“The Office of Sheriff has inherent common law powers and sovereignty granted under a state’s constitution and/or state law. It is different from a county department which derives its limited authority from whatever is delegated to is by statute or by state constitution.”
National Sheriffs’ Association
As COVID-19 began hitting urban centers in March and governors began issuing lockdown orders, sheriffs began quelling rumors of checkpoints and mass arrests. “This is not Nazi Germany or Soviet Russia where you are asked for your papers!” wrote Sheriff Scott Nichols of Franklin County, Maine.
“The Rise of Anti-Lockdown Sheriffs”, March 18, 2020
The Office of Sheriff is an Office of great dignity and greater antiquity
Sheriff Atlantus Austin was an immigrant. Born on the Atlantic Ocean as his parents were sailing from Norway to their new home in the United States, it was the ship’s captain that christened him “Atlantus”, as he was truly a child of the sea.
Austin would settle in the southwestern part of Malung Township, in Roseau County, Minnesota. Named by Norwegian king Sverre Sigurdsson in the 13th Century, Malung was much like Atlantus himself. Its residents were friendly and helpful if not reserved and respectful of each other’s privacy. Community was everything and in both Malung, and Roseau County, it was the same but more so. The Austins, now citizens of the United States of America, revered their new country’s Constitution and its Bill of Rights. Being an American meant public service and it meant protecting each citizen’s freedoms as an American.
In 1899, Atlantus Austin was elected Sheriff of Roseau County. He was only the second Sheriff to hold the office. Sheriff Austin took his job seriously, but he was quick to incorporate his Nordic heritage and upbringing while enforcing the law and serving his community. He had always taken an active interest in local affairs and was well known as a kind and loving husband and father. He was also known in Malung as “a good neighbor” with all that meant in the harsh climate of northern Minnesota during winter months.
Sheriff Austin served two terms (1899–1903). He passed, his community mourning the loss of their friend, neighbor, and beloved Sheriff in print and at the Malung cemetery where he is buried.
Many, many years later, in 2004, I would take the oath of a deputy sheriff in Deschutes County, Oregon. It was not my first job as a law enforcement officer, but it was the most meaningful and indeed, poignant. You see, Sheriff Atlantus Austin is my Great Grandfather.
“The five points of the star denote friendship, guidance, honesty, integrity, and merit.”
National Sheriffs’ Association
Almost 90 days ago now, across America state governors enacted executive orders which essentially severely restricted among other rights and privileges their citizens’ freedom of movement, freedom to assemble, and to conduct commerce. In Michigan, the governor went as far as to prohibit what commercial goods could be purchased and further restricted citizens from even visiting their next-door neighbors. The reason for this draconian departure from the Constitution and our Bill of Rights?
The COVID-19 pandemic.
Initially portrayed as perhaps lasting only two-weeks Americans accepted these executive orders, which did not have the color of law, and did their part to be good neighbors and citizens. However, when two weeks became a month, and a month became two months, and the restrictions became harsher and increasingly questionable merit-wise, it was the county Sheriff the citizens turned to for protection from their government.
“My department will not be out citing anyone for not wearing a mask,” Mike Herrington, the county sheriff, told The Marshall Project on Thursday. “I will not be enforcing any of those orders.”
Sheriff Mike Herrington, Chaves County, New Mexico
“What are the powers and duties of the Sheriff? The modern Office of Sheriff carries with it all the common law powers, duties and responsibilities that is attendant upon an office of such antiquity and high dignity, except insofar as the office has been legally modified by legislative enactment,” according to retired Cowlitz County Sheriff Mark Nelson, Washington State. Nelson points out the Sheriff is not a county police chief”. The Sheriff works for the people, not the county commissioners. He does not work for county government but is part of county government.
To date over 60 county sheriffs’ offices across the country have made it clear they will not violate their citizens’ rights regardless of whatever state executive order may be in place regarding the pandemic. Many others are quietly following their oaths and doing the same. Where city police chiefs are hired by their employers and are beholding to the city mayor and council for their jobs, this is not the case of the elected Sheriff.
Again, according to Sheriff Mark Nelson, “The Sheriff represents the Sovereignty of the State and has no superior in his County. When a situation arises for law enforcement action it becomes the Sheriff’s right and his duty to determine what the public safety and tranquility demand and to act accordingly within the law.
“Where the office of the Sheriff is a Constitutional one, the legislature has no power without constitutional amendment to diminish his official powers, or to transfer to other offices the duties which properly pertain to his office.”
“I refuse to make criminals out of business owners, single moms, and otherwise healthy individuals who are exercising their constitutional rights.”
Sheriff Chad Bianco, Riverside County, California
In the United States an Oath of Office requirement of a sheriff is “that he will support the Constitution of the United States and the Constitution and laws of the state wherein he is elected, and will faithfully discharge all of the duties of the Office of Sheriff to the best of his ability, concluding by calling upon God to help him. One of a Sheriff’s duties is to “to make complaint of all violations of the criminal law, which shall come to their knowledge within their respective jurisdictions”. This duty includes filing a complaint against elected officials suspected of violating laws or infringing upon the rights of the People by using legal mechanisms such as executive orders to mimic actual law.
On May 8, 2020, in upholding his oath of office Sheriff Daniel Edwards, Tangipahoa Parish, Louisiana, filed a federal lawsuit against China, claiming a research lab in the city of Wuhan is directly responsible for the COVID-19 pandemic. The suit claims that “the government of China withheld vital information, and also knowingly gave out misleading information on the spread of the disease.” Sheriff Edwards said he filed the lawsuit because his office is seeing a dramatic decrease in sales tax revenue due to the coronavirus.
