COVID19 – Legal Opinion Letter Prepared for County Sheriffs in Michigan Addressing Potential Civil Liabilities for Enforcing Orders that Violate Fundamental Constitutional Rights Under Federal and State Law

Constitutional Rights Cannot Be Quarantined!

We have consulted municipal insurers, governmental entities and law enforcement agencies on several aspects of potential liabilities arising from enforcement of executive orders issued in response to the COVID-19 pandemic. Below is our letter addressing potential civil liability for law enforcement and prosecutors under state and federal law.

Click here for an interesting exploration of the word “quarantine”, which, as explained by McGill University’s Office of Science and Society literally means “40 days” and derives from the beautiful Italian language: “quaranta (40) giorno (days)”!

The significance of this issue at present cannot be understated because remarkably, the current orders we have been reviewing have all, in some form and to some degree directly called for infringements of what are considered fundamental constitutional rights under the United States Constitution. Therefore, any enforcement action directed to requiring or forcing compliance with these orders will de facto result in a deprivation of the individual’s / entity’s constitutional rights. The First Amendment guarantees citizens the right to peaceably assemble; freedom to worship (and freedom from established forms of worship or religion); freedom of speech; freedom of expression; freedom to travel, etc.; the Second Amendment guarantees the right to bear arms free from confiscation and that includes the right to acquire firearms; the Fourth Amendment protects against restraint, detention, incarceration, excessive use of force, freedom from unreasonable search and seizure, and security in one’s papers and effects, etc. These are just a few of the rights that are guaranteed by the Constitution. They are not a prioritized set of rights and they do not wane or fade in light of existing national crises.

The questions we are being most asked to address illustrate the current dilemma forced by law enforcement officers and prosecutors between protecting public health and safety and avoiding infringement upon fundamental constitutional rights.

Attorney Carson J. Tucker has developed a particular expertise in prosecuting and defending appeals in state and federal courts, including the United States Supreme Court. Mr. Tucker is also a frequent author of amicus curiae (friend of the court) briefs in the United States Supreme Court and state and federal courts on behalf of various governmental and non-governmental entities, not-for-profit corporations, and individuals.

A significant portion of his practice is focused on appellate matters in which his efforts are directed at changing the law for a wide swath of interested parties and stakeholders. In addition to being licensed to practice in Michigan, Mr. Tucker is admitted to practice in the Eastern and Western District Federal Courts in Michigan, the United States Court of Appeals for the Sixth Circuit, and the United States Supreme Court.

Mr. Tucker has also presented for the International Municipal Lawyers Association (IMLA) on the latest legal issues in municipal liability law under the U.S. Constitution and federal legislation under the 1964 Civil Rights Act, Title 42 United States Code, §§ 1981, et seq., covering his familiarity and expertise on the many diverse questions that arise in this ever-changing and dynamic area of the law.

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