Sheriff Squires, the Far Right, and the Problem of the New Law Enforcement Gentry

December 19, 2022

Nevada Sheriff Jesse Watts showing his Oath Keeper tattoo in 2021. By Jessica Pishko.

I have typically used this space at the end of the year to do an annual “worst sheriffs” list. This year I won’t. While the point of such a list is to catalog individuals symptomatic of a systemic problem, I now feel that it is more important to talk about the systemic problem more directly. There are many groups – many excellent groups – who focus on how to improve law enforcement, how to make it less racist and violent, and who attempt to excise far-right actors. But their efforts have largely, and sadly, failed. My intent is not to malign these groups – many of whom do good work while relying on the tools of prosecution and police – but, rather, to explain why their efforts are at the end of the day, on a collision course with themselves. A society cannot police the police into better policing.

The problem reform runs headlong into is that federal, state, and local policy choices have created a new class in America, one that is allowed to act (or not act) with impunity, using military-grade weapons and tactics (without military-grade training or discipline), while benefitting from unions far more powerful than available to other working Americans, having been granted the power to imprison people and utilize labor for their own benefit (monetary and otherwise).  This class, through its power to control the narrative about public safety in both media and political spheres, combined with its total control over all data related to public safety, rules us.    

The effect is that we have – through policy choices – created a police state in which (mostly) men with guns hold us all hostage until they get what they want, and then, when forced to reckon with bad behavior, use the politics of gaslighting and grievance to continue to amass power.

There is an increasing awareness in the federal government, the media, and the nonprofit-consultant class that far-right groups like the Constitutional Sheriffs and Peace Officers Association, the Oath Keepers, and other militia groups have successfully penetrated law enforcement ranks. Sheriffs, as elected officials who benefit from the far-right drift of the Republican party, have been especially welcoming of these incursions. There are sheriffs who are members of militias. There are sheriffs who actively aided the insurrection of January 6. There are sheriffs who have supported conspiracy-laden falsehoods about COVID vaccines, voting, immigrants, and LGBTQ+ individuals. They are winning elections, and they are extremely popular.

I hear the question: What can we do? Most often the question is framed as: “How can we – the nonracist, nonviolent actors – excise this far-right rot from law enforcement?”

Smart people have come up with good policies. There are laws against private militias in every state. Law enforcement agencies could create First Amendment-friendly policies to fire and discipline officers who express far-right ideologies or join far-right groups. Agencies could hire a more diverse range of people, which would, in theory, generate an environment in which far-right ideology is unacceptable.

But I submit to you, my readers: None of these is working. Why? Because none of these policies challenges the status, funding, or welfare of the law enforcement class as a whole.  Indeed, most reforms only feed the beast with more money, more manpower, and more mechanisms to shield law enforcement from traditional accountability, such as lawsuits and prosecutions. As SCOTUS has long held, the police have no duty to keep us safe.  Freed from responsibility for the output of our trillion-dollar inputs, we live in the most violent Western democracy despite having the largest law enforcement empire in world history. 

Historical precedent for using federal law enforcement to punish and subdue far-right behavior is not encouraging either. After the Civil War, the federal government did adopt a series of policies with the specific intent of punishing Confederates who owned people and who engaged in an armed uprising against their government in order to preserve a deeply inhumane and unthinkable system from which white people profited. Ex-Confederate leaders were forbidden to hold public office, which worked until it didn’t.

Then, the federal government passed the Ku Klux Klan Act in 1871 with the specific intent of punishing extralegal violence against Black people. The Act recognized that Black Americans could not exercise their political, civil, and social rights without protection from white supremacist violence. The federal government sent troops – armed guardsmen – to enforce voting rights and allow for legal political activity. They met violence with violence.

