Fordham Law


Taking Liberties: Montana Lawmaker Wants Feds to Alert Sheriffs on Arrests

James A. Cohen in FOXNEWS, March 23, 2011

Media Source

by Douglas Kennedy

These days, Greg Hinkle, like many people, feels the federal government is out of control. But to Hinkle it’s not just about the deficit.

He believes federal law enforcement agencies are a big problem -- and that they have not been held accountable.

“And they need to be,” Hinkle said in front of the Montana state Capitol in Helena. “They need to be accountable."

He quickly added that local law enforcement agencies, by contrast, are accountable.

Hinkle is a Republican state senator from Thomson Falls, and he recently proposed a law, likely the first of its kind, asking federal law enforcement to first seek approval of county sheriffs before any federal intervention in the state of Montana. He calls it “The Sheriffs First Bill.”

“I believe that before any federal agency does any action within a county,” he explained, “they should cooperate with the sheriff, coordinate with the sheriff and go to him and say this is what we need to do in this county.”

For instance, Hinkle would want the FBI to first notify a Montana sheriff before executing a search warrant or making an arrest in the state of Montana.

At one point he allowed for arrest of any federal agent who didn’t comply, but has since taken out that language. He also reluctantly added a line that allows for federal agents to notify sheriffs “after the fact,” in order to get the bill through the Montana House of Representatives.

Nonetheless, legal observers still call Hinkle’s bill “a clear violation of the Supremacy Clause of the U.S. Constitution.”

“The federal government does not have to ask or even inform local law enforcement about what they are doing,” said James Cohen, a constitutional law professor at Fordham Law School in New York. “Sometimes they do because it’s convenient, but they do not have to.”

Hinkle points out that the bill has already passed the Montana State Senate (with the original language) and is expected to pass the House in the next couple of weeks.

He also says there’s a lot of support in Montana, a state which he says well remembers the deadly federal raids at Ruby Ridge, Idaho, in 1992 and Waco, Texas, in 1993.

“I view it as a safety issue,” he said. “Because there has been in the past, in parts of the country, difficult situations.”

Cohen remains unimpressed.

“They can’t do it,” he said. “They can't pass a law that says the federal government, the FBI, the [Drug Enforcement Agency], whatever federal law enforcement agency, must contact the sheriff before engaging in law enforcement activities. It simply can't be done."

Of course it can, said Hinkle.

“How on earth could the states not challenge federal law?” he asked. “That's the way our system of government works.”

“The states are what created the federal government,” he added, “so the states should actually have more authority than the federal government."