Can a county sheriff interpret the constitutionality of state and federal laws?
It’s a question at the heart of Measure 15-181 on the Nov. 6 ballot in Jackson County.
“I don’t know where you can find that a sheriff, a single person, has the ability to interpret law as constitutional or unconstitutional,” said Jackson County Sheriff Nathan Sickler, also a candidate for election to the position. “I don’t think that professional law enforcement should be doing that because that’s why we have judges.”
But Sickler said he signed the petition to get Measure 15-181 onto the ballot.
“I concur with the premise of sending a message to our representatives,” Sickler said. “I don’t believe we need more gun-control laws. There’s plenty on the books already that we can enforce to keep people safe.
“I’m very much a supporter of the Second Amendment. I’m a supporter of the petition,” he said.
Measure 15-181 is conceptually similar to several other Second Amendment Protection ordinances that Oregon counties will vote on during this election. But beyond an ordinance, Jackson County’s measure would amend the county charter, a more robust action that could only be undone through another ballot in another election.
If passed, Measure 15-181 would include in the charter a requirement that all county employees reject legislation or rules “that infringe on the right of the People to keep and bear arms,” under penalties of $2,000 for an individual and $4,000 for an organization. It would also assign the county sheriff the duty to determine whether any future federal or state legislation violates the Second, Ninth or Tenth Amendments of the U.S. Constitution.
Ryan Mallory leads the group behind Measure 15-181, called Patriotic Revolution, which says on its website: “Recent actions by our State Government, Governor and Gun Control Advocates have made the time right to join other counties in Oregon by amending the Jackson County Oregon Charter to address preservation of your 2nd Amendment Rights.”
“It doesn’t supersede federal or state law,” Mallory said of the duty assigned to the sheriff in the charter amendment. “At this point, what we’re trying to do is lock up the laws where we have them right now.”
William Froehlich, who is Sickler’s opponent in the sheriff’s race and whose campaign is managed by Mallory, also supports the measure. He described the sheriff’s duty to determine constitutionality in a hypothetical example: if magazines of a certain size were to be banned in a new state law.
Initiative Petition 43, which did not make the ballot this year, is a statewide initiative that would have restricted magazine sizes if it were put on the ballot and passed by voters.
“That is another gun-control measure as viewed by the folks down here, and I understand where they’re coming from, and I agree,” Froehlich said.
He said that residents could point to the charter amendment to tell the sheriff “we as a Jackson County group do not agree with that, and we want you to back us up on that.”
“And so by not supplying manpower, enforcement and resources to back up that magazine situation, using that as an example, you are not going to do that. You are going to honor the ballot measure if it passes,” he said.
Prioritizing enforcement is already something the sheriff has the ability to do, as Sickler pointed out when discussing a 2015 law, Senate Bill 941. That law requires all private gun owners who sell a weapon to conduct a background check.
“We don’t have a history of enforcing some of these laws that ... don’t seem to serve a real purpose to curtail crime,” Sickler said. “We’re not going to go through the process of keeping tabs on people who are otherwise law-abiding.”
Froehlich described the ballot measure as a form of insurance to ward off future gun restrictions.
“What (voters) want is a form of accountability so that when a sheriff is asked the question, do you support this or do you not, citizens are going to look at that and go, OK, now we understand where your stance is,” said Froehlich. “And then they go ahead and make a decision about what they want to do after that.”
Opponents of Measure 15-181 and other “Second Amendment protection” ordinances, including CeaseFire Oregon, have pointed to the sheriff’s authority clauses as grounds for potential lawsuits.
“If someone tried to enforce a firearm law and was prosecuted because of a SAP, a SAP cannot supersede state or federal law, and the county would probably be sued,” CeaseFire Executive Director Penny Okamoto wrote to the Mail Tribune in April. “Conversely, if a state or federal law was not enforced and a death or injury resulted, the county could be sued because, again, SAPs cannot supersede state or federal law.”
Multiple Oregon counties already have passed SAP ordinances. Wallowa County was the first to pass a SAP ordinance in 2013; since then, Wheeler, Coos, Curry and others have adopted their own.
This year, Douglas, Linn, Columbia and six other counties also have SAP ordinances on their November ballots. Many of these initiatives are brought locally under the umbrella of the statewide Committee to Preserve the Second Amendment.
Efforts to pass SAP ordinances are often couched as responses to legislative and initiative efforts to restrict gun ownership in various ways. Two examples are Initiative Petitions 44 and 43, which sought to mandate some gun-safety measures and ban ownership of AR-15-style and other types of guns, respectively.
Supporters of both of those initiatives did not put them on the November 2018 ballot after determining they could not meet signature requirements during the petition stage.