The idea of a Constitutional Sheriff

It was controversial here a decade ago - but who else would protect our rights?

Back in 2012, the Sheriff’s office in Sussex County had no shortage of controversy. This was then-Sheriff Jeff Christopher’s car, parked at the Circle in Georgetown. (Ron McArthur/Cape Gazette)

The other day

Jim McCraigh

cross-posted a piece on Constitutional sheriffs, meaning the last line of defense at the county level against the enforcement of unconstitutional laws. (This is the piece I promoted from TER the other day.)

What Is A Constitutional Sheriff And Why Do YOU Need One?

Author Diane Gruber goes on to explain the concept behind a Constitutional sheriff and provides a real-life example (elected as a write-in) in the state of Washington. Here in Delaware, we could certainly use such a person but unfortunately the state decreed otherwise, as evidenced by this story.

In 2010, perhaps inspired by the election four years earlier of a no-nonsense, law enforcing Sheriff by the name of Mike Lewis in adjacent Wicomico County, Maryland, voters in Sussex County, Delaware ejected Democrat incumbent Sheriff Eric Swanson and elected Jeff Christopher as Sheriff. Christopher was elected with this message:

I am not for a great expansion of the office, I believe we can work more efficiently and respond as we are needed. Training, certification and professionalism is what I will strive to make happen for each member of the Sheriff's office and for it to become accountable. Modern technology is one way to streamline the basic duties of each deputy that currently is not being utilized to its potential, such as document mapping interface technology (IT based). I think we must bring the office to new heights and at a pace comfortable to those we serve and to do everything I can to keep taxes low and services high.

In Delaware, the office of the Sheriff was mainly concerned with serving court papers and sheriff’s sales of property, but Christopher took the job more seriously, believing state law also allowed the Sheriff to have law enforcement powers and taking steps to implement them. This didn’t sit well with the majority in the Delaware General Assembly, who passed a bill in 2012 that stripped the arrest power from the Sheriff. As the synopsis for House Bill 325 stated:

This bill makes the Delaware law clear that the county sheriffs and their deputies do not have arrest authority. Historically the sheriffs and deputies have not exercised arrest authority and the Attorney General’s office has given an opinion that the sheriff’s “power to arrest is no greater than that shared by any citizen.”

This despite the fact the previous law clearly stated sheriffs and deputies had arrest powers. (Had I been doing the Delaware Accountability Project back then, just three Senators and two Representatives would have scored a correct vote. The only remaining one is Senator Gerald Hocker, who was in the House at the time.)

Moreover, bear in mind that our AG at the time was one Beau Biden and his family hates law enforcement because it disturbs the “business.” What other opinion do you think he’d come up with?

After all that went down, Christopher sued the state, claiming HB325 was unconstitutional. Unfortunately, despite being represented by now-state GOP chair Julianne Murray, he was slapped down in state court. as they haughtily stated:

In this opinion, we hold that the General Assembly may not abrogate a constitutional office or take away the core duties of a constitutional officer without enacting an amendment pursuant to the Delaware Constitution. However, we also hold that the sheriff’s common law arrest power is not a fundamental or a core duty of his constitutional role as a “conservator of the peace.” Because the common law arrest power of a sheriff was not fundamental, but was merely incidental, to his role as a “conservator of the peace” when the 1776, 1792, 1831, and 1897 Delaware Constitutions were adopted, the arrest power can be modified or even eliminated by statute. Therefore, the judgment of the Superior Court is affirmed on that basis.

Meanwhile, the County government was also ready to wash its hands of the matter. Council President Michael Vincent (who was just this past year defeated in his bid for a fifth term) noted when the issue was debated in the local court:

The County is pleased with (Sussex County) Judge Graves’ decision in the sheriff’s legal challenge. The court’s decision only serves to affirm what the County Council, the State Attorney General’s Office, the Delaware General Assembly, and most Sussex Countians have known and said all along – that Delaware sheriffs and their deputies are not constitutionally instilled with the powers of arrest or law enforcement authority. While this may not signal the end of the argument, the County is hopeful it will lay the groundwork in settling this long-running saga once and for all.

With all the controversy and legislation, Christopher was defeated in the 2014 Republican primary by 21 votes, falling to current Sheriff Robert Lee. Lee also defeated a write-in campaign by Christopher that fall as well as a Democrat opponent. Ironically, by resuming the deputies’ status as constables, Lee got a limited amount of arrest power but not what Christopher envisioned.

Meanwhile, Sussex County continued a program (which remains in effect) of splitting the cost of additional Delaware State Police beyond the number allotted to the county. By FY2026 the total number of DSP officers in the county will be 193, with the county paying for about 25 of them. It’s nice to have the police protection, but the DSP doesn’t provide Constitution protection.

Now in retirement, Christopher retains his stance on social media:

The Sheriff is your choice and your voice in law enforcement. He is your local guardian and interposer against tyranny. There are too many Elected Sheriffs ready to give away their power to protect your rights and liberties.

Would it be possible for Sussex County to have a Constitutional sheriff? The first step would have to come from the General Assembly as a repeal of the restrictions placed on the office by House Bill 325. Even that would probably have to go to court, although I could envision a compromise where each county could determine the extent of their Sheriff’s power.

Granted, there is a national group called the Constitutional Sheriffs and Peace Officers Association, but they impress me more as a grift than an actual helpful organization. Therefore, I guess it’s up to us and would have to be done at the state level here in Delaware.

Meanwhile, it might be time for a new Sheriff in town to make a little noise about revamping state law. Our next such election is in 2026.

Until next time, remember you can Buy Me a Coffee since I have a page there.