Apr 7 2013

Colorado Lawmakers – Secret Service Must Arrest Local Sheriffs for Failing to Enforce an Unenforceable Law

by Bob Adelmann

COGutsSheriff

The furor over the signing into law of Senate Bill 13-013 earlier this week by Colorado Governor John Hickenlooper went viral following the publishing of an article by Mike Opelka at theblaze.com.  Opelka suggested that the new law could be “used to arrest or force county sheriffs to enforce the state’s new gun laws,” whether they wanted to or not.

It was fanned into white heat when World News Daily quoted Colorado State Representative Lori Saine who exclaimed:

 This is insane! In theory if a Secret Service agent is in a county where the sheriff has refused to enforce some of the recent unenforceable gun laws, the agent could [ignore the sheriff entirely and] arrest any individual if he believes the law has been broken…

I believe it is intended to be used for setting up a framework so that at some other time they could expand it to possibly include being able to arrest a sheriff who is refusing to enforce unconstitutional laws.

Charley Barnes, writing at K99.com in Denver, further fanned the controversy last Monday when he wrote:

By the sounds of it, Colorado is being targeted with an attempt to set up loopholes that will allow the U.S. Secret Service to arrest and remove an elected sheriff for refusing to enforce the law, or anyone [else] breaking the law.

His post went viral which caused the Larimer County Sheriff’s office to get so many phone calls and emails that Sheriff Justin Smith was forced to respond and “clarify” what SB 13 was really designed to do. Here is Smith’s response to Barnes:

In the last decade, Colorado started to grant limited authority to certain federal law enforcement agencies. The purpose is so that if they witness a citizen being victimized, they can act and turn the case over to a local police officer (because most crimes against our citizens are not federal crimes and they have no other jurisdiction to intervene as federal officers).

The law also allows them, in cases where they are investigating a crime that is against both state and federal law, to file the case with our local DA [District Attorney] in situations where the damage amount doesn’t meet a threshold where the federal prosecutors will file it in federal court.

If you read the bill, you will see the limitations clearly in it. As sheriffs, we are the beacon against over reach by federal authorities, but in this situation, it is not the case.

(signed) – Sheriff Justin Smith

However, when one does actually read the specific language of SB 13 a clearer and more ominous picture emerges that refutes Smith’s disclaimer.  Taken directly from the language of the law,

The law gives a special agent, uniform[ed] division officer, physical security technician, physical security specialist, or special officer of the United States Secret Service limited peace officer authority while working in Colorado.

On its face, the law gives “limited peace officer authority” but without ever limiting that authority. Here’s the rest of the law:

THE SECRET SERVICE AGENT IS A PEACE OFFICER IN THE FOLLOWING CIRCUMSTANCES:

(I) RESPONDING TO A NONFEDERAL FELONY OR MISDEMEANOR THAT HAS BEEN COMMITTED IN HIS OR HER PRESENCE;

(II) RESPONDING TO AN EMERGENCY SITUATION IN WHICH HE OR SHE HAS PROBABLE CAUSE TO BELIEVE THAT A NONFEDERAL FELONY OR MISDEMEANOR INVOLVING INJURY OR THREAT OF INJURY TO A PERSON OR PROPERTY HAS BEEN, OR IS BEING, COMMITTED AND IMMEDIATE ACTION IS REQUIRED TO PREVENT ESCAPE, SERIOUS BODILY INJURY, OR DESTRUCTION OF PROPERTY;

(III) RENDERING ASSISTANCE AT THE REQUEST OF A COLORADO PEACE OFFICER; OR

(IV) EFFECTING AN ARREST OR PROVIDING ASSISTANCE AS PART OF A BONA FIDE TASK FORCE OR JOINT INVESTIGATION WITH COLORADO PEACE OFFICERS.

Simply put, a Secret Service agent is granted the same powers as local law enforcement officers if he

  1. Sees a crime being committed,
  2. Has “probable cause” that a crime has been committed or is about to be committed,
  3. Has been asked to assist local law enforcement, or
  4. Is part of a joint task force with local law enforcement.

