforce it.

The gun laws that you and some others here believe are unconstitutional have not been found to be unconstitutional by a court (so far). You're comparing apples and oranges.

If a Sheriff believes a law is unconstitutional then he is obligated by federal law not to enforce that law until he believes the law has been deemed constitutional. It is up to each LEO to make that decision each time they interact with a individual.

 

[arakboss]

If a Sheriff makes it public that they "know" a firearm law is unconstitutional but enforces it anyways. That could put the Sheriff in a bad spot. If they refuse to enforce the law they "know" is unconstitutional then they may have to deal with AG. It would seem to me that the AG would then have to prove to the Sheriff that the law is constitutional. I think this is what the AG was trying to do in WA. I am not sure if he convinced them all or not. Other States are having the same issues. Oregon may be next if they pass any crazy laws and the Oregon AG puts pressure on SAPO County Sheriffs to enforce them.

 

[BSG 75]

If a Sheriff believes a law is unconstitutional then he is obligated by federal law not to enforce that law until he believes the law has been deemed constitutional. It is up to each LEO to make that decision each time they interact with a individual.

Your first sentence is completely false and a misreading of the federal law you quoted. Again, it isn't a matter of "belief" as to whether a law is constitutional or not, but of what the law and case law actually says. The law you quoted exists to protect citizens from LEOs who might violate the constitutional rights of those citizens. It isn't used to protect LEOs who choose not to enforce a law.

It exists to prevent LEOs actively doing something (bad), NOT to require them to NOT do something (not enforce a law that is currently valid).

If a Sheriff makes it public that they "know" a firearm law is unconstitutional but enforces it anyways.

The only way a firearm law is unconstitutional is if a court decides it is. So if a court decides that then yes, he should "know" that a court has decided it is unconstitutional and he should not enforce it.

If a court HAS NOT held a law to be unconstitutional then the sheriff's "belief" or opinion that it is unconstitutional has no weight. He is not going to be put "in a bad spot" for enforcing a law that no court has said is unconstitutional.

We can all - including LEOs and sheriffs - have opinions and beliefs that a law or proposed law is unconstitutional. But those opinions and beliefs have no legal weight.

Laws -real laws, not silly hypothetical laws like those authorizing warrant-less searches - are not unconstitutional until a court says they are unconstitutional. It doesn't matter what you or I or a sheriff "believes" or "knows" or "determines" or wishes or hopes. Those opinions and beliefs don't make a law unconstitutional.

So far courts have ruled that "assault weapon" bans ARE constitutional
Supreme Court Lets Stand Maryland Assault-Weapons Ban
no matter what you or I or some sheriff "believes" or "knows" or "determines" or wishes or hopes. Hopefully that will change in the future but so far that's where it stands for now. No sheriff is going to be "put in a bad spot" for enforcing an "assault weapon" ban. Now some may choose not to enforce it for whatever reason, including their opinion that it is unconstitutional, but they aren't going to get into trouble if they decide to enforce it.

 

[arakboss]

Your first sentence is completely false and a misreading of the federal law you quoted. Again, it isn't a matter of "belief" as to whether a law is constitutional or not, but of what the law and case law actually says. The law you quoted exists to protect citizens from LEOs who might violate the constitutional rights of those citizens. It isn't used to protect LEOs who choose not to enforce a law.

It exists to prevent LEOs actively doing something (bad), NOT to require them to NOT do something (not enforce a law).



The only way a firearm law is unconstitutional is if a court decides it is. So if a court decides that then yes, he should "know" that a court has decided it is unconstitutional and he should not enforce it.

If a court HAS NOT held a law to be constitutional then the sheriff's "belief" or opinion that it is not constitutional has no weight. He is not going to be put "in a bad place" for enforcing a law that no court has said is unconstitutional.

Your first sentence is completely false and a misreading of the federal law you quoted. Again, it isn't a matter of "belief" as to whether a law is constitutional or not, but of what the law and case law actually says. The law you quoted exists to protect citizens from LEOs who might violate the constitutional rights of those citizens. It isn't used to protect LEOs who choose not to enforce a law.

It exists to prevent LEOs actively doing something (bad), NOT to require them to NOT do something (not enforce a law).



The only way a firearm law is unconstitutional is if a court decides it is. So if a court decides that then yes, he should "know" that a court has decided it is unconstitutional and he should not enforce it.

If a court HAS NOT held a law to be constitutional then the sheriff's "belief" or opinion that it is not constitutional has no weight. He is not going to be put "in a bad spot" for enforcing a law that no court has said is unconstitutional.

I guess your argument boils down to the belief that you feel the Sheriffs who have made the determination that particular firearm laws are unconstitutional are wrong. That is the same argument the AGs are making. I agree the federal statute exist to protect us from LEOs who might violate our rights. The difference we have is that I believe the Sheriffs determination is the right one.

 

[arakboss]

Sort of related to the thread topic:
When Sheriffs Won't Enforce The Law