When a group of Democratic lawmakers in Illinois a decade ago proposed banning assault weapons with legislation that mirrors the state’s new gun law, the Illinois Sheriffs’ Association opposed the bill as it has now — but with one major difference. Back then, the sheriffs explicitly said the power to determine a law’s constitutionality lies exclusively with the courts, not themselves.
“The doctrine of judicial review grants to the United States Supreme Court and the lower courts the power to determine the constitutionality of any law and sheriffs do not possess the legal authority to interpret the constitutionality of any law,” it said in a February 2013 resolution.
While supporting Second Amendment rights, the association’s resolution added it “further recognizes the ultimate authority of the courts in interpreting the scope of those constitutional rights.”
Fast forward to 2023, when the sheriffs’ association provided a template for a letter used by an estimated 90 of the state’s 102 county sheriffs stating they “believe that (the new gun law) is a clear violation of the 2nd Amendment to the U.S. Constitution” and that they won’t enforce it.
In identical language, the sheriffs say “as the custodian of the jail and chief law enforcement officer” of their county, they will not “be arresting or housing law-abiding individuals that have been arrested solely with noncompliance” with the state’s new ban on some military-style weapons and magazines.
The 10-year shift from county sheriffs respecting the courts’ role of determining a law’s constitutionality to now declaring themselves the arbiter of a law’s constitutional compliance represents an increasingly rightward tilt among law enforcement nationally toward what is known as the “constitutional sheriff” movement.
The movement, aided by a controversial national group led by a co-founder of the Oath Keepers, wrongly promotes the concept that sheriffs are the ultimate power in their jurisdiction to determine a law’s constitutionality. That goes far beyond the power sheriffs have long exercised in which they’ve used professional discretion to determine how resources are used and which laws to focus on more than others.
The constitutional sheriffs movement has percolated across the nation as some sheriffs have vowed to not enforce laws ranging from gun bans to COVID-19 restrictions. But it garnered new strength in Illinois this year with Democratic Gov. J.B. Pritzker’s signing of the Protect Illinois Communities Act. Passed in the months after the mass shooting at the Highland Park Fourth of July parade, the law bans many high-powered weapons and high-capacity magazines, among other changes.
As opponents have filed lawsuits in state and federal court to stop the law from being enacted, the roughly 90 Illinois sheriffs have declared their opposition to the law, proclaimed it unconstitutional and said they won’t enforce it.
“As political science professors and law professors will both tell you, there’s no basis in fact to this idea that the county sheriff has ultimate authority,” said Emily Farris, an associate professor of political science at Texas Christian University, who has conducted extensive research on sheriffs and the “constitutional sheriff” movement with the Marshall Project.
U.S. Supreme Court rulings dating back to the famed 1803 case of Marbury vs. Madison have declared the federal judiciary as the final word in determining a law’s constitutionality.
The sheriffs’ ideological shift has been accentuated by the divisive political climate in the last decade, opposition toward the presidency of Barack Obama over gun rights, the belief former President Donald Trump had the backs of law enforcement and pushback against criminal justice reforms.
A rise in Christian nationalism also has played a role, reflected in comments made by some Illinois county sheriffs who equate their duties as protecting citizens’ God-given rights through the Constitution.
“It’s a battle in the heavenly places, and it’s good versus evil and the side that represents freedom, that represents those good principles, and is not confused by the deception that we can provide you peace and security if you give us all your freedom,” said Jeff Bullard, sheriff of downstate Jefferson County, who has said he got his master’s degree in criminal justice administration from Missouri Baptist University. “It’s pretty clear which side that I want to be on and that’s representing and protecting the God-given freedoms (of) the people of our land.”
Bullard’s comments came on a Jan. 24 webcast of a show hosted by the far-right Constitutional Sheriffs and Peace Officers Association that he posted on Facebook. Bullard also was listed as a host of a March 4 recruitment meeting by the group in Springfield, with a notice emailed to sheriffs throughout the state by the Illinois Sheriffs’ Association. The Anti-Defamation League has called the Constitutional Sheriffs and Peace Officers Association an “anti-government extremist group.”
The constitutional sheriffs group was founded in 2009, after Obama’s inauguration, by Richard Mack, who spent two terms as sheriff of sparsely populated Graham County, Arizona. Mack gained some notoriety for being a plaintiff who sued to stop the 1993 Brady Handgun Violence Protection Act. The U.S. Supreme Court ruled Congress overstepped the 10th Amendment by requiring state and local officials to perform background checks on prospective gun buyers while a national background database was created.
The constitutional sheriffs’ event in Springfield earlier this month, prompted by Illinois sheriffs rebelling at the gun law, was promoted as a “workshop” that “should interest anyone who wishes to Restore Constitutional Law in America.” The session was closed to the media but listed Mack as a “featured speaker.”
