IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF MISSISSIPPI

OXFORD DIVISION

MICHAEL D. HERRIN, )
)
)
Plaintiff, )
)
VS. ) Case No. _________
)
HONORABLE TATE REEVES, )
IN HIS OFFICIAL CAPACITY AS )
GOVERNOR OF THE STATE OF )
MISSISSIPPI )
)
)
Defendant. )
______________________________________________________________________

VERIFIED COMPLAINT FOR CIVIL RIGHTS VIOLATIONS, INJUNCTIVE

RELIEF, DECLARATORY JUDGMENT, AND DAMAGES
__________________________________________________________

I. STATEMENT OF THE CASE

1. Plaintiff, Michael D. Herrin, is an individual resident citizen of Panola County,

Mississippi, who is an attorney licensed by the Bar of the State of Mississippi, and who

owns and operates several small businesses.

2. Upon confirmation of the first case of the novel coronavirus, Covid-19, in the State of

Mississippi, the Governor of Mississippi, the Honorable Tate Reeves, pursuant to Miss.

Code Ann. § 33-15-11(c)(1), the Emergency Management and Civil Defense Act, issued

a Proclamation on March 14, 2020, and subsequently issued fifty-nine (59) Executive

Orders commencing on March 16, 2020 with Executive Order Number 1458, and

continuing through September 13, 2020, with Executive Order Number 1523.
3. Those fifty-nine (59) Executive Orders have vested absolute authority over the

citizens of the State of Mississippi, in the sole person of Governor Tate Reeves and have

systematically stripped the Plaintiff and all of the citizens of the State of Mississippi of

the rights and liberties guaranteed by the Constitution of the United States of America.

4. Attorney General of the United States William Barr has characterized the actions of all

governors as; ““Putting a national lockdown, stay at home orders, is like house arrest,

other than slavery, which was a different kind of restraint, this is the greatest intrusion

on civil liberties in American history." Attorney General William Barr, September 16,

2020, Remarks at Hillsdale College Q&A. “emphasis added”.

5. Honorable William S. Stickman IV, United States District Judge for the Western

District of Pennsylvania in County of Butler, et. Al, v Thomas W. Wolf, et.al, 2;20-cv-

00677-WSS issued September 14, 2020, by which he struck down the State of

Pennsylvania’s Covid-19 restrictions as unconstitutional stated:

The fact is that the lockdowns imposed across the United States
in early 2020 in response to the COVID-19 pandemic are
unprecedented in the history of our Commonwealth and our
Country. They have never been used in response to any other
disease in our history. They were not recommendations made by
the CDC. They were unheard of by the people of this nation until
just this year.

6. Plaintiff recognizes and admits the novel nature of the Covid-19 pandemic, but

reminds the Court and the Governor, “[t]he Constitution was adopted in a period of grave

emergency. Its grants of power to the federal government and its limitations of the power

of the States were determined in the light of emergency, and they are not altered by

emergency.” Home Building & Loan Ass’n v Blaisdell, 290 U.S. 398,425 (1934).

2
7. The actions of Governor Tate Reeves as set forth in the Executive Orders are at best

currently in violation of the restricted authority granted by the Emergency Management

and Civil Defense Act and were overly broad, not properly tailored, arbitrary and

capricious at their inception and at worst patently unconstitional under the First, Fifth and

Fourteenth Amendments and actionable under 42 USC §1983.

II. JURIDICTION AND VENUE

8. This Court has jurisdiction to hear this case under federal law, 28 U.S.C. §§ 2201 and

2202 (Declaratory Judgments), as well as 42 U.S.C. §§ 1983 and 1988, as this case raises

federal questions under the First, Fifth and Fourteenth Amendments of the United States

Constitution.

9. This Court has jurisdiction over these federal claims under 28 U.S.C. §§ 1331 and

1343.

10. This Court has supplemental jurisdiction over state claims under 28 U.S.C. § 1367.

11. This Court has authority to grant the requested injunctive relief under 28 U.S.C. §

1343(3), the requested declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, the

claim for damages under 42 U.S.C. § 1983, and Plaintiffs’ prayer for costs, including

reasonable attorneys’ fees, under 42 U.S.C. § 1988.

