I have often wondered about the wisdom of electing certain officials. Electing people to offices like treasurer or controller or county assessor is foolish and counter-productive, not only because there ought to be unity within an executive branch so we know where the buck stops, but also because 99 percent of voters (and I think I’m being generous) do not have adequate knowledge of what those jobs actually entail to hire the right person.
I used to feel somewhat similarly about county sheriffs and district attorneys. The general public has a much better idea about what these jobs entail, but it is still difficult to assess performance unless you are somehow part of the criminal justice system.
Does the pressure of being a politician (think of all the standard promises to be “tough on crime”) intrude upon your day-to-day decision making processes? Do you have more people arrested to demonstrate toughness, or fewer to artificially lower crime rates? How does it affect your prosecutorial discretion when TV cameras roll into court, or when the defendant is a famous or politically connected individual? Who can realistically challenge you in an election without suffering irreparable career harm if they happen to lose?
Many of the same arguments I and many others have made in favor of appointing rather than electing judges can also be made for prosecutors and police. Electing our law enforcers in whatever branch of government can feel like an anachronism from a wilder, westier era.
But what I’ve come to appreciate is that these officials wind up crafting a great deal of rubber-meeting-the-road policy in the way they chose to exercise their discretion and direct their deputies. In many ways, they have more day-to-day impact on interactions between citizens and government officials than anyone else, even when individual citizens don’t notice those impacts.
It is fair, then, for people to have a voice in those policy and priority directions. For example, lawmakers can pass aggressive laws targeting the homeless camping on public sidewalks, but it’s the cop on the street who chooses whether to take that individual to jail, and the deputy district attorney making charging decisions or contemplating plea bargains who largely decides how long he stays there.
Each part of the government process, therefore, serves to check the others, and each part can in turn be checked by the electorate.
I thought about all of this as I read about the ongoing debate between several rural elected sheriffs who have announced their refusal to enforce our new so-called “red flag” law, which allows the government to confiscate firearms from individuals if a family member makes the case that the person might be a danger to themselves or others. The concern – and it is an absolutely valid concern – is that the law provides insufficient due process before that government abridges an individual, constitutional right.
The letter from Eureka County Sheriff Jesse Watts is bombastic and plainly political. But it is also a clear statement of priorities and intent that you don’t get from most people in public office, which is frankly refreshing. The language may have been over-the-top, but the content was a legitimate statement of policy.
The responses from the governor and the attorney general contained more measured language, but their statements were far more worrisome to me. Attorney General Aaron Ford said this:
“Laws are presumed to be constitutional, and law enforcement agencies are by definition charged with executing and enforcing the laws of our State. We have a sworn duty to do so until a Court instructs us otherwise. If an agency fails to enforce these laws and that results in harm or death, that agency and its agents may be subject to civil liability.”
What Ford is suggesting here is that police and prosecutors should be automatons, making no independent judgments about various laws absent a formal court order, and then threatening duly and independently elected officials if they do not comply. The governor’s statement, which said, “I look forward to working with Attorney General Ford and local law enforcement over the next several months to review ways to enforce this law, as is the case with all other Nevada laws that elected officers are sworn to uphold,” was calmer, but still implied that police need to just follow their legislative orders, seemingly without discretion. Whatever last lingering doubt I may have had that sheriffs should be elected were erased by these comments.
Ford does not meet his own stated standard, as his subordinate prosecutors (rightfully so) exercise their broad discretion every single day and in a variety of ways. And until Mr. Ford makes a statement demanding that the City of Las Vegas and the Las Vegas Metropolitan Police Department start “executing and enforcing” duly enacted laws respecting immigration enforcement, I think we can safely remain unimpressed by his unyielding commitment to the strictest letter of the law. (Also, does his position mean that Mr. Ford, Las Vegas, or the LVMPD can be sued if a deportable non-citizen commits a crime “that results in harm or death”? Almost certainly not – most government agents are immune from suit based on their official discretionary actions. One would think the state government’s highest-ranking lawyer would be aware of this…)
Don’t get me wrong – I believe it is a mistake generally to make sweeping statements about what laws will and won’t be enforced, no matter who is making the sweeping statements. Such announcements, mostly having to do with vagrancy and drug offenses, have helped blight cities such as San Francisco, Portland, and Seattle. Sheriff Watts could be painting himself into a corner and inviting some creative litigation from clever defense attorneys whenever someone in his county is charged with any firearm offense.
But I also think that there is tremendous value in elected community leaders exercising their own discretion, both constitutionally and as a matter of policy. (This is true even if I disagree with their policy discretion, such as in the area of cooperation with federal immigration officials, or vigorous enforcement of vagrancy laws.) If it’s a matter of waiting for courts to speak, they already have to some extent — both our federal and state Supreme Courts have recognized that our respective constitutions protect an individual’s right to both possess and bear firearms. See District of Columbia v. Heller, 554 U.S. 570 (2008) and Pohlabel v. State, 128 Nev. 1 (2012). How far governments may go in attempting to abridge this right will never be a perfectly settled question, just as free speech and Fourth Amendment cases continue to be litigated.
What is certain is that Ford is absolutely, 100 percent wrong about government officials’ responsibility with respect to statutory and constitutional interpretation. I do not expect police or even elected sheriffs to be constitutional scholars. But cops make constitutional-level decisions every single day — Do I pull over (seize) this car? Do I search it? Do I have probable cause to arrest an individual? — and are expected to exercise their discretion in such a way as to protect citizens’ rights. Certainly, an elected sheriff has the same duty on the policy level.
(There are also the practical problems involved with a sheriff asking his men and women to go storming into an armed citizen’s home to seize his firearms when no crime has been committed or even alleged. Talk about a recipe for danger, and for validating every paranoia about tyranny that’s been in the American DNA since we told the British to shove off.)
In other words, electing sheriffs and district attorneys who share their community standards and can help check the more distant and centralized state power, just as our state government serves as a check on the more distant and centralized federal power. This is a feature, not a bug.
At some point very soon, no doubt, our red-flag laws will be litigated, and then litigated again. In the meantime, government officials on all levels (and the members of the communities who elect them) will and ought to serve as checks upon one another’s exercise of power. As tedious as political battles can be, the clash of separately elected government officials at every level is critical to our own individual liberties.
Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected]