Waite: Despite standing on solid legal footing, Sheriff Giardino’s expressed discretion is a slippery slope

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Second Amendment

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In an interview with a National Rifle Association publication late last month, Fulton County Sheriff Richard Giardino basically said he can choose not to enforce laws.

He’s not wrong.

And that’s what should have all of us fretting.

Specifically, Giardino was talking about the Concealed Carry Improvement Act, which New York state’s Democratic-controlled Legislature passed in response to the Supreme Court of the United States’ June 2022 decision that granted protections for concealed carry for self-protection under the U.S. Constitution’s Second Amendment.

The state’s law, which the U.S. Supreme Court earlier this year allowed to stand — though the law still faces legal challenges — establishes a litany of locations deemed “sensitive,” where the right to concealed carry doesn’t extend.

Giardino’s argument, which he articulated to Frank Miniter, editor-in-chief of the NRA’s America’s 1st Freedom, and then reiterated to me, is this: because Giardino views the right to concealed carry as a right supported by the U.S. Constitution that has been backed by the Supreme Court’s June 2022 ruling, he’s going to use discretion when enforcing what he sees as a flawed state law that faces multiple lawsuits.

“My legal experience tells me that many provisions of this new gun-control law are unconstitutional,” Giardino, who has a degree from Albany Law School and was Fulton County district attorney and Fulton County Court Judge before being elected sheriff, told Miniter when asked if he would enforce the state’s Concealed Carry Improvement Act. “I see the law here in a state of flux, and we have a tremendous amount of discretion as to what we enforce. So we’re going to use our discretion.”

The sheriff is absolutely entitled to choose how to enforce just about any rule.

“He does have that discretion as a law enforcement officer,” said Professor Michael C. Wetmore of Albany Law School. “I think there is a risk involved in taking the position that he’s taking, but I have a sense that he knows his constituents.”

But even gun-rights advocates who support Giardino’s positions on this issue should be worried about the ways in which a local sheriff’s discretion may only serve to further drive us apart.

This isn’t the first time that Giardino has publicly professed his plans to flout state directives. During the pandemic in November 2020, he talked to basically any media outlet with a website about how he wouldn’t be enforcing then-Gov. Andrew Cuomo’s 10-person-gathering limit.

Although Giardino isn’t a member, he clearly subscribes to some of the tenets of the Constitutional Sheriffs and Peace Officers Association, which believes law enforcement should uphold the Constitution above all else.

While sheriffs committed to this theory have solid legal footing — the U.S. Constitution is the supreme law of the land, Wetmore noted — the use of discretion is a slippery slope.

Sure, sheriffs aren’t the only ones who get to make decisions about laws. For starters, other police agencies have a similar right. Just think about every time a cop chooses whether to issue a speeding ticket, Wetmore said.

And members of all branches of government are granted discretion, too. Consider the speaker of a chamber who gets to choose which bills to bring to a legislative floor, or the judges who determine which cases to take.

Plus, there are checks on law-enforcement discretion. For instance, New York has a mandatory arrest law for domestic violence incidents. Another check is that multiple law enforcement agencies have jurisdiction in a given region and could choose to enforce laws differently. And sheriffs, in particular, face the check imposed by the public — if voters disapprove of a sheriff’s actions, they can elect someone new.

But there is something that feels especially worrying about an elected sheriff being so public about his plans to loosely enforce a law, particularly a law that is so polarizing.

Giardino defends his words as demonstrating transparency and doesn’t believe he is encouraging or enabling anyone to break the law.

“I’m not telling people ‘go ahead and carry and then we’ll worry about it.’ I’m telling people that if you forget that you have [a gun] on you and you go into a store, we’re not going to get all bent out of shape and make it a felony case,” he told me.

In Giardino’s case, proclaiming his desire not to crack down on concealed carry — in an NRA publication to boot — is no doubt great politics in Fulton County, where registered Republicans outnumber Democrats by more than 2 to 1.

But since sheriffs such as Giardino are directly elected by the people, that means it’s the people of Fulton County who have significant influence over which laws get enforced. No, they don’t get to write the laws. But they will certainly elect sheriffs who enforce the laws they like and who ignore the laws they don’t like. I’ll bet a lot of people, especially in Fulton County, love the sound of more power in the people’s hands. Indeed, there is something that feels uniquely American about this sentiment.

And yet, our system is supposed to be one based on laws. It’s supposed to be based on laws that are written after fierce and meticulous debate held by an array of leaders and constituents representing a cross section of interests. It’s supposed to be based on laws that are rigorously and continuously scrutinized by the courts.

Those who champion the rugged individualism of localized enforcement are neglecting the potential perils.

The day after the U.S. Supreme Court issued its ruling on concealed carry in New York, the justices issued another monumental ruling: Dobbs V. Jackson, which overturned Roe. V. Wade and meant that access to abortion was no longer constitutionally protected.

In the aftermath of this ruling, people have essentially been living in different realities, governed by different rules. In some states, private citizens can report doctors who perform abortions. In other states, such as in New York, legislatures have implemented protections guaranteeing access to abortions.

Discretion exists in enforcing all of this. Will local police in restrictive states choose to criminally pursue women seeking abortions? Will the U.S. Food and Drug Administration choose to look the other way if a type of abortion pill ultimately becomes restricted, even in states where abortions are legal? (We’re awaiting a ruling by a federal judge in Texas.)

With diametrically opposed laws and individualized interpretations of how to enforce those laws, it can be hard to know which way is up, and which way is down. Amid the confusion and the divergent standards, we become even more divided, and our positions can become even more extreme.

Giardino, who is more nuanced in his positions than soundbites allow, is himself upset about this.

“It almost seems like what the country has done is shift to the extremes of both parties driving the laws,” he told me. “The whole idea of compromise, what is best for the most people, has gone by the wayside.”

Sadly, as we move further and further apart it’s not even a dystopian hyperbole to imagine a reality in which voters choose extreme leaders who embrace a society resembling anarchy. We all lived through Jan. 6, right?

That’s why while Sheriff Giardino very much has the legal right to choose how he wants to enforce the state’s concealed carry restrictions, as an elected official he must consider how far he’ll go in wielding and touting his power of discretion. The last thing anyone — particularly a sheriff — should want is a state of lawlessness.

Columnist Andrew Waite can be reached at awaite@dailygazette.net and 518-417-9338. Follow him on Twitter @UpstateWaite.

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