4 Michigan sheriffs, another lawsuit challenge Whitmer's stay-home order

Beth LeBlanc
The Detroit News

The same day thousands rallied in Lansing to protest provisions of Gov. Gretchen Whitmer's stay-home order, four northern Michigan sheriffs said they would not strictly enforce the order and three Michigan residents filed another federal suit against the governor and county prosecutors tasked with enforcing her order.

The four sheriffs from Leelaunau, Benzie, Manistee and Mason counties called Whitmer's orders “vague” and an “overstepping” of her executive authority. They said they were the “last line of defense in protecting your civil liberties.”

The sheriffs said they would “apply common sense” and assess every alleged violation individually, Sheriffs Mike Borkovich, Ted Schendel, Ken Falk and Kim Cole said in a Wednesday statement. Their counties make up the 101st Michigan House district. 

Ted Schendel is sheriff of Benzie County in northern Michigan.

“We write today to inform the public of our respective counties of our opposition to some of Gov. Whitmer’s executive orders,” according to a statement sent by the sheriffs. 

“While we understand her desire to protect the public, we question some restrictions that she has imposed as overstepping her executive authority. She has created a vague framework of emergency laws that only confuse Michigan citizens.”

Michigan Attorney General Dana Nessel's office noted in a Thursday statement that law enforcement officers "take an oath to uphold the law" and "by statute, the governor's executive orders are law." 

"As with similar offenses, those law enforcement officers on the front lines have a reasonable amount of discretion when responding to complaints," Nessel's spokeswoman Kelly Rossman-McKinney said. "We trust that discretion is being used wisely to protect the public health of the communities and state they serve."

Earlier this month, officials in Metro Detroit communities including Warren, St. Clair Shores and Roseville said they would refuse to enforce the governor's prohibition on commercial lawn service because local police aren't compelled to uphold orders they say would harm their residents.

The Northern Michigan sheriffs instead argued that a focus should be placed on “getting people back to work” while reinforcing preventive practices like hand washing, social distancing and using masks. 

“Allowing those without paychecks back to work is imperative to the economic success and well-being of our community,” the release said. 

The letter from the sheriffs came the same day a federal lawsuit was filed against Whitmer and three county prosecutors for enforcing the “draconian measures that arbitrarily and unreasonably” impose on the plaintiffs. 

The lawsuit, at least the third filed in less than three weeks in relation to the stay-home order, contends Whitmer and county prosecutors in Charlevoix, Washtenaw and Livingston counties violated the First Amendment right to freedom of association, the Second Amendment right to bear arms and the 14th Amendment right to equal protection.

The lawsuit was filed by Kimberly Beemer, Paul Cavanaugh and Robert Muise, who filed the lawsuit through the conservative American Freedom Law Center. 

The lawsuit was served to the governor Thursday, Nessel's office said.

Beemer, a Saginaw attorney, and Cavanaugh, the owner of a Livingston County landscaping company, own cottages in Charlevoix County, while Muise resides in Washtenaw County.

The governor has “no reasonable justification” to restrict Beemer and Cavanaugh from traveling to their homes and the restriction is inconsistent in its application, the lawsuit indicated. 

Under the current order, “a Wisconsin resident could travel from his state to his cottage in Charlevoix County” without violating the order but a Michigan resident could not. 

“Thus, the executive order discriminates against individuals, including plaintiffs Beemer and Cavanaugh, based upon their state of residence, it impairs their right to travel, and it deprives them of the use and enjoyment of their property,” the lawsuit said. 

Cavanaugh’s lawn care company “came to an abrupt halt” with Whitmer’s order, the lawsuit said, leading to $102,000 in lost work even though the firm's 12 employees planned to practice social distancing. 

Police line tape.

“Indeed, there is far less likelihood of plaintiff Cavanaugh’s business spreading COVID-19 than other businesses that defendant Whitmer permits under her executive orders, specifically including hardware stores, grocery stores, gas stations, marijuana businesses and abortion centers,” the lawsuit said. 

Muise, a former Marine, said he is unable to purchase firearms and ammunition under Whitmer’s order in violation of his Second Amendment rights, even though the most recent federal guidelines list firearm and ammunition stores as “critical,” according to the lawsuit. 

“Due to the panic caused by the pandemic and the unemployment, loss of income, poverty, and uncertainty caused by defendant Whitmer’s executive orders, owning and possessing firearms is critically important at this time,” the lawsuit said.

This is the second federal lawsuit filed by Muise against the governor.

Earlier this month, he filed a lawsuit on behalf of a protester ticketed outside an abortion clinic in Detroit, alleging the man's Constitutional rights had been violated by the governor's stay-home order. 

The governor later clarified that her stay-home order did not apply to protesters maintaining social distancing. 

Western Michigan U.S. District Judge Janet Neff signed Tuesday a stipulated agreement in which the city of Detroit agreed to dismiss the citation and dismiss the lawsuit with prejudice.