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Sheriffs and some Republican local officials in a few Democratic-led states are saying they won’t enforce governors’ orders, and at least one is vowing a challenge in court.
Editor's note: On Thursday, April 23 commissioners in Franklin County, Washington in a 2-1 vote rescinded their resolution saying that the county would “end recognition” of the governor's stay-at-home order. Commissioner Clint Didier cast the lone vote against rescinding the measure.
Local government officials in some places are becoming increasingly defiant about state stay-at-home orders and other restrictions that their governors have put in place as part of efforts to get the coronavirus outbreak under control.
It’s part of a debate that’s boiling up across the country over the right balance between protecting the public from a highly contagious virus, while also respecting people’s personal freedoms, their need to earn a living, and preserving the economy at large.
Public health experts have warned that if restrictions are lifted too soon there will be new flare ups of Covid-19—the potentially lethal respiratory illness that the virus causes—leading to more deaths and added strain on hospitals.
Governors and these experts have emphasized that getting robust testing and “contact tracing” programs in place are key steps towards reopening the economy. Leaders of states with large outbreaks have underscored that testing is not yet happening at a level that can support broadly lifting restrictions that call for people to stay mostly in their homes unless they are “essential” workers.
Washington is one of the states where state and local officials have clashed in recent days over how to proceed, but there have been similar episodes in states like Wisconsin and Michigan.
Each of these states, and others, have seen protests at state capitols about the restrictions—including a sizable one in Washington over the weekend. The Washington Post and the The New York Times have both reported that influential and well-funded conservative groups have worked to support these types of demonstrations.
Polling on stay-at-home orders has continued to show broad public support for the restrictions.
Republican commissioners in Franklin County, Washington, on Tuesday voted to approve a motion to “end recognition” of Democratic Gov. Jay Inslee’s emergency stay-at-home order, and threw their support behind construction companies going back to work and small businesses reopening. The county is located about 175 miles southeast of Seattle, in one of the state’s more rural regions.
“These are extreme measures that these Democrat governors are taking that are unjustified and they need to be challenged,” said Clint Didier, the commissioner who introduced the motion.
Didier said he believes the elderly and people with pre-existing health conditions should “shelter-in-place” and take other precautions to avoid catching the virus, but that others should be going back to work. “The cure is killing the patient right now,” he told Route Fifty on Wednesday. “All we’re saying is, ‘if you want to reopen and work, you can work.’”
The move by the board of commissioners drew a swift rebuke from the governor’s office. Inslee’s general counsel on Wednesday sent a letter to Franklin County officials telling them their resolution was unlawful and that the governor was directing them to retract or rescind it.
“It’s unfortunate when elected officials promote illegal activity that puts their community’s well-being at risk,” the governor’s press secretary, Mike Faulk, said by email on Wednesday. “That kind of leadership can only lead to more people getting sick, more rumor and more insecurity, and with the end result being a protracted crisis we must continue to mitigate.”
But in Franklin County, Didier described plans to go further on the offensive. He said he was working with an attorney to prepare a lawsuit challenging the state’s emergency public health restrictions on the grounds that they infringe on constitutional rights and don’t adhere to state law. The suit, he said, would likely be filed in federal court later this week or early next week.
“We’re taking him to task. I don’t know if they’re bringing us a lawsuit, but we’re going to be bringing one to him,” he added, referring to the governor and his administration.
Meanwhile, after Inslee delivered a televised address on Tuesday outlining plans for gradually easing some of the state’s virus-related restrictions, a sheriff in Snohomish County, north of Seattle, sharply criticised aspects of the emergency measures as unfair and unconstitutional.
“I believe that preventing business owners to operate their businesses and provide for their families intrudes on our right to life, liberty and the pursuit of happiness,” Snohomish County Sheriff Adam Fortney wrote in a post on Facebook.
“The impacts of COVID 19 no longer warrant the suspension of our constitutional rights,” he added. “Along with other elected Sheriffs around our state, the Snohomish County Sheriff’s Office will not be enforcing an order preventing religious freedoms or constitutional rights.”