12. Venue is proper in the Northern District of Mississippi pursuant to 28 U.S.C. §

1391(b)(2), because the claims arose in whole or in part in this District.

3
 III. PARTIES

13. Plaintiff, Michael D. Herrin, is an individual resident citizen of Panola County,

Mississippi who resides at 305 Dettor Street, Batesville, Mississippi and owns multiple

small businesses domiciled within the State of Mississipp.

14. Defendant Governor Tate Reeves, named in his official capacity (“Defendant

Reeves”), is the Governor of the State of Mississippi and is generally charged with

enforcing the laws of the State of Mississippi, and issued a Proclamation and numerous

Executive Orders in violation of Plaintiff’s and all citizens of the State of Mississippi’s

Civil Rights.

IV. GENERAL ALLEGATIONS

15. On March 11, 2020, the State of Mississippi reported its first confirmed case of novel

coronavirus Covid-19.

16. On March 14, 2020, Governor Tate Reeves (hereinafter “Governor”), issued a

Proclamation invoking his rights and powers pursuant to Miss. Code Ann. 33-15-11(c)

(1), the Emergency Management and Civil Defense Act.

17. It must be noted that the Emergency Management and Civil Defense Act falls under

Title 33 “Military Affairs” in the Mississippi Code and constitutes an imposition of

Martial Law by the Commander in Chief.

18. The Emergency Management and Civil Defense Act grants the Governor broad

powers to promote and secure the safety and protection of the civilian population in

coping with a disaster or emergency with the sole statutory limitation of:

The Governor, upon advice of the director, shall review the

need for continuing the state of emergency at least every
thirty (30) days until the emergency is terminated and shall
proclaim a reduction of area or the termination of the

4
 state of emergency at the earliest possible date that
conditions warrant. M.C.A. § 33-15-11(b)(17)(emphasis
added)

19. The single limitation stated in The Emergency Management and Civil Defense Act

is a strict and unambiguous one that cannot be flaunted by the Governor. He must (shall)

reduce his unilateral authority at the earliest possible date that conditions warrant and

terminate the state of emergency immediately when conditions warrant.

A. EXECUTIVE ORDERS

20. On March 16, 2020, the Governor began issuing Executive Orders relating to Covid-

21, and has to date issued fifty-nine(59) substantive Covid-19 related Executive Orders

bearing Numbers 1458 through 1523, exclusive of the five intervening non-Covid 19

Orders.

22. The Governor’s Executive Orders have been published by the Mississippi Secretary

of State on the Secretary of State’s website and are public record and as such, Plaintiff,

would ask this Court to take Judicial Notice of the contents of those collective Orders

pursuant to F.R.C.P. 201.

23. The Governor’s Executive Orders include, but are not limited to:

a. Number 1459, issued on March 16, 2020, mobilizing the National Guard.

b. Number 1460, issued on March 19, 2020, closing all public schools in the State of

Mississippi.

c. Number 1462, issued on March 21, 2020, restricting Mississippian’s rights to gather

or assembly in groups of ten (10) or more, arbitrarily and capriciously defining

essential businesses and closing or severely restricting all other businesses.

5
d. Number 1465, issued March 31, 2020, Shelter in Place Order restricting all citizens

to their residences other than arbitrarily defined essential activities, prohibiting

gatherings and assemblies, closing all non-essential businesses and restricting all

non-essential travel among other unconstitutional and unwarranted restrictions.

e. Number 1470, issued April 10, 2020, postponing all surgeries “not immediately

necessary”.

f. Number 1473, issued April 17, 2020, extending Order 1465, Shelter in Place.

g. Number 1476, issued April 22, 2020, extending the closure of all public schools.

h. Number 1477, issued April 24, 2020, Safer at Home, altering the Shelter in Place

Order, but continuing to restrict assembly, travel and business.

i. Number 1478, issued May 4, 2020, extending the Safer at Home Order.

j. Number 1480, issued May 8, 2020, extending and modifying the Safer at Home

Order.

