(February 22, 2023) - Political science professors Emily Farris of TCU and Mirya Holman of Tulane University discuss their research examining the "constitutional sheriffs" movement, which argues that sheriffs can refuse to enforce gun control laws and other measures that they believe are unconstitutional.

Farris and Holman say that even though the movement's legal arguments lack merit, their research found that nearly 45% of sheriffs nevertheless agree that their power supersedes that of federal or state governments.

The following conversation has been edited for brevity and clarity.

Emily Farris and Mirya Holman: Sheriffs are county-level, elected law enforcement leaders. Their responsibilities vary considerably across the United States, but most sheriffs manage a jail, provide courthouse security, and many engage in the full range of law enforcement activities, from setting criminal justice policy to arrests to investigations. In some places, sheriffs also serve as coroners or tax collectors.

A constitutional sheriff is a sheriff who believes that the sheriff's constitutional authority means that they can choose which state and federal laws to enforce. These sheriffs believe that they are the ultimate protectors of the Constitution.

EF and MH: While these views can be traced back to the Posse Comitatus movement in the 1970s, they gained popularity from the Constitutional Sheriffs and Peace Officers Association (CSPOA), a political organization founded in 2009 by Richard Mack, a former sheriff of Graham County, Arizona. A cornerstone of the CSPOA's message is that sheriffs have the right and responsibility to interpose, or place themselves between a higher government authority and their constituents.

But legally, there is no basis for this position. In Cooper v. Aaron, 358 U.S. 1 (1958), a case involving Arkansas' refusal to comply with mandated desegregation following the Brown decision, the U.S. Supreme Court rejected the idea of interposition, or that states or lower governments are able to oppose or refuse actions by the federal government that they deem unconstitutional. The strategy of "massive resistance" of southern states to civil rights laws included sheriffs like Jim Clark of Dallas County, Alabama, who famously wore a "Never" button on his uniform regarding integration. Despite the Supreme Court dismissing interposition as a legal strategy, the CSPOA and sheriffs continue to promote the idea.

EF and MH: The constitutional sheriffs movement has targeted gun control and COVID-19 mandates as two areas where they believe that sheriffs should resist federal or state efforts. On gun control, sheriffs regularly argue that they will not or should not have to enforce laws. Constitutional sheriffs' opposition extends to a broad set of policies and proposals, ranging from the assault weapons registration in Illinois to national discussions of gun control to red flag laws in Colorado.

For example, when Colorado passed a red flag law in 2019 (or a law that allows for law enforcement to use an extreme risk protection order (ERPO) to remove firearms from the possession of those who are a threat to themselves or others), a wide set of sheriffs called it a "gun grab." Sheriff Steve Reams of Weld County, Colorado, hosted a fundraising event billed as an "American Celebration" with conservative musician and gun activist Ted Nugent to oppose the state's new law that created ERPOs. Sheriff Reams went on to say: "Essentially what I'm saying is, I won't be an applicant for a red-flag order."

In Illinois, approximately 80 of the state's 102 sheriffs oppose the Protect Illinois Communities Act, a law that banned the sale and distribution of assault weapons, high-capacity magazines and switches that convert firearms to assault weapons. The law requires that anyone who owned those items before the law passed in January 2023 to register them with the state. Most of the sheriffs who opposed it issued statements saying they believe the law violates the Second Amendment to the U.S. Constitution, and therefore they will not be enforcing it.

EF and MH: It is unclear! In 2013-2014, more than 400 sheriffs and 19 state sheriff associations signed an anti-gun control statement from the CSPOA. Other measures of constitutional sheriffs include our efforts to measure these attitudes via a survey; we find that close to 45% of sheriffs agree that their power supersedes that of the federal or state governments and almost 70% agree that they have the responsibility to interpose.

EF and MH: There have not been many organized efforts to restrict the powers or resources of constitutional sheriffs. In some states, the CSPOA provides official continuing education classes required for law enforcement personnel. When Washington state sheriffs vocally opposed state gun control efforts, the state's attorney general sent them a letter reminding them that local law enforcement is required to perform background checks. If they refuse to do so, and a crime results to someone who was sold or transferred a firearm because a background check was not conducted, the sheriff's office could be held liable. In Illinois, state and federal officials have called on Illinois sheriffs to step back from their statements, but we have not seen efforts to limit their power.

EF and MH: Sheriffs are important law enforcement and local political leaders, but their positions and actions are often ignored or lumped in with local police. We hope our research leads to people paying more attention to their local sheriff election and evaluating the positions that their sheriffs are taking, especially in relation to a mythological view of interpositional authority.