Fortney emphasized that he believes the virus is “very real” and acknowledged that it had claimed nearly 100 lives in his county as of early this week. But the sheriff said he was also worried about the economic fallout local residents are experiencing.
Moreover, he questioned why businesses like marijuana retailers were among those classified as “essential,” clearing them to stay open, while others, like gun shops, didn't receive the same status. He also raised concerns that some government contractors and public employees can continue to work, while people with comparable jobs in the private sector cannot.
Washington Attorney General Bob Ferguson responded to Fortney's comments on Twitter on Wednesday. “Sheriff Fortney does not get to decide what is constitutional. That is up to the courts," he wrote. "I plan to follow up directly with Sheriff Fortney.”
Later in the day, Ferguson and Inslee issued a joint statement charging that the sheriff and the Franklin County Commission are "misleading business owners and individuals in their jurisdictions."
“These orders are legal, and they are working," the statement added. It noted also that prosecutors in Franklin and Snohomish counties agreed that the mandates are lawful.
In an email, Fortney said he realized many people may disagree with his views, but that he and other public officials have an obligation to weigh in. “At least they know where I stand,” he said.
“I think there is a reasonable, rational, and safe way to get our economy going again in a gradual way, just like with the certain employers the Governor has allowed to remain in business,” the sheriff added. “The government cannot be picking winners and losers in this environment.”
In Racine County, Wisconsin, south of Milwaukee, Sheriff Christopher Schmaling struck a similar tone in a statement last week. He characterized the restrictions there as “overreaching” and said they were having “dire lifetime consequences” for businesses and residents.
“I took an oath to uphold the constitutional rights of our citizens and I can not in good faith participate in the destruction of Racine County businesses or interfere in the freedoms granted to all of us by our Constitution,” Schmaling added.
He said that it would be up to public health authorities to enforce the state’s public health orders.
In Michigan, sheriffs in four counties last week expressed opposition to some of the restrictions Democratic Gov. Gretchen Whitmer has ordered and questioned whether she had overstepped her legal authority in adopting those measures.
“She has created a vague framework of emergency laws that only confuse Michigan citizens,” Leelanau County Sheriff Mike Borkovich, Benzie County Sheriff Ted Schendel, Manistee County Sheriff Ken Falk and Mason County Sheriff Kim Cole said in a joint press release.
The sheriffs said that they would not strictly enforce the orders and would “apply common sense” in assessing apparent violations.
The state-local frictions in Washington, Wisconsin and Michigan are all occurring in states with Democratic governors.
Elsewhere, in states with Republican governors, like Mississippi, South Carolina and Georgia, local officials have criticized their states for being too lax, or slow, in responding to the virus.
Washington saw some of the nation’s earliest known cases of Covid-19 beginning back in late January, with the Seattle region becoming a hotspot. But since then, other states, like New York and New Jersey, have seen the outbreak hit far worse. On Wednesday, Washington’s health department was reporting nearly 12,500 confirmed cases and 692 deaths from the disease in the state.
A demonstration at the Washington state capitol in Olympia on Sunday drew about 2,000 people including several Republican lawmakers, according to The Seattle Times. “We’re starting a rebellion in Washington, we’re not listening to this governor, we’re taking our state back,” one of those lawmakers, state Rep. Robert Sutherland, said at the gathering, the newspaper reported.
Didier noted that Franklin County was one of the counties in the state where the death toll remained in the single digits, with four people confirmed dead there from Covid-19 as of Tuesday. There are other counties around the state, he pointed out, that haven’t had any deaths and that have seen just a handful of cases.
Asked about whether the reason for the low case and fatality counts in those places could be because of the strict steps the state has taken to control the disease, he replied: “I would say that’s true. That could be true. But we also have big time economic problems happening here.”
It’s not only the economic implications of the restrictions he finds troubling though.
“This is unprecedented in America that our civil liberties have been taken from us,” Didier said. “The right to assemble, the right to worship.”
“This is wrong and this is what we’re trying to stop here in Franklin County,” he added. “We have to use good judgement and take the precautions on our own and get the government out of making decisions for us.”
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Bill Lucia is a Senior Reporter for Route Fifty and is based in Olympia, Washington.