by Matt Lacy —
Private meetings, political chicanery and the resurrection of a dead bill under a different name were all part of the tactics employed by the Delaware state legislature who were in fear of a single sheriff who was simply doing what his constitutional duties allowed.
On a 36-2 vote the Delaware state House approved a bill that states the sheriff or his deputies are only considered to be law enforcement officers when the court says so. The bill now moves to the senate where it is unclear if Republicans will oppose it or not.
Senate Majority leader Gary Simpson told a consituent, “Regardless of the outcome of this particular piece of legislation, I am convinced the issue will eventually be decided by the Courts and I can live with their decision either way in regards to their interpretation of the Constitution.”
Unlike police chiefs, who are hired by government officials, sheriffs are elected by the people and historically have been recognized as a highest-ranking law enforcement officer in their counties.
There have been several threats to the authority of sheriffs recently. In Montana, a proposal would have required all federal law enforcement officers to coordinate any activities in counties with the local sheriff. And in Maricopa County, Ariz., Sheriff Joe Arpaio continues to give the administration headaches with his investigation of whether Barack Obama is perpetrating a fraud on county voters by running for president without being an eligible candidate.
In Maryland, the office of sheriff is a constitutionally created position similar to the secretary of state or attorney general and demands, “The sheriffs shall be conservators of the peace within the counties . . . in which they reside.”
The first bill, HB 290 was proposed at the request of Sussex County officials who took issue with their sheriff, Jeff Christopher who is attempting to restore the office to its constitutional role.
The bill stated “‘Police officer’ as used in this code shall not include sheriffs and sheriff deputies,” and that it “is the intent of the General Assembly to specifically state the sheriffs and their deputies do not have any arrest authority.”
The bill would have redefined the role of sheriffs to where they can serve papers and process administrative work but have no hand in actual law enforcement. Supporters of the legislation say law enforcement authority belongs in the hands of the state police and city police.
However, Rep. Danny Short (R), the bill’s sponsor, announced earlier this month he was striking the bill from further consideration saying it was being hijacked for political purposes.
According to Short, prior to passing the bill, the legislature was planning to draft a concurrent resolution asking the Delaware Supreme Court to issue a ruling as to whether sheriff’s and their deputies have arrest authority under the state constitution.
However, prior to the resolution being submitted, the bill was placed on the House Administration Committee’s agenda, without his request promoting him to table the bill, effectively killing it.
“This issue is too important to allow it to be used as a pawn in an apparent game of politics,” Short said. “There is a long-standing tradition in the General Assembly that if the sponsor of a bill has requested his or her legislation to be tabled in committee, the committee chairman yields to the sponsor’s request. That was not the case with House Bill 290.”
“It is my opinion that there was an attempt to take control of this issue from me, is the prime sponsor of the bill, by having it placed on the committee agenda. The only right course of action was to strike the bill and prevent any further political stunts from happening.”
However, House democrats quickly crafted a proposal to resurrect the bill.
In an e-mail obtained by the Gazette, Sarah Rivin, communications director for the Delaware Democratic Party told legislators that House Majority Leader Pete Schwartzkopf wanted to hold a conference call on Apr. 30 to “talk about the issue…and what we can do to counteract many misconceptions flying around in Sussex County.”
Riven’s e-mail provided “talking points” for democratic legislators and said the legislation was a direct result of Sheriff Christopher’s actions.
“The issue of the Sussex County sheriff’s authority and arrest powers (or lack thereof) has been an issue for several years… Now sheriff, Jeff Christopher has taken up the same mantle as his former boss, claiming the Delaware Constitution give [sic] him the authority to arrest citizens.”
One of the talking points stated that their reasoning for saying sheriffs do not have arrest authority is because other state officials such as Attorney General Beau Biden, son of Vice-President Joe Biden are also listed in the state constitution as “conservators of the peace,” but they do not have the ability to arrest.
“According to the Constitution, sheriffs in Delaware are “conservators of the peace”, but that remains an undefined term. Additionally, the Constitution says the chancellor, judges, and the attorney general are also conservators of the peace throughout the state,” she said. “Does that mean Attorney General Biden or any judge should be granted arrest powers? Given what we know of their legal roles, being a ‘conservator of the peace’ does not equate with the possession of arrest powers.”
