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Lawsuit filed against Governor, claims stay home order violates fundamental liberties

Complaint claims the order violates rights and liberties guaranteed by the constitution
Posted at 12:50 PM, Apr 16, 2020
and last updated 2020-04-16 17:30:49-04

GRAND RAPIDS, Mich.  — A complaint filed this week in federal court argues that the stay home order issued by Governor Whitmer reaches too far and deprives them of rights guaranteed by the constitution.

The filing comes alongside the rally held Wednesday afternoon in Lansing. Several thousand people showed up in their vehicles to circle the capitol building, honking their horns and waving signs critical of the Governor's order.

Governor Whitmer then said in a late afternoon press conference, "We know that this rally endangered people. This kind of activity will put more people at risk and sadly it could prolong the amount of time we have to be in this posture."

But the lawsuit, filed Wednesday in the District Court of Western Michigan, claims the order goes beyond just protecting the general public's health and effectively deprives citizens of their constitutional rights.

According to the complaint, the plaintiff's are "challenging Defendant Whitmer’s authority to issue Executive Order 2020-42 and its draconian measures as applied to criminalize Plaintiff's peaceful activity and thus deprive Plaintiffs of their fundamental liberties and freedom."

One of those plaintiffs, Robert J. Muise, co-founder and senior counsel at the American Freedom Law Center, told FOX 17 Thrusday, "people are willing to do those things that are necessary. But then when you start imposing government restrictions on fundamental liberties, particularly in ways that don't actually make sense, you know, people are starting to get a little angry about this."

Professor Devin Schindler of WMU-Cooley Law School says there are a number of constitutional claims that can be made in regards to the stay home order.

For example, the first amendment protects your freedom of association, we generally have the right to associate our loved ones, friends, family, whatever it may be," Schindler said. "And of course, the executive order puts a limit on our ability to visit with or spend time with Family, friends and others."

"Arguably that could violate or at least be an issue under the First Amendment freedom of association," he said.

Schindler notes that under the 14th amendment, citizens are guaranteed life, liberty and property. "The key word there being liberty. Our constitution historically recognized that people have a right to go out, be with others, spend time with their businesses, spend time doing their jobs," he said.

A supreme court decision made in 1905 said the government could mandate people be vaccinated for smallpox.

Schindler says this could be seen as a legal precedent when considering the current situation. But he says that our interpretation of the constitution has changed since the early 1900's.

"Most likely what's going to happen with these lawsuits, court is going to apply a thing known as strict scrutiny, which means that any law that interferes with the constitutional rights that I discussed, freedom of assembly, freedom of association, must be narrowly tailored or necessary to achieve a compelling government interest," Schindler said.

Schnidler says it does appear the Government has a compelling interest in this case. Saying, "The government has a compelling interest in preventing the spread of the pandemic, to make sure that we social distance to sort of flatten the curve. I don't think there's any question that that is a compelling government interest."

He says the issue comes down to how closely the Governor's order is tailored to achieving these goals of public health.

"Is it over broad? Does it take too much into account? Does it limit too many rights? That's where the fight's going to be ultimately, in terms of this and other executive orders, which have limited our ability to engage," Schnidler said.

Muise, as outlined in the complaint, believes the order does limit too many rights.

“I think the American people would be willing to continue to do that, to engage in social distancing and these other things, but when you've gone so far, that now you're infringing on our liberties, that's when, you know, the American people say... enough's enough,” Muise said Thursday.

According to online court records, the Governor and other listed defendants have until May 5 to respond to the lawsuit.

FOX 17 reached out to the Governor's office for response but a spokeswoman said they do not comment on pending litigation.