In Deschutes County, Oregon, Sheriff Shane Nelson was the first county sheriff to ensure the citizens of his county that despite the executive order issued by Governor Kate Brown his deputies would not be either citing or arresting anyone for violating the order.
Nelson, no relation to Sheriff Mark Nelson, is a 27-year veteran of the Deschutes County Sheriff’s Office. He began his career as a reserve deputy in the early-1990s and has worked in all the major positions and roles expected of a deputy sheriff. He holds a bachelors’ degree in Communications from Oregon State University and has completed the Oregon Department of Public Safety, Standards, and Training executive management program. When interviewed for this article Sheriff Nelson expanded on his decision regarding Governor Brown’s executive order. “I reviewed the governor’s executive order carefully and listened to her attending comments and wishes,” recalls Sheriff Nelson. “Governor Brown emphasized the importance of the lock-down but also pointed to education of the Public, and restraint in any potential enforcement [provision for citation or physical arrest] was critical. I took the position, based on my training and experience, and in consultation with other Oregon Sheriffs facing similar decision processes, that our deputies would indeed educate and assist our citizens in remaining safe during the pandemic.”
Sheriff Nelson’s announcement and follow on actions were not shared by everyone. County district attorney John Hummel was critical of the Sheriff’s position, which included providing deputies to assist in ensuring social distancing and other measures were in effect for the event. Hummel went as far as to utter “a pox on his house” in reference to the event’s organizer. Nelson was pleased with the success of the event.
The Sheriff’s Office also came under fire from Chief Jim Porter, Bend Police Department. When the Sheriff made it clear “We will educate and encourage voluntary compliance and will not arrest or cite anyone based on the governor’s order” Chief Porter fired back. “It was a statewide plan developed by the governor, who has the best and most-recent information,” Porter said. “And if local entities decide to deviate from the plan and implement their own solutions, it puts the entire state at risk of not being able to minimize the spread of the virus.
Both the response to Sheriff Nelson’s carefully explored and researched decision to not cite or arrest as opposed to the district attorney’s emotional demand for such actions and the City of Bend’s senior police administrator’s unquestioned acceptance of a governor’s executive order illustrates the importance of the Office of Sheriff and its unique checks and balances over other local government and agency influences.
As Sheriff Mark Nelson correctly defines the Office of Sheriff regardless of locale:
“The office of the Sheriff is not simply another department of County Government. Its internal operations are the sole responsibility of the Sheriff. The head of a county department is subordinate to the Board of Commissioners as a division of County Government.
“The Office of the Sheriff is a Constitutional Office having exclusive Powers and Authority. These Powers are not subject to the dictates of a Board of Commissioners. The Powers of the Office of the Sheriff have been exercised worldwide for over a millennium. ´
“A Sheriff’s Office then is fundamentally different from a County department which derives its limited authority from whatever is delegated to it. Thus, the use of “department” substitutes a term meaning subordinate unit of Government. “Office” is a term that unmistakably signifies the inherent powers and sovereignty of the Office of the Sheriff. ´
“You don’t work for county government. You are part of county government.”
“These are my friends and family,” Herrington said. “To look at the fear in their eyes, the fear of losing everything they have, tells me I have no choice but to stand and take on this fight.”
Sheriff Mike Herrington, Chaves County, New Mexico
My Great Grandfather, Sheriff Atlantus Austin, shared the same ethics and commitment to his community as Sheriff Herrington. Regardless of era, challenge, or state / county our nation’s Sheriff’s Offices and their leadership have been charged to put the Constitution of the United States and the Bill of Rights first. There can be no compromise to this sacred trust, a trust sworn under oath to protect and serve.
In Oregon, Sheriff Shane Nelson is doing the same as his counterparts across the country. When the Oregon Governor’s Office learned of his position to educate, inform, encourage voluntary compliance in Deschutes County, it responded with this statement.
Oregon Attorney General Ellen Rosenblum sent OPB a statement in support of Nelson’s tack:
“We believe the Governor’s order is crafted with, and motivated by, a desire for voluntary compliance. The Attorney General supports Sheriff Nelson’s attempt to reason with the people of Deschutes County to stay home to save lives. I would suggest it is reasonable to give Oregonians some limited time to adjust to this new (and hopefully very temporary) reality before taking law enforcement action. Be safe. Be well.”
Oregon Attorney General Ellen Rosenblum
The heraldic significance of the five-pointed star representing the National Sheriffs’ Association says it all and reaches back to when the office of Sheriff was first established in America. This in 1634 after counties came into official being and Sheriffs were appointed with the first elected Sheriff taking place in 1651. Let us bear this in mind as we, the People, support our local Sheriffs.
- The shield denotes defense, protection, and faith.
- The mace denotes authority.
- The olive wreath denotes peace.
- The circle surrounding the emblem denotes eternity.
- The five points of the star denote friendship, guidance, honesty, integrity, and merit.
Greg Walker served as a city police officer in Astoria, Oregon, and was later a deputy sheriff under Sheriff Les Stiles. Mr. Walker medically retired from the Sheriff’s Office in 2006 due to his military service-connected wounds and injuries as received while serving as a “Green Beret” in Kuwait and Iraq (2002–2004). He is co-author of “The Way of Verbal Judo Leadership”, a leadership guide for law enforcement professionals, now in its 3rd Edition.