Yet, every move was met with a countermove. In 1878, the federal government passed the Posse Comitatus Act, which specifically prohibited the federal military from interfering in the establishment of Black Codes and racial segregation in the ex-Confederacy. Decades later, the National Guard would escort Black children to school – as adults threw rocks at them – but, eventually, federal authority was ceded to the states which then closed schools rather than let Black children attend.

The Democratic Party has become one of the greatest champions of federal prosecutors, the Department of Justice, and the FBI under the Biden administration, with the hope that far-right extremists will be punished and deterred from further violence. But those political organizations have done nothing to prevent far-right infiltration into law enforcement. And it’s not because they don’t know. It’s because they are part of the law enforcement baronial class themselves, and will not – arguably cannot –use their power to stop law enforcement from doing whatever the hell they want, at least not without threatening the power and the perks the “good cops” enjoy and see no reason they should have to give up.

First, excising officers who express racist or other far-right or violent views is, quite frankly, an impossible task. Not only are most officers protected by unions – giving them the ability to challenge disciplinary measures and dismissals for any reason – but also, we cannot even get rid of officers who rape, kill, and steal. Dismissing officers for joining a racist Facebook group or a militia might well be legal, but is it going to happen? While such measures are within the realm of employment law – not criminal law – I am curious who is going to implement such measures. Elected sheriffs sure won’t. Even if they don’t personally believe in far-right ideologies, large organizations like the Major County Sheriffs and the National Sheriffs Association are rife with far-right sheriffs IN LEADERSHIP. Other member sheriffs simply don’t want to cross the people they see as their colleagues. (I would suggest that, at a minimum, sheriffs with proven far-right ideologies should be removed from leadership in such organizations, but, as I have written before, the National Sheriffs Association is led by people who adhere to these ideologies. They haven’t even removed a sheriff who may have been in the Capital building on January 6.)

Second, while groups like the Oath Keepers and III% are illegal under statutes forbidding private militias, we have made policy choices – again, deliberate choices to make law enforcement a super-authority – such that we cannot MAKE law enforcement enforce those - or any other - laws. In the Supreme Court’s decision in Castle Rock v. Gonzalez, Justice Scalia wrote – and six justices, including Justice Breyer, agreed – that the state of Colorado could not require police to enforce a judicially-entered protection order. I mean, it was already taken for granted that police could watch people get murdered before their eyes without intervening. But this case gave police so much power that they can literally ignore laws and judges when they are told, “Hey, you actually need to do this.” They took their dinner break – all while being dismissive and uncaring to a worried parent – while children were killed.

Jessica Lenahan (previously, Gonzalez), the mother who watched police allow her children to die, knows. In an interview with the ACLU (who supported Lenahan’s claim), when asked, “What do you think the police could have done to save your children?” she answered:

Anything more than what they did, which was nothing.

I hear well-meaning groups who say that local law enforcement could use the “rule of law” to prevent militia organizing or suppress far-right activity in law enforcement agencies. (The main idea touted: “Conduct training sessions for all law enforcement that will assist in protecting public safety at the event.” Because training definitely works.) And maybe they have tacitly given up on asking anything of elected sheriffs, since there is literally nothing to do when a sheriff in power supports January 6 or hangs out with militia members. (Supreme Court justices apparently can do it, too.) They know that they are a special class with special rights no one else can have.

In the course of reporting on sheriffs who were actively trying to suppress voting and interfere in elections, I called one of the “good” sheriffs – a leader in a national sheriff organization, a man with a law degree, and a person who I believe is not racist or trying to be racist. I called – multiple times, actually – because I wanted to ask what he suggested people do when faced with a sheriff who was trying to prevent them from voting. He did not call me back and would not talk to me. He sent a message through the public information officer: “Good luck.” 

“In the End,” Dr. King reminded us in typically magisterial prose, “we will remember not the words of our enemies, but the silence of our friends.”  The deafening silence of the “good” sheriffs is a reminder of that fundamental reality every criminal defense attorney wishes they could impress upon their clients:  No cop, no matter the kind, is ever a friend.