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Oh, Really?!

Is that so?!

We've received some prompt and wonderful feedback to the advance release of the text of this letter. Some of it focuses on this one concept. This note now includes some of that feedback, and should more of the same come in, it also will be included. We do appreciate the two-way communications. There is still plenty to cover.

When thoughts as easy to verify as this are stated, and the statement raises an idea rather different from what one might first think, there are basically two perspectives available. Either the author/spokesperson is just lost in a fog somewhere, or there's a point to be made. All that will be mentioned here is that if this perspective doesn't yet make sense, consider again the case in point in this very discussion. Why would a trial judge of the experience of the U.S. District Court in Oklahoma be so bold as to transfer every single criminal case involving the two primary suspects across the State line? Lost in a fog, or making a point? In a different scenario, picture the trial judge getting up out of his chair, practically leaping over the bench into the front of the courtroom, and all but screaming in the face of the litigants, who were heard to complain about this or that "constitutional" issue (see "constitutional" in the Dissertations on Definitions page, accessible from the Home Page) as it was argued to apply in an "income tax" matter,  "The Constitution does not apply in this courtroom!!" Is that jurist lost in a fog, or making a point? [Quick jump to the point of focus.]
 

The Office of Sheriff: Judicial Officer or Executive Officer?

On this point, see the following:

http://www.hcso.org/history/office.htm

http://www.glprl.org/sc2/court/sheriff.html

http://www.sheriffs.org/History.html

See also: (This is the order in which these first 10 sites came up as search results on the search word "sheriff." You are encouraged to do this search and see the number of web pages posted by our Sheriffs. Have you said, "Thank you" to your Sheriff and his/her staff recently?)

http://ww2.co.jefferson.co.us/ext/dpt/officials/sheriff/index.htm

http://www.co.san-diego.ca.us/cnty/cntydepts/safety/sheriff/

http://www.vcsd.org/ (The prior link, http://www.ventura.org/sheriff/, has been updated to this one.)

http://www.hcso.hernando.fl.us/

http://www.smcsheriff.com/

http://www.shelbynet.net/~scsd/

http://www.centerville.net/sheriff/

http://www.mcso.org/

http://www.brightok.net/chickasaw/ardmore/county/sheriff.html

http://www.hcso.org/ (You may recognize this one as the home page for the first link above. That "History" page is found by clicking the "History" button on this home page. Apparently, the page "floats." Sometimes it shows up in the search, and sometimes, it just doesn't.)
 

The Current Perspective on the Functions and Duties.

An good example of the current perpsective
http://www.co.mo.md.us/judicial/sheriff/sheriff.html

Some additional understanding:

Sheriff Limits Federal Agents Entering County
http://www.uhuh.com/action/sheriff/sheriff.htm

Wyoming Sheriff Kicks Feds Out Of His County
http://www.freerepublic.com/forum/a387ed2016c56.htm
 

The Difference in the Office of Sheriff and other Law Enforcement Offices.

An excpert from

Gun Control: Implementation of the Brady Handgun Violence Prevention Act
(Chapter Report, 01/25/96, GAO/GGD-96-22).

http://www.ideasign.com/chiliast/pdocs/gaobrady.htm
 

Generally, the law enforcement community has strongly supported Brady, as evidenced by public endorsements from the International Association of Chiefs of Police and other organizations. Nonetheless, some sheriffs have filed federal lawsuits essentially contending, among ther things, that the phase I background check provision of Brady is beyond the scope of Congress' Commerce Clause powers and is nconsistent with the Tenth Amendment.  Eight of the nine court cases that had been initiated against the Brady Act through December 31, 995, resulted from separate filings by individual sheriffs--each having jurisdictional responsibility for one county or parish in his respective state--whereas the ninth and most recent case was filed by the Wyoming Sheriff's Association.  By December 1994, federal district courts had ruled in favor of the respective sheriff in five of the six cases decided.  All six cases were appealed to U.S.  circuit courts.  In September 1995, the U.S. Court of Appeals for the Ninth Circuit reversed two of the federal district courts' decisions, saying the federal government can require state and local law enforcement agencies to check records of prospective handgun buyers.  As of October 1995, the four remaining federal district court cases were still under appeal.