k. Number 1483, issued May 12, 2020, providing for more stringent restrictions on

seven (7) Mississippi counties and extending the Safer at Home Order.

l. Number 1486, issued May 15, 2020, amending the Safer at Home Order.

m. Number 1488, issued May 22, 2020, extending the Safer at Home Order.

n. Number 1492, issued May 28, 2020, the Safe Return Order which modified and

lessened personal and business restrictions.

o. Number 1493, issued May 29, 2020, which altered the counties subjected to Order

Number 1483.

p. Number 1496, issued June 10, 2020, which extended the Safer Return Order.

q. Number 1500, issued June 26, 2020, which extended the Safer Return Order.

6
r. 1505, issued July 2, 2020, which extended the Safer Return Order.

s. 1507, issued July 10, 2020, which extended more restrictions of the Safer Return

Order to thirteen (13) counties.

t. 1508, issued July 19, 2020, which extended the Safer Return Order.

u. 1509, issued July 19, 2020, which extended more restrictions of the Safer Return

Order to an additional ten (10) counties.

v. 1512, issued July 24, 2020, which extended more restrictions of the Safer Return

Order to an additional six (6) counties.

w. 1514, issued July 30, 2020, which extended the Safer Return Order.

x. 1515, issued July 30, 2020, which extended more restrictions of the Safer Return

Order to an additional eight (8) counties.

y. 1516, issued August 4, 2020, which required face coverings for all citizens.

z. 1517, issued August 4, 2020, which required more stringent face covering

requirements for citizens of eight (8) counties.

aa. 1518, issued August 14, 2020, which extended the Safer Return Order.

bb. 1519, issued August 20, 2020, which restricted the number of citizens allowed to

assemble at college sporting events.

cc. 1520, issued August 31, 2020, which extended the Safer Return Order.

dd. 1522, issued September 13, 2020, which extended the Safer Return Order until

September 30, 2020, and remains in full force and effect as of the date of this filing.

24. Plaintiff freely and willingly concedes and wishes to make it known to the Court in

no uncertain terms that he believes Governor Tate Reeves has acted with the best of

intentions to uphold his duty and protect the Citizens of the State of Mississippi.

7
However, Plaintiff brings this action in the same spirit as eloquently espoused by

Honorable William S. Stickman IV, United States District Judge for the Western District

of Pennsylvania in County of Butler, et. Al, v Thomas W. Wolf, et.al, 2;20-cv-00677-

WSS issued September 14, 2020, by which he struck down the State of Pennsylvania’s

Covid-19 restrictions as unconstitutional;

After reviewing the record in this case, including numerous

exhibits and witness testimony, the Court believes that
Defendants undertook their actions in a well-intentioned
effort to protect Pennsylvanians from the virus. However,
good intentions toward a laudable end are not alone enough
to uphold governmental action against a constitutional
challenge. Indeed, the greatest threats to our system of
constitutional liberties may arise when the ends are
laudable, and the intent is good--especially in a time of
emergency. In an emergency, even a vigilant public may
let down its guard over its constitutional liberties only to
find that liberties, once relinquished, are hard to recoup and
that restrictions--while expedient in the face of an
emergency situation--may persist long after immediate
danger has passed. Thus, in reviewing emergency
measures, the job of courts is made more difficult by the
delicate balancing that they must undertake.

25. The Governor initially characterized his Executive Orders in the same manner as

every other State Executive in the United States of America, as an effort to “flatten the

curve”. Flatten the curve was a euphemism adopted to mean protect the State of

Mississippi’s hospitals and medical infrastructure from being overwhelmed by a tidal

wave of severe Covid-19 cases, which was expected and touted by the media and various

(now proven incorrect) academic forecasting models, requiring hospitalization, ICU

treatment and the use of scarce ventilators. Flatten the Curve, originally defined in terms

of weeks, has now morphed from weeks to months and now into an open ended

8
“Continue Flattening the Curve” with various media sources and “experts” speaking of

years.

26. There are three factual problems with Flatten the Curve program. First, the

conditions have never warranted the draconian limitations on Constitutional rights and

second, if they did at the onset, they are no longer necessary. Third, the Governor’s

imposition of martial law has in no way been narrowly tailored to meet the actual threat.

