dereliction of duty?

constitutional sheriffs pt 1

Dear Friends,

While working on my promised sheriff article this morning, I stumbled across a document written by Lancaster County Sheriff Terry Wagner titled:
Sheriff Wagner opines on Constitutional Sheriffs

I decided to write a rebuttal, which I just sent (to him and some of his coworkers) and am now sharing with you below. (I addressed it to “Dear Friends” and bcc’d several people so he would know many others were going to be reading it. In other words, I trolled him.)

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Email

Subject Line: a rebuttal to Sheriff Wagner's opine on Constitutional Sheriffs
To: twagner@lancaster.ne.gov, lso@lancaster.ne.gov, commish@lancaster.ne.gov

Dear Friends,

Below is my rebuttal to a short document written by "Sheriff" Terry Wagner on Constitutional Sheriffs. You can find his document here. 

I will quote from it, a segment at a time, and offer a response to each segment. I suggest you give the document a glance as a whole first, before continuing.

Here goes.

Wagner:
A number of people have called and emailed me with the question of ‘am I a Constitutional Sheriff’? When I was first asked that question I thought it meant, ‘is the Office of the Sheriff in Nebraska established in our constitution’? I can tell you it is not. Nor, is the Office of Sheriff mentioned in the U.S. Constitution. The excerpts below show the Nebraska Constitution gives the authority to establish sheriff’s offices to the Legislature. As a matter of fact, different bills have been introduced over the years to eliminate elected county officers, but have failed.
Me:
The office of county sheriff didn't need to be established in/by our State Constitution, our U.S. Constitution, or our Legislature. The office of county sheriff was already established by common law in the territory that would become Nebraska before it became a state. 
Nebraska became a state on March 1st, 1867.  
"In 1861, Louis J. Loder was appointed the first sheriff and county clerk of the county. The first elected sheriff of the county was William Pemberton in 1863." (Wagner needs to read his own website here.)
Nebraska didn't have a constitution until 1875.
Again, the office of county sheriff was already established before our statehood and our State Constitution.
As for the U.S. Constitution, it was a creation of the states that already had county sheriffs.
Regarding Wagner's claim that our Constitution gave authority to the Legislature to establish county sheriff's offices, again, the Legislature only recognized what already existed and standardized it, starting in NRS 23-1701. 
In NRS 23-1701.03, "Sheriff; general powers and duties," it says:

"The sheriff shall exercise the powers and perform the duties conferred and imposed upon him or her by other statutes and by the common law."

The basic responsibility of the county sheriff, per common law and common sense, is to "keep the peace" as expressed in NRS 23-1701.02: 

"It shall be the duty of every sheriff to...suppress all riots, affrays, and unlawful assemblies which may come to his or her knowledge, and generally to keep the peace in his or her proper city." which, by the way, Wagner absolutely failed to do during Baird's 2020 reign of terror!

Wagner:
Nebraska State Constitution Article IX-4
The Legislature shall provide by law for the election of such county and township officers as may be necessary and for the consolidation of county offices for two or more counties; Provided, that each of the counties affected may disapprove such consolidation by a majority vote in each of such counties.
Me:
Article IX-4 had no bearing on the establishment of the office of county sheriff. IX-4 provided for standardizing "the election of such county and township officers as may be necessary..." The office of county sheriff had already been deemed necessary and thus established. A county is nothing without law enforcement.  Other county officers may have yet needed to be determined and standardized.

Wagner:
To accomplish the requirements in the Constitution, the Legislature enacted Nebraska Revised Statute 32-520; A county sheriff shall be elected in each county at the statewide general election in 1990 and each four years thereafter. The term of the county sheriff shall be four years or until his or her successor is elected and qualified.
Me:
Establishing the office of county sheriff and establishing a statewide standard for electing county sheriffs are two different things. The office of county sheriff had already been established.

Wagner:
The county sheriff shall meet the qualifications found in sections 23-1701 and 23-1701.01. The county sheriff shall be elected on the partisan ballot.
Me: 
Standardizing all the responsibilities of a county sheriff is one thing. Establishing the office of county sheriff in another thing altogether.