Chapter 3 addresses the litigation. (Scroll down, or search for "Chapter 3.")

Here are a few of the footnotes from Chapter 3.

\44 Generally, the sheriffs alleged, among other things, that the phase I background check provision of Brady is beyond the scope of Congress' Commerce Clause powers (U.S.  Const.  Art.  I Section 8. cl.  3) and is inconsistent with the Tenth Amendment to the U.S. Constitution.  The Commerce Clause gives Congress the exclusive authority to regulate interstate commerce.  The Tenth Amendment provides that powers not delegated to the federal government are reserved to the states and to the people.

\45 Although not a party to any of the litigation, the International Association of Chiefs of Police filed briefs in many of the cases supporting the Brady Act's provision.  Joining the Association in this support were various other law enforcement groups--the Major Cities Chiefs of Police, the National Association of Police Organizations, the Fraternal Order of Police, the Police Foundation, the Federal Law Enforcement Officers Association, the Police Executive Research Forum, the National Troopers Coalition, the National Organization of Black Law  Enforcement Executives, and the International Brotherhood of Police Organizations.

\46 The Wyoming Sheriff's Association has 23 member sheriffs, 1 for each of the state's 23 counties.
\47 Printz v.  United States, 854 F.  Supp.  1503 (D.  Mont.  1994). [Favored the Sheriff.]
\48 Koog v.  United States, 852 F.  Supp.  1376 (W.D.  Tex.  1994). [Favored the legislation.]


In this context, it would be remiss to pass up making this observation. We need carefully to note the issue raised. The question is one of "constitutionality." Please see the discussion of the term "constitutional." (In the Dissertations on Definitions page, accessible from the Home Page.) It is rather difficult to find an opinion of Congress that is "unconstitutional." So, are we really talking about a "Bill," or a "Resolution" marketed to look like a "Bill?"

From the Report:

In September 1995, the U.S. Court of Appeals for the Ninth Circuit upheld the constitutionality of Brady, saying the federal government can require state and local law enforcement agencies to check the records of prospective handgun buyers.\49 The court reasoned that Brady's provision that law enforcement agencies "make a reasonable effort to ascertain" the legality of a handgun purchase is a minimal burden that the federal government can impose on state and local law enforcement agencies.  The court accordingly reversed the judgments of the Arizona and Montana district courts, which had held Brady unconstitutional as a violation of the Tenth Amendment (see table 3.1).\50
Here's the Table included that identifies the suits discussed in this report.
                               
