We already had one fairly popular post on Preacher, exploring the legal ramifications of Jesse’s use of The Word. Here we’re going to talk about something a little more down-to-earth: Jesse’s installation as the sheriff of Salvation, Texas. Or possibly his assumption of said office. The legality of the job is one of the things at issue in the story itself. This time we’re going to be looking at the implications of improper inauguration for the state actor doctrine.
I. The Set Up
The story begins with Jesse rolling into Salvation, Texas about six months after a rather climactic confrontation with The Grail in Monument Valley, Utah. The town is home to Quincannon Meats, a meat processing factory owned and operated by one Odin Quincannon, a man who is, to put it mildly, one sick puppy. To say nothing of his lawyer. Anyway. Quincannon, being the only person of any means in the county and the single largest employer to boot, has set himself up as something of the unofficial “king” of Salvation. He’s got the judge and sheriff in his pocket, and his whole business model is apparently bringing in cheap labor from Houston and paying substandard wages with the promise that wenching and drunkenness, while not exactly legal, will be ignored by the local authorities. Political corruption is an unpleasant but undeniable feature of American local government, though the extent to which it exists in any given municipality varies drastically. Most municipalities are actually pretty well run by historical standards, but there are still places—particularly in rural areas—where the Good Ol’ Boys Club is still firmly in charge, and major cities aren’t immune, either, even if the days of blatantly corrupt organizations like Tammany Hall are largely over.
In any case, the sheriff of Salvation wants to stand up to Quincannon but isn’t brave enough to do it on his own. So he basically hands his job over to Jesse and skips town. Just like that. No election, no swearing-in, nothing. He just hands over the keys and walks out.
II. Improper installation of government officials
This is not even marginally legal. Though the sheriff probably has the authority to hire deputies at will, he doesn’t have the authority to just resign and name his own successor. In Texas, in the event of a vacancy, a successor sheriff is appointed by the Commissioners Court. Texas Const. art. 5 § 23. So legally speaking, Jesse is probably not the sheriff of Salvation. He’s impersonating an officer. Which is a crime. Section 37.11 of Title 8 of the Texas Penal Code makes it a crime to impersonate a public servant with the intent to induce another to submit to pretended authority. Jesse knows—or should know—that his installation as sheriff is illegal, as there hasn’t been an election, and the sheriff is an elected official. Texas Const. art. 5 § 23 again. So just by attempting to exercise the authority of the sheriff, he’s likely committing a third-degree felony. While the locals may not care all that much, the state Attorney General probably does.
But it gets worse: because his authority is illegal, and because the citizenry knows this, it isn’t illegal to resist an attempted arrest by Jesse. Or to resist or disobey any other order by him. If a random person on the street tells you to do something, you can tell them to go pound sand. If a police officer tells you to do something, and he’s got even a plausible reason for telling you to do it, you run the risk of criminal charges of some description. “Contempt of cop” is a problem, but resisting arrest, assaulting an officer, interfering with an investigation, and disorderly conduct are all real charges that do have legitimate uses. Jesse can’t legally rely on any of them. Which means the bad guys can legally resist his authority far more than they could a “real” sheriff.
Jesse’s illegal actions also have unique consequences in Texas. For the same reason that Texas is quite possibly the worst state for superheroes, any evidence obtained by Jesse as a consequence of his illegally held position is likely inadmissible in court. Texas Code § 38.23(a).
It’s questionable whether Jesse would count as a state actor for 14th Amendment and § 1983 purposes, however. To the extent he functions as the sheriff and people go along with it, then he may be a state actor under Marsh v. Alabama, in which the Supreme Court held that the limitations of the Constitution applied to a “company town,” which included a privately paid police officer. Marsh has since been limited to its facts (i.e. not applied beyond essentially identical circumstances), but Salvation is basically a company town. The biggest problem with the analogy is the fact that Jesse is at odds with Quincannon.
The best argument for Jesse’s state actor status is that he was “appointed’ by the legitimate sheriff. Thus, while Jesse still isn’t the new sheriff, he is an agent of the real one. A court could also hold that the sheriff effectively deputized Jesse, which would certainly make him a state actor. That doesn’t make Jesse’s actions legal, however; instead, Jesse gets the worst of both worlds here: he’s required to abide by the Constitution, and he doesn’t enjoy the protections or authority that “real” cops do. This is just a no-win situation.
Of course, the situation is ultimately resolved by killing most of the potential plaintiffs, plus Jesse skipping town before the authorities can catch up with him. As he’s still legally dead, tracking him down is going to be problematic. But the fact is that no state government, even Texas, is going to let this kind of thing go on for more than about ten minutes. Not to mention the fact that the federal government would be all over this one. Political corruption is one of the few non-terror, non-drug crimes that can get the attention of Justice and the FBI these days, and bribing the feds is way, way harder than bribing local yokels. Really, it’s hard to believe that there wouldn’t already have been an ongoing state or federal investigation of the Quincannon/Salvation situation before Jesse showed up.