Wagner:
All elected officials at the county level take the oath of office codified in N.R.S. 11-101.01; I, .........., do solemnly swear...
I am sworn to support and defend the Constitution of the United States, and the laws and constitution of the state of Nebraska, not to interpret it. I take that oath of Office very seriously.  
Me:
How can Wagner swear to support and defend a document unless he knows what it says and means? His statement that he can't interpret it is absurd. It's a complete cop-out. A contradiction and outright denial of his oath.

Wagner:
When I googled “constitutional sheriffs” the definition given means they enforce constitutional law over all else –it has nothing to do with the establishment of the Office of Sheriff in the Constitution or Statute. "constitutional sheriffs" believe that sheriffs are the highest governmental authority and that they have the power and duty to defy or disregard laws they deem unconstitutional. Those last three words should concern all of us. “they deem unconstitutional”. Nowhere are Sheriffs given the legal authority to interpret the Constitution. 
Me:
Again, utter nonsense. It goes without saying that if you swear to support and defend something, you must understand what it says and means.

Wagner:
I also find it interesting the Constitutional Sheriffs and Police Officers Association (CSPOA) pick and choose which issues they feel are unconstitutional. Immigration, Gun Control and federally controlled land within a state have been the CSPOA targeted areas in the past. Now, Directed Health Measures; mask mandates and vaccine mandates are the latest issues deemed unconstitutional by the group. The fact is, in Nebraska, Health Departments are codified in Statute. Directed Health Measures and the penalties for violating them are also in Statute. If you don’t like how the COVID-19 pandemic is being handled, there are a number of ways to make your displeasure known. Not the least of which is asking your State Senator to introduce a bill to change the Statutes governing Health Departments.
Me: 
"[P]ick and choose which issues"?? Yeah, they "pick and choose" to support and defend all those rights which are being infringed, if they are doing their job to the fullest.

Wagner:
It would appear the patriot and the sovereign citizen movements have ideological similarities with the CSPOA and are prompting citizens to ‘vet their Sheriff’ to determine if they are a Constitutional Sheriff according to the guidelines of the CSPOA? So the bottom line is, since Sheriffs don’t have the legal authority to judge a law as unconstitutional, that must mean I am not a Constitutional Sheriff, nor are there any Constitutional Sheriffs in Nebraska. Terry T. Wagner Lancaster County Sheriff 
Me:
Wagner is simply a wimp. His oath to "support and defend the Constitution of the United States and the Constitution of the State of Nebraska, against all enemies, foreign and domestic" and to "bear true faith and allegiance to the same" PRESUPPOSES that he knows what those Constitutions say and what they mean, and if he doesn't know what they say and mean, then he can't fulfill his oath and he should resign, ASAP. 

In Closing
Wagner simply doesn't want to stand against power abuse (tyranny) and secure our God-given rights per his oath. He doesn't want to do his basic job.

Wagner is ignorant of our history, our form of government and our basic rights. Governments are instituted for the explicit purpose of securing our rights. Sheriffs are the only elected law enforcement officers in the County and at the same time the highest law enforcement officers in the County. There’s a reason for that. To make law enforcement accountable to the People, who hold the ultimate police power (see Article I-26 below), and to keep Counties sovereign and self-governance local. Decentralization is critical to self-governance. Elected officers have an obligation to the People, first and foremost, over other divisions of government.

Nebraska State Constitution I-1.
Statement of rights.
"All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof. To secure these rights, and the protection of property, governments are instituted among people, deriving their just powers from the consent of the governed.

Per Article I-26, We the People have delegated our power to Wagner to enforce just law and protect us from unjust law (tyranny):

Powers retained by people.
This enumeration of rights shall not be construed to impair or deny others, retained by the people, and all powers not herein delegated, remain with the people.

Per one of the annotations, "Police power is one of the powers which has been reserved by the people of the state, and which cannot be surrendered."

If Wagner doesn't want to do the job he was elected to do, it falls back to We the People to defend ourselves, our county and our God-given right to self-government through real elections.

"That to secure these Rights, Governments are instituted among Men, deriving their JUST Powers from the CONSENT of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government."
—Declaration of Independence, 1776

That's it, dear friends. Forward to your respective sheriffs as you see fit.

In part two, I will provide examples of sheriffs who courageously and successfully stood up to both federal and state tyranny.

God bless,

Robert J. Borer

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That’s what I sent. Stand by for part 2 in the days ahead.