Recall effort brought against sheriff under fire for defending the Constitution

He’s refusing to enforce an “order” that includes people comply with clearly unconstitutional edicts—whether a judge says they’re unconstitutional or not.

Image Credit: KING5/YouTube

I’ll start with a disclaimer. What’s happening to the man I’m about to tell you about serves as my county sheriff. I voted for him. And, as a retired police officer and American citizen, I endorse his upholding and defending the U.S. Constitution that has him under fire by political opponents. You can find the sheriff’s comments in this April 21 Facebook post. But here’s the nutshell version: He’s supporting his constituents’ rights over the governor’s dubious “orders.”

Remember, leftists are no longer allowed to lose elections. And when they do lose, as we’ve been seeing at the federal level, there is nothing they won’t do to undo the results. And that’s what’s happening right now in Snohomish County, Washington, which is about 30 miles north of Seattle.

Sheriff Adam Fortney won his election last November and became Snohomish County sheriff on December 30, 2019. The 23-year law enforcement veteran previously served as a sergeant with the Snohomish County Sheriff’s Office. Sheriff Fortney is one of many law enforcement leaders in Washington State who are refusing to enforce the uber-leftist, radical green, and failed Democrat presidential candidate Governor Jay Inslee’s arbitrary stay-at-home orders.

A woman who lives in Monroe, Lori Shavlik has apparently taken it personally that the sheriff is interpreting the law and using his discretion (which the voters elected him to do) in a way she doesn’t agree with. She has started an effort to recall Sheriff Fortney. She might want to be careful what she wishes for. From his groundswell of support, this effort may just be making the sheriff more popular than ever.

Tacitly endorsing Sheriff Fortney’s responsibility to interpret the law, the Washington State Sheriffs Association issued a statement, which in part read: “The Governor has issued the order under his authority in this crisis. The responsibility of our legislative branch is to write law, the responsibility of our judicial branch is to judge law, the responsibility of law enforcement is to enforce law. We are committed to educate, engage, and in extreme situations where public safety and health are at risk, use our discretion in considering the appropriate level of enforcement. It is what we have always done, and will continue to do, during this crisis.”

Sheriff Fortney believes many of the governor’s edicts make no sense. Like when the governor tried to include gun stores as non-essential businesses. That obviously violates the Second Amendment because it’s hard to exercise your right to keep and bear what you are not allowed to acquire legally. And he’s made going to church illegal. Where’s the carve-out for freedom of religion?

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So, Shavlik went to court to get the authority to gather signatures for a recall petition to undo the last election for sheriff. She believes the sheriff cannot decide, as she puts it, which laws to follow and which not to follow. Which is not what this is about. He has no obligation to follow an unlawful order, which is what an order to violate the Constitution is. Though I don’t know, I still wonder if Shavlik and her supporters support cities, counties, and states that refuse to enforce laws against people in the U.S. illegally to protect them from deportation, fail to prosecute illegal aliens who do get arrested, and also institute sanctuary policies that protect them from the law. Maybe someone should ask her.

Anyway, she found an ally in Cowlitz County Superior Court Judge Stephen Warning. He has an interesting view of the Constitution. He seems to have a legal theory that essentially makes the governor a demigod during a “temporary” state of emergency.

According to the Everett Herald, “Judge Warning said Friday that the governor’s order is presumed constitutional, and it would remain so unless a court finds it unconstitutional.” Strange, I still haven’t found any asterisks or fine print in the Bill of Rights.

Anyone else see a problem with this theory? For one thing, the governor’s “order” is multi-layered. While you could argue some restrictions are not clearly unconstitutional, even if they are onerous, arbitrary, and unnecessary, others are by definition unconstitutional.

Mark Lamb, Sheriff Fortney’s lawyer, asked the judge for clarification, regarding his allowing the recall petition to go forward. He asked if it was what the sheriff had posted or what his policy implied. Judge Warning did not distinguish between the two. He’d let the voters decide. Based on the nature and tone of the judge’s admonitions, can we call him an impartial jurist in this case?

