Loony guys who never went to law school have convinced themselves that the sheriff of any county has more power than the president, the US Congress, the US Supreme Court, and of course any governors and state or local legislators. Apparently, the incumbent Erie County sheriff is one such guy. What’s worse is that nobody but a handful of letter-writers and a few bloggers have challenged Tim Howard on his bizarre affiliations—affiliations which are a threat to the rule of law.
Google it yourself. There is a broad movement, mainly out West, with page after page of websites full of spurious “10th Amendment” and cobbled-up English common law interpretation that would get you flunked in Constitutional Law 1. It all purports to explain the supreme power of the guy here whose main job—which he has evidently performed poorly—is to run the Erie County Holding Center and the Erie County Correctional Facility. The chief law enforcement officer located here in Erie County used to be Bernie Tolbert, the former head of the FBI office here—“chief” in the sense that in our federal system, the federal government is supreme. The sheriff of Erie County is not, and has not since about 1850, been the principal law enforcement officer here. The truth is, the elected sheriff of a New York county swears to uphold the US and state constitutions, and is charged with executing—not interpreting—laws enacted by other elected officials.
But that reality is in conflict with how Tim Howard presents himself. And how he presents himself is disturbingly consistent with the way that former Maricopa (Arizona) County sheriff Joe Arpaio and other anti-Constitutional but elected fantasists think of themselves: as the very last word on what is and what is not law.
Forget for the moment that during Tim Howard’s tenure a vicious killer named Bucky Phillips escaped the Erie County jail and murdered a state trooper. Set aside the 22 deaths that have occurred under Howard’s time heading the Erie County Holding Center and the Correctional Facility.
Focus instead on some basic civics that our elected sheriff ought to know. (If he doesn’t know, he could ask any of the 3,600 members of the Erie County Bar Association, all of whom are, as the lawyers say, “learned in the law.”)
Here’s the most basic information: The Constitution of the United States does not, repeat does not, identify your local county sheriff as its chief interpreter. The duly-elected officials who create laws are legislators, and the ones with the most power are members of the Senate and of the House of Representatives of the United States. (We know this because of the 7th Amendment to the Constitution, the so-called “supremacy” clause.)
Here’s the next most important piece of information: The elected and appointed officials who interpret laws are judges. Chief Justice Marshall, in the famous case Marbury v. Madison in 1803, put it this way: “It is emphatically the duty of the Judicial Department to say what the law is…If two laws conflict with each other, the Court must decide on the operation of each.”
The court. Not the president. Not the Congress. Not a governor. Certainly not some county sheriff. There is no such thing as a county sheriff who, whether appointed or elected, has the legal authority to decide what is and what is not legal or constitutional.
Out West, where many ranchers believe that they and their livestock have special privileged access to public lands that you and I and they also own, there is an ugly, violent movement of white supremacists and self-proclaimed “constitutional” sheriffs that faced off with the Obama administration in the 2014 takeover of a wildlife refuge in Oregon. One ill-educated despoiler of public property was shot by a federal officer, in the last days of that standoff, when he insisted that he and his drawn weapon were not subject to federal law. Wrong. Supremacy clause. 7th Amendment. And the law applies to everybody, courtesy the 14th Amendment.
A local Oregon sheriff who was politically and ideologically aligned with the vandals had to be left out of the law-enforcement coalition that ultimately ended the takeover, because that sheriff believed in what Erie County’s sheriff evidently believes in.
Tim Howard has made public statements that indicate that he thinks that he, as the elected Erie County sheriff, has legal authority above that of legislators, the New York State governor, Congress, and the Supreme Court of the United States. He famously declared the SAFE Act “unconstitutional,” but he quickly retreated to a more neutral assertion that it is “unenforceable,” but make no mistake. Howard is identified by a group calling itself the Constitutional sheriffs movement as one of their own. On their website, the Constitutional Sheriffs and Peace Officers Association lists Erie County’s sheriff as one of them.
