Goshen News, Goshen, IN

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May 17, 2013

Debate up in arms

Sheriff defends comments on selective enforcement of gun laws

GOSHEN - Brad Rogers wanted to make a statement. He’s found an audience, though perhaps not an entirely receptive one.

Initially, the Elkhart County sheriff’s stance was met with acclaim. This was during an April 28 rally by gun rights supporters outside South Bend’s Morris Performing Arts Center. There, Rogers said he wouldn’t enforce any laws that may be enacted in the future infringing on the public’s right to bear firearms.

“I will not allow gun confiscation in my county and I will not enforce any additional antigun laws,” The GOP sheriff said to loud applause.

After Rogers’ comments were publicized, the response from media outlets and others was more mixed. Editorials in the Fort Wayne Journal Gazette and the South Bend Tribune have taken Rogers to task over his position. Recent letters to the editor in The Goshen News have been pro and con.

Figuratively speaking, Rogers is sticking to his guns.

“As sheriff, as a leader, I feel I have an obligation to provide input on things that will affect our county,” he said during an interview with The News. Rogers feels this includes issues related to gun control, gun laws and the Second Amendment.

The Indiana Sheriffs Association has taken stock of those issues, too. Asked for a comment Rogers’ stance on gun laws, ISA Executive Director Stephen Luce sent The Goshen News the Association’s official position on gun control.

That statement reads in part that Indiana’s sheriffs have taken an oath to uphold the U.S. and state constitutions, and that the Second Amendment to the U.S. Constitution guarantees citizens the right to keep and bear arms.

The group also states that efforts to keep firearms out of the hands to people who would commit violence are critical.

“We must increase our efforts to identify individuals with malevolent intent in advance and better use the system currently in place to prevent them from gaining access to firearms,” the ISA states. “...In addition to the vigorous prosecution for those who break the law, we must also focus our efforts on strengthening the safety and security of our school facilities, providing better access to mental health treatment, and enhancing training and resources for those who may be targets of violence.” The group also believes the “culture of violence that negatively impacts today’s youth” must be addressed as well.

Shari Mellin has offered her input, too. The chairwoman of the Elkhart County Democratic Party said it’s Rogers’ job to enforce laws whether he likes them or not.

“Certainly the voters should be aware that he doesn’t intend to enforce the laws he thinks are bad,” she said.

In Mellin’s view, Rogers seems to be trying to gain publicity with his stance on firearms. She also said the intent behind any gun-related legislation that’s been proposed has not been to take away the public’s weaponry.

“I think (Rogers) feeds the fear of some people who feel the government is going to come and take their guns away, and that’s just not true,” she said.

Mellin cited the U.S. Senate bill — recently defeated — that would have expanded background checks at gun shows.

“I don’t think a reasonable gun owner could argue against that,” she said, since it could prevent someone who shouldn’t have a firearm from getting one.

Rogers said background checks already exist at gun shows.

“I know, because I’ve been to gun shows,” he said. “I’ve even had my background checked during a purchase. Even a sheriff gets his background checked.”

Mellin says the government isn’t going after guns. Rogers, however, is wary of what that same government might propose.

The whole truth?

Rogers cites both the U.S. Constitution and Article 1, Section 32 of the Indiana Constitution in his support of the public’s right to bear arms. They’re also key to his opposition to efforts that would infringe on that right.

“It doesn’t take a scholar to know that any legislation that is attempted to pass is not antigun legislation so much as it is anti Second Amendment,” Rogers said. “It’s not up to (lawmakers) to legislate anything that would infringe on the Second Amendment.”

Rogers drew a parallel between potential firearms-related regulations and “Obamacare.” The federal health care plan, he said, contains all kinds of surprises that are impacting business finances and county government budgeting.

Similarly, Rogers said, “If they pass gun legislation, I don’t trust (federal lawmakers) to tell us the truth on what’s in it. They’ve had experience not telling us everything.”

Rogers also discussed the types of theoretical gun-related rules he wouldn’t enforce.

“Things like bans, magazine restrictions, anything that would restrict the ownership of handguns,” he said. “It’s hard to say for every legislation. I would have to see the legislation.”

Still, Rogers said, if the law restricts the ability of people who aren’t convicted felons to own firearms, he’ll have issues with that.

The sheriff also addressed the mental health angle of the firearms issue. He indicated that much has been done to dispel stigmas about mental health and to get people in for treatment.

“...And what these potential laws could do is open that privacy up to the government so even if (someone) was on depression medicine for a week, (they) might be banned from buying a handgun,” he said. “To me, that’s ludicrous.”

Rogers said there’s nothing in his oath of office saying he has to enforce all laws. He said that historically, police officers have used their discretion, and cited the example of officers issuing warnings rather than speeding tickets.

The sheriff also said there are instances when laws are unjust.

“There can be times when there are laws that are oppressive, that are unconstitutional,” Rogers said, and neither the sheriff nor any other police officer is obligated to uphold them.

According to one legal scholar, Elkhart County’s sheriff has a point.

Duty and the law

Ryan Scott is an associate professor at the Indiana University Maurer School of Law. He teaches criminal law and criminal procedures, and focuses on the responsibilities of public officials who enforce criminal law.

Earlier this week, he also dealt with a question: Can Sheriff Rogers do what he says he will regarding potential gun laws?

“I think the right answer to this is, ‘It depends,’” Scott said.

As a general matter, according to Scott, a sheriff has a duty to enforce all laws that are constitutionally passed in the state of Indiana.

“Executive branch officials generally have a duty to take care that the laws are faithfully executed,” he said. However, Scott cited a couple of important exceptions.

One is that, given limited resources, all law enforcement agencies have to make tough choices as a practical matter about their enforcement priorities.

“No sheriff’s office can possibly vigorously enforce every law that’s on the books,” Scott said.

A more rare instance is when executive branch officials decline to enforce a law they deem to be unconstitutional, Scott said. And he doesn’t altogether view that as a bad thing.

“As a matter of good constitutional governance, it is the duty of every executive branch official to comply with the Constitution,” Scott said. “They take an oath to defend the Constitution. It’s perfectly ordinary and in fact appropriate for officials to make their own judgment, for the executive branch to make its own judgment about what laws are constitutional before enforcing them, and to refrain from enforcing unconstitutional laws.”

However, Scott said it would be “a real shame and most inappropriate” for any sheriff, attorney general, governor or executive branch official to decline to enforce laws they merely disagree with as a matter of policy.

“Even if they think the law is unjust or impractical or ineffective, it can’t be that the executive branch can fail to enforce laws it disagrees with,” he said. “You can imagine what a disaster it would be if that were the rule — every time we had a change of administration, the new administration could refuse to enforce all the laws it didn’t like.”

A leadership role

Rogers right-to-bear-arms advocacy has drawn attention even outside his jurisdiction. Earlier this year, he was in the national spotlight on CNN’s “Anderson Cooper 360,” speaking during a town hall-style gathering focused on the gun control debate.

According to Rogers, he didn’t set out to be the go-to guy on guns.

“It’s not something I’ve by design tried to do,” he said. However, Rogers added that he’s a leader in an elected position. And he feels the public likes to see leaders who lead with conviction.

“It’s, I think, sometimes refreshing to people that leaders will follow the Constitution and remember that their oath of office says to uphold the Constitution and not just be law enforcers,” he said.

The Associated Press contributed to this article.

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