Why would the judge issue such a nebulous ruling? Is it because it requires less thought? And what about the plain meaning of the Constitution? What if the governor decided that during a “state of emergency” he would expect sheriffs to participate in shutting down certain Washington newspapers because they were spreading “misinformation” about the pandemic? Obviously, this would be a clear violation of the First Amendment. Would Judge Warning make the same ruling if sheriffs refused to shut down newspapers? Why do I think, no?

I should also mention, happily, that Sheriff Fortney is not alone in his stance. According to the Everett Herald, “Since the order was first enacted in March, police brass around the state have said they would not arrest people for public gatherings, instead opting for an educational approach outlined by the Washington Association of Sheriffs and Police Chiefs.” And you can add to that the nightly news reports of law enforcement leaders (and rank-and-file officers) across the nation opposing mayors’ and governors’ unlawful orders.

Snohomish County Prosecutor Adam Cornell, who should be on Sheriff Fortney’s side, seems to have a similar extra-constitutional slant as too many other so-called prosecutors across the country—prosecutors who don’t take their oaths to the Constitution seriously.

Cornell wrote: “By directly or indirectly encouraging people to disobey data-driven, science-based lawful orders handed down expressly to limit the spread of COVID-19 and to protect our health and well-being during this pandemic emergency, your statement is fairly construed to support behavior that puts all citizens at greater risk of harm and death.” Cornell added, “Put simply, your words were akin to yelling ‘fire’ in a crowded theater.”

Wow! Aside from needing a shoehorn to make that metaphor fit, whenever you hear “data-driven, science-based” slither out of a politician’s mouth, it’s neither of those things. Instead, it’s a signal that you’re watching a political lemming attempting to herd other lemmings into a false consensus.

Oh, and it is not always against the law to yell fire in a crowded theater—not if it is on fire. And, in this case, to paraphrase, I’d say some of our political leaders have set some of our constitutional rights ablaze.

I’ve heard people say the professions that require people swear oaths to the Constitution —politicians, military, and law enforcement— have a right to refuse to obey unlawful orders. That’s not exactly accurate. They have a duty not to follow unlawful orders. Again, any law, rule, or order that violates the Constitution is an unlawful order.

And if these orders are so “data-driven and science-based” and intended to save lives, then why are some governors issuing orders and then rescinding them before the ink’s dry? For example, Governor Inslee recently put out a directive for reopening restaurants. Included in the protocols, he said he would mandate restaurants collect and report to the government every customer’s personal information, “to save lives.”

But the next day he changed his mind and said the data collection would be voluntary. What about his data and science changed overnight? Won’t people die now because Governor Inslee changed his mind?

And there’s one important overriding factor that applies to people opening their businesses, with or without government permission, that few people have mentioned. Not one of these business owners is forcing a single customer to come into their restaurant, nail salon, barbershop, saloon, gym, etc. Shouldn’t that be a part of the conversation? I thought the Left was pro-choice. I guess only if you want to abort a baby which Governor Inslee deemed essential at the inception of the order.

Another petition attempt, not yet ruled on, says “Sheriff Fortney is prescribing active rebellion against a legitimate public health order and, in doing so, has abdicated his right to hold the office of Snohomish County Sheriff.” “Legitimate” according to whom? The arbitrary nature of the governor’s order is proof of its illegitimacy and of his lack of moral authority to issue such orders.

As with business owners, Sheriff Fortney isn’t forcing a single person to do anything they don’t want to do. Isn’t that the point? He’s refusing to enforce an “order” that includes people comply with clearly unconstitutional edicts—whether a judge says they’re unconstitutional or not.

meet the author

Steve Pomper is a retired Seattle police officer. He's served as a field training officer and on the East Precinct Community Police Team. He's the author of four books, including "De-Policing America: A Street Cop's View of the Anti-Police State." He's also a contributor to the National Police Association.

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