Here’s what this outfit is offering later this month: a seminar and training for elected sheriffs. “Come join Sheriff Mack and Rick Dalton on October 21st at Heritage Academy for our Oath of Office Training. This will be an intense day of training covering such topics as the proper role of government/policing, [and] what do we do about unconstitutional laws?”
Here’s the beginning of an answer: Elected officials are supposed to do their jobs, and nowhere, not anywhere except in the insane fever swamps of 1990s “militia” and 2010s “Tea Party” activism, is it the job of a sheriff to do other than what’s in his job description.
Here is Tim Howard’s most fundamental challenge: He has to answer for how he does his job. Tim Howard is the elected official on whose watch 22 inmates have died, and on whose watch the murderous Bucky Phillips busted out of the Erie County Correctional Facility and shot three New York State troopers, one of whom, Joseph Longobardo, Phillips killed.
Politics here being what it is
Here in Erie County, New York, the sheriff is not the prime law-enforcement officer. (Being “the oldest” does not mean that law-enforcement functions haven’t long since been handled by federal, state, and local agencies.)
It’s absolutely true that, especially in emergencies (recently, snowstorms), the sheriff’s staff have provided critical public-safety services in coordination with other first-responders. It’s also true that there’s a broad array of services—including a helicopter, snowmobile patrols, watercraft, divers, investigators, domestic violence unit, and more—that coordinate with the FBI and other federal law enforcement agencies here, with the state police, and with the 19 city and town police forces. But the overwhelming majority of Erie County Sheriff Office staff effort and budgeting is on managing the jails.
One would think that Democrats would absolutely own this particular elected office in this particular county, because the Erie County Board of Elections reports that Democrats outnumber Republicans 286,301 to 152,666 by registration. There are minor parties that add another 47,000 or so voters, but the big numbers are Dems and Reps, and it’s almost 2 to 1 Democratic.
And, as the office of sheriff here is mainly a managerial post and only secondarily about patrolling, investigations, and direct law-enforcement in a county with 19 separate police agencies (including the 700+ officer Buffalo Police Department), one would think that Bernard Tolbert, the former FBI regional manager, would have the better credentials than an incumbent who has been investigated by the US Justice Department for management failures.
But here’s the political reality: The incumbent, Sheriff Tim Howard, is a Trump man in a county whose suburbs voted for Donald Trump in the general election in 2016. That matters because voter turnout in the suburbs will be as it usually is in off-year elections: far higher than in the city because of the long-standing deal that the Democratic and Republican party chairs made happen again this year. Tolbert has an “running while black” problem in most of Erie County: He may have FBI credentials, but he’s RWB against a guy who hangs out with idiots who wave the Confederate flag and spout spurious and weird claims about the Constitution, and who gets away with it.
Why does Howard get away with it?
For the targets and historic victims of white supremacists, Howard’s April 2017 decision to appear in uniform at a rally that included Confederate battle flags was unsettling. For everybody, it was very straightforward messaging in the new Trump normal: Howard is doing white identity politics, specifically utilizing the terminology of the anti-government radical fringe. The Wikipedia entry for the Erie County Sheriff’s office describes the sheriff as “the oldest office under the system of common law in the United States,” which is a direct quote from Howard’s own annual reports. Further: “As the oldest constitutional law enforcement officer of the county…”
Common law. Oldest. It’s as if the US Constitution, and 50 state constitutions, had never been enacted. It’s as if the more than 200 years of constitutional jurisprudence had never been argued and decided. Reading this language in the report of a local sheriff means that Cliven Bundy and the other anti-government occupiers of public land have an echo here, in the state Hillary Clinton won by a landslide, in the city that became a city because of the Civil War, which was a center for abolitionism, the Underground Railroad, the Civil Rights movement, and the other major progressive movements that have defined New York State as a consistently Blue state even when Republicans are in the lead.
