Since the passing of Illinois’ new law banning assault-style weapons and high-capacity magazines, most sheriffs have refused to enforce the policy, citing their belief the state has placed them in an untenable position of enforcing a law they believe to be unconstitutional.
And observers with knowledge of the law say the sheriffs' public statements, while politically controversial and boundary-pushing, don't necessarily run afoul of any law or their obligations under the Illinois state constitution. Further, the state's options to compel enforcement of the law are limited by both the law and politics, they said.
Following the passing of the so-called Protect Illinois Communities Act, sheriffs across the state released similar statements. The sheriffs vowed they would not be "checking to ensure that lawful gun owners register their weapons with the state, nor arresting or housing law abiding individuals that have been arrested solely with non-compliance of the Act,” asserting it violates Illinoisans' rights under the Second and Fourteenth Amendments.
Kendall County Sheriff Dwight Baird
| kendallcountyil.gov
Kendall County Sheriff Dwight Baird, for instance, said he supports legislation intended to increase the safety of his community, but does not believe the new law accomplishes this goal. Baird also serves as vice president of the Illinois Sheriffs Association.
"I believe that it infringes on the constitutional rights of law-abiding citizens,” Baird said. "Further, I do not believe stricter gun control laws or disarming law-abiding citizens will make the state of Illinois or the citizens of Kendall County any safer.”
The Illinois Sheriffs Association also officially opposed the law. and has stated its support for its member sheriffs, though its official public statement did not call for any kind of mass resistance to the law.
Requests for comment from the Illinois Sheriffs Association were not returned.
The statements from the sheriffs have drawn a sharp response from supporters of the law, including Illinois Gov. JB Pritzker and Attorney General Kwame Raoul. The state officials voiced threats to attempt to remove law enforcement leaders and officers who refuse to enforce the so-called assault weapons ban because they may believe it to be unconstitutional.
Evan Bruno, a criminal defense attorney with the Bruno Law Office in Urbana, believes the debate over the enforcement of the assault weapons ban is a political debate, centered on the idea of so-called "prosecutorial discretion," or discretion granted to law enforcement and prosecutors when deciding when and how to enforce laws. Bruno has examined prosecutorial discretion in articles published by the Illinois State Bar Association.
“I think a lot of people are missing the point that when it comes to enforcement by the police," Bruno said. "It is a political policy decision. Just like many other criminal laws that exist that those same people are probably glad aren't being enforced."
Bruno pointed to state laws prohibiting adultery and possession of obscene photographs.
"I’m assuming that most of these people who are upset with the position the sheriffs are taking on the assault weapons ban don’t think the sheriffs have a duty to go out and arrest people who are committing adultery or who are possessing pornography," Bruno said.
"Regardless of what you think about assault weapons or banning them or not banning them what can’t be disputed is that whether to enforce the ban or not is a sole decision for the sheriffs as much as it is a policy decision.”
Bruno said prosecutorial discretion allows law enforcement to decide who to prosecute, what crimes to prosecute and how often to prosecute — a discretion that lends itself to the recent ban.
“(It) is a decision we leave to the discretion of prosecutors, meaning the law does not have a requirement on how often certain crimes need to be prosecuted if at all,” he said.
Discretion plays a role for every police official as they prioritize the types of crimes to investigate and how best to deploy their personnel. The foundation of prosecutorial discretion is the idea that if the prosecutor or the sheriff is not enforcing laws that should be enforced there will be political consequences. This animates prosecutorial discretion, he said.
Bruno said the Supreme Court recognized long ago that private parties cannot sue prosecutors, sheriffs or police officers for not prosecuting a law. For example, some prosecutors have said they’re not enforcing a misdeameanor possession of marijuana, Bruno said, not because they think it’s unconstitutional, but because they don’t feel it’s worth their resources.
"With the assault weapons ban, it’s a little bit different, because certainly some sheriffs might have the idea in their head that maybe it’s a constitutional ban, maybe it doesn’t violate the Second Amendment but they personally don’t view assault weapons as worthy of their time or resources to take away people’s assault weapons or arrest them for violating this ban. There are other sheriffs, I’m sure, who think that banning assault weapons violates the Second Amendment and they can’t in good conscience enforce a law they believe violates the Second Amendment.”
Harold Krent, professor at Chicago-Kent College of Law, agreed that sheriffs and other police agencies and officials are entitled to prosecutorial discretion.
However, he believes the sheriffs’ interpretation of the Constitution should not play a role in their enforcement of the law. He said he believes the sheriffs overstepped the lines in condemning the law and stating their refusal to enforce it.
Krent pointed to the state of Georgia, where prosecutors will soon decide whether to exercise discretion to indict former President Donald Trump for his efforts to overturn the 2020 presidential election.
"No one can second guess that exercise of judgment, at least the court can’t second guess it,” Krent said of the Georgia case. "The difference I find with the sheriffs is that the sheriffs didn’t say they were using discretion not to prioritize particular crimes involving assault weapons. They flat out refused to enforce a law on the grounds it was unconstitutional."
Krent also noted Illinois sheriffs have joined in lawsuits challenging the so-called SAFE-T Act, Illinois' new law eliminating cash bail. While Krent said he also disagrees with the sheriffs' position in that case, "at least they can say they didn't refuse to enforce it, they just joined to have judges make a determination as to whether the law is constitutional or not."
Krent said he believes the sheriffs are also choosing to ignore a prevailing judicial precedent set by by the U.S. Seventh Circuit Court of Appeals. In 2015, the court upheld the constitutionality of an assault weapons ban in north suburban Highland Park. That community was the scene of a massacre carried out at an Independence Day parade on July 4, 2022, by a lone gunman using one of the weapons prohibited by that city's assault weapons ban. The weapon would also be banned statewide under the new law. The massacre spurred state lawmakers to enact the new weapons and magazine ban.
While new decisions from the U.S. Supreme Court could ultimately strike down the Highland Park ban, for now, the ban has been upheld and "right now, it's the law," Krent said.
“Legally, I think the big difference for sheriffs to say of all the critical drug crimes, robberies and murders, we’re not going to be enforcing this assault ban as aggressively as some people might think. That would be perfectly transparent and probably acceptable, but what they said was they’re refusing to do it because it’s unconstitutional,” Krent said.
Krent said the "irresponsible action by the sheriffs" could also be used to support legal action against them under state law. He said Pritzker or Raoul could move to bring "official misconduct" charges against particularly outspoken sheriffs. An official misconduct action in Illinois could result in felony charges against public officials in Illinois who are accused of refusing to do their jobs, Krent said.
Pritzker could claim sheriffs refusal to enforce the ban is an outright refusal of the sheriffs to perform their assigned functions as required under Illinois statutes and the state constitution, Krent said.
Krent conceded such actions are unlikely, "due to political sensitivity."
"But it’s conceivable, because this is a case the sheriffs haven’t said, ‘This a low priority, our resources are best used somewhere else,'” Krent said. "They said, ‘We’re declaring this law unconstitutional. We’re saying the governor and the General Assembly were lawless.' I mean, that’s pretty extreme."
Sheriffs going on the record to say they can interpret the constitution for themselves and not enforce a particular law sends what Krent believes to be a concerning message to the public.
"If the sheriffs are giving a pretty strong signal that they can interpret the constitution themselves, maybe citizens can as well and I think that’s not to the betterment of society,” Krent said.
Bruno said he was not aware of any successful legal action against a sheriff for not enforcing a law.
“It’s not a position of the courts to come in and basically usurp the rule of the prosecutors or law enforcement and say, ‘Do this here, don’t do this here.’” Bruno said. “That’s a well recognized component of the separation of powers."