To date, three county sheriffs in Washington State broke ranks and announced they will not enforce some of Governor Inslee’s executive orders relating to his several, and increasingly frequent lockdown orders–proclaimed under the auspices of state of emergency declarations to the COVID-19 situation. The dominant subject of dissent among these law enforcement officials centers around what are regarded as unconstitutional intrusions by the governor enacted against the citizens of their respective counties and the inconsistency of regulations applied unequally by the state.
It is my belief that unless a strong reversal of Governor Inslee’s resolve to remain steadfast in his prosecution of ordinary Washingtonians is not fielded soon, the “insubordination” as he claims will only grow and serve to weaken his position, adding spark to a movement against him and his office if it continues in its present form for months.
The time has come for the governor to put his ego aside. For if he chooses to adversarily engage these sheriffs and others who will come to join them he will lose in the courts of public opinion of these various counties.
For those unfamiliar with the make up of Washington State’s law enforcement structure I will provide a very rudimentary primer for the purpose of brevity. The state is subdivided into thirty-nine counties, all of which presently have an elected sheriff. Under RCW 36.28.010: “The sheriff is the chief executive officer and conservator of the peace of the county. In the execution of his or her office…”
The sheriff is not generally an appointed position, as is the Chief of the Washington State Patrol, who is appointed by the governor and city chiefs of police by their respective mayors or councils. Sheriffs serve both the civil process and criminal departments, act as agents of the district and superior courts and in most cases maintain the county’s jails. They are also tasked by statute with serving public health directives and orders of the county health department. They are not subordinate to the purview of the office of the governor.
As elected officials, their realm is largely separated from that of the county commissioners. Unless there might be in the case of a home rule type of charter of a small town, (which I have not ever heard of such a case) they are the only elected general authority law enforcement officers of the state–and are generally answerable to the voters of their county. In a review of the various applicable Revised Codes of Washington I was unable in fact to locate any provision granting the office of the governor any authority to modify or preempt the duties of any sheriff in the state acting under the duties of their office as tempered by the state and federal constitutions. The governor may direct the State Patrol, the Washington State Guard, and the Washington National Guard, but he does not control the thirty-nine sheriffs.
Statutory provisions notwithstanding, there remains an unquestionable social matter relating to the office of Sheriff in the state’s counties, especially those of Eastern Washington and other rural areas.
Culturally in these areas sheriffs command a great amount of clout and respect among the ordinary citizens of their county. While most probably might not know who the chief of police is in other towns within the county, nearly all know who “their” sheriff is. The understanding is that the sheriff serves them; not the governor, not the county commissioners, but the citizens themselves. While the deputies and city officers might be somewhat faceless agents of their agencies, the sheriff tends to be, or at least perceived to be, part of their personal social arenas. This is not to say that such beliefs are universally held, and not all are liked by all citizens, but people in most of the non-metropolitan counties tend to identify the sheriff as their own. From a political perspective, a sheriff can be a very difficult opponent if chosen to contend with and certainly not one to dismiss without consequence. The sheriff is among the community for everything from general law enforcement, to participation in civic activities, fairs, social clubs, school programs of even small communities, and is approachable and not removed to the state capitol as is sometimes perceived to be the case with the governor’s office.
Having seen personally the decimation of jobs, denial of basic liberty, and countless and conflicting orders coming every few days out of the governor’s office, several sheriffs began taking exception to what their constituents are presently enduring. While certainly none of these men question the emergency nature of containing the pandemic, they see themselves, it seems, to be forced into an unenviable position of being charged with forcing unethical and unconstitutional mandates upon their communities. To them in its most basic form is infringing on the constitutional rights of the people, which every law enforcement officer in the state is charged in their oath of office to uphold. To many professional law enforcement officers it is counter to police culture to force a person trying to earn an honest living through ordinary employment to face jailing simply for trying to put food on the table of their families, or simple be let alone to pursue ordinary happiness and not bother anyone else. They are being told by Governor Inslee to upheave the life of the average person with increasingly less concrete justification. That is not something that sits well with most professional police officers.
The seeds for this type of dissent by some Eastern Washington sheriffs began last year with the passing of I-1639, which greatly restricted firearms rights in the state. About a dozen or more sheriffs, mostly in rural counties, refused to enforce the restrictions against the people, citing that the provisions violated both the federal and state constitutional right to bear arms. We are beginning to see an analogue with this in today’s declarations of emergency. It is perceived by the dissent as an unjust action against law abiding citizens, likely unconstitutional, and they are not going to be coerced into enforcing this.
