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What Happens If Sheriffs Refuse to Enforce State Gun-Control Laws?

Second Amendment sanctuary counties are coming to liberal states, like New Mexico, Oregon, and Washington.
Then-Representative, now Governor of New Mexico, Michelle Lujan Grisham speaks at the 2016 Democratic National Convention.

Then-Representative, now Governor of New Mexico, Michelle Lujan Grisham speaks at the 2016 Democratic National Convention. 

On March 8th, New Mexico Governor Michelle Lujan Grisham (D) signed a bill that, effective July, closes a federal loophole exempting unlicensed vendors and gun shows from a law requiring that all licensed arms dealers conduct background checks on potential buyers.

The law brings New Mexico into the ranks of 20 other states and Washington, D.C., all of which have passed similar pieces of legislation requiring expansion of criminal background checks on handgun sales in recent months. (Notably the United States House of Representatives passed a similar resolution, which now sits in the Senate.) According to a 2017 study conducted by the Giffords Law Center, as many as 22 percent of American gun owners had obtained their firearms without a background check thanks to such loopholes, a number that amounts to millions of unvetted buyers acquiring guns each year.

But even before gun-safety advocates cheered the newly minted law on Friday, a majority of New Mexico's sheriffs and county commissioners had been brainstorming ways to torpedo the legislation, which they claim infringes upon the constitutional rights of the state's citizens.

At the time of the background check bill's passage, 25 of New Mexico's 33 counties had approved so-called "Second Amendment sanctuary ordinances"—public declarations signed by local law enforcement as part of a broader effort to indicate opposition to the gun-safety measures being proposed by the Democrat-controlled New Mexico state legislature.

While the ordinances are not legally binding, Cibola County Sheriff Tony Mace says that, in the case of the universal background check bill, they're meant to signal sheriffs' unwillingness to carry out a law that he describes as "unenforceable"—a "feel-good" measure aimed at appeasing the state's gun-reform activists without doing enough to support sheriffs.

Mace, who is also the president of the New Mexico Sheriffs' Association, says that he came up with the idea for the sanctuary resolutions one day while he was driving home from a particularly frustrating committee meeting for the background check bill, during which he says sheriffs' concerns had largely fallen on deaf ears. The initiative, he is quick to point out, was directly inspired by the immigration sanctuary movements that have been spearheaded in liberal communities throughout the country, in which certain jurisdictions direct state resources away from enforcing federal immigration laws, or otherwise do not cooperate with federal immigration officers.

"There are whole sanctuary county, city, and state movements, and those are essentially saying 'Hey, we can shield immigrants from the federal law,'" Mace says. "They're picking and choosing which laws they want to follow as a state, so we're thinking as a county, why can't we take this back to our commissioners and say we're going to draft a resolution that says our counties are Second Amendment sanctuary counties."

Mace is not alone in his efforts: Similar gun-sanctuary movements have arisen in at least four other states with Democratic-controlled legislatures in recent months, including Washington, Nevada, Oregon, and Illinois. In those states, as in New Mexico, the ideological schism between government and local law enforcement highlights a widening gulf between the state's rural and metropolitan populations.

In Oregon, Second Amendment Preservation Ordinances were on the ballot in 10 counties this past November, giving residents an opportunity to vote to strengthen protections around their right to keep and bear arms while simultaneously preventing government resources from being earmarked for enforcing any laws that would impede those rights. As in New Mexico, the ordinances came in response to a push for stricter gun laws by the state's Democratic lawmakers—including a bill signed into effect by Oregon Governor Kate Brown in March of 2018 that prevents convicted stalkers and violent domestic abusers from obtaining firearms. (The ordinances passed overwhelmingly in eight of the 10 counties, but may well violate Oregon state law establishing that only the state legislature can regulate firearms.)

That movement is largely the brainchild of Tom McKirgan, the southern Oregon coordinator for the Committee to Protect the Second Amendment and a member of the Three Percenters (the militia group responsible for a 41-day occupation of the Malheur National Wildlife Refuge in Eastern Oregon in 2016.) Like Mace, McKirgan believes that the ordinances are legitimized by the fact that law-enforcement officers already make discretionary interpretations of the law as a part of their work.

"Every police officer makes that decision every day of their career: whether or not something is constitutional," McKirgan told KUOW last November.

The reality of what the new law will look like when put into practice in New Mexico varies, depending on who you ask. While some sheriffs have acknowledged that the ordinances amount to a purely symbolic "expression" of their discontent, others, like Mace, have said that they will refuse to enforce the law outright. Nonetheless, sheriffs stand united in their unflagging belief that the law would run afoul of the Second Amendment.

To that point, Grisham's office is clear: The argument is a non-starter, and a "cynical exhibition" by gun-rights activists designed to drum up fear and outrage.

"A symbolic rebuke to state law is not grounds for duly sworn law-enforcement officers to ignore it," says Tripp Stelnicki, Grisham's director of communications. "Resolutions have no weight of law behind them; they are purely statements of opinion. There is no concern."

Mace believes the decision not to enforce the law would be covered by the fact that New Mexico is an "officer discretionary state," where it falls to a law-enforcement officer's discretion to decide what to charge an individual with. (For example, in drug cases, an officer decides whether an individual is charged with possession or drug trafficking.)

"As the sheriff, if I see problems with these particular pieces of legislation and they become law, I don't have to use that law," Mace says.

New Mexico's government has repeatedly reaffirmed that sheriffs cannot cherry pick which state laws they choose to enforce. It's a set-up for a near-certain constitutional challenge, one that Washington state's attorney general, Bob Ferguson, has already waded into, warning sheriffs in a February open letter that they could become legally liable should they refuse to uphold that state's new initiative to raise the minimum age to buy semiautomatic assault weapons from 18 to 21.

Stelnicki says that Grisham and her administration are unfazed by the attempts to repeal or not enforce the law, and expresses similar confidence on their chances of success should a future legal challenge arise. "I can't speak for the sheriffs," he says. "But the proper remedy, for those few folks who have wrapped themselves in the 'constitution,' is the courts."

It's a solution that Mace says he's already heard rumblings of support for, with certain groups and individuals already expressing willingness to be the face of a potential future lawsuit. (He noted that the New Mexico Sheriffs' Association will not be the group to file any such suit.)

"When somebody's right is denied or delayed, then you have grounds for a suit," Mace says. "There [are] people who are just waiting for that to happen so that they can bring that suit forth."