Lawsuit Against Michigan Governor Whitmer: Lifting the Pandemic Veil

On June 15, 2020, we filed a full-throated response to Governor Whitmer’s motion to dismiss our lawsuit challenging her draconian and unconstitutional restrictions on our liberty.

As we saw with recent events, the quickest way to end a pandemic is apparently through rioting for “social justice” — so long as left-wing, progressive leaders agree with your cause, of course.  For law-abiding citizens, our freedoms matter little to these dictators masquerading as governors and mayors.

Here is an excerpt from our response that we titled, “Lifting the Pandemic Veil”:

Defendants Whitmer and Nessel complain that “[t]he complaint offers a glaringly sparse discussion of the public health crisis that has consumed not just Michigan, but the entire planet.” (Gov. Br. at 3 [Doc. No. 32]). Their complaint is misguided. To begin, it is the government’s burden to justify its restriction on a fundamental liberty; it is not a private citizen’s burden to justify his freedom. The Bill of Rights is a brake on the power of government; it is not a conferring of rights by the government only to be withheld at the whim of a government official.

Throughout this pandemic, government officials (including Defendant Whitmer) keep moving the goal posts. They feel compelled to lord over nearly every detail of our lives, and they justify this power grab by relying on fear and a parade of horribles. For example, in their brief, Defendants Whitmer and Nessel assert, without supporting evidence or data, that “[a]s the virus ravaged southeastern Michigan, health systems were quickly at or above capacity. Medical supplies were dwindling, and beds in intensive care units were in short supply.” (Gov. Br. at 22). The facts do not support this assertion. Based on (widely considered inflated) data from the Michigan Department of Health and Human Services, the CDC, and (which the CDC has cited and relied upon for some of its data), during the month of April, the average weekly percentage of available ICU beds in Michigan ranged from 20.89% to 31.50%, and the average weekly percentage of available inpatient hospital beds in Michigan ranged from 36.17% to 39.54%. (Korkes Decl. ¶¶ 3-5, Ex. A, at Ex. 2). During the first two weeks in May, the average weekly percentage of available ICU beds in Michigan ranged from 31.80% to 33.93%, and the average weekly percentage of available inpatient hospital beds in Michigan ranged from 35.24% to 36.60%. (Id. ¶¶ 3-5, Ex. A, at Ex. 2). There never was a shortage of hospital capacity. And Defendant Whitmer’s ban on “elective” medical procedures (except, of course, abortion) appears to be destroying Michigan’s healthcare system. It is more likely than not that the collateral damage caused by Defendant Whitmer’s draconian restrictions is going to be far worse than the virus itself.

According to the “Official Website of Michigan.Gov,” as of May 27, 2020, there were reportedly 55,608 confirmed COVID-19 cases and 5,334 deaths statewide. The City of Detroit and Wayne County accounted for 19,999 of the cases and 2,406 of the deaths. In comparison, Saginaw County, where Plaintiff Beemer resides, reported only 1,002 cases and 107 deaths, and Washtenaw County, where Plaintiff Muise resides, reported only 1,305 cases and 97 deaths. Charlevoix County, where Plaintiff Beemer’s cottage is located, reported only 15 cases and 1 death. In fact, according to Michigan’s statistics as of May 27, fifty-seven (57) out of the eighty (80) counties reporting had ten (10) or less deaths associated with COVID-19. Indeed, the State’s pandemic is largely confined to the City of Detroit (10,872 cases), surrounding Wayne County (9,127 cases), and the suburbs of Oakland (8,260 cases) and Macomb (6,558 cases) counties, accounting for 34,817 reported cases as of May 27, 2020. And the same jurisdictions reported 4,151 deaths during this time from COVID-19, which was nearly 78% percent of the statewide total of 5,334 deaths. The rest of Michigan has been relatively unaffected. Yet, Defendant Whitmer’s statewide restrictions took no account of regional differences.

Additionally, when you evaluate the data based on age, 87% of the deaths occurred in people 60 or older (69% of which were 70 or older). The median age of death is 77 years. Yet, Defendant Whitmer’s restrictions took no account of this difference.

Moreover, during the peak period of this pandemic (March through May), far more people died in Michigan from cancer and heart disease (7,329) than from the virus (4,349).

As this Court is no doubt aware, the projections upon which government leaders made their decisions back in March were grossly inaccurate. One model from the CDC projected between 160 to 214 million infections and between 200,000 to 1.7 million deaths nationwide. The actual numbers are but a fraction of those projections. Yet, this same fear mongering persists today, and it is being used to justify unprecedented and overly broad (not to mention, unconstitutional) restrictions on personal liberty. In short, the facts do not support this frontal assault on freedom.