Del. high court deciding whether state’s sheriffs have arrest powers
Posted: 6:18 pm Wed, September 11, 2013
DOVER, Del. — The Delaware Supreme Court is weighing whether sheriffs in Delaware have the authority to arrest people after a hearing Wednesday in a legal battle between Sussex County Sheriff Jeff Christopher and state and county officials.
Christopher, a Republican elected in 2010 with the support of tea party voters, sued the state and county last year, arguing that he is embodied with police powers by Delaware’s constitution of 1897 because it names sheriffs, along with other officials, as “conservators of the peace.”
Christopher argues that as conservators of the peace, he and his deputies have the same arrest powers as police and that their duties are not limited to conducting foreclosure sales and serving court papers.
“They didn’t put the sheriff in the constitution as a conservator of the peace for nothing,” Christopher said after Wednesday’s hearing.
Christopher is challenging the constitutionality of a bill passed by the General Assembly last year that bars sheriffs and their deputies from making arrests. A Superior Court judge ruled in March that Delaware’s constitution does not enumerate any powers for sheriffs and that courts have used common law to define such powers. The judge said the legislature was within its powers in passing the law barring sheriffs from making arrests.
But Christopher’s attorney, Julianne Murray, argued Wednesday that legislators could not limit the power of sheriffs in such a drastic fashion without passing a constitutional amendment.
“The General Assembly took a shortcut,” Murray said. “They didn’t follow the road map.”
Justice Jack Jacobs noted that the constitution also names judges, as well the attorney general and state chancellor, as conservators of the peace.
“We would all have the same arrest powers under your view of the constitution,” he told Murray.
But Justice Henry duPont Ridgely questioned whether a sheriff’s deputy who has brought someone to court or is conducting a property sale must stand idly by if a fight breaks out, or whether he can make an arrest.
Edward Black, a deputy attorney general arguing for the state, said a sheriff can make an arrest in that case, just as any other citizen can.
“I hate to invoke ‘Gomer Pyle’ here,” Black said referring to a character in the 1960s television comedy “The Andy Griffith Show,” who in one episode loudly declares his right to make a citizen’s arrest.
But asked whether the attorney general could make an arrest given his role as a conservator of the peace, Black said he didn’t know.
“I don’t believe it is necessary for the attorney general to have arrest powers,” he said.
The justices also questioned whether a sheriff, if he has arrest powers, also would have the power, let alone the resources, to investigate crimes.
“That’s a fair question,” Murray acknowledged, adding that the first step is to clarify the arrest powers of a sheriff.
After taking office, Christopher ordered his deputies to stop dangerous drivers and execute arrest warrants, prompting efforts by state and county officials to rein him in. His deputies were told by the county administrator in 2011 not to make traffic stops or take people into custody unless ordered by a court, and to remove emergency lights from sheriff’s vehicles.
The attorney general’s office, meanwhile, issued several nonbinding opinions concluding that sheriffs do not have police powers.
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