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

[arakboss]

Maybe we will have to rely on the LEO's discretion as to what laws they are going to enforce?

 

[arakboss]

Can we agree on the fact that the State level down LEOs aren't required to enforce federal laws including background check laws?
The power of county sheriffs was upheld in the Supreme Court.
In 1994, Graham County Arizona Sheriff Richard Mack and Ravalli County Montana Sheriff Jay Printz successfully sued the Clinton Administration over the Brady Handgun Violence Prevention Act.

Justice Antonin Scalia, Chief Justice William Rehnquist, and Justices Sandra Day O'Connor, Anthony Kennedy, and Clarence Thomas found that the Brady Act's attempted commandeering of the sheriffs to perform background checks violated the tenth amendment.

"The Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people. The Federal Government's power would be augmented immeasurably and impermissibly if it were able to impress into its service–and at no cost to itself–the police officers of the 50 States.

…Federal control of state officers would also have an effect upon the separation and equilibration of powers between the three branches of the Federal Government itself." (source)

The decision upheld the power of county sheriffs.

 

[No_Regerts]

Can we agree on the fact that the State level down LEOs aren't required to enforce federal laws including background check laws?
The power of county sheriffs was upheld in the Supreme Court.
In 1994, Graham County Arizona Sheriff Richard Mack and Ravalli County Montana Sheriff Jay Printz successfully sued the Clinton Administration over the Brady Handgun Violence Prevention Act.

Justice Antonin Scalia, Chief Justice William Rehnquist, and Justices Sandra Day O'Connor, Anthony Kennedy, and Clarence Thomas found that the Brady Act's attempted commandeering of the sheriffs to perform background checks violated the tenth amendment.

"The Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people. The Federal Government's power would be augmented immeasurably and impermissibly if it were able to impress into its service–and at no cost to itself–the police officers of the 50 States.

…Federal control of state officers would also have an effect upon the separation and equilibration of powers between the three branches of the Federal Government itself." (source)

The decision upheld the power of county sheriffs.

The recent anti-gun laws have been at the state level, not federal.

 

[arakboss]

The recent anti-gun laws have been at the state level, not federal.

I realize that but some in DC are itching to get in on the action. And if they take over in 2020 who knows what we'll be dealing with.

 

[BSG 75]

Maybe we will have to rely on the LEO's discretion as to what laws they are going to enforce?

Now you're getting it. A sheriff may decide to not devote any resources to enforcing some of the new gun control laws, as some did with Oregon SB 941 the "universal" background check law, but that doesn't make that law unconstitutional. If you decide to not comply with some of the new gun laws that might be passed it's a gamble. If you break one of the gun laws you're relying on the LEO's discretion to not arrest you. But if some gung-ho by-the-book deputy decides to arrest you there is nothing stopping him, including that federal law that this whole thread is about. A deputy is not going to be charged with a federal crime for enforcing a valid state law. And a state law is valid until a court says it isn't, regardless of what you or I or the sheriff think.

Can we agree on the fact that the State level down LEOs aren't required to enforce federal laws including background check laws?

Unfortunately, also including federal immigration laws.

But the new gun laws coming out of Salem are state laws, not federal laws, so Printz v United States isn't relevant.

Police officers in Sandy, Oregon take the following oath:

I, [name] , do solemnly swear that I will support the Constitution of the United States, and the Constitution of the State of Oregon, and the Laws therefore, and I will faithfully, honestly, and impartially discharge the duties of a Police Officer during my continuance therein, to the best of my ability, so help me God.

Police officers in Portland, Oregon take the following oath:

I, (name), do solemnly affirm I will support the Constitutions of the United States and of the State of Oregon, the Charter of the City of Portland and its laws; I will faithfully, honestly and ethically perform my duties as (office) during my continuance therein.

Washington County, Oregon:

1. All Staff are Required to Swear to an Oath of Office and are Commissioned Commensurate with Assigned Duties.
Staff must sign and affirm an Oath of Office that confers their specific commission. Certified peace officers must affirm that they will uphold the Constitutions of the United States of America and the State of Oregon. They must also affirm to enforce state law, the ordinances of Washington County, and the rules and regulations of the Sheriff's Office.

Notice that they swear to support not only the US and Oregon Constitutions, but also the laws under those constitutions.

 

[STEELE]

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.

I'e been a retired LEO for over 20 years, having taken the Oath three times. I will always defend the Constitution! NO MATTER WHAT!

 

[arakboss]

I'e been a retired LEO for over 20 years, having taken the Oath three times. I will always defend the Constitution! NO MATTER WHAT!

Thank you for speaking up. I would like to set up a website targeted to LEOs that will attempt to persuade them to make maximum use of their discretion and latitude when confronted with enforcing laws they believe our unconstitutional. Would you be interested in providing some help with content?

 

[Stealth-X]

I think I understand both sides of this argument. I think you are probably correct that Sheriffs can't wave around this law and claim authority on what is and is not constitutional. Violations of Oregon law, when eventually enforced by someone, would end up in court and eventually, hopefully, get to the supreme court.

