Colorado Sheriffs and the duty to enforce statutes

I represent 55 elected Colorado Sheriffs, plus one retired police officer, in a federal civil rights lawsuit that has been filed against two bills passed by the state legislature last March. Information about the case, including major case filings, is available at ColoradoGunCase.org. I am writing this post to correct a serious and inaccurate accusation that has been made about my clients in the press recently.

On Monday, the New York Times published an article titled “Sheriffs Refuse to Enforce Laws on Gun Control.” Today, National Review Online published an article by Charles W. Cooke titled “Sheriffs Have No Veto: Refusing to enforce constitutionally dubious legislation is no better when they do it.” The article equated the Colorado Sheriffs to President Obama for lawlessly refusing to enforce certain statutes. As a matter of law, this accusation is wrong.

As for President Obama: The U.S. Constitution mandates that the President “shall take Care that the Laws be faithfully executed….” Art. II, sect. 3. Critics of the President accuse him of violating this specific, controlling law in various ways, such as unilaterally delaying the business mandate in Obamacare. Let us assume for the sake of argument that at least some of these charges are accurate. If so, the President would be flouting a specific duty imposed by law.

As for the Colorado Sheriffs: Each of the Sheriffs has his or own policy for dealing with new anti-gun bills of HB 1224 (magazine ban) and HB 1229 (temporary private loans of firearms must be treated like firearms sales, and routed through a gun store, with attendant record-keeping, fees, etc.). It would not be correct to claim that the majority of the Sheriffs have said that they will categorically refuse to enforce the laws. But let’s consider one of the Sheriffs who has: John Cooke, of Weld County. He has determined that HB 1224 and 1229 are unenforceable. He has provided training to his deputies elucidating the problem, and he has ordered his deputies not to enforce these two bills. Is Cooke’s decision a violation of any law? No.

The Office of Sheriff is created by the Colorado Constitution. Colo. Const., art. XIV, sect. 8. The Constitution does not enumerate particular duties of Sheriffs. Colorado statutes do specify various duties for Sheriffs, most of which are restatements of the Sheriffs’ traditional common law powers and duties. For example: “to keep and preserve the peace in their respective counties, and to quiet and suppress all affrays, riots, and unlawful assemblies and insurrections”; to “act as fire warden of his or her respective county”; to “appoint some proper person undersheriff”; and so on. Colorado Revised Statutes sect. 30-10-501 et seq. Nothing in the list of statutory duties requires Sheriffs to enforce every state statute.

As required by the Colorado Constitution, Sheriffs take an Oath of Office. Sheriff Cooke’s oath was as follows:

“I, John B. Cooke, do solemnly swear that I will support the Constitution of the United States, the Constitution of the State of Colorado, the Home Rule Charter for Weld County, Colorado; the Ordinances of Weld County, Colorado, and that I will faithfully perform the duties of the Office of County Sheriff, of the County of Weld, State of Colorado, upon which I enter.”

This oath did not require Sheriff Cooke to enforce all state statutes.

The Weld County oath is in the form required by the Colorado Constitution: “Every civil officer, except members of the general assembly and such inferior officers as may be by law exempted, shall, before he enters upon the duties of his office, take and subscribe an oath or affirmation to support the constitution of the United States and of the state of Colorado, and to faithfully perform the duties of the office upon which he shall be about to enter.” Art. XII, sect. 8. (The oath for the General Assembly is specified separately.)

Thus, Sheriff Cooke’s decision about non-enforcement HB 1224 and HB 1229 was not a violation of any legal duty.

Whether Sheriff Cooke exercised good judgment is a matter which citizens can debate. Whether he in any way transgressed any legal duty is not debatable. Such accusations are simply mistaken.