For some Michigan sheriffs, Gov. Whitmer’s coronavirus orders are optional

At a Grand Rapids rally this week, Barry County Sheriff Dar Leaf took to the stage to render his view of Gov. Whitmer’s handling of the coronavirus pandemic.

The Republican sheriff from a county just to the south of Grand Rapids likened the governor’s emergency stay-at-home order to mass arrest.

“What’s the definition of an arrest? It’s basically taking away your free will, your right to move about,” Leaf said.

“And an unlawful arrest is when you do it unlawfully, so when you are ordered to your home, are you under arrest? Yeah, by definition you are.”

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The rally took place in Rosa Parks Circle. Leaf drew a comparison between the civil rights icon and Owosso barber Karl Manke, who opened his shop in defiance of Whitmer’s executive order closing barber shops and other businesses to reduce the spread of the virus.

Leaf called Manke “a little version of Rosa Parks.”

Michigan’s 83 county sheriffs are part of a law enforcement system sworn to uphold the laws of their community and the state.

But Leaf and a growing chorus of sheriffs – some linked to a controversial, right-wing national movement that asserts a sheriff’s unique authority ­— are testing the limits of Whitmer’s executive orders. The “constitutional sheriff” movement essentially holds that sheriffs — not the governor, nor the federal government — are the final word on interpreting the constitution within their county.    

It remains an open question what Whitmer or Attorney General Dana Nessel can, or ever will, do about it.

Constitutional law expert Devin Schindler said, in theory, Whitmer could file a lawsuit to try and force sheriffs to enforce provisions of her executive orders related to COVID-19.

But Schindler, a professor at Western Michigan University Cooley Law School, said that could be a controversial political move, one that the governor is unlikely to make for practical reasons at this time.

“She doesn’t want to pick this fight,” he said.

Schindler said the conflict could become moot as Whitmer relaxes personal and economic restrictions across more of the state, including recent decisions to open, with safeguards, restaurants, bars and retail outlets in the Upper Peninsula and parts of the northern Lower Peninsula, as well as opening of car dealerships and allowing non-essential medical procedures.

On May 15, Attorney General Dana Nessel warned that resistant sheriffs are setting a perilous precedent for law enforcement.

“It’s a slippery slope when you have law enforcement officials who arbitrarily choose the laws they will and will not enforce,” Nessel said.

But she said she had no plans to seek action against the sheriffs.

“You hold them accountable at the ballot box,” Nessel said.

Still, Nessel press secretary Ryan Jarvi told Bridge in a statement that Nessel expects Whitmer’s executive orders to be followed. 

“We would remind law enforcement agencies throughout the state that a successful response to COVID-19 requires cooperation at all levels. Until a court decision notes otherwise, the Governor’s executive orders are presumptively valid and should be followed and enforced.”

For now, that seems like wishful thinking by the attorney general

Matthew Saxton, executive director of the Michigan Sheriffs Association, said the organization takes no position on how individual sheriffs deal with Whitmer’s executive orders.

“Each of 83 sheriffs are independently elected to serve the citizens from their county. So far, each of the 83 are doing a good job serving their citizens during the pandemic,” he said.

In the meantime, Whitmer continues to face legal challenges to her executive authority during the COVID-19 crisis.

On Thursday, the Michigan Court of Claims gave her a win, ruling that Whitmer had the right to extend the state's stay-at-home order and extend the state of emergency, rejecting a lawsuit filed by Republican lawmakers who challenged her emergency powers in response to the ongoing coronavirus pandemic.

Republicans said they would appeal.

In addition to Leaf, at least six other sheriffs, most of them Republican, pushed back on Whitmer’s executive order authority, saying they won’t enforce parts or all of her mandates. Their rationales range from questioning their constitutionality to the practical difficulties of asking deputies to enforce minor civil infractions, such as admonitions to remain socially distant.

That’s in stark contrast to the Detroit Police Department, which cracked down hard as the city became a national COVID-19 hotspot earlier this spring. In April, the department said it had issued 736 citations, shut down 24 parties and closed 27 businesses found to be in violation of Whitmer’s executive orders.

The list of resistant sheriffs includes four in the northern Lower Peninsula, who issued a letter in April saying Whitmer is “overstepping her executive authority” while pledging to selectively enforce executive orders.

