GREELEY, Colo. – When Sheriff John Cooke of Weld County explains in speeches why he is not enforcing the state’s new gun laws, he holds up two 30-round magazines. One, he says, he had before July 1, when the law banning the possession, sale or transfer of the large-capacity magazines went into effect. The other, he “maybe” obtained afterward.
He shuffles the magazines, which look identical, and then challenges the audience to tell the difference.
“How is a deputy or an officer supposed to know which is which?” he asks.
Colorado’s package of gun laws, enacted this year after mass shootings in Aurora, Colo., and Newtown, Conn., has been hailed as a victory by advocates of gun control. But if Cooke and a majority of the other county sheriffs in Colorado offer any indication, the new laws – which mandate background checks for private gun transfers and outlaw magazines more than 15 rounds – may prove nearly irrelevant across much of the state’s rural regions.
Some sheriffs, including Cooke, are refusing to enforce the laws, saying that they are too vague and violate Second Amendment rights. Many more say that enforcement will be “a very low priority,” as several sheriffs put it. All but seven of the 62 elected sheriffs in Colorado signed on in May to a federal lawsuit challenging the constitutionality of the statutes.
The resistance of sheriffs in Colorado is playing out in other states, raising questions about whether tougher rules passed since Newtown will have a muted effect in parts of the American heartland, where gun ownership is common and grass-roots opposition to tighter restrictions is high.
In New York State, where Gov. Andrew M. Cuomo signed one of the toughest gun law packages in the nation last January, more than one sheriff has said publicly they would not enforce the laws – inaction that Cuomo said would set “a dangerous and frightening precedent.”
Erie County Sheriff Timothy B. Howard is one of them, saying earlier this year that he is “more than reluctant” to enforce the law: “I won’t enforce it.”
Howard, one of five sheriffs suing the state to fight the law, said he considers the law unconstitutional and a waste of valuable resources, and he believes it will ultimately be overturned by the courts. He is joined in the lawsuit by the sheriffs of Oswego, Wayne, Putnam and Fulton counties, as well as the New York State Sheriffs Association.
The sheriffs’ refusal is unlikely to have much effect in the state: According to New York State’s Division of Criminal Justice Services, since 2010, sheriffs have filed less than 2 percent of the two most common felony gun charges. The vast majority of charges are filed by the state or local police.
In Liberty County, Fla., a jury in October acquitted a sheriff who had been suspended and charged with misconduct after he released a man arrested by a deputy on charges of carrying a concealed firearm. The sheriff, who was immediately reinstated by the governor, said he was protecting the man’s Second Amendment rights.
And in California, a delegation of sheriffs met with Gov. Jerry Brown this fall to try to persuade him to veto gun bills passed by the state Legislature, including measures banning semiautomatic rifles with detachable magazines and lead ammunition for hunting (Brown signed the ammunition bill but vetoed the bill outlawing the rifles).
Countering the elected sheriffs are some police chiefs, especially in urban areas, and state officials who say that the laws are not only enforceable but that they are already having an effect. Most gun stores have stopped selling the high-capacity magazines for personal use, although one sheriff acknowledged that some stores continued to sell them illegally. Some people who are selling or otherwise transferring guns privately are seeking background checks.
Eric Brown, a spokesman for Gov. John W. Hickenlooper of Colorado, said, “Particularly on background checks, the numbers show the law is working.”
The Colorado Bureau of Investigation has run 3,445 checks on private sales since the law went into effect, he said, and has denied gun sales to 70 people.
A U.S. district judge last month ruled against a claim in the sheriffs’ lawsuit that one part of the magazine law was unconstitutionally vague. The judge also ruled that although the sheriffs could sue as individuals, they had no standing to sue in their official capacity.
Still, the state’s top law enforcement officials acknowledged that sheriffs had wide discretion in enforcing state laws.
“We’re not in the position of telling sheriffs and chiefs what to do or not to do,” said Lance Clem, a spokesman for the Colorado Department of Public Safety. “We have people calling us all the time, thinking they’ve got an issue with their sheriff, and we tell them we don’t have the authority to intervene.”
Sheriffs who refuse to enforce gun laws around the country are in the minority, though no statistics exist. In Colorado, though, sheriffs such as Joe Pelle of Boulder County, who support the laws and have more liberal constituencies that back them, are outnumbered.
“A lot of sheriffs are claiming the Constitution, saying that they’re not going to enforce this because they personally believe it violates the Second Amendment,” Pelle said. “But that stance in and of itself violates the Constitution.”
Matthew J. Parlow, a law professor at Marquette University, said that some states, including New York, had laws that allowed the governor in some circumstances to investigate and remove public officials who engaged in egregious misconduct – laws that in theory might allow the removal of sheriffs who failed to enforce state statutes.
But, he said, many governors could be reluctant to use such powers. And in most cases, any penalty for a sheriff who chose not to enforce state law would have to come from voters.
Cooke said that he was entitled to use discretion in enforcement, especially when he believed the laws were wrong or unenforceable.
“In my oath it says I’ll uphold the U.S. Constitution and the Constitution of the State of Colorado,” he said, as he posed for campaign photos in his office – he is running for the State Senate in 2014. “It doesn’t say I have to uphold every law passed by the Legislature.”
The Buffalo News contributed to this report.