Sheriff Adam Fortney fields questions at the Snohomish County Courthouse in Everett on Wednesday. (Kevin Clark / The Herald)

Sheriff Adam Fortney fields questions at the Snohomish County Courthouse in Everett on Wednesday. (Kevin Clark / The Herald)

Sheriff calls governor’s stay-home order unconstitutional

A viral Facebook post prompts blowback from other elected officials, including the state attorney general.

EVERETT — Snohomish County Sheriff Adam Fortney called Gov. Jay Inslee’s stay-home order unconstitutional and said he would not enforce it — prompting frustrated responses Wednesday from the governor, the state attorney general and the county executive.

Fortney expressed his discontent in a 1,100-word Facebook post after watching a public address by Inslee Tuesday evening. The sheriff added his voice to a chorus of largely conservative elected officials and protestors unhappy with the state’s order during the COVID-19 pandemic.

“As your elected Sheriff I will always put your constitutional rights above politics or popular opinion,” Fortney wrote. “We have the right to peaceably assemble. We have the right to keep and bear arms. We have the right to attend church service of any denomination. The impacts of COVID-19 no longer warrant the suspension of our constitutional rights.”

By Wednesday, Fortney’s polarizing post had gone viral, garnering over 7,000 comments, over 14,000 shares and coverage from both local and national media.

And it caught the governor’s attention.

“We cannot have individual law enforcement officers arbitrarily decide which laws they’re going to enforce and which laws they’re not going to enforce,” Inslee responded during a news conference Wednesday in Olympia.

The governor quoted from a statement released by Snohomish County Prosecutor Adam Cornell.

“Put simply, we are elected to serve under the laws, not to act above them,” Cornell wrote. “An earnest desire to change the law is much different than refusing to enforce it.”

“And I agree with that statement,” Inslee said.

Inslee noted that no court in the state has found the stay-home order to be unlawful, and that encouraging illegal activity could put people at greater risk of infection and death.

Fortney stood by his comments at a press briefing that began just as Inslee’s was ending.

Sheriff Adam Fortney fields questions at the Snohomish County Courthouse in Everett on Wednesday. (Kevin Clark / The Herald)

Sheriff Adam Fortney fields questions at the Snohomish County Courthouse in Everett on Wednesday. (Kevin Clark / The Herald)

“You’re not going to see backtracking here,” he said.

Fortney said he didn’t reach out to the governor’s office before taking to social media.

More than 21,000 complaints have been logged by the state alleging violations of the stay-home directive. State agencies have largely relied on voluntary compliance and have yet to initiate enforcement action on any of them. The attorney general has sued a property management firm for allegedly violating an eviction moratorium order.

“Sheriff Fortney does not get to decide what is constitutional,” state Attorney General Bob Ferguson tweeted Wednesday. “That is up to the courts. I plan to follow up directly with Sheriff Fortney.”

Fortney is the top cop in the state’s third-most-populous county, with an estimated 822,000 residents. As sheriff in a non-partisan post, Fortney is also in charge of the county jail, where at least two past inmates have tested positive for the virus.

Snohomish County had the nation’s first announced case of COVID-19 and one of the first U.S. deaths. To date, there have been 2,209 confirmed and 177 probable cases of COVID-19, and 98 deaths, the health district reported Wednesday. Statewide, there have been 12,494 confirmed cases and 692 fatalities.

Snohomish County Executive Dave Somers, in a statement, said social-distancing measures taken so far have helped stem the tide of the outbreak.

“We are all very frustrated by COVID-19 and the necessary restrictions that have been placed on all of us,” he said. “We are experiencing the first pandemic in over 100 years, and there are no recent road maps for protecting life and safety. But make no mistake: death from COVID-19 is horrific. You suffocate to death. I don’t wish that death on anyone.”

Somers did not call out Fortney by name, saying “this isn’t about the opinions of any single elected official.” He said the county “will continue to make data-driven, science-based policy decisions.”

“Anything less would be a disservice to the residents of Snohomish County and be playing Russian roulette with the lives of those we are charged to protect,” Somers wrote.

Fortney’s comments drew mixed reaction from Snohomish County Council members.

“His refusal to comply is a dangerous stunt,” said Democratic Councilwoman Megan Dunn of Everett. “It is risking the health and safety of Snohomish County residents.”

Councilman Jared Mead, a Mill Creek Democrat who also serves in the Legislature, said he’s concerned the comments will confuse residents at a time when elected officials “need to be united in this fight against the pandemic.”

It could be dangerous for the sheriff to advocate “defying what public health officials are telling us is the best way to keep us safe and healthy,” Mead said.

County Councilman Sam Low, a Lake Stevens Republican, said the sheriff’s comments channel frustration of those wondering why, as the situation improves, there isn’t a clearer path for lifting the stay-home order.

Sheriff Adam Fortney fields questions at the Snohomish County Courthouse in Everett on Wednesday. (Kevin Clark / The Herald)

Sheriff Adam Fortney fields questions at the Snohomish County Courthouse in Everett on Wednesday. (Kevin Clark / The Herald)

“The sheriff did hit a nerve with a lot of people,” he said. “When it started a month ago it was about flattening the curve. The curve has been flattened. They now want to know the next steps and they want to see consistency in decisions.”