The group includes Republican sheriffs Mike Borkovich of Leelanau County, Ted Schendel of Benzie County, Kim Cole of Mason County as well as Democratic sheriff Ken Falk of Manistee County.

“Each of us took an oath to uphold and defend the Michigan Constitution, as well as the U.S. Constitution, and to ensure that your God given rights are not violated. We believe that we are the last line of defense in protecting your civil liberties,” the letter stated.

That letter has echoes of the Constitutional Sheriffs and Police Officers Association (CSPOA), the loosely knit network of law enforcement officers that views sheriffs as a firewall against government overreach. It was founded by former Arizona sheriff Richard Mack, who as sheriff challenged in court provisions of the Brady Bill. That resulted in a 1997 Supreme Court decision that ruled that provisions of that gun control measure were unconstitutional.

On its website, the CSPOA traces the authority of the sheriff to ninth century England, while stating: “The vertical separation of powers in the Constitution makes it clear that the power of the sheriff even supersedes the powers of the President.” 

But others see links to more recent movements such as Posse Comitatus, the far-right populist movement, which in turn influenced militia groups that began to spring up in the 1990s. CSPOA has, for instance, strongly backed individual sheriffs who refuse to enforce state gun laws that they contend violate the Second Amendment. 

According to its website, a sheriff has ”Constitutional authority to check and balance all levels of government within the jurisdiction of the County.”

Its adherents have included former Arizona Sheriff Joe Arpaio, who was ordered by federal court to cease immigration roundups and was then found guilty of criminal contempt for violating that order, before he was pardoned by President Trump in 2017; and David Clarke, the former sheriff of Milwaukee County, Wisconsin. 

Law professor Schindler rejected the organization’s premise that sheriffs have sovereign power superseding other branches of government.

“That’s a ticket to anarchy.That’s the whole point of having a law, they are supposed to enforce it.”

Leaf said he counts himself a member of the CSPOA, which by one estimate has enlisted support from more than 500 sheriffs since 2013.

He told Bridge Magazine the policy of his department is to issue no civil citations for violations of Whitmer’s executive orders, which carry fines of up to $1,000.

“We ask our guys to use common sense and offer discretion. If we know a law is unconstitutional, we don’t have to enforce it,” he said.

Asked how deputies would respond if there were a report of hundreds of people gathered close together – a violation of Whitmer’s order mandating no group gatherings larger than 10 – Leaf said they would offer advice instead of enforcement.

“You can’t quarantine the constitution. We do have freedom of assembly,” he said.

Benzie County Sheriff Schendel told Bridge he, too, belongs to the CSPOA.

Schendel recalled a phone call he got in the early days of Whitmer’s executive orders limiting business activity. A woman informed him there was a man out in his yard raking leaves, which the caller took as a violation Whitmer’s order banning lawn and landscape services.

“I said I’m not going to go to a man on his private property and arrest him. I don’t work for the governor. I work for the people in my community,” he said.

“The sheriff does have the authority to stand in front of the governor and say, hold on, let’s make sure that constitutional process is being followed.”

Southeast Michigan sheriffs are also resisting enforcement of Whitmer’s executive orders.

In Livingston County, Sheriff Mike Murphy earlier this month said his office has “basically decided to not do any enforcement” of the stay-at-home order, even as a local gym opened in defiance of Whitmer’s orders.

And Shiawassee County Sheriff Brian BeGole on May 11 said his sheriff's office "cannot and will not divert our primary resources and efforts toward enforcement of Governor Whitmer's executive orders.”

Republican Kent County Sheriff Michelle Lajoye-Young chose not to attend the Grand Rapids rally where Barry County Sheriff Leaf spoke of mass arrest. She said she holds a different view of the sheriff’s place in law enforcement.

“I don’t believe a law enforcement officer has a place advocating against a law at a rally,” she told Bridge.

Lajoye-Young said she does not belong to the CSPOA, while seeming to reject its core assertions.

“The sheriff does not have the authority to decide if a law is constitutional or not. They don’t have authority to make law.

“Whether I agree with the law or don’t agree with the law, my obligation is to work within the legal structure.”