Mack was a co-founder of the Oath Keepers militia group, some of whose members were found guilty of seditious conspiracy and other charges for crimes related to the breach of the U.S. Capitol on Jan. 6, 2021.
Mack left the Oath Keepers as a board member years ago and formed the sheriffs’ organization. The group opposed efforts by Obama and congressional Democrats who wanted to implement gun owner background checks and ban assault weapons following the 2012 mass shooting at Sandy Hook Elementary School.
While the group’s primary focus is on gun rights, it has morphed along with far-right Republican interests into other areas — opposing immigration and enforcement of COVID-19 mitigation orders while contending sheriffs have a role in investigating the 2020 presidential election and surveillance at local polling places.
“We need more sheriffs, especially, who are the top constitutional peace officer in each county that they serve, we need more of them to be vocal and to step up and say, ‘You know, when I look through the constitutional lens of this law or this action, that it’s wrong, and we’re not going to do it and if it comes to our county, we’re going to stop that. We’re going to do what it takes to stop that in our county, because we have to protect the rights of our people. We’ve sworn an oath to do so,” Bullard said in the webcast.
“What’s right is right and what’s wrong is wrong. And this (gun) law is 100% wrong and we have to continue to push forward with that and hopefully, more and more officers and law enforcement leaders in our state and across this nation really understand that,” he said. “If we want to be united behind the badge, that badge has got to be serving the federal Constitution first and foremost.”
At a Jan. 26 news conference with Crawford County Sheriff William Rutan, Sheriff Brandon Francis from Jasper County said he was comfortable not enforcing the new gun law.
“When I took my oath as sheriff, the second line in my oath was to uphold the Constitution of the United States of America,” Francis said. “Obviously, there’s discretion in which laws that we enforce. But a law that would be a violation of our constitutional rights is something that we would not enforce.”
Among those who issued the letter stating the Illinois law violated the Second Amendment was DuPage County Sheriff James Mendrick, who faced intense criticism from county Democrats, including County Board Chair Deb Conroy, over the refusal to enforce the law.
Mendrick said he would not send law enforcement officers door-to-door to see if lawful gun owners had registered their weapons. The new law doesn’t require gun owners to register their so-called assault weapons until October of this year and the outright ban on having an assault weapon for anyone not registered to have one doesn’t go into effect until 2024.
Mendrick in late January issued a joint statement with Conroy and State’s Attorney Bob Berlin, a Republican, that acknowledged door-to-door checks were not part of the law and that the sheriff “was committed to enforcing all state and local laws.”
But Mendrick later denied backing down. Speaking at a Wayne Township Republican Organization meeting at a Carol Stream restaurant on Feb. 9, he said language specifically dealing with his enforcement of the law was removed from the statement at his insistence before he agreed to sign it.
“The gun law verbiage was taken out to satisfy me that I wasn’t going to pledge to this gun law,” he said, later lashing out at the law as “garbage” and an example of Democratic ideology and “a furtherance of their socialist agenda.”
“This is a pattern, people. This is a pattern of taking away your freedom. It’s a pattern toward socialism. It’s a pattern of taking away everything that you know. Look at the economy. Look at what’s going on in your schools. Look what’s going on in law enforcement. I mean, is there a realm I am missing that they didn’t touch? Your entire way of life is changing,” Mendrick said to an audience of about 35 people.
“I don’t care if the Democrats hate me and the media hates me. Do you really think I’m gonna get their votes anyway? I mean, really. And this is the Republican problem. A lot will be, ‘Oh, I’m so sorry. Let me join with …’” he told the GOP group. “No. Absolutely not. Hold firm. Do your job. Be a Republican. And don’t waver to these people just because they’re crying and screaming at you.”
In an interview with the Tribune, Mendrick recounted the “slippery slope” argument often used by gun rights advocates.
“There’s millions of guns out there. And, you know, gun owners, lawful gun owners, this makes them feel that their rights are being infringed upon, that this is just the beginning. How much further will it go after this?” he asked. “If this follows the path of smoking, you know, you could see a law like this in 10 years, nobody is going to be owning any handguns.”
Asked if he sees himself as being part of a movement like the constitutional sheriffs, Mendrick said, “No, I see myself as being a conservative that’s trying to safeguard my society.”
“I don’t know what ultimately my legal authority is, but I felt that I had to be responsive to the citizens of DuPage County who really feel threatened by this,” he said.
Like his downstate counterpart in Jefferson County did in the constitutional sheriffs’ group’s webcast, Mendrick frequently referenced God in speaking to the Wayne Township Republicans.
