In A Michigan County, A Fever Could Land You In Jail If You Don’t Self-Quarantine

The Kent County Health Department sought an order that was approved by a circuit court judge, which gives physicians and nurse practitioners the ability to involuntarily detain anyone without due process that shows symptoms of the COVID-19 coronavirus.

The order would also allow police to involuntarily detain a person for up to 24 hours – even in a jail if no other facility is available – if that person refuses to self-quarantine.

The order was signed by Judge Mark Trusock and the petition was signed by Kent County Health Officer Adam London.

The order, however, is overly broad and violates due process, according to a memo from the Grand Rapids City Attorney Office.

“It is my legal opinion that this order is unlawful, illegal, and unenforceable,” Grand Rapids Assistant Attorney Kristen Rewa wrote in an April 8 memo to the city’s chief of police. “I strongly recommend that the Grand Rapids Police Department not take any action on the basis of this order.”

Rewa wrote that orders such as this "quite literally, were one of the factors that led to the Declaration of Independence, the American Revolution, and surely were on the minds of the Founding Fathers when drafting the language of what is now the Fourth Amendment. ...”

While local health officials have the power to detain people, they must present a judge a petition naming each individual person to be detained. The court provides a standard petition for doing this. Legals experts say that process can be done in a matter of hours.

David Kallman, senior legal counsel for the Great Lakes Justice Center in Lansing, called the order “outrageous.”

“They don’t have to do anything other than believe someone is positive for COVID virus,” Kallman said. “They can take them immediately to custody. It’s blatantly unconstitutional.”

Kallman said the government properly has the power to detain someone involuntarily, but due process must be followed.

“The order bypasses the requirement for the health official to file an emergency petition or to sign a sworn affidavit or requiring proof of probable cause to believe the person is a danger and there is no hearing in front of judge where the statute requires a judge to determine if he is a danger,” Kallman said. “This order bypasses all of that. It allows the doctor or health official to take someone in on their own determination.”

The Kent County Health Department didn’t immediately return an email seeking comment.