She went on to say those interested in participating on the call could contact her for a call in number. “We welcome anyone interested in participating, but we do want to know who joins.”
However, when the Gazette contacted Rivin about obtaining a contact number for the call, she said members of the press would not be permitted to attend the meeting.
While it is unclear what was discussed at the meeting, on May 3, in an apparent attempt to get around Short’s tabling of his bill, Schwartzkopf introduced HB 325, which is virtually identical to HB 290.
Under both bills, the sheriff and his deputies would be stripped of all authority to enforce any laws including traffic stops.
While legislators say it is not their intention to eliminate the sheriff’s office, it is difficult to reconcile that when considering who the bill does give arrest power to.
Under the definition of law enforcement officers it includes the fire marshal and even “dog catchers,” however sheriffs are not even allowed to enforce dog control laws and ordinances in their counties.
State forest officers even have the ability to arrest anyone who is “committing or about to commit an offense against any of the laws enacted for the protection of forest, brush, grass or wild lands in this state” but the sheriff does not.
In their obsession to prevent sheriffs from exercising their constitutional role, the legislation included a provision that could result in tragic consequences in child abduction cases.
Recognizing the importance of swift action in child abduction cases HB 290 said, “Every sheriff, constable, chief police officer, officer in charge, member of the State Police and other law-enforcement agency and officer of the State and of any local governmental unit shall immediately accept and act upon information on any missing child by police radio broadcasts.”
While the section went on to say sheriffs did not have any arrest authority in these situations, they were at least permitted to participate in helping locate the child.
However, under Schwartzkopf’s bill the word sheriff is stricken from the same section, meaning they are not allowed to assist or investigate in any way even if to do so could save a child’s life.
Gazette attempts to contact Schwartzkopf for information about the bill were not returned.
In an attempt to defend their attempts to strip sheriffs of their authority, Delaware officials have attempted to claim that the sheriff has never had arrest authority in the state.
Chip Guy, a spokesman for Sussex County said the bill was not taking away any of Christopher’s authority, because the ability to arrest “was never there in the first place.”
Schwartzkopf’s bill echoed Guy’s sentiments saying, “Historically the sheriffs and deputies have not exercised arrest authority and the Attorney General’s office has given an opinion that the sheriff’s ‘power to arrest is no greater than that shared by any citizen.’”
The problem with these statements is that in Delaware the office predates the founding of America by nearly 100 years. The state’s first sheriff took office in 1669.
Faced with this dilemma, Schwartzkopf has attempted to walk back statements that the sheriff has never had arrest powers.
Wolf von Baumgart, state chairman for the Independent Party of Delaware sent an e-mail to Schwartzkopf asking him what was the legal, statutory and constitutional basis for determining that sheriffs do not have arrest powers.
Schwartzkopf replied saying Baumgart needed to “state the legal, statutory and constitutional basis upon which you rely to induce or demonstrate that Sheriffs, as duly sworn constitutionally designated elected Conservators of the Peace, do have powers of arrest.”
Then contradicting the statement in his own bill he said, “I have never said they never had that authority. I have said that they do not have that authority now.”
Christopher said he suspects that Schwartzkopf has been one of the key figures behind the entire legislative process to strip the sheriff’s office of their constitutional power.
“He wants to abolish the office of sheriff in Delaware. While he issued a statement saying he isn’t interested in getting rid of the sheriff the truth is he wants to neuter us so the office is under his authority rather than the people who elected us.”
Christopher had publicly said if the legislation were to pass, he was going to challenge its constitutionality arguing that the office is protected by the state constitution which defines the sheriff as a “conservator of the peace, “ which is a term given to law-enforcement officers.
In an apparent attempt to head off a challenge, the legislature passed an amendment saying the sheriff and his deputies actually are law-enforcement officials, as per the constitution, however unlike every other law-enforcement officer in the state, they do not have arrest powers.
The amendment states that “A sheriff or deputy sheriff shall be considered a ‘law-enforcement officer’ when acting upon a specific order of a judge or commissioner of Superior Court.”
However, even though a court may consider them to be law-enforcement officers, they still do not have any arrest authority.
“Sheriffs and deputy sheriffs shall not have any arrest authority. However, sheriffs and deputy sheriffs may take into custody and transport a person when specifically so ordered by a judge or commissioner of Superior Court.”