Using only the numbers cited by and relied upon by the State of Mississippi, found at the

Mississippi State Department of Health, (hereinafter “MSDH”) website, it is clear that

Covid-19 does not support a procedural and substantive deprivation of Constitutional

rights.

B. FLATTEN THE CURVE DATA

27. The data cited is current as of filing and available publically on the Mississippi State

Department of Health website, but subject to change daily. According to the MSDH,

twelve point seven percent (12.7%) of the cumulative Mississippi Covid-19 cases have

required hospitalization. Eighty-seven point three percent (87.3%) of the cumulative

Mississippi Covid-19 cases have not required hospitalization. In other words, the

overwhelming majority of Covid-19 infections simply don’t require hospitalization.

Currently, according to the MSDH, there are five hundred and nineteen (519)

hospitalized Covid-19 patients in the State of Mississippi with six thousand six hundred

and thirty-nine (6,639) staffed hospital beds. Covid-19 patients currently occupy eight

percent (8%) of Mississippi’s staffed hospital beds with ninety-two percent (92 %) either

vacant or occupied by non-Covid-19 patients (4,195 occupied by non-Covid patients and

1,925 vacant). In other words, Mississippi has almost four (4) times the number of empty

9
hospital beds as it does Covid-19 patients. Of the five hundred and nineteen (519)

hospitalized Covid-19 patients in the State of Mississippi, one hundred and forty-seven

(147) are in Intensive Care Units (ICU). Mississippi has nine hundred and four (904)

staffed ICU beds. Covid-19 patients currently occupy sixteen percent (16%) of

Mississippi’s ICU beds with eight-four percent (84%) either vacant or occupied by non-

Covid-19 patients. Finally, Mississippi has seventy-four (74) patients on ventilators to

assist breathing. Unfortunately, the Mississippi State Department of Health has

steadfastedly refused to make public the number of available ventilators in Mississippi.

The University of Mississippi Medical Center in Jackson, Mississippi, held a press

conference on April 7, 2020, and announced that in addition to its stockpile of one

hundred and fifty (150) ventilators, it had begun manufacturing its own ventilators and

had an additional one hundred and seventy (170) homemade ventilators for a total of at

least three hundred and twenty (320). As such, we know that a single hospital in

Mississippi has almost four and half times the number of ventilators currently in use.

28. With Covid-19 patients occupying only eight percent (8%) of total hospital beds in

Mississippi, only sixteen percent (16%) of the total ICU hospital beds in Mississippi and

only a fraction of the known ventilators available in Mississippi, the “curve” is as flat as

the proverbial pancake. We are now into the sixth month since the Governor issued his

Shelter in Place Order. What might have been necessary half a year ago is clearly no

longer supported by the State’s own data.

C. MORTALITY

29. While “Flatten the Curve” refers to cases and hospitalizations, likewise the mortality

rates of the virus also do not justify neither the initial nor the continued encroachment

10
upon the citizens’ Constitutional rights. Again, the data cited is current as of filing and

available publically on the Mississippi State Department of Health website, but subject to

change daily. According to the MSDH, two thousand eight hundred and seventy (2,870)

citizens have died of causes related to Covid-19. While various media sources indicate

that this death figure is greatly increased by non-Covid-19 co-morbidities such as cancer,

accidents, automobile accidents and even suicide, this Plaintiff makes no such inflation

argument before this Court for the sake of judicial economy and again relies strictly upon

the data cited and produced by the CDC and MSDH.

Number of Cases (confirmed and probable) in Mississippi: 94,573

Number of Deaths in Mississippi: 2,870

In Mississippi, Covid-19 has a Death Rate of three percent (3%)(2,870 of 94,573) among

active infections and a recovery rate of ninety-seven percent (97%). Taken alone this

death rate (which is one half of the CDC published death rate of six percent (6%) for

Covid-19 only related deaths) is patently insufficient to warrant the initial draconian

removal of citizens’ Constitutional rights, let alone warrant a six month continuation

with no foreseeable end in sight. This becomes even more apparent when an actual

death rate is calculated. The 2020 population of the State of Mississippi is three million

one hundred and fifty-thousand (3,150,000). A death total of two thousand eight

hundred and seventy (2,870) among a population of three million one hundred and fifty-

thousand (3,150,000) is .0009 (9/10ths of 1 percent) which is analogous to the annual flu.