Low said he thinks activities like recreational fishing can be allowed, and mom-and-pop stores can operate.

“If people can do it safely, they should be allowed to do it now,” he said.

Fortney’s statement that he won’t enforce the stay-home order isn’t new, nor is it unique. The Snohomish County Sheriff’s Office and law enforcement agencies across the state early on made clear they would focus on education, not punishment. The same night Inslee first issued the order, Fortney wrote that no one would be arrested for violation of the directive.

In his Facebook post Tuesday, the sheriff said he’s worried about the state economy. He wrote about what he perceived to be arbitrary decisions as to who gets to work and who doesn’t. He noted marijuana retailers are considered essential while gun stores are not. (At the press conference, Fortney reiterated his support for the constitutional rights of gun owners.) He wrote that he sees landscapers outside the Snohomish County Courthouse, yet residential construction has come to a halt. He questioned data modeling forecasts that have guided the state’s actions and suggested those worried about getting sick can stay home.

He said Inslee’s plan for recovery was vague.

“To be quite honest I wasn’t even sure what he was trying to say half of the time,” Fortney wrote. “He has no plan. He has no details. This simply is not good enough in times when we have taken such drastic measures as the suspension of constitutional rights.”

At Wednesday’s press briefing, the sheriff said he wasn’t “an expert in the sciences or health” but wondered why other states were reopening while Washington leaders remained reluctant.

Inslee said it is “a challenge to try and figure out what essential businesses are. We have done the best we can.” Those decisions, he said, are driven by science, data and protection of the public health.

“We don’t want Washingtonians getting sick,” he said. “… This has been working. There are people alive today because of what we’ve done.”

Other elected officials have issued challenges to the governor, too.

Like Fortney, Republican state Rep. Robert Sutherland of Granite Falls used social media to question Inslee’s constitutional authority and has called on Washington residents to rebel.

During a protest at the Capitol in Olympia on Sunday, when more than 2,500 demonstrators gathered in apparent violation of the stay-home order, Sutherland encouraged people to revolt if the state tried to enforce a ban on recreational fishing, according to The Seattle Times.

“When we go fishing, they’re going to send their guys with guns, and they’re going to write us tickets,” Sutherland said with a pistol tucked into his pants, according to The Times. “Governor, you send men with guns after us for going fishing, we’ll see what a revolution looks like.”

Sutherland later clarified that he meant a “revolution of love,” in which families go fishing, hiking or camping. On Wednesday, when asked about the sheriff’s comments, Sutherland said, “His heartfelt feelings about what’s going on pretty much mimic my own.

“When you tell us we can’t congregate to worship, we can’t have our gun shops open, and we can’t go fish, it really seems to be smacking at conservatism in America,” Sutherland said. “This is who we are. It feels like the virus is being used as a political weapon against (Inslee’s) political opponents. That’s just what it feels like.”

Restaurateur Kerri Lonergan-Dreke attended Sunday’s rally in Olympia to show her support for easing restrictions on her industry.

“We want some action. In my opinion we’ve reached a point that it’s become an overreach and overburden,” said Lonergan-Dreke, who owns Lombardi’s restaurants in Everett, Mill Creek and Bellingham. “We are very capable of presenting a plan to reopen responsibly.”

Lonergan-Dreke thanked Fortney on Facebook, commenting, “It is unconscionable the political game Jay Inslee is engaged in and the economic damage being done to millions of residents and their families.”

At least one Snohomish County resident has been accused of going beyond mere protest. Shortly after noon Tuesday, a Mill Creek man allegedly left a threatening voicemail with the governor’s office.

“You’re dead Inslee,” the man said, according to a report filed in Everett District Court. “Any of your workers, employees, their accomplices … it will be at your house, your mansion. You think you’re safe, you’re not. You’re a (expletive) dead man.”

On the other side of the country, the Virginia Legislature received a similar voicemail from the same number. Washington State Patrol troopers went to the man’s house Wednesday evening. He reportedly admitted he was the one who called.

“Ya, I called him, he has no right to do what he is doing,” he told troopers, according to the court papers.

A trooper wrote that in a taped statement, the suspect said he was upset “the governor was violating people’s constitutional rights and that he needs to hang for what he’s doing.”

He was booked into the Snohomish County Jail for investigation of making threats against the governor, a felony.

In a statement, the Snohomish County prosecutor affirmed the governor has legal authority to issue a stay-home order, and that anyone who violated it could be punished under the law.

“Any attempt to undermine that authority is both irresponsible, unhelpful in these difficult times, and contrary to the rule of law,” Cornell wrote. “I fear that the recent statements of Sheriff Fortney will be interpreted by some citizens around the state to grant license to willfully and blatantly violate the law. Let me be clear: actions have consequences.”

Zachariah Bryan: 425-339-3431; zbryan@heraldnet.com. Twitter: @zachariahtb.

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