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With civil liberties on the line, law enforcement pushes back

A long list of sheriffs say they will not enforce unconstitutional orders

April 28, 2020 by Richard Moore

For most of America’s history, a major debate has simmered about the trade-offs between freedom and collective safety, and whether, in a pinch, the American people would choose that safety over freedom.

And, if they did not, would law enforcement compel them to surrender their freedoms in the name of public safety?

Until last month, that debate had been largely academic. But, with the appearance of COVID-19, state and local governments have by decree broadly suspended many civil liberties, and they have done so in a stunningly short time.

In short, what had been in recent history an abstract scenario has finally become a tangible reality being played out before our eyes. There are complexities. Not every suspension or restriction of a civil liberty in times of perceived crisis is unconstitutional, though American history is replete with overreactions that were unpopular or later labeled unconstitutional in the “court of history.”

For instance, the Alien and Sedition Acts of 1798 were so unpopular they helped Thomas Jefferson win the presidency in 1800. And, while the Espionage Act of 1917 has survived since then, albeit with amendments, its trespasses on rights have impacted a comparatively small percentage of the population. 

The difference now is that current lockdowns are affecting more than 90% of the population. The question is, will that public stand for the decrees if they are enforced for any significant period of time? 

To be sure, even as grassroots protests against the edicts spread, it’s too early to tell whether most Americans value collective security over individual liberty. For one thing, while most citizens are obeying the lockdown directives, there’s no way of knowing if they would have done so voluntarily if asked rather than being told.

And there’s no way of knowing whether Americans will accept the extended lockdowns being proposed in some states, such as Wisconsin, or how long those in other states that are lifting the lockdowns would have stayed acquiescent. 

A clearer picture, though, is emerging about how law enforcement would react to what many consider to be undemocratic dictates of authority, and, in that arena, an impressively long list of sheriff’s and police departments have sided against the most authoritarian impulses of governors trying to impose emergency authority.

It’s certainly not a uniform response. Especially in urban areas, some police officers have enforced lockdowns with a heavy hand, handcuffing a man in Colorado who was playing catch with his daughter in an almost deserted softball field, and in Philadelphia dragging a man who was not wearing a face mask off of a bus.

And multiple municipalities, including Elizabeth, New Jersey, and Daytona Beach, Florida, have employed drones to help them surveil citizens and enforce social distancing in public spaces.

Still, for the most part, American police have not been engaging in enforcement in the same degrees as in other countries, including in Great Britain, where officers were citing people for driving around out of boredom, and in France, where people were required to carry papers stating their reasons for being out and about and where 100,000 police were deployed to enforce the measures.

Growing refusal to enforce

Then, too, across the country, from Maine to Washington to Texas to Michigan, a growing number of sheriffs have issued statements denouncing lockdowns as all or partly unconstitutional and saying they would not enforce some or all of the orders.

In Washington state, Snohomish County sheriff Adam Fortney told residents he would always put their constitutional rights above politics or popular opinion. 

“We have the right to peaceably assemble,” he said. “We have the right to keep and bear arms. We have the right to attend church service of any denomination. The impacts of COVID-19 no longer warrant the suspension of our constitutional rights. Along with other elected sheriffs around our state, the Snohomish County Sheriff’s Office will not be enforcing an order preventing religious freedoms or constitutional rights.”

In Maine, Franklin County sheriff Scott Nichols pushed back against that state’s executive order.

“We will not be setting up a Police State. PERIOD,” he wrote in a statement. “The sheriff’s office will not purposefully go out and stop vehicles because they are on the road or stop and ask why people are out and about. To do so puts our officers at risk. This is not Nazi Germany or Soviet Russia where you are asked for your papers!”

The push back has grown in Wisconsin, too, especially after Evers extended the state’s lockdown through Memorial Day weekend. 

Shawano County sheriff Adam Bieber said he believed personal responsibility superseded government intervention. 

“Government leaders should not treat people as subjects but as citizens and allow people to make decisions based on the information provided to them,” he wrote in a statement. “I would urge you (the governor) to modify your order and allow businesses and people to go about their business, encouraging them to take precautions for their own well-being but not threatening them with fines or imprisonment.”

Ditto for Racine County sheriff Christopher Schmaling.

“Wisconsin law gives the governor and the Wisconsin DHS the authority to develop emergency measures and enforce rules and orders to protect the public during a health crisis,” Schmaling wrote. “However, state law does not have the power to supersede or suspend the constitutional rights of American citizens.”

The sheriff urged the governor’s administration to develop a workable plan balancing safety and freedom.

“The overreaching measures taken by state government will have dire lifetime consequences for businesses, homeowners, and families,” he said. “I took an oath to uphold the constitutional rights of our citizens and I cannot in good faith participate in the destruction of Racine County businesses or interfere in the freedoms granted to all of us by our constitution.”

While Schmaling and Bieber and others have aggressively issued statements informing citizens about their positions and intentions, they might be the tip of the iceberg, with many other sheriffs feeling the same way but keeping their verbal powder dry.

Oneida County sheriff Grady Hartman, for example, said he didn’t really want to comment but, since The Times asked him, said he too felt some of the governor’s extended order went too far.

“Some of the orders are clearly an overreach,” Hartman told The Times. “It goes against the very nature of our oaths of office to enforce some of it. Examples like going to church and peacefully protesting the government are highly protected activities. We will not participate in arresting people for attending church on Easter, for instance.”

If there is an error to be made, Hartman said, his department would err on the side of the constitution.  

“There are ways to protect ourselves from COVID-19 and still be able to participate in these protected activities (i.e. masks, social distancing, etc.),” he said.

Hartman said he was very concerned with the health and welfare of the community and that he was cognizant that people are scared of the virus and the unknown.  

“I think the government’s main job is to educate and inform the public,” he said. “Then I think it is the public’s responsibility to decide for themselves how they want to use that information in their day-to-day lives. We are fortunate to live in a community where the vast majority of people are cooperative and caring about their fellow community members. I am also worried about the economy and peoples’ jobs and personal finances.”

Richard Moore is the author of the forthcoming “Storyfinding: From the Journey to the Story” and can be reached at richardmoorebooks.com.

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