30. Mississippi’s Covid-19 death total does not justify the authoritarian imposition of

what is essentially martial law and more fatally, nor has that imposition been narrowly

tailored to address the actual circumstances of the alleged emergency. While the total

11
number of Covid-19 related deaths in Mississippi is two thousand eight hundred and

seventy (2,870), this number begins to fade as a justification for martial law when

examined by age groupings, location and co-morbidities.

D. AGE

Mississippi’s Covid-19 related deaths currently break down as:

Age Range Deaths

0-18 1
18-29 21
30-39 49
40-49 121
50-59 266
60-69 597
70-79 761
80-89 685
90+ 368

31. According to the MSDH, two-thousand, four hundred and eleven (2,411) of the two

thousand eight hundred and seventy (2,870) total deaths are age sixty (60) or older.

Eighty-four percent (84%) of all Covid-19 related deaths in Mississippi are victims age

sixty (60) or greater and only sixteen percent (16%) are age fifty-nine (59) or younger.

32. The age demographics of the Covid-19 deaths clearly demonstrate the arbitrary and

capricious nature of the State’s draconian measures. Despite the fact that only one child

age 18 or younger (the child was in the 1 to 5 range)(Plaintiff acknowledges that every

child’s death is a tragedy) has died during the entire six (6) months of the Covid-19

“pandemic”, the Governor has closed all schools during the prior school term, prohibited

summer school and imposed drastic restrictions on all aspects of current education in the

State. This is not the tailored response required by the Emergency Management and

Civil Defense Act. Additionally, the Governor has paid only cursory lip service to an

12
attempt to narrowly tailor the restrictions to the age group clearly most impacted by

Covid-19, citizens’ age sixty (60) and over.

E. LOCATION

33. One thousand, one hundred and eighty-five (1,185) of the two thousand eight

hundred and seventy (2,870) total Mississippi Covid-19 related deaths occurred in Long

Term Care (LTC) facilities (nursing homes). These nursing home deaths account for

forty-one (41%) of all Mississippi Covid-19 deaths. If these one thousand, one hundred

and seventy-five (1,175) LTC deaths were removed from the total Covid-19 deaths of the

two thousand eight hundred and seventy (2,870), the remaining total would be one

thousand, six hundred and eighty-five (1,685). It should be noted that according to the

CDC the average Mississippi influenza annual death total is between seven hundred

(700) and one thousand (1,000) deaths. Thus without the unfortunate LTC facility

deaths, the pandemic of Covid-19 becomes a bad flu year for Mississippi.

F. CO-MORBIDITIES

34. The country has been stunned by continuing revelations by the CDC that the vast

majority of “Covid-19” deaths involved serious life-threatening co-morbidities, including

co-morbidities such as cancer, including all pneumonia and influenza (annual flu) deaths,

including accidental deaths such as automobile accidents, and suicides and finally that

according to the CDC, only six percent (6%) of all reported Covid-19 deaths were related

to Covid-19 only. The State of Mississippi has been less than transparent regarding

similar Mississippi specific data. The MSHD posts a graphic chart that shows co-

morbidities by category, but is impossible to extrapolate from due to overlapping co-

morbidities and the complete absence of a number for “non-noted” category. Though it

13
must be noted that the “non-noted bar graph is practically non-existent when compared

to any of the other co-morbidities.

35. The factual bottom line is that Covid-19 is a dangerous virus for any Mississippi

citizen age sixty (60) or older and /or has a pre-existing serious life threatening medical

condition. Unfortunately, the Governor’s response is not tailored to respond to that

threat, but is instead a blanket appropriation of Constitutional rights.

G. FAILURE TO TAILER, ARBITRARY AND CAPRICIOUS

36. The unilateral decisions of the Governor taken during his imposition of martial law

have been arbitrary and capricious and have wholly failed to be tailored to meet the

actual threat of Covid-19.

