Bill Tallen

Governance is complicated. Our Constitution guarantees a say over who governs us and how, but too often we listen to those who speak first, loudest, and most often, while focusing on our daily lives and leaving important issues to the activists and the political class. Slogans and oversimplification lead to poor solutions. 

In America, if our freedoms are threatened, or when those we trust with the dull grind of governance come to enjoy their power too much, we have the ability to compel change without resorting to “Brother Lead and Sister Steel,” which is how our European cousins used to resolve those issues — unless, as is the case these days, they simply surrender their freedoms for the life of happy serfs ruled by their betters. We have the means, and the right, but that doesn’t mean we always get it right.

This all passed through my mind while reading about Gov. Mark Gordon’s veto of SF 196/SEA 0082, “Second Amendment Protection Act — amendments.” Political games included the end-of-session delay in sending the bill to the governor, so that the legislative session ended before an override of the veto could be pursued. The vitriol against Gordon is intense. And then there’s the spectacle of two feuding Second Amendment lobbying organizations in a rare display of unity, advancing a compromise bill trying to please everyone. 

Some had complained that the original SAPA was “toothless” because it only provided criminal penalties against individual Wyoming law enforcement officers who violated its provisions, which seemed pretty toothy to me. This year’s amendments added civil liability for any Wyoming law enforcement agency whose employees assisted federal authorities in the enforcement of bad federal gun laws. Some preferred the original individual criminal penalties, others proposed replacing them with civil liability for the agencies, and the inevitable result was to combine them both; at least we didn’t end up with a guillotine. This did please everyone except the law enforcement community, for some reason.

The intent of this law — protection against federal infringement of Second Amendment rights — is worthy; and there were several thoughtful amendments in SF 169 that would have improved the law. But those civil and criminal penalties have generated most of the opposition that led to the governor’s veto, in my outsider opinion. 

There’s potential for opportunistic abuse of SAPA. There are many complexities and ambiguities evident from even a quick read of SF 169 and the existing statute; and what are lawyers, as a class, except trained professionals in creating, identifying and exploiting complexities and ambiguities? Consider scenarios like this: Someone is arrested for domestic violence, violation of parole or a restraining order, or another violent felony, and his guns are seized to ensure safety of the public and law enforcement officers or simply because the subject is taken into custody. Federal officers get involved, because there are offenses like immigration violations, drug trafficking, or improvised explosives, where there are no state statutes, only federal ones. Seizure of firearms under these conditions are supposed to get a pass, under SAPA. But suppose the charges are later dropped, or dismissed by the judge, or the accused is found not guilty. With civil penalties of $50,000 per count, what would stop him from filing civil suits against every agency involved, alleging that his Second Amendment rights were violated? Whether his case is strong or weak, the targeted agencies will have to lawyer up to defend themselves. If they lose the case, or offer a settlement to avoid the risk of a more expensive verdict in court, that settlement or judgment will be paid with taxpayers’ money. As Democrats liked to brag during their lawfare against President Donald Trump, “the process is the punishment.” 

The authors of SF 169 tried to protect against this kind of opportunism, to their credit, but the remaining gaps are wide enough to drive a truck through.

If prosecutors bow to political pressure and file criminal charges against individual officers in such cases, and if the agency declines to defend its employees with taxpayer funds, that could impact the ability of Wyoming law enforcement agencies to recruit and retain quality personnel — an unintended consequence, but one which would impact us all. 

The other big concern I’ve heard expressed is that SAPA casts Wyoming law enforcement officers and agencies as enemies of our rights, something they have not generally earned; this is not New Jersey or Connecticut. They’re on our side more often than not, and we ought to be concerned about keeping them that way. Established law and court precedents already defend our state’s officers if they refuse to support enforcement of objectionable federal laws. There might be a better way to ensure that they stand up for our rights, than the threat of prosecution and civil liability.