Eerily, the bill goes on to say that this agent doesn’t have to follow Colorado rules when exercising those powers.  Here’s more from the law:

(b) THE SECRET SERVICE AGENT ACTS IN ACCORDANCE WITH THE RULES AND REGULATIONS OF HIS OR HER EMPLOYING AGENCY.

And who employs this Secret Service Agent? The United States Government. And under its rules, the Fourth Amendment is erased from consideration. Here’s the language:

(2) A SECRET SERVICE AGENT IS A PERSON WHO IS EMPLOYED BY THE UNITED STATES GOVERNMENT, ASSIGNED TO THE UNITED STATES SECRET SERVICE, EMPOWERED TO EFFECT AN ARREST WITH OR WITHOUT A WARRANT FOR VIOLATIONS OF THE UNITED STATES CODE, AND AUTHORIZED TO CARRY A FIREARM AND USE DEADLY FORCE IN THE PERFORMANCE OF HIS OR HER DUTIES AS A FEDERAL LAW ENFORCEMENT OFFICER.  (emphasis added)

This is plain English. The Secret Service Agent, acting as an agent of the federal government and not the state of Colorado, may, by using deadly force if necessary, arrest an individual without a warrant for any activity under the United States Code observed by that officer which gives him “probable cause” to conduct the arrest.

It is not too much of a stretch to conjure an activity by a sheriff of a Colorado county that is perceived by that agent as violating, or might possibly violate, the United States Code. If that sheriff is observed failing to enforce a law, the agent, under SB 13, is allowed – no, required – to use deadly force if necessary to arrest that sheriff.

Some might suggest that this is tenuous, a stretch, an unnecessary overreaching of the potential impact of SB 13. Perhaps so. But it is helpful to remember that the United States Code is over 200,000 pages long and contains 51 titles, one of which is entitled Domestic Security. The Department of Homeland Security enforces that part of the Code, with the responsibility that, as noted by Wikipedia, “works in the civilian sphere to protect the United States within … its borders. Its stated goal is to prepare for, prevent, and respond to domestic emergencies, particularly terrorism.”

Is it too much of a stretch to see how the failure to enforce a state law by a county sheriff might enable terrorists in the eyes of an agent of the Secret Service?

As Charley Barnes put it:

I think the bottom line is [that] there are now around 350 sheriffs from all across the country who are staring into a barrel of trouble when they refuse to arrest someone based on the 2nd Amendment issues they say they will not enforce.

At least one pro-gun Republican state senator who voted in favor of SB 13 is having second thoughts.  At a Town Hall meeting on Saturday in Falcon, Colorado, at the Gathering Stones Community Church, state senator Kevin Grantham, a strong supporter of the Second Amendment, said that the bill was only “intended” to assist local and state law enforcement officials in their duties. He wrote to one of his constituents, saying,

Mark, I will tell you what I’ve been telling everyone about this legislation since it’s taken on a life of its own: as far as votes go I suppose all things being equal I would probably take that one back…

The one criticism leveled against the bill and against my vote, to which I humbly acquiesce, is that it does grant power where none existed before. For that alone I would like to have [my] vote back.

The furor will likely continue and undoubtedly even increase if and when a Secret Service agent does attempt to do exactly what Barnes has suggested: he arrests a local sheriff for failing to enforce an unenforceable law.

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A graduate of Cornell University and a former investment advisor, Bob is a regular contributor to The New American magazine and blogs frequently at www.LightFromTheRight.com, primarily on economics and politics. He can be reached at badelmann@thenewamerican.com.


Jun 8 2011

Which is Superior: Invasive Fingers or our Constitution?

No matter how you slice it, mandatory TSA screenings and pat-downs are both problematic and unconstitutional. 

I’ve blogged about the TSA screenings before herehere, here, and here.  Now, a recent battle over TSA screenings in Texas has shed more light on the precarious position in which our Constitution and freedom lie.

The Fourth Amendment

Read the 4th Amendment of the Constitution and determine for yourself if the government has legitimate, probable cause to randomly invade our persons with these unreasonable searches: 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Brave lawmakers across the country understand this part of the Constitution and are beginning to take action.

States are Pushing Back

New Hampshire, Texas, and now Utah legislators have taken up measures to push back against TSA screenings by attempting to make invasive screenings and/or pat-downs illegal.  Most recently, Texas was the state nearest to successfully passing such legislation.  

