MONTGOMERY COUNTY & FULTON COUNTY -- Both Montgomery County Sheriff Jeff Smith and Fulton County Sheriff Richard Giardino issued statements this week rejecting calls from social media groups asking them to declare their respective counties "2nd Amendment Sanctuary counties."
Smith and Giardino are Republicans who serve rural counties with many active gun owners. In written letters posted to their respective Facebook pages, each outlined his objection to New York's Secure Ammunition and Firearms Enforcement Act of 2013, commonly known as the New York SAFE Act. While each explained his strong support for the second amendment — each also said he cannot announce he will refuse to enforce laws he doesn't like personally.
Giardino, a former district attorney and former judge, explained why he won't, and why other sheriffs should not, declare their counties "2nd Amendment Sanctuaries."
"Under my Oath as the Fulton County Sheriff, my oath as an admitted Attorney in the State, as a Former District Attorney and County Court Judge, I can't refuse to enforce any duly passed law which has been found Constitutional by the Courts. To do so would make myself or any other Sheriff derelict in their duties and subject to removal," he said. "As Sheriffs we have to be cognizant of the fact that a Governor can remove a Sheriff who refuses to enforce the laws of the State of New York."
Smith said Gov. Andrew Cuomo could remove him from office if he announced he was going to refuse to enforce the SAFE Act, although he has some law enforcement discretion.
"I, nor members of the Montgomery County Sheriff's office, have ever gone out of our way to seek Safe Act violations and confiscate guns," he said in his letter.
Smith said the court system has upheld the constitutionality of the SAFE Act, which means county sheriffs have to enforce when presented with evidence of its violation.
"Many of us in law enforcement do not agree with most of the SAFE Act," Smith wrote. "We were not consulted in the development process. It was passed quickly, and, at times, seemed to lack clarity and common sense. With that said, the SAFE Act passed by New York State has survived judicial scrutiny, and the majority of the law was found to be constitutional (up to this point). As a duly elected Sheriff, I take an oath of office to uphold the constitution of both the United States of America and the State of New York. I am expected, and at times, ordered by the court to enforce the laws provided to as by our Assembly, Senate and Governor."
Smith said declaring his county a 2nd Amendment Sanctuary would set a bad precedent.
"Declaring the county as a Sanctuary County is basically encouraging people to not obey the law," Smith said in his letter. "Although there is the ability for police to use discretion, this type of behavior could become very problematic. At what point and time do others ask us to ignore other laws, for example property crimes, or sex crimes or any other law on the books that some people are not in favor of? It is simply a double-edged sword. I cannot ignore the law, nor can I turn a blind eye to others who do so. This would be considered a dereliction of my duties, and something that I would hope you would not stand for."
While Smith said he is unaware of any instance in which the sheriff's department under his leadership has charged anyone with the SAFE Act, he said sheriff's deputies would charge violations of that law in instances where individuals were arrested for other crimes and were also found to be in possession of weapons that violated the SAFE Act.
"The only way that were are seeking any prosecutions on SAFE Act violations is if [the charged person] is involved in an incident and it's brought to light to us — we're not out there seeking the letter of the law and attempting to look for these violations," he said. "I don't think we have charged anyone with it, but it's been 13 months since I've been in office, and I haven't researched every [case we've had]."
Smith said if sheriff's deputies arrested individuals on drug dealing charges for example, and they were in violation of the SAFE Act, he would charge them.
"Or, God forbid, there was a shooting, or a situation where someone was threatening someone with a gun, stuff like that — absolutely we would charge it," he said. "And that's what I mean about responsible gun owners, because when [people] do negative things like that, it ends up becoming the responsible gun owner's problem [from legislation like the SAFE Act], obviously."
When contacted, Giardino referred questions about the issue to his written statement. In the statement, he said he became aware of the "2nd Amendment Sanctuary County" movement by advocates asking him to declare Fulton County a sanctuary from the SAFE Act.
"The movement to designate Fulton County as a 2nd Amendment Sanctuary County has gained tremendous momentum in a short amount of time," Giardino wrote. "I have been contacted by Facebook, email, text and phone calls seeking my opinion of the 2A Sanctuary County Movement.
I have had numerous conversations with Lewis County Sheriff Mike Carpinelli, one of the strongest voices on protecting our Second Amendment Rights statewide. I have consulted with the NYS Sheriffs Association. I recently met with the principals who have been promoting and circulating the petitions throughout Fulton County. I have researched the current status of the SAFE Act and the impact of the 2A Sanctuary County Movement upon my duties and responsibilities under my Oath as the Fulton County Sheriff."
Giardino suggested advocates of the 2nd Amendment Sanctuary concept instead contact their elected county officials.
"First and foremost I will strongly defend, under the First Amendment, the right of the petition signers to petition the Fulton County Board of Supervisors to ask that the County adopt the 2A Ordinance," he said. "I believe this is largely a symbolic act to send a message to Governor Cuomo, the State Senate and the Assembly."
In January 2019, the Board of Supervisors of New York's Wyoming County passed a resolution in opposition to state laws that curtail the "right of the people to keep and bear arms for the defense of life, liberty and property."
In New York state, however, local governments have no sovereign power that supersedes any state law. The New York state Legislature and the governor have the power to change the borders of any government and require enforcement of any law deemed constitutional by the court system. The state constitution also gives the governor the power to remove any elected or appointed local official in the state, including sheriffs, and then appoint a replacement for that official until a special election can be held, in the cases of elected positions.
Smith said he became aware of the Second Amendment Sanctuary idea when a group of advocates came to his office to ask him to "lead the way" in declaring his county a sanctuary.
"So, I felt the need to put out a statement, clarifying the position that I'm elected to enforce the laws, and although I do have some police discretion — and I use that discretion frequently — I just can't ignore laws for the sake of ignoring them," he said. "Arbitrarily, I just can't legally come out and say I'm not going to enforce laws."
Smith said Gov. Cuomo's office has never contacted him about the SAFE Act or about enforcing it.