On the other hand, if I were given an "unlawful order," I don't believe I'm first beholden to follow the lowest level authority (City/County/State/Fed/Constitution). I was just following orders" doesn't work in the end.

Veterans, the people making the laws, and the people enforcing the laws all swore and oath to support and defend the Constitution of the United States against all enemies foreign and domestic. I believe this was their FIRST oath to the higher authority of the constitution and was followed by their state and local jurisdictional areas.

So, in the case of New Orleans when the Chief of Police ordered his people to disarm the citizens, he and they were breaking their first oath. The people knew it and the cops knew it, but they did it anyway, and the people let them, and it took years to get it sorted out in courts. It was and is unlawful and unconstitutional act and everybody knew it but did it anyway. I don't need a judge, two years from now, to give me an excuse to do the right thing. The constitutional thing.

Don't forget, I hate to bring it up, but Hitler was lawfully elected and passed laws making everything they did "legal." The majority of people don't get to decide what's right in America. This is a Constitutional Republic, not a Democracy.

I fully admit that in court I could be wrong. Of course, in court, I could be made to be wrong about my name. In life, in truth, and in justice, I am not wrong. We are to actively support and defend the constitution, not passively let those above us destroy it or redefine it one robed-idiot at a time. If you took the oath, you don't get to just pass the buck to the 9th circuit court.

Then again, what do I know?

 

[arakboss]

I think I understand both sides of this argument. I think you are probably correct that Sheriffs can't wave around this law and claim authority on what is and is not constitutional. Violations of Oregon law, when eventually enforced by someone, would end up in court and eventually, hopefully, get to the supreme court.

On the other hand, if I were given an "unlawful order," I don't believe I'm first beholden to follow the lowest level authority (City/County/State/Fed/Constitution). I was just following orders" doesn't work in the end.

Veterans, the people making the laws, and the people enforcing the laws all swore and oath to support and defend the Constitution of the United States against all enemies foreign and domestic. I believe this was their FIRST oath to the higher authority of the constitution and was followed by their state and local jurisdictional areas.

So, in the case of New Orleans when the Chief of Police ordered his people to disarm the citizens, he and they were breaking their first oath. The people knew it and the cops knew it, but they did it anyway, and the people let them, and it took years to get it sorted out in courts. It was and is unlawful and unconstitutional act and everybody knew it but did it anyway. I don't need a judge, two years from now, to give me an excuse to do the right thing. The constitutional thing.

Don't forget, I hate to bring it up, but Hitler was lawfully elected and passed laws making everything they did "legal." The majority of people don't get to decide what's right in America. This is a Constitutional Republic, not a Democracy.

I fully admit that in court I could be wrong. Of course, in court, I could be made to be wrong about my name. In life, in truth, and in justice, I am not wrong. We are to actively support and defend the constitution, not passively let those above us destroy it or redefine it one robed-idiot at a time. If you took the oath, you don't get to just pass the buck to the 9th circuit court.

Then again, what do I know?

I am on your side of this issue but I also understand points @BSG 75 made, that some of these laws have been deemed constitutional by a court somewhere in the USA. In those situations, I can understand why an LEO might feel obligated to enforce the law. But I would still argue that LEOs have discretion to bring the hammer down on somebody or give them a warning. This discretion could apply to anti-rights laws just like it might in a traffic stop or a domestic dispute.

In other areas where the courts haven't been so clear, I wouldn't always assume the legislators are infallible when making laws that might be unconstitutional. They don't have a perfect track record. Sure if a law exist that has been ruled constitutional then an LEO shouldn't get in trouble for enforcing it. But LEOs are people too and if they feel a law is likely unconstitutional then I would recommend they resist enforcing it. And when ordered to enforce a likely unconstitutional law, use as much discretion as they can when deciding whether to give warnings or not.

 

[Ura-Ki]

So, here is the rub! You are all operating on the assumption that the Sheriffs are acting on their own, this is false, they are operating om constitutnal laws with in the state as well as the fed constitution. These most recent anti 2nd laws have all been enacted in the local an State levels, not fed, and the sheriff has the authority to enforce or rule unconstitutional any law or ordence with in his county! In short, if he believes the law unconstitutnal with in the county and by extension State, he is obligated not to enforce it, period! These laws are all at the local and State levels, very few at the fed, which actually makes it easier for him to do his job. The flip side is that any law would then have to be heard at the local or State level before bumping to SCOTUS, and in Oregon, he would be struck down due to the ultra left, rule from the bench policies of our courts here! IF a case went to SCOTUS, the. The state would most likely get slapped down, and this is the chanses the law makers take with the vote of the people, and despite the constitutionality of any law voted on by the people, the validity of any law is first decided by the sheriff!

 

[uberguy]

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.

Laws depend on voluntary compliance in combination with selective enforcement and discretionary prosecution.

 

[arakboss]

Laws depend on voluntary compliance in combination with selective enforcement and discretionary prosecution.

That last bit (discretion) is something every LEO down to those on patrol duty have control of to a large degree.

 

[tinkerbill]

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

And yet, that is EXACTLY what our state legislature is doing right now with all the unconstitutional laws they are proposing!