Defiant sheriff has moral high ground on “red-flag” law

“I f a sheriff cannot follow the law, the sheriff cannot do his or her job,” Attorney General Phil Weiser said. “The right thing to do for a sheriff who says, ‘I can’t follow the law’ is to resign.” He was referring to House Bill 1177, the Extreme Risk Protection Order bill, which is making its way through the legislative process.

An extreme risk protection order, or the “red-flag” law, enables law enforcement to take firearms from an individual deemed by a judge to be a danger to himself or others. A welltailored law that provides appropriate due process can help law enforcement disarm a person in a dangerous mental state before he can hurt someone. A poorly written law can help law enforcement disarm a law-abiding person and deprive him of his Second Amendment right to self-protection, Fourth Amendment right to privacy, Fifth Amendment right to private property and 14th Amendment right to due process.

Because of concerns regarding the constitutionality of the bill, more than two dozen boards of county commissioners have passed resolutions declaring their jurisdiction a sanctuary from enforcement should the bill become law. Sheriffs, too, have signaled their intent to ignore what they deem unconstitutional. Weld County Sheriff Steve Reams, for example, has stated that he will not enforce orders because he said, “I have a duty for public safety but also have a duty to protect the constitution.”

El Paso County Sheriff Bill Elder has taken a different approach. He told his board of commissioners that rather than not comply, the county should challenge the law’s constitutionality in court.

“I believe we can get a judge to issue an injunction that stops the state from enforcing this law until it is heard on constitutional challenges,” he said.

Douglas County Sheriff Tony Spurlock, whose Deputy Zackari Parrish was killed by a person in a mental health crisis, supports the bill. He is working with lawmakers to make improvements to the bill, such as making evidentiary standards consistent throughout the bill.

These three sheriffs, all sworn to uphold the law, have taken different approaches — defy, challenge, or change — when faced with enforcing a law that could violate the rights of those they have sworn to protect.

It’s not the first time Colorado jurisdictions have chosen to not to enforce laws enacted by other legislative bodies. Boulder has declared itself a sanctuary city from federal immigration law enforcement, and other cities cooperate as little as possible with the feds. The whole state is a sanctuary from federal marijuana laws.

When is it justifiable for an official to refuse to uphold a law? Does breaking a bad law strengthen rule of law or further crack this legal foundation central to peace and prosperity?

The Rev. Martin Luther King Jr. addressed this question in his letter from Birmingham Jail: “One may well ask: ‘How can you advocate breaking some laws and obeying others?’ The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all.’ ” The difference between just and unjust law is that the former “squares with the moral law or the law of God” and the latter is “out of harmony with the moral law.”

King also wrote that those who break an unjust law must be willing to experience the consequences thereby demonstrating respect for the rule of law. I have no doubt that Sheriff Steve Reams will do just that, go to jail to defend a greater law, the constitution and the rights it protects.

Sometimes to break the law is to uphold it. Still, I wish it didn’t

have to come to this.