When the bill passed the Texas House and landed safely in the Senate  with all necessary votes ready to pass, that’s when things got interesting.   TSA  officials descended upon the Texas Senate and successfully bullied away the law that would have ultimately unplugged their power locally, and that would have begun the dismantling of their power nationally.  Read this 5/24/11 Texas Tribune article, “Fed Threat Shuts Down TSA ‘Groping Bill’ in Texas:”   

“House Bill 1937, which was passed by the [Texas] House earlier this month, would make it a misdemeanor offense for a federal security agent to ‘intentionally, knowingly, or recklessly [touch] the anus, sexual organ, buttocks, or breast of the other person, including touching through clothing, or touching the other person in a manner that would be offensive to a reasonable person.’ ”

“Two TSA officials visited Patrick at the Capitol earlier today to discuss the legislation. They warned him that the legislation ‘could close down all the airports in Texas,’ he said. After their departure, U.S. Attorney John E. Murphy sent a letter to Speaker of the House Joe Straus and Lt. Gov. David Dewhurst saying the bill would ‘conflict directly with federal law’ and that if it became law, ‘TSA would likely be required to cancel any flight or series of flights for which it could not ensure the safety of passengers and crew’ until the agency could seek a court order stopping the measure from being carried out.

This was enough to kill support needed to pass the bill, so its sponsor, Texas Senator Dan Patrick(R), withdrew it. 

And the writer of this blog lets out yet another sigh of frustration watching courage gives way to fear. 

The TSA Retorts

As is typical of an unaccountable bureaucratic entity that suffers little risk of elimination, and in predictable self-serving, power-wielding fashion, the TSA Blog post dated 5/27/11 “Texas House of Representatives Seeking to Ban Current Pat-Down” proudly says this about the Texas situation:

“What’s our take on the Texas House of Representatives voting to ban the current TSA pat-down?  Well, the Supremacy Clause of the U.S. Constitution (Article VI Clause 2) prevents states from regulating the federal government.” 

So here we witness the brazen self-supremacy the TSA exerts as it falsely tells us that the Constitution prevents states from regulating itself.  

To their claim, I ask, “Really???”    

The TSA Boasts a Gross Misinterpretation of the Constitution

By my reading, Article VI declares the Constitution as the supreme law of the land:

Article VI Clause 2: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

And certainly, there are definite, yet limited, areas where the federal government, particularly Congress, is given supreme power.  Article 1 Section 8 lists all of these enumerated powers.  

But it is clear that outside these enumerated powers, state powers are intended to be “numerous and indefinite,” while federal powers are to remain “few and defined.”  Read my 8/9/10 post  “Original Intent:  Few and Defined” for a clear understanding of our founders’ original intents on federal and state powers. 



Challenge the Premise and Ask the Real Questions

With Constitutional principles in mind, and when it is falsely asserted that “states are prevented from regulating the federal government,” let’s challenge the premise that either states or the federal government are superior to each other.  Instead, ask and answer these questions:

  • Is the TSA itself constitutional?
  • Are its regulations constitutional?
  • Is the Constitution superior to all levels of governments?

And Always Ask:  At What Cost?

One might argue that TSA’s new version of “national security” has prevented terrorist attacks since 9/11;  however, anytime freedom is compromised in the name of safety, our Constitution is delegitimized and weakened, which puts our national freedoms and founding principles that protect those freedoms in very clear and present danger.

We live in the greatest nation in the world,where freedom has truly rung like no other time before in history. We have the brightest minds right here.  As I’ve mentioned before, there are smarter solutions to airline security than ones that compromise our freedoms, such as the TSA is being allowed to enforce.

I’m not suggesting the answer is an easy one, but… at what cost will we pursue “safety?”  If the Constitution is no longer revered as the legitimate and final law of our land, will we really end up “safe” in the end? 

We must know and defend this Constitution before it is completely irrelevant, and before our freedoms are but a memory being shared with grandchildren. 

Michelle Morin is Mom4Freedom, a conservative blogger, speaker, and patriot for freedom and America’s founding principles. Join her for valuable freedom updates here.