37. Despite the data provided by the Mississippi State Department of Health

overwhelmingly indicating that Covid-19 is a pandemic level threat only to citizens age

sixty (60) or older and/or suffering from pre-existing life threatening co-morbidities,

little to nothing has been done to limit the infringement on Constitutional rights to those

specific groups. In fact, the Governor has acted to the opposite. Despite the data,

collected over six months, clearly indicating virtually no danger to children, the

Governor closed all public schools and now imposed a myriad of unnecessary

restrictions on both primary schools and universities. Plaintiff has one high school age

child and one high functioning disabled child enrolled at the University of Mississippi.

Both have been negatively impacted by the Governor’s Executive Orders concerning

schools and education.

38. The Governor has implemented numerous restrictions and limitations which,

although simply following suit of other Governors, has not had an independent and

14
proven basis in science, but instead have been arbitrarily implemented. The “Social

Distancing” requirement of six feet (6’) or one point eight meters (1.8m) is the height of

arbitrary as evidenced by the sheer variety of world-wide restrictions; World Health

Organization, China, Denmark and France require 1 meter (3.3 feet), South Korea

requires 1.4 meters (4.6 feet), Australia, Belgium, Germany, Greece, Italy, Spain and

Portugal require 1.5 meters (5 feet), and the United States requires 1.8 meters (6 feet).

39. The Governor’s implementation of assembly restrictions have been haphazard and

without any stated or published foundation or explanation. Originally, assemblies were

restricted to ten (10) people and have now been expanded to a confusing web of

contradicting restrictions including but not limited to:

10 people indoors and 50 people outdoors if “social distancing” is not possible,

20 people indoors and 100 people outdoors if “social distancing” is possible
But 25% of capacity for reception halls and conference centers unless a sit down
dinner is served in which case 75% of capacity is allowed,
and 75% of restaurant capacity, but masks must be worn while walking, but are
not required while sitting and no one is allowed bar service
and 15,000 people may gather at a university football stadium, but they must
“socially distance”

These restrictions are the very definition of arbitrary and capricious. They would be

laughable in their lack of scientific basis and even common sense, but for their absolute

impact on the rights to assemble for political discourse and protest, to worship and to

exercise the freedoms granted by the Constitution.

40. The failure to narrowly tailor the restrictions both in terms of time and effect are

violations of the strict requirements of the Emergency Management and Civil Defense

Act under which the Governor derives his currently exercised martial law authority.

15
 H. MOOTNESS

41. Plaintiff anticipates Governor will respond that the restrictions imposed by

Executive Order have been greatly relaxed over the course of the pandemic and are set to

expire on September 30, 2020, rendering this Complaint moot. This Court should take

notice that these measures were originally initiated as “temporary measures” to “flatten

the curve” and yet now six (6) months later, in various degrees, these measures are still

in place. More importantly, any of these measures or even harsher ones, can be

implemented by the mere stroke of a pen by the Governor sua sponte as and when he

sees fit. The Emergency Management and Civil Defense Act in the Military Affairs

Chapter of the Mississippi Code allows the Governor to act exactly as the King from

which our Founding Fathers risked everything to gain independence, ruling by fiat

without any check or balance, save the Order of this Court.

COUNT I

VIOLATION OF FIRST AMENDMENT - 42 U.S.C. § 1983

42. All previous paragraphs are incorporated herein.

43. The restrictions contained in the Executive Orders limit public gatherings and the

citizens’ right to assemble, travel, work, worship and speak (restriction to one’s residence

encompasses a blanket silencing of numerous rights guaranteed by the First Amendment).

44. The First Amendment provides protection for freedom of association in the context of

expressive association.

45. Expressive association includes, but may not be limited to, speech, assembly, press,

petitioning government for grievances, and the free exercise of religion.

16
46. Specifically, the County of Panola and the City of Batesville, of which the Plaintiff is

a resident, hold, and are obligated to hold, public meetings in which the public is invited

to attend, and does attend, almost always in numbers of more than ten (10) or twenty-five

(25) people.