He said “God took care of me” by making it impossible for him to staff enough deputies to conduct the registration checks and he condemned Democrats for “the way they’ve taken God out of society” and “erasing history.”
“I am going to say it right now. I’m a strong believer in God. I believe that’s how I get to where I go,” he said.
Farris, the Texas Christian University professor, noted “this larger movement in U.S. politics around Christian nationalism.” She said while she has not specifically researched the issue among sheriffs, “it makes sense to me that there’s kind of overlapping ideas here about America in their minds being a Christian nation that requires some use of force to protect this kind of mythical origin that they talk about.”
Mendrick said the nonenforcement letter he put out “was generated from the Illinois Sheriffs’ Association,” adding, “It was them who built that letter to make sure that it didn’t violate any laws when it was written.”
Farris said she was not surprised the sheriffs’ association took the initiative.
“Over the last 10 years, I think we’ve seen state associations grow in power and strength, a recognition of needing to be protecting what they see as sheriffs’ interests and sheriffs’ power as well.”
In an interview with the Tribune, Jim Kaitschuk, the executive director of the Illinois Sheriffs’ Association, said, “Police officers and sheriffs certainly have the ability to say, ‘I don’t believe this is constitutional.’ And I think that’s what they said,” by issuing the nonenforcement letter.
“There was no push for them to do so. (It) was just making them aware that others (would) probably be doing something that, (if) they want to do something similar, they were welcome to do so,” said Kaitschuk, who has headed the association for five years.
Asked about the association’s 2013 resolution recognizing the courts’ authority to determine a law’s constitutionality and acknowledging sheriffs lack that legal authority, Kaitschuk said he was unaware of the document and couldn’t speak to it.
“But I think sheriffs have a right just like anybody else does to have an opinion on something, right?” he said. “So, I think they said what their opinion was.”
Despite individual sheriffs asserting their belief that they can adjudicate the constitutionality of a law, the sheriffs’ association also has filed a “friend of the court” brief supporting a federal court challenge to it.
The association contends the law crosses the “bounds” of constitutionality and “demands that sheriffs enforce a law that deprives the law-abiding citizens they serve of their constitutional right to keep and bear arms for lawful purposes, including sport and self-defense.”
“Because law enforcement should never be compelled to violate the constitutional rights of Illinois citizens, the ISA supports plaintiffs’ action to enjoin the implementation of (the law) and to have the statute declared unconstitutional,” the sheriffs’ association court filing says.
Citing emails it obtained from several county sheriff offices, the Institute for Research and Education on Human Rights, a group that tracks white supremacist organizations, said Kaitschuk passed on information to sheriffs about the Constitutional Sheriffs and Peace Officers Association event in Springfield.
Kaitschuk said he learned of the Springfield event from Jennifer Martin, a Perry County Board member, and spoke to her at the request of Jefferson County Sheriff Bullard. Martin is facing disorderly conduct charges for an incident last year when she refused to leave a local high school and got into a loud argument with the principal and a police officer while school was in session.
Martin was vocal in opposing the masking of schoolchildren in 2020 and 2021 and contended schools received large sums of COVID relief money in exchange for forcing children to wear masks.
Kaitschuk said he had no previous knowledge about Martin. As for disseminating information about the sheriffs’ group, he likened it to an “FYI,” shorthand of “for your information,” and said it was “not something I was supporting or endorsing.”
“I forward information at the request of sheriffs all the time,” he said. “I get information that is about something going on or something that they might want to be aware of and I send it out.”
“It wasn’t, ‘Hey, go,’” he said.
In the end, only about a dozen vehicles were parked outside the Springfield venue for the constitutional sheriffs’ association event. But Farris said the movement “has really expanded” to “where we find sheriffs who are expressing these views who aren’t necessarily members of the CSPOA.”
“This whole movement really raises some substantial questions about what’s the role of federalism in governing and how do we have this, like rogue group that doesn’t subscribe to what have been kind of accepted norms or practices or legal doctrines,” Farris said.
Farris said the actions of sheriffs and the response from legislators “is really setting up a constitutional or governing battle that is really interesting.”
“Largely there hasn’t really ended up being some kind of major conflict between higher representatives and sheriffs,” she said. But in Illinois, lawmakers have questioned sheriffs about their position, something she said was “new in that sheriffs actually have been confronted on their ideas.”
State Rep. Kelly Cassidy of Chicago was one of the Democrats who sponsored the assault weapons ban legislation a decade ago. She said there has been a notable “reversal in terms of the partnership” in working with law enforcement groups like the state sheriffs’ association in the last 10 years.
Now, she said, the sheriffs have been doing “a lot of mental gymnastics to justify violating their oath of office. At the end of the day, that’s what it is. And that’s by their own words from a few years ago.”
Gorner reported from Springfield.