In a Facebook posting, Snohomish County Sheriff Fortney Wrote of his dissent and how his agency is managing the outbreak:
Snohomish County Residents and Business Owners,
I just watched the Governor’s speech to Washingtonian’s regarding our approach to getting Washington back in business and I am left to wonder if he even has a plan? To be quite honest I wasn’t even sure what he was trying to say half of the time. He has no plan. He has no details. This simply is not good enough in times when we have taken such drastic measures as the suspension of constitutional rights. I wrote most of this about two weeks ago but I decided to wait out of respect for the Governor and my own misguided hope that each day he did a press conference he would say something with some specificity on getting Washington back to work. After what I witnessed tonight I can no longer stay silent as I’m not even sure he knows what he is doing or knows what struggles Washingtonian’s face right now.
I want to start by saying this virus is very real and sadly, it has taken 97 lives in Snohomish County. This is a very serious issue and the appropriate precautions need to be taken to protect our most vulnerable populations. However, our communities have already shown and continue to show they understand the severity of the situation and are doing all they can already to keep themselves, their families and neighbors safe and healthy.
I am worried about the economy and I am worried about Washingtonian’s that need to make a living for their family. As more data floods in week by week and day by day about this pandemic I think it is clear that the “models” have not been entirely accurate. While that is okay, we cannot continue down the same path we have been on if the government reaction does not fit the data or even worse, the same government reaction makes our situation worse.
As elected leaders I think we should be questioning the Governor when it makes sense to do so. Are pot shops really essential or did he allow them to stay in business because of the government taxes received from them? That seems like a reasonable question. If pot shops are essential, then why aren’t gun shops essential? Our Governor has told us that private building/construction must stop as it is not essential, but government construction is okay to continue. So let me get this right, according to the Governor if you are employed or contracted by the government to build government things you can still make a living for your family in spite of any health risk. If you are a construction worker in the private sector you cannot make a living and support your family because the health risk is too high. This contradiction is not okay and in my opinion is bordering on unethical.
As I arrive to work at the courthouse, I see landscapers show up each day to install new landscape and maintain our flowerbeds. How has Governor Inslee deemed this essential work? However, a father who owns a construction company and works alone while outdoors is not allowed to run his business to make a living to provide for his wife and children? How has Governor Inslee deemed thousands of Boeing employees who work inside a factory building airplanes essential? But building residential homes is not essential? If a factory with 20,000+ employees each day can implement safe practices to conduct normal business operations, I am entirely confident that our small business owners and independent contractors are more than capable of doing the same.
If this Coronavirus is so lethal and we have shut down our roaring economy to save lives, then it should be all or nothing. The government should not be picking winners or losers when it comes to being able to make an income for your family. If the virus is so lethal it shouldn’t matter whether you are building a school for the government, building a new housing development, restaurant owner, or you happen to be an independent contractor. To the contrary, if the virus is proving to not be as lethal as we thought, maybe it’s time for a balanced and reasonable approach to safely get our economy moving again and allowing small businesses to once again provide an income for their families and save their businesses. This is what I hoped for from the Governor tonight but he is not prepared or ready to make these decisions. If we are going to allow government contractors and pot shops to continue to make a living for their families, then it is time to open up this freedom for other small business owners who are comfortable operating in the current climate. This is the great thing about freedom. If you are worried about getting sick you have the freedom to choose to stay home. If you need to make a living for your family and are comfortable doing so, you should have the freedom to do so.
As I have previously stated, I have not carried out any enforcement for the current a stay-at-home order. As this order has continued on for well over a month now and a majority of our residents cannot return to work to provide for their families, I have received a lot of outreach from concerned members of our community asking if Governor Inslee’s order is a violation of our constitutional rights.
As your Snohomish County Sheriff, yes I believe that preventing business owners to operate their businesses and provide for their families intrudes on our right to life, liberty and the pursuit of happiness. I am greatly concerned for our small business owners and single-income families who have lost their primary source of income needed for survival.
As your elected Sheriff I will always put your constitutional rights above politics or popular opinion. We have the right to peaceably assemble. We have the right to keep and bear arms. We have the right to attend church service of any denomination. The impacts of COVID 19 no longer warrant the suspension of our constitutional rights.
Along with other elected Sheriffs around our state, the Snohomish County Sheriff’s Office will not be enforcing an order preventing religious freedoms or constitutional rights. I strongly encourage each of you to reach out and contact your councilmembers, local leaders and state representatives to demand we allow businesses to begin reopening and allow our residents, all of them, to return to work if they choose to do so.