 
 Table 3.1
Overview of Court Cases Filed by
Sheriffs Challenging the
Constitutionality of Brady, as of
October 1995
State Jurisdiction of Sheriff Case Citation or File Number Date decided Decision for \a Appeals status
Arizona Graham County Mack v. United States, 856 F. Supp. 1372 (D. Ariz. 1994) 6-28-94 Sheriff District Court decision reversed by U.S. Court of Appeals for the Ninth Circuit (9-8-95).
Louisiana Iberia Parish Romero v. United States, 883 F. Supp. 1076 (W.E. La. 1994) 12-8-94 Sheriff  On appeal to the U.S. Court of Appeals for the Fifth Circuit; stayed pending the Koog and McGee decisions.
Mississippi Forrest County McGee v. United States, 863 F. Supp. 321 (S.D. Miss.1994) 6-3-94 Sheriff Consolidated with Koog and is on appeal to the U.S. Court of Appeals for the Fifth Circuit.
Montana Ravalli County Printz v. United States, 854 F. Supp. 1503 (D. Mont. 1994) 5-16-94 Sheriff District court decision reversed by the U.S. Court of Appeals for the Ninth circuit (9-8-95)
New Mexico Otero County Lee v. United States, (CIV. 94-1132 LH) (D. N.M. 1994) Pending    
North Carolina Alamance County Frye v. United States, (2:95CV00034) (M.D. N.C. 1995) Pending    
Texas Val Verde County Koog v. United States 852 F. Supp. 1376 (W.D. Tex. 1994) 5-31-94 U.S. Consolidated with McGee and is on appeal to the U.S. Court of Appeals for the Fifth Circuit.
Vermont Orange County Frank v. United States, 860 F. Supp. 1030 (D. Vt. 1994) 8-2-94 Sheriff On appeal to the U.S. Court of Appeals for the Second Circuit.
Wyoming Statewide Wyoming Sheriff's Association v. United States, Case No. 95 CV 066 (D. Wy. 1995) Pending   [recent case notes] [comments on the case (last two paragraphs)]
--------------------------------------------------------------------------------
\a This refers specifically to court rulings on the Tenth Amendment constitutional challenge issue regarding Brady's phase I background check provision.

Source:  Data obtained from ATF's Office of Chief Counsel and from documentation of the court decisions.
--------------------
\49 Mack v.  United States, 1995 U.S.  App.  LEXIS 25263 (Ninth Cir. Sept.  8, 1995).

\50 This ruling applies to the Brady states in the Ninth Circuit. These states are Alaska, Arizona, Montana, Nevada, and Washington.
Again, note the differences of the parties.
State-level agencies assumed responsibility for conducting
     background checks in Graham County, Arizona, and Orange County,
     Vermont.  Effective October 1, 1994, the Arizona Department of
     Public Safety assumed a centralized role in conducting
     background checks for all residents of that state.  In Vermont,
     when the Orange County sheriff refused to conduct background
     checks, the Vermont Department of Public Safety voluntarily
     assumed this responsibility in July 1994.
 


The Forgotten "Judicial" Role.      [top]

In light of all the foregoing information and discussion, it is here noted that the reassertion of the "Respect for the County," as discussed in the links in the additional understanding section, takes us, as a country, back in the direction intended always to have been the perspective. But, there's at least one critical function still not really mentioned very often, for it is not taught much any more, and it has everything to do with the Sheriff's relationship with the trial courts, in particular, and the judicial process, in general. The following links are also found in the OJ Simpson article (accessible through the Home Page). For example, search (use "Find," under the Edit menu) the OJ Simpson article page for the word "Blackstone." There's more to this discussion of the Sheriff's vital role in the judicial process for each and very trial, and the rest of what may help put this picture together is perhaps several articles away, but it's OK to begin to explore the topic now, given that the County of Denver has no Sheriff.

For a "quick view" of the point, search (use "Find" in the Edit menu) for the word "sheriff" in each of the four specific reference pages (the first one is a general reference), and read those sections first. See if there is a "judicial" role, a unique relationship with the courts, that develops. When all Sheriff's Departments have this component back in their Functions and Duties, and it's active, this country will be a different place, and you'll likely appreciate the improvement.

Fifth and Sixth Amendment materials, generally
http://press-pubs.uchicago.edu/founders/tocs/amendV-VI_criminal_process.html

William Blackstone Commentaries
http://press-pubs.uchicago.edu/founders/documents/amendV-VI_criminal_processs14.html

John Adams
http://press-pubs.uchicago.edu/founders/documents/amendV-VI_criminal_processs16.html

Debate in Massachusetts
http://press-pubs.uchicago.edu/founders/documents/amendV-VI_criminal_processs22.html

United States v. Marchant
http://press-pubs.uchicago.edu/founders/documents/amendV-VI_criminal_processs46.html
 
 

Epilog. For the Detectives among us (solve the riddle):
http://www.jokesoup.com/sheriff.htm
 

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