Enforcement v. Law
California Lawyer

Enforcement v. Law

March 2014

Illustration by J.F. Podevin

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Sheriff Jon E. Lopey is one of the most popular people in Siskiyou County, a region of sprawling coniferous forest, high meadows, and deep gorges in northeastern California.

A decorated veteran of both the Marine Corps and the Army Reserve who retired from the California Highway Patrol as an assistant chief, Lopey projects both toughness and compassion. And he donates most of his salary to the department and a charity he founded.

But he is a lightning rod: He is one of three California sheriffs on the board of the national Constitutional Sheriffs and Peace Officers Association, a group of mostly rural sheriffs who view some firearms and environmental laws as unconstitutional. (The others are El Dorado County's Sheriff John D'Agostini and Del Norte's Sheriff Dean Wilson.)

"Draconian gun laws do nothing to ensure public safety, and they infringe on the rights of citizens," Lopey says. "I'm not saying I won't enforce all gun laws that are passed. We're stuck with them. But they'll probably get low priority."

Lopey applauds gun restrictions that apply to mentally ill people, drug addicts, and violent criminals, but he says limits should stop there. He was among the sheriffs who unsuccessfully urged Gov. Jerry Brown to reject a 2013 ban on lead hunting ammunition, which Lopey calls "an extremist environmentalist victory." He blames the local timber industry's collapse on federal logging rules and the Endangered Species Act and says feds tried to bring criminal charges against ranchers for minor streambed alterations near the Scott River. An armed agent Miranda-ized them for the "heinous crime of killing some [salmon] fingerlings," Lopey says. The sheriff, who says he focuses his efforts locally, got the charges reduced to noncriminal violations.

Jesse Choper, an authority on constitutional law at UC Berkeley School of Law, says the reach of the Constitutional Sheriffs may exceed their legitimate grasp.

"Citizens - including sheriffs - don't get to decide what is constitutional," says Choper. "Whatever their obligations under state law, they are required to uphold the [U.S.] Constitution as determined by authoritative decisions of the Supreme Court. You simply can't impose your own views on what is constitutional. Imagine what would happen if [everyone] did that."

The sheriffs are meeting some resistance on their home ground. Scott Greacen, an attorney in the Humboldt County seat of Arcata who is executive director of Friends of the Eel River, takes umbrage at Lopey's characterization of the salmon kill. The Scott River is a primary tributary of the Klamath, whose watershed is one of the West's major salmon nurseries.

"Scott River and Shasta River coho salmon are critically endangered and listed as threatened under the U.S. Endangered Species Act," Greacen said. "The Constitutional Sheriffs feel they get to unilaterally interpret federal law in a way that is fundamentally different from the interpretations that have been established over the last century."

Bill Kier, a consultant who developed computer models for the Klamath's salmon runs, likened the Constitutional Sheriffs' positions to those of secessionists in southern Oregon and northern California. But, he says, they're "terribly wrong."

Still, Humboldt District Attorney Paul Gallegos says he has no problem with anyone, including sheriffs, forcefully expressing opinions.

"We will never get away from the vigorous discussion of the underlying values and intentions of the founding fathers and the documents they produced, nor should we," says Gallegos. "So, until people actually start picking up arms, I support the debate."

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