Executive Orders & Police Discretion

Well here we are in mid-May and those of us in Michigan are still subject to Governor Gretchen Whitmer’s power-grab, otherwise known as the stay-at-home order. Yes, there has been some relaxation of some of the more absurd aspects of earlier stay-at-home orders (such as no riding in a motorboat). But, the Governor has now been sued by the Legislature over what some claim to be continuing unlawful over-reach.

As a criminal defense attorney, I find it interesting to watch as two branches of government (executive and legislative) slug it out in front of the third branch (judicial). Soon enough we will learn what the courts think. Most of the time constitutional law is an intellectual exercise. Today, however, we have a living example of practical constitutional problems. I am certainly grateful to live in the United States, where such issues are handled in a more-or-less civilized manner under the rule of law.

And speaking of the rule of law, I find it fascinating that several Michigan Sheriff’s have publicly stated they will not enforce aspects of the Governor’s Executive Orders. Law enforcement officers have always had discretion when enforcing the laws of the land. However, based on nearly 3 decades practicing criminal law, I have seen a steady erosion and reluctance to use discretion when it comes to enforcement.

When I started as a Manhattan prosecutor in 1993, the NYPD regularly exercised discretion. However, for about the last decade in Michigan, law enforcement rarely employs discretion. Therefore, I am happy to know that at least some Sheriffs are willing to publicly affirm that they intend to utilize discretion when it comes to Executive Orders.

However, I doubt that this signals an emerging trend among law enforcement. I suspect that once the COVID-19 situation normalizes and we are no longer subject to the Governor’s orders, it will be back to business as usual, meaning nearly everything will be enforced without exception. I hope that I am wrong.

If you or someone you love finds themselves on the receiving end of police action where discretion is not used, be sure to contact an experienced Michigan criminal defenses attorney. Your freedom may depend on it.