Gar Williams: Wiggins is right

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Before attacking Sheriff Garrett Wiggins’ decision not to enforce the ban on high-capacity ammunition magazines, everyone should consider the Constitution and the laws.

As a former deputy sheriff, I think Sheriff Wiggins reached the only possible legally correct position in his decision not to enforce the recently passed gun control laws. It is quite likely in the near future that the constitutionality of the high-capacity magazine ban will be decided by the courts, because on its face, the law appears to conflict with the Second Amendment of the U.S. Constitution. The Constitution overrides any conflicting state or federal law. Knowingly enforcing a law that appears to conflict with the Constitution could subject Routt County, and ultimately its taxpayers, to a civil suit and potential damages.

The sheriff took an oath to protect and defend the U.S. Constitution and the laws of the state of Colorado. The Second Amendment is part of the Constitution. Colorado’s statutes concerning the duties of the sheriff require that the sheriff of every county must provide service of civil papers, operate a common jail, investigate felonies and be responsible for fighting wildfires.

The Colorado Constitution and Legislature understood that the resources of the counties to investigate, prosecute and incarcerate offenders are limited and therefore require the sheriff only to investigate felonies, not misdemeanors or petty offenses. Every law enforcement officer has the option of which laws to enforce under specific circumstances. As an example, traffic laws require that every motorist signal before making turns. If an officer observes a driver in a right-turn only lane who doesn’t signal the right turn, the officer may take any of the following actions at his/her discretion based on the totality of the situation: ignore the violation, issue a verbal warning, issue a written warning, issue a ticket or require that the violator post a bond to assure a court appearance.

Our sheriff is performing his statutory duties, and other law enforcement functions performed by a sheriff’s office are at the discretion of the elected sheriff. Violation of the new gun control law on magazine size is a misdemeanor, not a felony, and by statute a sheriff is not required to investigate misdemeanor law violations.

Gar Williams

Craig

Comments

Steve Lewis 1 year, 6 months ago

During the final Colorado Senate comments on the 15 round magazine limit, several Republican Senators acknowledged that we do have a violence problem and the new laws, if misguided, were well intended. Sheriff Wiggins' post to these Pilot blogs repeated the same understanding of the opposing view. For a supporter of these laws like myself, that common ground helps one to listen. It would be good for all of us to acknowledge both sides of this issue as we advocate for answers to Colorado violence.

While I disagree with the Sheriff's position, I appreciated his forthright honesty. He could have silently ignored these laws. Instead he made his convictions plain to his constituents and defined the consequences of his re-election in 2014. Fair enough in my view.

In one of the three laws, I understand the Sheriff’s “probable cause” difficulty when he finds an individual in possession of the larger magazines – the law allows existing large magazines are grandfathered and most of these magazines show no production date. But in the larger market, which is what really matters, he can and should enforce probable cause against the import and sale of the larger magazines into Routt County. He has been vague, but it appears he chooses not to do this, so here is where I disagree with our Sheriff. Given his lawful prerogative to prioritize, again we can settle this at the 2014 election.

Gar, where I disagree with you, and what I do not feel need wait until the next election, is the matter of a Colorado Sheriff donning a judge’s robe to decide the Constitutionality of Colorado laws. For instance, Sheriff Wiggins' website states: In his official capacity as Routt County Sheriff he will defend Routt citizens against any “enforcement action which clearly violates their constitutional rights”.

I do not believe our Constitution allows a Sheriff the power to decide Constitutionality of existing law, nor the use of taxpayer money for that errand. What do you say?

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Nathan Knight 1 year, 6 months ago

I will Vote for Sheriff Wiggins along with many other Constitutionalist. There are many communist countries for those of you who don't care about America and the Constitution.

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Scott Wedel 1 year, 6 months ago

Steve,

And at the very least, Sheriff Wiggins is failing as a constitutional scholar if the thinks these laws violates the criteria stated on his website as clearly violating the Constitution.

The very same Supreme Court decision that overturned a law banning handguns in Washington DC also stated that the Second Amendment allows for preventing felons and the mentally ill from owning guns and the regulation of guns. The constitutionality of laws can be questioned, but there is no legal basis to say these laws are "clearly unconstitutional".

From a legal standpoint of what is more questionable constitutionally, Sheriff Wiggins should refuse to recognize Colorado's MJ laws busted Aloahs. And bust any movement of MJ between dispensaries.

But his concern is not really the Constitution, but his personal belief in absolute guns rights regardless of state laws or Supreme Court decisions.

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Steve Lewis 1 year, 6 months ago

Nathan,

Separation of powers, without question, is the most fundamental strength of our country.

The Colorado Constitution Article III

Distribution of Powers

The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.

Due process of law is another right guaranteed to all parties in court cases in both the U.S. Constitution and the Colorado Constitution. It means that everyone must be treated according to the same rules. In the United States and in Colorado, the government cannot deprive anyone of life, liberty or property without due process of law.

http://www.courts.state.co.us/userfiles/File/Media/Education/Our_Constitutions.pdf

To put it more simply, you may like a Sheriff unlawfully exercising judicial power when he leans your way, but you would rightfully hate it when the Sheriff is unlawfully exercising judicial power against you. Neither should happen in Colorado where the separation is so clearly marked in our State Constitution.

Communist countries do not have true separations of power. One more reason we should not veer in that direction.

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Bob Smith 1 year, 6 months ago

and just because i like stirring the pot. 1. bye bye DOMA 2. hello background checks for gun purchases 3. can't wait for obamacare to be fully implemented. not long now! good start for 2013. change can quite often be painfully slow, but advances in technology, science, and social organization inevitably produce an improvement in the human condition. "The grandest of all laws is the law of progressive development. Under it, in the wide sweep of things, men grow wiser as they grow older, and societies better." -Christian Nestell Bovee

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mark hartless 1 year, 6 months ago

Yes, They are really "gettin wise" over there in Cyprus.

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mark hartless 1 year, 6 months ago

Bob, you have your head so far up your rear it's starting to re-appear.

Cyprus bank depositors ar e being robbed... ROBBED, by their government, in order to service their debt.And the same thing will happen here soon.

Anyone who can look at what is happening in Cyprus and be comfortable about the power and reach of government is a first class FOOL. The same kind of fools that lived back in the 1920's who were quite comfortable with new up-and-comming politicians with names like Adolf and Bennito. Those fools believed it was the "right-wing-nuts" that burned the Reichstag. They thought the night of the long knives was "cleansing" the nation for a "new beginning".

Bob's pals ARE going to get their way here folks. Act accordingly while there is still time.

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