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Posse Comitatus

A newsletter about sheriffs and the political power of law enforcement

From the California Constitutional Convention of 1849.

Elected Versus Appointed Sheriffs, Part 1

The Los Angeles County Board of Supervisors narrowly approved a motion that would set in motion a review of the possible methods for removing current Sheriff Alex Villanueva (via impeachment or recall) as well as the possibility of moving to an appointed sheriff system. Supervisor Mark Ridley-Thomas, who co-sponsored the resolution, argued that it was both about the current sheriff and about the creation of accountable law enforcement in the county.

California has a method to remove sheriffs already in place, and the BOS seems poised to consider measures that would make the process less onerous. San Bernardino County already passed such a measure that a California court found legal when the sheriff sued prospectively. The San Bernardino BOS hasn’t used it against a sheriff yet, and the provision itself seems to contemplate an instance where the sheriff has engaged in clear wrongdoing by the causes delineated in the measure: “(1) Flagrant or repeated neglect of duties; (2) Misappropriation of public property; (3) Violation of any law related to the performance of the official's duties; and (4) Willful falsification of a relevant official statement or document.” A California appellate court held that the measure was constitutionally sound because it provides for notice and an opportunity for the sheriff in question to argue in his favor.

In other words, in California at least, most county resolutions to remove a sheriff (as well as other county-level elected officials) seem legally viable so long as they have a fairly rigorous standard.

The more interesting and controversial proposal would be to make the sheriff of Los Angeles an appointed position. Ex-District Attorney Steve Cooley poo-pooed the idea in the L.A. Times, calling it “harebrained.” As the idea of appointed sheriffs gets more traction, I would expect a lot more of these comments, mostly made by sheriffs and other elected county officials making vague, unsubstantiated arguments about the “constitutionality” of changing the sheriff from elected to appointed as well as the unclear public good of elected law enforcement.

As I have argued on Twitter, however, I think these arguments are a lot of posturing without much support. Yes, the California state constitution specifically provides that the sheriff – along with a raft of other county-level officials – be elected by the residents of that county. But, state constitutions can be amended. At one point, in fact, the L.A. Times argued that the California constitution was too easy to amend. And, when the original California constitution was drafted and approved in 1849, the drafters relied on a mishmash of other state constitutions which all had elected county-level governments. I would in fact argue that the original election of sheriffs had more to do with the idea of taxation and representation and nothing to do with policing or law enforcement. At the time of the drafting, sheriffs collected taxes, and a large chunk of the discussion among those present in 1849 related to how the state and county should value land versus profit. There was nothing about jails or policing.

Moving on to the present day. Importantly, I think there is some support to argue that both residents of California and state legislators support changes to the state of sheriffs. To wit: In late September, California legislators passed (in 2-to-1 votes in both houses despite vigorous opposition from the California State Sheriffs’ Association) a measure that allows counties to implement their own sheriff oversight commissions. In counties where the measure was put to voters, it passed by nearly 2/3 of the vote. This suggests to me that people are eager for a change and see sheriff oversight as a good thing.

If California were to amend its constitution to allow for the possibility of appointed sheriffs, I think a sensible course would be to allow counties to put the idea to a county-wide popular vote. The idea of a mandated state-wide change – which, I expect will be the fear-mongering propaganda tactic of sheriffs and the California Sheriff Association – does present problems, and there’s not a lot to be gained in forcing counties to appoint sheriffs if there isn’t political will. (I will add that I am not arguing that all changes to policing should be subject to popular vote, but there are good political reasons in a large and diverse state like California to allow counties to decide for themselves how to set up their sheriff’s office.)

I will add that this isn’t an unprecedented move. Just last week, the voters of King County, Washington (Seattle) voted in favor of an appointed sheriff system despite vigorous opposition from sheriffs and some rural residents. In Ramsey County, Minnesota (St. Paul), another sheriff that has caught my attention, the county board is considering making the position appointed. (Ramsey County, like King County, is a “home rule” county, which means the county board has more flexibility to determine its governance.) Unlike in King County, where the issue isn’t motivated by a particular sheriff, the current Ramsey County Sheriff Bob Fletcher won his last election by disqualifying his opponent and has implemented a raft of questionable rehires and expenditures (as well as a shady employee who says he filmed voter fraud) – all this in addition to his long history as sheriff the first time he was in that office (Sheriff Fletcher seems to have anticipated Trump 2024). As a four-term repeat sheriff, Sheriff Fletcher misused county resources to target specific political dissidents without due process or much evidence.

Unlike Steve Cooley, I don’t think the idea of appointed sheriffs is offensive on its face, nor do I think that electing sheriffs in 1849 means the same thing as it does today. And, there are good reasons to think about the benefits of appointed sheriffs, their popularity notwithstanding. Next week, I’ll cover what I see as the benefits and downsides to appointed sheriffs. But for this week, my main point is that just because something has been done for a long time does not strike me as a good reason to resist change. There is nothing sacred about the election of sheriffs and I think it’s important for reformers to think about coherent arguments to oppose sheriff resistance to change.

Posse Comitatus

Elected Versus Appointed Sheriffs, Part 1

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