Superior Court rules sheriff does not have arrest authority

Delaware Superior Court Judge T. Henley Graves on Monday ruled that Delaware sheriffs do not have full constitutional authority to exercise all powers necessary to conserve the peace, such as the power of arrest and the power to enforce motor vehicle laws.

“The central question is: Does the office of the Sheriff inherently possess law-enforcement authority because he is a ‘conservator of the peace’?” Graves noted in his decision, which was released March 19. “The answer is no.”

Earlier this month, Graves heard attorneys for Sussex County Sheriff Jeff Christopher argue that the Sheriff’s Office has the constitutional authority to exercise all powers necessary to conserve peace and that those powers arise from Delaware’s constitution.

As a result, they argued, his duties can only be monitored or limited by a constitutional amendment — meaning House Bill 290, enacted by the Delaware legislature last year to prohibit the sheriff from engaging in law-enforcement activities, was unconstitutional.

In his decision, Graves stated that it was not at all clear that the term “conservator of the peace” as used in the Delaware Constitution created a right or recognizes a right to engage in law-enforcement activities for the office of sheriff.

“Had the framers of the constitution chosen to limit who was a conservator of the peace to only the office of sheriff, the sheriff would have been dealt a better hand of cards,” stated Graves. “But, the framers of all of our constitutions referenced many officeholders in our government as being conservators of the peace.

“There is no authority to suggest or infer that the framers intended, at various times in the history of our state, that chancellors, judges, senators, representatives, the Attorney General, as well as county treasurers, secretaries, clerks of the court, registers, recorders, coroners and sheriffs, would all be law-enforcement officers with the authority to investigate and make arrests,” he noted.

“The designation of so many different offices as being a conservator of the peace leads the Court to the obvious conclusion that being labeled a ‘conservator of the peace’ in our constitution means nothing more than the officeholder is a constitutional officer involved in governance, tasked with keeping the peace or the ‘normal state of society.’”

Graves went on to state that the laws passed by the Delaware legislature in 2012 unambiguously removed any common-law arrest power the sheriff may have had.

“Until recently, the question of whether the office of sheriff has any authority to arrest or investigate has laid dormant, if not dead, as far as the memory of all. The legislature merely formally recognized the reality that the sheriffs in all three counties were no longer in the law-enforcement business,” stated Graves.

“Closer to home, our Supreme Court has recognized that Delaware’s Attorney General, a constitutionally-created office, is an office vested with broad common-law power and authority, but that authority may be restricted or modified by Statute 13. Therefore, it is within the power of the legislature and governor to enact and sign into law legislation that may add to or subtract from the common-law authority of a constitutional office.

“To summarize, Delaware’s constitution recognizes the office of sheriff but does not enumerate any specific power or authority held by the office. The Court concludes that the common-law authority and responsibilities of the Sheriff are subject to modification and restriction by the legislature. The 2012 legislation extinguishing the Sheriff’s law enforcement powers is valid.”

Graves concluded that the Sheriff’s Office in the state of Delaware does not have any law-enforcement authority and, as a result, that Christopher’s complaint that his office is not adequately funded is null.

“This Court declares and holds that a sheriff in Delaware shall not be involved in law-enforcement and shall not act in any capacity as a police officer or peace officer. This decision moots the Sheriff’s complaints that the County has not properly funded his office and attempts to meddle in his business.”

“The Department of Justice is pleased with the Court’s ruling,” said Deputy Attorney General Edward Black, who argued the case for the State.

County Council President Michael H. Vincent echoed that sentiment.

“The County is pleased with Judge Graves’ decision in the sheriff’s legal challenge. The court’s decision only serves to affirm what the County Council, the State Attorney General’s Office, the Delaware General Assembly, and most Sussex Countians have known and said all along — that Delaware sheriffs and their deputies are not constitutionally instilled with the powers of arrest or law-enforcement authority.

“While this may not signal the end of the argument,” Vincent said, “the County is hopeful it will lay the groundwork in settling this long-running saga once and for all.”

Christopher, however, said midweek that he planned to appeal the decision.

“We’re going to appeal it to the Supreme Court. I think the Supreme Court is going to take a better view on what our claim is,” he said. “We petitioned the court for the definition of ‘conservator of the peace’ as it’s explained in the constitution Delaware, Article 15. We feel it hasn’t been explained. We are simply told that it isn’t something, but it was not defined of what it really is.

“I’m told in Delaware law that ‘conservator of the peace’ is not a peace officer, so much as this judge is concerned. Yet Delaware State Police in Title 11 are expressly defined as conservators of the peace,” Christopher noted.

“In my opinion, you can’t have your cake and eat it, too — especially when it comes to the law. If it’s politically convenient, they might think it can. The only reason it stays convenient for them is if someone like me shuts up and goes away. I represent the people, and I think it’s more in line with my duties and responsibilities to those who elected me. The majority of Sussex County elected me because they believed in what I was saying and what I wanted to do with the office.”

Christopher said he and his attorneys are confident in their appeal.