Court: Sheriff has no arrest powers

A Delaware Superior Court judge has ruled sheriffs in Delaware do not have the power to make arrests and cannot act as police officers.

Judge T. Henley Graves issued his opinion March 19 in a case brought by Sussex County Sheriff Jeffrey S. Christopher asking the court to declare that under the state constitution, as sheriff, Christopher is the chief law enforcement officer of the county with full law enforcement powers.

The sheriff also argued he is an officer of the state, not of the county, and his position is higher than Delaware State Police.

Graves reviewed the history of the role of the sheriff found in the state's four constitutions, writing, "The central question is: Does the office of the Sheriff inherently possess law enforcement authority because he is a conservator of the peace?  The answer is no."

Christopher said he plans to appeal the judge's decision to the Delaware Supreme Court. “To say the conservator of the peace is not a peace officer is illogical when thousands of rulings say just the opposite,” he said. “This has politics written all over it.”

Christopher repeated what he has said many times. “I don't want a county police force, but I want the department to be able to fill in, help out and make arrests if necessary. It would be a different, more proactive role for the Sheriff's Office,” he said.

That's clearly not the view of the court. In concluding his opinion, Graves wrote, “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.”

Graves also wrote his decision “moots the sheriff’s complaints that the county has not properly funded his office and attempts to meddle in his business.”

In the Delaware Constitution, codified in 1897, the sheriff is considered a conservator of the peace; the constitution also lists judges and the attorney general as conservators of the peace.

Graves heard arguments over Delaware sheriffs’ duties as conservators of the peace March 8. Wilmington attorney Christos Adamopoulos, representing Christopher, said based on his research of case law and Black’s Law Dictionary, conservators of the peace have powers of arrest.

In his decision, Graves said, “There is no doubt that there is abundant authority in case law from other states for the proposition that a conservator of the peace is a peace officer entitled to make arrests.”

But, Graves said, Christopher’s attempt to rely on case law from other states fails. “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 office holder is a constitutional officer involved in governance tasked with keeping the peace or the ‘normal state of society.’”

Christopher said Delaware sheriffs are the only ones without arrest powers. “It has to be politics because it's not logical, it's not historical and it's not the right thing,” he said. “I've met with hundreds of sheriffs, and they are concerned about what is going on here in Delaware.”

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

During oral arguments, 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.

In Graves’ decision, he said HB 325 unambiguously removed any common law arrest power the sheriff may have had.

Deputy Attorney General Edward Black, representing the state, said the Department of Justice was pleased with the ruling.

Sussex County Council President Michael Vincent said the county was also happy with the court’s ruling. “While this may not signal the end of the argument, the county is hopeful it will lay the groundwork in settling this long-running saga once and for all,” he said.

The Sussex sheriff said he was elected on a promise to reshape the office beyond the role of serving court papers and conducting sheriff's sales. “That's what the people want,” he said.

Christopher said it's clear to him there are politicians who have an agenda to disable and remove powers from the Sheriff's Office. “I always thought the No. 1 role of government was to protect the people, but it seems the focus is not on the people anymore,” he said. “Politics are slipped under the feet of the people and abruptly removed so they have nothing to stand on.”