Howard’s vocabulary sounds imported, but foreignness isn’t the question: The law is the question. Isn’t law enforcement’s job to enforce the law? Shouldn’t we expect to hear from lawyers—who are all officers of the court—to say something?
Those of us who are not members of the Erie County Bar Association are not privy to the deliberations of those who are. But as evidenced by their collective silence, the bar here has decided not to challenge the statements, affiliations, or behavior of an elected official who is charged with executing laws made and decided by others.
Imagine. In this patronage-driven community, is it strange that lawyers, perhaps sensing that Tim Howard won re-election despite the Phillips case, are in a crouch, not speaking truth to power? Probably not. Perhaps it will take a while to learn the lesson of Rex Tillerson, the at-will appointee of the president of the United States who just called the president of the United States “a fucking moron.”
Luckily, not every lawyer has assumed the position. A letter signed by about a dozen members of the Erie County Bar Association (and printed here for your pleasure) is delightful evidence of lawyers being interested in the law. Signed by Grace Andriette, Erin Bahn, David Cohen, John Comerford, Margaret Phillips, Jonathan Gardner, Bernadette Gargano, Richard Griffin, Nan Haynes, Anne Joynt, and Richard Lipsitz, they ask the head of the New York State Sheriffs Association to take a position on the Constitutional Sheriffs and Peace Officers Association (CSPOA), the outfit that lists Tim Howard as one its own.
“Law enforcement officials enforce the laws and the decisions of the courts. CSPOA would stand this system on its head and create a class of law enforcement officers who are essentially making up the law as they go,” they write.
Bravo this handful of lawyers for standing up for the US Constitution. One wonders where the other 3,600 members of the Erie County Bar Association are on this matter. One also wonders if the real contrast between the incumbent and the challenger is that, no matter what their other flaws or merits, one lives in a grim ideological movement, while the other just wants to lead.
Bruce Fisher teaches at SUNY Buffalo State and is director of the Center for Economics and Policy Studies. He is a former deputy executive for Erie County.
LETTER: ON THE SHERIFF AND CONSTITUTIONAL LAW
Mr. Peter R. Kehoe
New York State Sheriffs Association
27 Elk Street
Albany, NY 12207
Dear Mr. Kehoe:
We write as attorneys based in Erie County to call your attention to the Constitutional Sheriffs and Peace Officers Association (CSPOA). CSPOA is a group with whom former Maricopa County Sheriff Joe Arpaio is affiliated and which may enjoy support from sheriffs in New York State, including Erie County.
As reported in the national news media, CSPOA apparently holds the view that county sheriffs enjoy a supra-constitutional authority to interpret and give effect to matters of constitutional law. For example, they promote the idea that elected sheriffs have the authority to determine whether a law is constitutional, to decide whether to enforce or obey it, and to countermand federal or state law enforcement officials who try to enforce laws that the sheriffs find objectionable.
In the United States, legislatures at all levels write and adopt laws. Courts interpret them and determine if they are constitutional. Law enforcement officials enforce the laws and decisions of the courts. CSPOA would stand this system on its head and create a class of law enforcement officers who are essentially making up the law as they go.
Although the CSPOA may be viewed as a fringe organization, it nonetheless appears to be growing in influence. We understand that in New York State, sheriffs in Otsego, Schoharie, and Erie County, among others, have been associated with views promoted by CSPOA.
Our legal system ensures accountability in law enforcement. It is the basis of a free democracy that law enforcement officers be accountable under the laws of the people they protect and serve. We wholly disagree with the positions supported by CSPOA and find no basis for its views in our legal system. We ask that the New York State Sheriffs’ Association take a position on the legitimacy of CSPOA and determine if it is appropriate for county sheriffs to adopt its doctrine.
Very truly yours,
Grace Andriette, Erin Bahn, David Cohen, John Comerford, Margaret Phillips, Jonathan Gardner, Bernadette Gargano, Richard Griffin, Nan Haynes, Anne E. Joynt, Richard Lipsitz (retired)