47. Political representatives, and candidates for political office, often hold meetings,

gatherings, town hall discussions, and similar events, in order to discuss matters of

general importance, including matters concerning the health, safety, and welfare of

members of the community.

48. Defendant’s Executive Orders limiting the number of individuals at public gatherings

violates the freedom of association clause inasmuch as expressive advocacy cannot take

place because of the Executive Orders, and it affects persons who pose no danger

whatsoever to others.

49. Attending such events, such as political gatherings, public meetings, or similar events

is a right protected by the First Amendment and is directly and completely prohibited

and/or curtailed by the Executive Orders.

50. It is of no moment that one might be able to attend these functions via technological

tools such as video or audio conference, as not all citizens have access to or own such

technology.

51. The assembly limitations set forth in the Executive Orders vary greatly based upon

activity and location without bearing any relation to the threat presented by the virus. As

such, the limitations should be deemed to be content based and subject to strict scrutiny.

52. Should the Court find that the assembly limitations are content neutral, they are

patently not tailored to serve a significant government interest nor leave open ample

17
alternative channels of communication. The limitations vary based upon the size of the

retailer for example and this limitation bears no relevance to either the virus or those

most vulnerable to the virus.

53. That the harm being perpetrated is on-going and will continue or may continue in the

future unless enjoined and constitutes significant and various violations of constitutional

rights guaranteed by the Constitution of the United States.

COUNT II

VIOLATION OF FIFTH AMENDMENT (TAKING CLAUSE) - 42 U.S.C. § 1983

54. All preceding paragraphs are incorporated herein.

55. The Takings Clause of the Fifth Amendment provides that private property shall not

“be taken for public use, without just compensation.” U.S. Const. Amend. V.

56. The Takings Clause generally bars the government from forcing some members of

the public from bearing burdens that should be borne by the public as a whole.

57. The State of Mississippi, through Governor Tate Reeves’ Executive Orders, took

property from members of the public, and from the Plaintiffs herein, without just

compensation.

58 The taking occasioned by the Executive Orders worked to prohibit the use of citizens’

property and, therefore, caused a diminution or loss in value of that property.

59. The taking in this case was so onerous as to work as a direct appropriation of the

property.

60. Property and business owners who were forced to close their businesses suffered a

taking and were, therefore, obligated to bear the cost of government action without just

compensation.

18
61. The Executive Orders worked to deprive numerous residents, including this Plaintiff

of property interests.

COUNT III

VIOLATION OF FOURTEETH AMENDMENT

SUBSTANTIVE DUE PROCESS - 42 U.S.C. § 1983

62. All previous paragraphs are incorporated herein.

63. The Executive Orders compelled the closure of the physical operations of all business

and entities that the Governor deemed to be non-essential, and threatened penalties for

those who violated the Executive Orders.

64. The Governor’s list of essential businesses was created ad hoc and without a

published criteria or discernable basis.

65. Big box national chain retailers such as Lowes, Home Depot and Wal-Mart were

allowed to remain open selling the exact same “essential” products as local mom & pop

stores which were forced to close and lost all revenue.

66. The creation and application of the essential and non-essential standard was arbitrary

and capricious.

67. The Governor’s Executive Orders which relaxed the standards applied in some

counties while maintaining stricter standards in other counties is equally arbitrary and

capricious.

68. The Plaintiff has a protected liberty interest in their right to live without arbitrary

governmental interference.

69. The Plaintiff has a right to protection from arbitrary action of the government.

19
70. The right to work for a living in the common occupations of the community is of the

very essence of the personal freedom and opportunity that was the purpose of the

Fourteenth Amendment to secure. “The right to hold specific private employment and to

follow a chosen profession free from unreasonable governmental interference comes

from both the ‘liberty’ and the ‘property’ concepts of the Fifth and Fourteenth

Amendments.” Green v. McElroy, 360 U.S. 474,492 (1959).

71. Substantive Due Process prevents the government from engaging in conduct that

“shocks the conscious” or that interferes with the concept of ordered liberty.

72. Defendant’s actions constitute official policy, custom and practice of the State of

Mississippi.

