Schwartzkopf Introduces Bill Clarifying Powers Of County Sheriff

Delaware House of Representatives House Majority Caucus


Bill spells out sheriffs do not have arrest authority

DOVER – Honoring a direct request from Sussex County Council, House Majority Leader Rep. Peter C. Schwartzkopf introduced legislation on Thursday that would spell out that county sheriffs and their deputies do not have arrest authority.

House Bill 325 was prompted by concerns surrounding the Sussex County sheriff‟s office, which has conducted traffic stops and made arrests, despite multiple opinions from the Attorney General‟s Office and being prohibited under state law from acting as a police officer. The Sussex sheriff contends that a line in the Delaware constitution that says that sheriffs are “conservators of the peace” gives him that authority.

Sussex County Council has unanimously endorsed a proposal to clarify that the sheriffs and their deputies cannot make arrests. Officials have said that if the sheriff continues to make illegal arrests, the county could face serious lawsuits that could cost taxpayers hundreds of thousands of dollars.

“The simple fact is that „conservator of the peace‟ is an undefined term that also applies to the chancellor, judges and the attorney general. The most recent attorney general‟s opinion says that the sheriff‟s „power to arrest is no greater than that shared by any citizen,‟ which is pretty clear in my book,” said Rep. Schwartzkopf, D-Rehoboth Beach. “We have one sheriff who thinks he is above the law, and that is why we need to do this. The other two sheriffs understand what their authority is.

“This is not a political issue, it is a public safety issue. There are people running around acting like police officers who aren‟t trained to be police officers. County Council is worried about the safety and huge liability issues this creates, and they have asked us to take action. We cannot abandon them and leave taxpayers on the hook for thousands or even millions of dollars.”

A 64-page Sussex County Council report issued last month details numerous incidents in which sheriff‟s deputies acted as police officers, including a February incident in which a deputy attempted to arrest a person on drug charges, only to have the charges thrown out “because the deputy is not a police officer.”

In October, according to the report, a sheriff‟s deputy held three teens for questioning while they were hunting at Redden State Forest, despite the fact that they had licenses and the proper attire. “After nearly 10 minutes of questioning – and as their parents approached in their vehicles – the deputy left the scene,” the report states.

“Sussex County continues to support any effort that will clarify state law and answer once and for all the questions surrounding Delaware‟s sheriffs,” Sussex County Administrator Todd F. Lawson said. “We believe, just as the Delaware Attorney General‟s Office recommended, that the General Assembly must resolve this matter by passing legislation that clearly defines the role of Delaware‟s sheriffs and their deputies.”

Last week, Rep. Daniel B. Short struck House Bill 290 – a similar bill that would have spelled out that sheriffs don‟t have arrest powers – less than two hours before it was scheduled for a committee hearing. In its place, he filed House Concurrent Resolution 42 on Tuesday asking the Delaware Supreme Court for an advisory opinion on whether county sheriffs have arrest authority.

Rep. Schwartzkopf and House Speaker Rep. Robert F. Gilligan have pointed out that the role of the General Assembly is to pass legislation and then if someone objects, they can file a suit in court contesting the validity of the law.

HB 325 and HCR 42 have been assigned to the House Administration Committee, and the bills will be heard in committee on Wednesday, May 9 at 3 p.m.