This article was first published on Monday, December 2nd, 20113, at the McAlvany Intelligence Advisor:
The complaint that U. S. District Court Judge Marcia Kreiger didn’t know what she was doing in her ruling was far too generous. Kreiger knows exactly what she is doing in ruling that the 54 local sheriffs have no standing to bring suit against the unconstitutional laws passed by the Colorado legislature last summer.
Kreiger ruled that the sheriffs were “confused” about their roles as sheriffs:
If individual Sheriffs wish to protect individual rights or interests they may do so. In the [present complaint], however, the Sheriffs have confused their individual rights and interests with those of the county Sheriff’s Office.
They each assert that they have a stake in the outcome of this litigation because … they desire to adhere to their oath of office … [but to do so] would compromise their performance of the office….
Michael Schaus, the associate editor for Townhall.com, almost got it right when he complained:
The sheriffs were not suing over fear that the laws would infringe on their “individual” rights. They were suing because of their fear that the law would infringe on the individual rights of the citizens they swore to uphold and defend…. Not only are they being charged with implementing law, but they are held accountable by the individuals they serve.
[It’s] strange to think that the men and women who will be charged with enforcing these gun laws have no standing to object to them in their official office.
It’s not strange at all, Mr. Schaus. It’s their duty. And that’s why Kreiger bent over backwards to keep them out of the lawsuit as sheriffs. Left-wing ColoradoPols.com also came close to the real issue when they commented on Kreiger’s ruling favorably:
In Colorado, the huge difference between elected … county sheriffs who opposed the new laws … and appointed police chiefs who generally supported them … was lost on the public….
It’s always been our opinion that if the voting public understood the positions held by many of these elected sheriffs, those badges wouldn’t count for nearly as much.
Those badges count for much more. As Jeff Wright explained in his new book, A Citizen’s Last Stand:
The fundamental authority, with the greatest responsibility for law enforcement, is entrusted to the elected officer charged with that duty – the County Sheriff.
The Sheriff is the only elected officer who swears to support and defend both the US and State constitutions as a peace officer. He is performing the first and primary duty of defending and protecting the [rights of] the individuals living on the land in his jurisdiction, the County.
As sheriffs, then, they had to bring the lawsuit. Kreiger knew that, and so she had to go to great lengths to get them out of the picture. Her “legal” explanation is something to behold. First, she goes off on a tangent to distract attention from the real issue:
[The] limitation of the jurisdiction of federal courts [like mine] to cases and controversies is crucial to maintaining the “tripartite allocation of power” set forth in the United States Constitution. Indeed, no principle is more fundamental to the judiciary’s proper role in our system of government….
This doctrine is an important limitation on the power of the federal government. It guarantees that a federal court [like this one] will not resolve certain disputes between a state and local government.
So far, so good. She’s right, but it’s irrelevant. But her point in bringing it up is made clear here:
A political subdivision may seek redress against its parent state for violation of a state’s constitution, but the political subdivision cannot invoke (nor can a federal court impose) the protections of the United States Constitution for individuals against a state.
Got that? The sheriffs aren’t peace officers elected by the citizens to be the first line of defense against government tyranny, they’re just part of the Sheriff’s Office, which is a political subdivision that can’t bring action in the present complaint.
David Kopel was prepared for this misdirection and, as the lead attorney representing the sheriffs, made clear that the sheriffs are not a “political subdivision” of the state because the office was created by the people, through the state’s constitution, rather than being created by state law.
Kreiger didn’t buy it. She couldn’t:
The Sheriffs are correct in that the people of Colorado acted through the Colorado Constitution, but in doing so they created and empowered the State of Colorado and its subdivisions….
And so she unilaterally and unconstitutionally redefined the sheriffs’ offices as subdivisions:
In the Colorado Constitution, the people of the state of Colorado created the structure of the state government, making counties and county Sheriffs part of it – a political subdivision of the state of Colorado.
Voila! Subdivisions can’t bring suit using federal laws in local disputes. Buh-bye, have a nice day.
Schaus was correct when he concluded:
The judge’s fundamental misunderstanding of the official role of Sheriff … does not bode well for the challenge. Her flippant disregard for the legal “standing” of elected officials should give pause to those who hope she will adequately interpret the words “shall not be infringed” in the Second Amendment.
But her “fundamental misunderstanding” lays the groundwork for an appeal, assuming her judgeship decides that the unconstitutional laws being contested are constitutional after all.
CBS Denver: Judge: Sheriffs Can’t Sue Colorado Over Gun Laws
Freedom Outpost: 54 CO Sheriffs File Federal Lawsuit Over New Gun Laws
The Denver Post: Colorado federal judge dismisses part of gun control lawsuit
ColoradoPols.com: So Long, Sheriffs: Gun Lobby Lawsuit Loses More Steam
Amazon.com: The Citizen’s Last Stand, by Jeff Wright