Supreme Court to decide on sheriffs’ powers

Attorney: Arrests necessary to conserve the peace
September 13, 2013
Sussex County Sheriff Jeff Christopher is asking Delaware Supreme Court to grant his office arrest powers. SOURCE FILE PHOTO

Sussex County Sheriff Jeff Christopher is looking to Delaware’s highest court to grant his office the power to arrest criminals.  If the Supreme Court sides with Christopher, it would be issuing a decision against Sussex County Superior Court and the Delaware General Assembly.

Christopher filed a lawsuit against county officials on May 9, 2012, seeking a declaratory judgment affirming his authority to make arrests.  The issue arose in fall 2011, after Christopher and his deputies performed several traffic stops and detained some drivers.

In the lawsuit, Christopher asked 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.

On March 19, Superior Court Judge T. Henley Graves decided against Christopher, ruling sheriffs in Delaware shall not be involved in law enforcement.

Christopher appealed the decision to Delaware Supreme Court April 17.  All five Supreme Court Justices heard the case in Dover, Sept. 11.

Deputy Attorney General Edward Black argued Christopher has the same arrest powers as any citizen. Delaware common law dictates a private citizen can make an arrest without a warrant for an offense committed in his or her presence.  Black said the sheriff’s powers of arrest are the same.

In the current Delaware Constitution, codified in 1897, the sheriff is considered a conservator of the peace, along with judges and the attorney general.

Black said there is no need for sheriffs to make arrests, because other conservators of peace – police – are given arrest powers.

Christopher’s attorney, Julianne Murray, said, “The sheriff is not any citizen.”

Murray said the sheriff is a constitutional officer and in order to conserve the peace, the sheriff must have arrest powers.  “There has to be the ability to arrest to stop breaches of the peace,” she said.

Georgetown attorney David Rutt, representing Sussex County, said the sheriff may arrest a person who disrupts his duties as an arm of the court, such as a person disrupting a foreclosure sale or preventing the sheriff from issuing a summons.  “But it doesn’t go beyond that,” Rutt said.

Murray argued the powers of the sheriff are enumerated in the Constitution, and a Constitutional amendment would have to pass the General Assembly to take away any of the sheriff’s powers.

House Bill 325, signed into law in June 2012, clarified Delaware law specifying sheriffs and deputies do not have arrest powers.

“The General Assembly took a shortcut,” Murray said.  “We are asking that you make them follow the roadmap.”

Chief Justice Myron Steele asked Moore if the General Assembly had the power to change a common law definition by statute.

Murray said the General Assembly could change any common law term.  “They didn’t define a term.  They took away a power that makes that office work,” she said.

Justice Randy Holland asked Murray how the office of sheriff has continued to exist when previous sheriffs have not exercised arrest powers.

Murray said the power to arrest is necessary, even if it is not utilized often.  “When you need it, it needs to be there,” she said.

Justice Jack Jacobs asked Murray if all conservators of the peace have arrest powers.

Murray said different conservators of the peace, including judges and the Attorney General, have different tools to carry out their duties.  She said she believes the sheriff was endowed with arrest powers.

After the arguments, Christopher said he hopes the justices will see the state and county are attempting to erode the Constitution.  “They didn’t put the sheriff in the Constitution as a conservator of the peace for nothing,” he said.

Christopher also said Delaware sheriffs have not exercised arrest powers in the past because they likely lacked experience in the field of law enforcement and did not know they had the authority.  “Coming out of the Academy, I didn’t know what I could do,” he said.

The majority of the counties in the U.S. give sheriffs arrest powers, Christopher said.  “All one has to do is look at the rest of the states,” he said.


Editor's note: An earlier version of this article contained an incorrect spelling of Julianne Murray's name.

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