A Sussex County judge could have the final say in whether sheriffs in the state can make arrests. Superior Court Judge T. Henley Graves heard arguments over Delaware sheriffs’ duties as conservators of the peace March 8.
House Bill 325, signed into law in June 2012, clarified Delaware law specifying sheriffs and deputies do not have arrest powers.
Sussex County Sheriff Jeff Christopher simultaneously filed a lawsuit against county officials, seeking a declaratory judgment affirming his authority to make arrests.
In the lawsuit, Christopher asks the court to rule that he is the chief law enforcement officer in Sussex County and therefore able to carry out law-enforcement duties, including traffic stops and arrests, transporting prisoners and providing crowd control at events.
Nearly 20 people settled onto the courtroom benches behind Christopher, who sat in the front row on the defense side of the gallery. Christopher, wearing a dark suit, listened attentively throughout the proceedings and did not speak.
The other side of the gallery was filled with attorneys and reporters.
Wilmington attorney Christos Adamopoulos, representing Christopher, said sheriffs and their deputies routinely come into contact with people who have outstanding warrants issued against them. He said Delaware would be a safer place if sheriffs were allowed to arrest criminals.
Graves interrupted Adamopoulos. “Is that the issue?” he asked. “Delaware would be a safer place without crime.”
Adamopoulos dropped the argument and proceeded to offer a definition of conservator of the peace.
In the current Delaware Constitution, codified in 1897, the sheriff is considered a conservator of the peace, along with judges and the attorney general.
Adamopoulos said, based on his research of case law and Black’s Law Dictionary, conservators of the peace have powers of arrest. “It’s a distinguishing feature of conservators of the peace,” he said. “We believe it’s not a controversial question.”
“Do I have arrest powers?” Graves asked.
“Yes,” Adamopoulos said. “As a matter of constitutional law, they all have access to the same body of law, the same body of rights.”
Delaware Constitution says the sheriff is a conservator of the peace, and case law says the conservator of the peace has powers of arrest, Adamopoulos said. “If anyone wants to change it, the route is a constitutional amendment,” he said.
Adamopoulos said there is no case law to support the argument that the sheriff is only an administrator of the court.
Deputy Attorney General Edward Black, who is representing the state, said the Delaware Constitution does not enumerate the powers of the sheriff, and common law powers are subject to change by legislative action.
“This case is a verbal Trojan horse,” Black said. He said the sheriff is trying to sneak arrest powers through the court, thus changing the Delaware Constitution.
Georgetown attorney David Rutt, representing the county, said Delaware Code lumps sheriffs with other court officials, such as judges and attorneys. “You have a wide, wide range of who may be considered a conservator of the peace,” he said.
Rutt said previous case law established that the General Assembly could amend the powers of the attorney general, who is also a conservator of the peace. “We submit that has to hold here for the sheriff,” he said.
When the Delaware Code was signed in 1897, sheriffs were ministerial officers, Rutt said. “That has not changed,” he said. “They are not police officers; they don’t have arrest powers.”
“To say that it is imbedded in the constitution and can’t be interpreted by the General Assembly…is incorrect,” Rutt said.
The sheriff also argued he is an officer of the state, Rutt said, but he is identified as a county officer in the Delaware Constitution. “He is paid by the county as a row officer,” he said. “To say that he does not have to speak or answer to the county is incorrect.”
In his rebuttal, Adamopoulos said the power to arrest is not a common law power that can be decided by the General Assembly; it is a constitutional power.
Adamopoulos said the state and county have argued the definition of conservator of the peace is vague. He said he has provided a bevy of cases to define conservator of the peace, almost all of which say peace officers should have arrest powers.
Graves said cases decided in other states are not helpful. “We’ve got a nation of 50 nations,” he said. “I’ve got to look at Delaware.”
Graves said he would issue a decision by the end of the month.