As constables, Sussex sheriff, deputies can make arrests

As it turns out, deputies in Sussex County Sheriff's Office – acting now as certified state constables – have arrest powers.

The former county sheriff ignited years of debate over arrest powers that polarized residents and county officials, and ended up in court. Robert Lee, the county's newly elected sheriff, quietly took action to certify his staff as state constables who have the power to detain people and make arrests if necessary.

Former Sheriff Jeff Christopher – who was locked in a battle for arrest powers with county officials – let the certification lapse. Under state law, certifications are valid for two years.

“Sheriff Lee is only reinstating what they already had,” said County Administrator Todd Lawson.

As certified state constables, Sussex County's sheriff and four deputies can detain people in handcuffs if they witness a crime in progress.

In 2013, the Delaware Supreme Court upheld a Superior Court ruling that county sheriffs and deputies do not have arrest powers. But Title 10, Chapter 27 of the state code gives that power to state constables.

Even so, Lee says, his staff will not make arrests. “It's not practical for us to take up three to four hours of staff time,” he said. “We are not set up to transport and not trained on the new processing technology. Our role will be one of a witness and to make a statement to police.”

By state law, constables are required to notify the primary law-enforcement jurisdiction when they detain, arrest or search a person or place, or when a criminal act is reported to them.

In unincorporated areas of the county, cases would be reported to Delaware State Police, and in cities and towns, cases would be referred to municipal police.

The full-service police agency is charged with undertaking any necessary investigation into the case.

Lee said it would be unusual for his staff to ever use powers allowed under the state constables law. “We are out working 6 a.m. to 4 p.m. which is certainly not the time you see crime happening,” he said.

During a June 2 meeting, county council voted 5-0 to pass a resolution to allow the certification.

“We are not a law enforcement agency, and we don't want to be, but we can be a witness," Lee told council.

The sheriff said his staff went though the certification process in an effort to provide another level of protection for county residents and their property. “This is just one more tool in the Sheriff's Office arsenal,” he said. “It also provides a level of protection for our staff.”

Lee said deputies, acting as state constables, could take a person into custody and hold them for police to arrive if during the normal course of duty they witness a crime.

State constables are vetted and tested by a state board of examiners. Applicants who have a law-enforcement background are grandfathered and do not need to take a test or attend five weeks of classes. However, all applicants must have a background check, have five letters of reference and be trained in the use of firearms, pepper spray, Taser, baton and handcuffs. Lee said no one on his staff carries a Taser.

While most people are not even aware there are state constables, they serve in high-profile positions in Sussex County including in all Indian River School District schools and Delaware Technical Community College in Georgetown, Lee said.

“We are not here to arrest people but to take custodial detention to protect residents, property and ourselves if we have to,” Lee said. “As always, delivering legal documents has to be our No. 1 priority.”

Christopher: Could not be a council puppet

Christopher confirmed that he did allow certification to lapse. “They only would allow one or two deputies to be certified, but I needed all of them to be certified,” Christopher said on June 11. “I never did receive an answer as to why.”

Christopher went on to say, “When I stood against their bully tactics they didn't like it, so the county council manipulated even stronger control over the office, which to me was unbelievable. Why go through the election process to win leadership to head up an office, when in reality it is run by the county council themselves. They want puppets, and I could not be one. The people have less and less say over government.”

Christopher said he did not want to expand the Sheriff's Office. “It was about proper course and prudence of certification and training,” he said.

Four years of debate over arrest powers

Over a four-year period, Christopher, the former sheriff, filed two lawsuits against the county on the grounds that as a conservator of the peace, the state's constitution gave him arrest powers.

In June 2012, the Delaware General Assembly passed House Bill 325 denying arrest powers for county sheriffs in Delaware. Christopher simultaneously filed a lawsuit against county officials asking the court to rule that he could carry out some law enforcement duties.

Lee defeated Christopher in the 2014 Republican primary, but Christopher then decided to run as a write-in candidate. In the general election, Lee won with 61 percent of the vote over Democrat Beau Gooch of Milton and Christopher.