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Nessel leaves enforcing stay-in-place edict to local cops

George Hunter
The Detroit News

The state’s top law enforcement officer says she will allow local police to “exercise their best judgment” about whether to enforce Gov. Gretchen Whitmer’s stay-home edict until a lawsuit challenging the governor's emergency powers is decided in court.

In response to the COVID-19 pandemic, Whitmer on Thursday extended Michigan's State of Emergency order until May 28, although the Republican-led Legislature claims the extension had expired, and that her decision to continue it is void because it required lawmakers' approval.

Michigan Attorney General Dana Nessel

GOP lawmakers claim because the state of emergency is no longer in effect, the governor's stay-at-home order, which runs until May 15, is unenforceable.

Michigan Attorney General Dana Nessel is monitoring the issue, a spokeswoman said.

"In her role as chief law enforcement officer, the attorney general is carefully reviewing last night’s Executive Orders and the Legislature’s actions yesterday," said Nessel's spokeswoman, Kelly Rossman-McKinney, in an email Friday.

“The Attorney General advised law enforcement to use their best judgment until a court resolves these issues," Rossman-McKinney said. "However, the Attorney General fully expects people to comply with the Governor’s Stay Home, Stay Safe Order.  There is no question that the Governor’s Order is important in slowing the spread of COVID-19 and saving lives.”

Robert Stevenson, director of the Michigan Association of Chiefs of Police, said with no clear direction, cops are "left in limbo."

"This puts police departments in a precarious position," said Stevenson, formerly Livonia's police chief. "You have an argument going on about whether these orders are legal or not, and I think it's unrealistic to assume police chiefs are going to be able to determine the legality of an issue that could end up going to the Supreme Court."

Oakland University criminal justice professor Daniel Kennedy agreed police have been put in a tough spot.

"This is one situation which police absolutely dislike being in because they can't win for losing," he said. "Anything they do, the other side is going to be against them.

"The police are like a ping pong ball, but they can't be like a ping pong ball, because they have to decide what to do in situations. It's just a terrible position to be in, and a lot of individual officers are probably morally torn."

Whitmer addressed the issue during her Friday briefing.

“Let me be very clear about one thing: The Stay Home, Stay Safe order rests on my authority in the 1945 statute," said Whitmer, referring to a law that allows the governor to declare a state of emergency and exercise emergency powers.

“What we saw yesterday was political gamesmanship without substance."

Republican lawmakers argue the 1976 Emergency Management Act gives the governor emergency powers but requires legislative approval for measures taken 28 days after the emergency was declared. 

Whitmer's emergency expired Thursday, according to GOP legislative leaders, when lawmakers didn't vote to extend it. 

On Monday, Whitmer told The Detroit News: "The emergency powers that I have as governor do not depend on an extension from the Legislature."

University of Detroit-Mercy law professor Larry Dubin said until courts decide the issue, power ultimately lies with the governor's office.

"It would seem that the governor's authority would be binding and presumed to be valid unless and until overruled by a court, and that the Legislature should not assume or instruct governmental entities within the state to disregard the Governor's act," Dubin said in an email.

Macomb County Sheriff Anthony Wickersham said the wrangling in Lansing shouldn't affect how his deputies work, since he said they're already following Nessel's advice and using discretion when investigating reports of stay-home violations. 

"We haven't been too consumed by it because we have other things to be concerned with," said Wickersham, who added his deputies have not issued any tickets for violations of the governor's orders.

"Every now and then, a citizen will call with a complaint that someone may be violating the order. We're paid to respond to calls, so we will respond. But if we see something that looks like a violation, we've just been giving warnings, and people have been complying."

Since Whitmer issued her initial stay-at-home order on March 24, some police and elected officials have said they won't enforce all or portions of the edict. 

Officials in at least four Metro Detroit communities posted bulletins announcing they wouldn't prosecute commercial lawn care firms that violated the governor's order that they remain closed; while sheriffs from four northern Michigan counties said they wouldn't strictly enforce called Whitmer's orders, which they called “vague” and an “overstepping” of her executive authority.

Last week, Whitmer permitted lawn services, garden shops, landscapers and nurseries to begin operating again as long as they follow "enhanced" social-distancing rules.

Warren Mayor Jim Fouts was among the Metro Detroit elected officials who had announced plans to allow commercial lawn care companies to operate in his city despite Whitmer's earlier order, but he said Friday he thought the dispute over the governor's power was politically motivated.

"The lawn care was a unique situation because I thought it was essential to the health and safety of the community to continue," he said. "But overall, I think the governor is doing the right thing, and I support her. I also support (President Donald) Trump. We need to put all this finger-pointing aside, and stop this political fighting."

Oakland University's Kennedy said police likely will follow Nessel's advice and use their own judgment in deciding whether to enforce provisions of the governor's orders — and he expects many cops to look the other way.

"I think police departments will continue to say they're following these orders," he said. "But don't be too surprised if officers aren't particularly overzealous in enforcing some of the governor's edicts."