Some cops, sheriffs won’t enforce ‘unconstitutional’ COVID-19 orders. Can they do that?
A speedway in North Carolina played host to thousands of fans over Memorial Day weekend in open defiance of the governor’s order restricting mass gatherings .
The sheriff’s office had no intention of stopping it.
Citing constitutional concerns, local law enforcement in communities across the U.S. — from police departments to sheriff’s offices — have said they won’t enforce statewide mandates limiting the number of people allowed to congregate and barring some businesses from reopening.
“When I took my oath of office, I swore to uphold the United States Constitution,” Alamance County Sheriff Terry Johnson said when the speedway reopened. “I will not enforce an unconstitutional law.”
‘Constitutional Sheriffs’
According to the Marshall Project, at least 60 sheriffs nationwide have said they won’t enforce their states’ executive orders as of May 18. Former Arizona Sheriff Richard Mack supports them.
Mack heads the Constitutional Sheriffs and Peace Officers Association, which promotes sheriffs as “constitutional guards” with the “authority to check and balance all levels of government,” according to its website.
In an interview with The Epoch Times, Mack said people defying government restrictions are only trying to “maintain their business and their liberties as guaranteed in the Bill of Rights.”
“I would ask every police officer in this country, ‘Where did you get any authority to violate the First Amendment?’” he told the newspaper. “If you violate an oath, you’ve committed perjury, and that is a crime in and of itself.”
Others in law enforcement are asking themselves the same question.
Officials in Alamance County, about 60 miles northwest of North Carolina’s capital city of Raleigh, said they wouldn’t intercede after ACE Speedway announced plans to reopen on May 24 despite statewide restrictions on large events put in place by Gov. Roy Cooper.
In doing so, the county attorney cited an exemption to the governor’s executive order as it applies to the First Amendment.
“Alamance County is committed to protecting the health and safety of its residents, while recognizing that Americans have freedoms guaranteed by the United States Constitution,” the county said in an official statement joined by Johnson.
Sheriffs across the U.S. have also said they won’t break up church services that violate stay-at-home orders.
At least three sheriffs from different corners of North Carolina backed off the governor’s order on religious services, citing their constituents’ right to assemble.
“I will NOT send a Sheriff’s Office patrol vehicle (the same vehicle that I had “In God We Trust” placed on) to your place of worship and unconstitutionally order that you disperse,” Harnett County Sheriff Wayne Coats said on Facebook.
A federal judge struck the governor’s order down as potentially unconstitutional earlier this month.
Can officers refuse to uphold the law?
Sheriffs have an “an enormous amount of autonomy,” Mirya Holman, an associate professor of political science at Tulane University, told NPR-member station WAMU last year after sheriffs in Washington said they wouldn’t enforce a new law restricting firearm purchases.
Robert Wadman, a former police chief and a professor emeritus at Weber State University, also told WAMU that there is a fair amount of “professional discretion” in policing.
But he wasn’t sure about outright denying enforcement of a law over constitutional concerns.
“For me, questions of this nature should be answered by the courts — not the court of public opinion,” he told WAMU.
It’s unclear what repercussions, if any, await law enforcement who ignore executive orders from state leaders. When asked about accountability in North Carolina, a representative for Attorney General Josh Stein — the top law enforcement officer in the state — declined to comment.
But elsewhere in the U.S., the Illinois Emergency Management Agency (IEMA) sent a letter to local police departments threatening to withhold federal funding if officers refused to enforce the governor’s executive order.
State police had previously said they wouldn’t arrest business owners reopening in violation of the order, according to the website Illinois Policy.
IEMA said that could be seen as a violation of their funding agreement.
The ‘constitutional’ defense
The current battle between public health and economic interests has put the U.S. in “the middle of this tug-of-war,” James G. Hodge said Thursday during a webinar on reopening America hosted by the Network for Public Health Law.
Hodge is the director of the Center for Public Health Law and Policy at Arizona State University, an affiliate of the Network for Public Health Law.
“It’s a constitutional battle extraordinaire that we’re seeing nationally,” he said.
But the argument in favor of a right to work, a right to assemble or a right to engage in social activities — the rights that law enforcement purport to be protecting by refusing to enforce executive orders — isn’t a winning one, Hodge said.
“To be perfectly frank is to acknowledge that they don’t exist, not against the backdrop of COVID-19,” Hodge said.
Legal experts have argued the same when it comes to free exercise of religion, McClatchy News previously reported.
As one law professor told McClatchy, “all constitutional rights are limited in some respect.”
This story was originally published May 28, 2020 at 4:55 PM with the headline "Some cops, sheriffs won’t enforce ‘unconstitutional’ COVID-19 orders. Can they do that?."
