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Is Davis County Sheriff's Office new Second Amendment gun policy symbolic or functional?

The Davis County Sheriff’s Office in Farmington is pictured on Thursday, March 18, 2021.

The Davis County Sheriff’s Office in Farmington is pictured on Thursday, March 18, 2021. (Steve Griffin, Deseret News)

FARMINGTON — A new policy announced by the Davis County Sheriff's Office this week demonstrates the complicated relationship between local, state, and federal enforcement agencies outlined in constitutional law.

The policy prevents deputies and other department employees from enforcing federal laws or presidential executive orders that they determine may infringe on the U.S. Constitution's Second Amendment right to bear arms.

The policy was enacted on June 1; the Davis County Commission and Davis County Attorney Troy Rawlings expressed their unanimous support for the decision in a joint press release with the sheriff's office the same day.

The Davis County Sheriff's Office says it will enforce "clearly established" laws that don't "infringe on individual rights" and are meant to protect the general public by reducing violence and preserving peace and order.

The new policy prevents law enforcement officials from taking action or using county resources to enforce an executive order by the president of the United States or any federal, state, or local political entity or enforcement agency not affirmed by Congress or the Utah State Legislature "which appears to exceed the power of the political entity, violate the Constitution, or inappropriately infringe on a law-abiding citizen's right to keep and bear arms."

University of Utah law professor RonNell Andersen Jones says the policy may be largely symbolic, but there are nuances.

"The sheriff's department officials likely already took an oath to support and defend the Constitution," Andersen Jones said. "They already must respect the individual liberties protections of the Constitution, so saying that they will do so is symbolic, but it doesn't change the dynamic in any way."

Enforcement decisions

But Andersen Jones said the key, in this case, is that the contours of constitutional rights are complicated.

Not every regulation or limitation can be regarded as a violation of a constitutional right. The Supreme Court has made some decisions regarding the constitutionality of certain regulations and limitations regarding the Second Amendment, but recent executive actions on firearm regulations have not yet been assessed by the court.

"When a sheriff's department or a city or a county enact a policy prohibiting the use of any county resources in enforcing presidential executive orders or other federal decrees that are unconstitutional, it really begs the question of who is going to make the determination of what is constitutional and what isn't," Andersen Jones said. "The constitutionality question is a big one and a complicated one, and it doesn't really look like Davis County is tussling with that all that carefully, they're just making a more sweeping determination that they will use their enforcement."

Andersen Jones said that if the county wanted to be more specific it could list specific executive orders, federal statutes or regulatory decisions it refuses to enforce and list its own expansive views of gun rights. Constitutionally, the sheriff's department is free to use its enforcement resources however it chooses, including the choice not to enforce various federal provisions, but that doesn't make Davis County citizens immune to enforcement federally.

In addition to Davis County residents being subject to federal enforcement, the county itself is subject to conditions with federal funding. According to Anderson Jones, the federal government can impose reasonable conditions on the receipt of federal funds by states and municipalities like counties and cities. As long as the federal government makes clear what the federal funding is tied to, it is free to condition the spending on states or localities engaging in various behaviors.

The caveat being the federal government can't condition its funding on an obligation for a city or a county to violate the Constitution. The contradiction may lead to a source of litigation in the future, but there are several cases in which courts have upheld the connection between federal funding and some condition placed on the city or state that they must enforce a law or must assist with the enforcement of federal law in some way in order to qualify for that funding.

"That might be an area where we see the federal government flex its powers," Andersen Jones said. "It can't tell the county what to do — the Constitution prohibits that — but the Constitution does allow the federal government to spend its own money and then to condition the receipt of those funds on the observation of certain conditions."

The law professor pointed to sanctuary city or sanctuary county declarations regarding the Second Amendment, which opt out of firearm regulations altogether. Anderson Jones says this is a clearer way for a city or county to state its intentions, but Davis County's particular policy presents a "tricker space."

Discussions of Second Amendment state sanctuaries have grown in popularity with the change in presidential administration. Utah is no exception, with several counties within Utah declaring themselves as "Second Amendment sanctuaries." On a state level, Utah lawmakers recently approved two resolutions in a special session to declare support for Second Amendment rights and to explore the possibility of announcing Utah as a Second Amendment sanctuary.

The avoidance of sanctuary language in Davis County's policy was intentional. Rawlings, who expressed his "unequivocal support" for the policy, said the term sanctuary wasn't present because the policy "is not a carte blanche declaration of defiance."

Symbolic or functional?

Davis County Sheriff Kelly Sparks echoed Rawling's sentiment, saying that some of the language in sanctuary resolutions "could hamper our ability to use some of the laws that we already have on the books that have gone through the proper process to become law, have had the proper judicial notice, so been upheld by the court. We use those laws all the time to help us combat violence in our community."

Sparks also added he felt that sanctuary resolutions were largely symbolic and this policy within a law enforcement area would be actionable and show a resolve to defend constitutional rights.

The constitutionality of laws applied is up to officer discretion, discretion administered by the sheriff's office and consultation by the county attorney. Sparks acknowledged that the application of the policy could be "somewhat subjective."

Determinations on recent or upcoming executive orders have not been announced by the Davis County Sheriff's Office.

These most recent regulations include some set forth by the Biden administration regarding "ghost guns" and the move to tighten regulations on stabilizing braces. Executive orders regarding gun regulation to date include the Trump administration's order banning bump stocks after the deadly Las Vegas shooting in 2017.

Sparks said that former President Donald Trump's executive order regarding bump stocks "would not be precluded necessarily by this policy."

Preventing gun violence

The growing epidemic of gun violence across the United States was considered when drafting the policy, Sparks said.

"One of the reasons that we wanted to do this as a policy is so that we would maintain be sure and maintain the ability to use the laws that we have on the books now to help reduce that violence and respond to that violence," the sheriff said. "These incidences of violence, I firmly believe that we need to do all we can to stop them; they're tragic and they're sad and that loss of life, it's just a tragedy at an epic scale. But I really believe that the right way to handle that is by focusing on the perpetrator and not on the weapon of choice."

That sentiment was echoed in the Davis County Commission meeting.

"There's been some concerns because of what we've seen with these mass shootings. I do not believe these mass shootings are being caused because someone owns a gun; I believe it's because people need to seek treatment. Guns do not shoot themselves," commission chair Bob Stevenson said. "And we will never resolve that problem until we resolve the mental illness issue in this country."

Due to the phenomenon of sanctuary cities being new in regard to the Second Amendment and gun regulations, data relating to gun violence rates in those areas is not available.

"There are raging debates, amongst social scientists, legal scholars and others about the correlation between gun control and safety, with arguments being made in both directions. The sanctuary city setting might be a dynamic in which we could test some of those premises, but we haven't gotten to a place yet where we can gather that data or see what the effect is," Anderson Jones said.

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