Robin Hood, from the depths of Sherwood Forest and by legend, stole from the rich to give to the poor and, according to Hollywood versions, was pursued by the Sheriff of Nottingham. The sheriff (shire reeve in merry old England) was an appointee of the king or other royalty charged with maintaining peace and order and collecting taxes and rents (usually farm produce or animals) from the serf and farmer populations. In the transplant to the United States, sheriffs are ordinarily state constitutional officers elected by the county constituency where they serve. US sheriffs are, in many counties, the sole and primary law enforcement officer (LEO) in the jurisdiction.
When the Loudoun County Board of Supervisors announced plans to create a county police department, . . . the county sheriff proclaimed that the move was unnecessary because his office was held responsible and accountable every four years at election time. Besides, he offered, the proposal was a mere power grab by political opponents.
When the Loudoun County Board of Supervisors announced plans to create a county police department, in part related to establishing civilian authority over the jurisdiction’s policing, the county sheriff proclaimed that the move was unnecessary because his office was held responsible and accountable every four years at election time. Besides, he offered, the proposal was a mere power grab by political opponents.
A number of Virginia counties have by resolution declared themselves Second Amendment sanctuaries in opposition to state gun control laws. Such resolutions also stated the county would refrain from the use of public funds to enforce those laws. This was a clear signal to LEOs that the civilian authority sympathized with the concept of nullification of state legislation. A questionable premise, if not a dangerous one.
The term “law enforcement” populates our culture and media as it ricochets in discussions mostly spawned by videos or reports of alleged abuses by police. But police are not the only LEOs in our daily presence. Sheriffs, too, are peace officers sworn by oath to enforce the law. Generally, the term police is applied to uniformed officers subject to the authority of a government jurisdiction. Sheriffs and their deputies operate separately and independently from civilian jurisdiction. That relationship is, however, not arm’s length, since counties are also the source of funding for sheriffs’ offices.
LEOs and the organizations to which they belong, it may be argued, are analogous to the principle whereby the United States military is commanded by civilian authority, i.e., the Commander-in-Chief. That federal primacy is inherited from Britain and enshrined in the Constitution. However, historically the literature is sparse with respect to the relationship between civil authority and LEOs and even less so with respect to oversight of sheriffs’ offices. The relationship of LEOs and civilians has come into sharp relief in recent years following highly publicized conflicts and events, particularly beginning with the deaths of Eric Garner (NYC), George Floyd (Minneapolis), and Breonna Taylor (Louisville). These particular incidents exacerbated a longstanding and seething issue involving Black lives. Despite such intense focus, sheriffs have largely escaped the public eye in the debate as the conduct of police in metropolises has consumed most of the oxygen.
The core of the tension has emerged with respect to a legal doctrine known as qualified police immunity, a principle manufactured in the courts and, sometimes, engrafted in some respects in police union contracts or in manuals or practices within county or municipal jurisdictions. Some critics maintain that the paucity of civilian review boards to oversee police conduct, especially in shooting incidents, is directly related to the qualified immunity doctrine. In other words, civilian review boards are essentially ineffective. (See “Colloquy: Police Qualified Immunity,” VoxFairfax, Jan. 25, 2021, https://voxfairfax.com/2021/01/25/colloquy-police-qualified-immunity/.)
This observation was highlighted in the comments of the Loudoun County sheriff challenging civilian oversight:
” . . . citizens need to know what this is exactly about and taking their right away to select their chief law enforcement officer. . . . On our Board of Supervisors, we have one person that has law enforcement experience . . . [what] you are going to have is eight other board members—none of which have a shred of law enforcement experience—trying to tell a law enforcement agency what to do and how to do it.”
“I think the citizens need to know what this is exactly about and taking their right away to select their chief law enforcement officer and basically having an entire bureaucracy between them and the chief law enforcement officer who is actually going to be making the decisions, . . . . On our Board of Supervisors, we have one person that has law enforcement experience, and what you are going to have is eight other board members—none of which have a shred of law enforcement experience—trying to tell a law enforcement agency what to do and how to do it.”
Thus, according to this view, only civilians with policing experience are qualified to oversee the sheriff’s office. The Loudoun sheriff was a guest at the White House (June 2020) when P45 announced some plans for police reform. The former president not only had no military experience but his personal history flatly rejected consideration of service.
The self-image of sheriffs is reflected in this exhortation from the website of the Constitutional Sheriffs and Peace Officers, a national group:
America needs to make a strong turn around to get back on the freedom track laid for us by our Founders. We believe it can’t be done from the top down, due to many factors, not the least of which is corruption and entrenched bureaucracies in high places. We must, and we can, accomplish this turn-around starting locally at the county level, and lower. The office of county sheriff is the last hope of making this happen, and we are witnessing great deeds of protection, service, and interposition across America by courageous sheriffs who only want to serve the people who elected them.
This is a full-throated appeal to the political capacity of sheriffs to employ and deploy their elected independence into public policy. For this reason, it is conceivable that the civilian authority of a county might bar a cooperation agreement with ICE, but the sheriff could ignore that ban.
The independence of sheriffs’ offices along with separate budgets and union agreements exacerbates the challenge to counties to modify qualified police immunity and requires extra coordination with respect to localities where sheriffs co-exist with police departments. For example, the website of the Fairfax County sheriff’s office asserts that the state’s constitution grants it “concurrent criminal jurisdiction” in the county.
While sheriffs may pride themselves on their historical antecedents, the shire reeves, the nation in which they serve is no longer composed of royalty and serfs.
Counties face difficulties in this modern era in determining how law enforcement is to be conducted. Since county residents pay the bulk of the funds for sheriffs’ offices, as with our national military, their expressed objectives of public policy in policing should not be eclipsed by a claim of political independence. Thus, while sheriffs may pride themselves on historical antecedents like the shire reeves, the nation in which they serve is no longer composed of royalty and serfs. The rule of law and the boundaries of law enforcement are creatures of the citizenry not the LEOs.
The independence of sheriffs and their effect upon the rule of law is only further exacerbated as their elections are conducted in most instances with political party participation or sponsorship. Mixing politics and law enforcement is a recipe for ignoring one segment of an electorate.