The great thing about Snohomish County government is we have all worked very well together during this crisis. I’m not saying we agree all of the time, I’m saying we have the talent and ability to get this done for Snohomish County! This is not a time to blindly follow, this is a time to lead the way.
Sheriff Adam Fortney
For a statement of Okanogan County Sheriff Anthony Hawley on his interpretation of the COVID-19 challenge and his declaration of non-enforcement of punitive measures against his constituents, please click HERE.
It seems clear, at least to me, that these sheriffs are put into a difficult position, they uphold the fact that citizens of their counties are trying to manage containment of the pandemic but see unreasonable impositions forced onto the public by the governor and proclaim their frustration with the open ended timeframe and lack of inherency of the nearly twenty declarations of restrictions on the public and businesses.
Moving behind this the office of the governor has I believe little recourse if a sheriff or his deputies decline to initiate a prosecution against a citizen or business. Barring a court order, the governor has no authority to require a sheriff or his/her deputies to enforce a statute or proclamation. The courts permit law enforcement officers generally a wide degree of discretion in enforcing criminal laws, that is without a warrant or specific statutory mandate such as is the case with mandatory arrest of primary aggressors in domestic violence incidents. In fact the courts have held this discretion to be manifest even among individual officers and their department’s policies. (The State Patrol several years ago could not require a mandatory towing policy of vehicles in certain incidents due to this violating the discretion authority of an individual trooper). I do not also believe the governor’s office will prevail if it chooses to secure writs of mandamus against dissenting sheriffs, to compel enforcement of the governor’s declarations of state of emergency. In the last two years the appellate courts in Washington generally have been against the use of mandamus as a primary means of compelling compliance, when all other conventional means of redress through the court systems have not been fully utilized.
There also remains the potential for precedent bound against the state if the governor chooses to challenge these sheriffs and others who take exception. It is well-known that bad state actions lead surely to bad precedent and the novelty of what has taken place recently is ripe for court intervention and interpretation. For me I see the governor taking a very broad brush to a problem that could have been contained without the excessive infringement on civil rights. If one were to look at the State of Emergency statutes in the RCW, the sense is that the construction of this statute was intended to be a response to insurrection, riots, and great disasters resulting in severe public disorder–and then crafted to be limited in scope to only areas demonstratably affected by such disorder. That is not the case presently. There has been no rioting in the streets, no public melee, and no wanton destruction by marauding actors. We’ve seen only the bad effects of a virus infection that spreads worse than most but we are seeing officials taking the strongest enforcement aspects of the law and applying it wantonly against everyone, everywhere in the state. That threat is waning but very little is being done to curtail the restrictions. Yes, yesterday Governor Inslee stated he would open construction jobs, after the construction lobby and industry met with him, but the shopkeeper who sells widgets in Pasco must keep his business closed. So what does it take to do business in Washington–Have a powerful lobby or a good product or service? And what favor should they pay in return for the governor’s generosity?
The first week of next month constitutes a formerly declared end date for the most recent general proclamation. I believe the governor’s goodwill to maintain the bulwark of his restrictions on liberty will quickly wane if he declares another open ended general denial of freedom to the public, and more public officials such as these sheriffs could join the ranks of those who oppose him. The governor might win with some news outlets and those in comfortable stations in large cities but if he chooses to confront a sheriff in his county over a constitutional rights issue Mr. Inslee will suffer a humiliating defeat in the court of public opinion in those localities. He will look rather foolish making demands that nobody will listen to. That will not serve the public well if there is an actual emergency that needs to be countered and few people believe that it is serious because they have exhausted their trust in him. He should remember that the state’s sheriff’s answer to the voters, not to him. It is quite self-evident where their loyalty remains.
I’ve done some rather informal talks with tradespeople, business owners, and other regular folks in five counties over the past couple weeks while travelling on business. I can say that nearly everyone I spoke with was trying to do the right thing in protecting themselves and others from this virus and they believe in what they are doing. But ALL OF THEM have told me that they feel what has been mandated upon them is untenable, and/or detrimental to themselves, their jobs, or their employers. Their patience is wearing thin. If the governor continues to restrict all Washingtonians the perceived problem will transfer from that of the COVID-19 virus directly to the politician himself who caused nearly all of this economic fallout by proclamation: Governor Jay Inslee. It will not be the local county sheriff who gets the blame for this mess.
Reprinted with permission from JonathanTurley.org.
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