Sheriffs in stand-off over Second Amendment bill
March 4, 2021
SUNDANCE — All 23 of Wyoming’s sheriffs have registered alarm at the damage a bill under consideration by the Legislature could do to policing in this state. Though the Second Amendment Preservation Act (House Bill 124/Senate File 81) is intended to be pro-Second Amendment, says Crook County Sheriff Jeff Hodge, its implications are strongly anti-law enforcement.
“It’s not intended to be anti-law enforcement, but it is,” he says. “The intention was good but they need to talk to peace officers and prosecutors.”
If this legislation is passed, the sheriff says, it could turn an ordinary arrest into a career-ending decision for a peace officer. While it does little to protect the average citizen and removes a protection that peace officers rely on, he says it only provides protection for one particular group: criminals.
The intent of the Second Amendment Preservation Act is to prevent firearms from being confiscated by federal entities due to federal laws that may be passed in the future, and it does this by holding state law enforcement officers accountable. However, while the sheriffs may have no issue with this as a concept, they feel the wording is extremely flawed.
The first section of concern states that no person, including a peace officer, shall have the authority to enforce any federal law or ordinance that infringes on a person’s right to keep and bear arms. Anyone who knowingly violates this or knowingly deprives a resident of Wyoming of their Second Amendment rights shall be liable for this action.
The second concerning section states that anyone who does so shall be “permanently ineligible to serve as a law enforcement officer” and immediately terminated from their position. The bill removes “qualified immunity,” a legal principle by which an officer is immune from civil suits unless the plaintiff can show they violated statutory or constitutional rights a reasonable person would have known.
According to Hodge, Wyoming’s sheriffs were not consulted about this wording. Those involved in law enforcement on the ground could quickly have explained the problematic implications.
In a real-life situation where a crime has been committed, Hodge explains that a peace officer may seize a firearm, as evidence or to prevent further harm from being inflicted, for example. However, if the case becomes federal and the gun owner is ultimately not convicted of any crime and thus remains a law-abiding citizen, that decision would lead to the officer losing his job.
“Everything you’re doing, you’re always going to have that in the back of your mind,” says Hodge.
“This could actually inhibit law enforcement from doing our job. It’s going to make it to where we don’t want to seize a firearm in any case for an investigation because, if they are found not guilty, you’ve violated the statute and are ineligible to be in law enforcement.”
While the bill is intended to address situations in which federal laws are applied, it’s not exactly unusual for federal law enforcement to become involved in local cases.
“There are so many circumstances that we already work with federal law enforcement: child pornography cases, aggravated assault, child trafficking,” says Hodge. “They might originate locally, but they can expand outside of our jurisdiction so we automatically look for federal officers to partner with.”
Another example of how problematic this legislation could become involves self-defense, says Hodge. If one person shoots another in self-defense, an officer is going to seize that firearm for evidence until the investigation is complete.
“If the investigation is completed and it turns out to be self-defense, you have just taken a firearm from a law-abiding citizen. You are law-abiding until you have been convicted,” he says.
“If it ends up going to court and he’s found not guilty, he’s still a law-abiding citizen so [the officer who seized the firearm] has violated the statute.”
What are the implications of this for peace officers? It’s not difficult to imagine a scenario in which an officer feels reluctant to seize a firearm even in a potential murder case, as doing so could ultimately bring an end to their career if that person is not convicted.
“Even though we have probable cause to arrest, it can still get to court and be dismissed,” he says.
In a letter from all 23 sheriffs to the Wyoming Legislature, this is described as an “impossible dilemma.”
“For example, we could normally seize a firearm as part of a local case and turn the firearm over to federal entities for prosecution. These cases run the gamut of aggravated robbery, child pornography and various dangerous drug investigations,” states the letter.
The letter also expresses concern over the stripping of qualified immunity. “To punish and hold liable a peace officer who seizes a weapon which is later returned, is wrong,” it states.
An officer having qualified immunity doesn’t mean citizens have no protections, Hodge explains. Right now, if an officer were to violate someone’s rights intentionally, that person would have every right to sue.
“It protects us when it’s an unknowing violation of an unknown constitutional right,” he says. “In other words, it hasn’t been decided by courts or it’s under good faith. This could open up the floodgates for lawsuits and anti-law enforcement groups.”
The knock-on effects of this legislation would be immense, the sheriff says, from the huge increases in insurance costs thanks to the lawsuits that would inevitably be initiated, to the impacts on recruitment.
“You aren’t going to be able to recruit because nobody is going to want to be in law enforcement,” he says.
The House version of the bill is co-sponsored by 13 representatives, including Crook County’s own Representative Chip Neiman, as well as six senators. Hodge is concerned the bill will be passed exactly as it stands due to the fear of being labelled “anti-Second Amendment.”
“The thought now that you’re hearing from legislators is that, if they don’t sign on to these bills, they’re automatically anti-Second Amendment, which is just absurd,” Hodge says.
“Surely we can do good legislation and protect Second Amendment Rights and be pro-law enforcement [all at the same time].”
Hodge does not believe effective legislation can be achieved by catering to special interest groups only.
“Good legislation comes from everybody discussing, debating and at times compromising,” he says. “Being bullied into signing legislation over fear of special interest groups that likely do not have the best interests of Wyoming citizens in mind and are often not even from Wyoming should be very concerning to Wyoming citizens.”
The Second Amendment Preservation Act isn’t the only piece of legislation Hodge finds concerning. He also has issues with HB-117, which would prohibit a private property owner from restricting firearms on his property. Again, the intention of this seems to be the protection of Second Amendment rights, but Hodge believes the practical implications haven’t been well thought through.
“If you own a restaurant, you can’t prohibit someone from walking in there with an AK-47 and sitting down to eat,” he says. “You can’t restrict someone from coming on your private property with a firearm on.”
It’s an attack on private property rights, Hodge says, and would collide the constitutional rights of one person with those of another. Who would take precedent is something the courts would have to decide.
“As I’ve always said, your rights don’t trump another person’s rights,” he says.
Another bill on the horizon would repeal gun free zones on school property. Hodge says he’s not a huge supporter of “gun free zone” signs at schools but, on the other hand, doesn’t think the kids of Crook County would particularly enjoy playing in a junior high basketball game while feeling intimidated by someone sitting on the sidelines with a rifle slung over their shoulder.
“Because they can, somebody will,” Hodge says. “I think there can be some type of compromise that could address the issue of gun free school zones and regulating school buildings.”
There’s surely common ground on the issue of protecting Second Amendment rights while allowing law enforcement to do its job, he says, but it isn’t going to be found in the legislation that’s currently on the table.