73. Defendant’s actions do not comport with the traditional ideas of fair play and

decency.

74. Plaintiff has the right to pursue lawful employment as he shall determine and be free

of governmental interference.

75. The shutdown is causing citizens of Mississippi to lose their jobs, their livelihoods,

and their reputations in their communities.

76. While Plaintiff’s law office was deemed an “essential business” by the Governor’s

Executive Orders, his clients were restricted in their ability to travel, speak and otherwise

assemble with him and his other non-essential businesses were closed without due

process or compensation.

77. The creation of the essential/non-essential dichotomy bears no rational basis to the

State’s need to protect its citizens from the virus.

20
 COUNT IV

VIOLATION OF FOURTEETH AMENDMENT

PROCEDURAL DUE PROCESS - 42 U.S.C. § 1983

78. All previous paragraphs are incorporated herein.

79. The Fourteenth Amendment to the United States Constitution forbids a state from

depriving anyone of life, liberty, or property without due process of law.

80. None of the following due process protections have been afforded to Plaintiff, or any

81. The Executive Orders issued by the Defendant, do not provide due process

protections.

82. All fundamental rights comprised within the term liberty, including, but not limited

to, the rights to be free from bodily restraint, the right to contract and engage in the

common occupations of life, the right to acquire useful knowledge, to worship God

according to the dictates of one’s own conscience, and to generally enjoy the privileges

long associated with the rights of free people are guaranteed substantive due process

rights under the Fourteenth Amendment.

83. The Executive Orders deprives this Plaintiff, and residents of the State of Mississippi

of fundamental property rights without due process of law, based solely upon discretion

of the Defendant, which discretion is not subject to appeal rights.

COUNT V

VIOLATION OF FOURTEETH AMENDMENT

EQUAL PROTECTION - 42 U.S.C. § 1983

84. All previous paragraphs are incorporated herein.

21
85. The Equal Protection Clause requires governments to act in a rational and non-

arbitrary fashion.

86. Defendant’s actions in classifying businesses into “essential” and “non-essential” are

arbitrary and irrational given that there has never been such a classification of business

activity and the Defendant’s attempts to classify such categories is nothing more than

ipse dixit.

87. Defendant’s actions are therefore a violation of the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution.

88. Defendant has announced plans to begin easing restrictions previously implemented.

Said plan would ease the restrictions on some counties, and not others with Plaintiff’s

home county of Panola being among those singled out for heightened restrictions.

89. The easing of restrictions in some counties, and not in other counties, is not rational

and is an arbitrary exercise of the Defendant’s executive power.

90. The Defendant’s plan is nothing more than an arbitrary decision-making tool that

relies on the speculations of the Defendant.

91. Defendant’s decision not to ease restrictions on all counties impedes Plaintiff’s

fundamental right to use his private property without the government imposing arbitrary

or irrational restrictions on the use of the property.

92. Defendant’s actions will cause Plaintiff to be completely deprived of the use and

control of his private property while businesses in other counties will be authorized to

operate.

22
 COUNT VI

VIOLATION OF THE MISSISSIPPI EMERGENCY MANAGEMENT AND

CIVIL DEFENSE ACT

93. All previous paragraphs are incorporated herein.

94. Defendant’s actions are in violation of the strict requirements of Miss. Code Ann. §

33-15-11(c)(1), Emergency Management and Civil Defense Act, specifically the statutory

requirement that the Defendant “shall proclaim a reduction of area or the termination of

the state of emergency at the earliest possible date that conditions warrant.”

95. The Court may exercise supplemental and pendent jurisdiction over this claim

pursuant to 28 U.S.C. § 1367.

REQUEST FOR RELIEF WHEREFORE, Plaintiff demands judgment in his

favor, against Defendant, and seeks relief as follows:

(1) Declaratory Judgment that issuance and enforcement of the Executive Orders

are unconstitutional for the reasons stated herein, and that the actions of the Defendant

are unlawful and unconstitutional;

(2) Permanent injunction to prohibit Defendant from enforcing the Executive

Orders in the manner and fashion engaged by Defendant;

(3) Declaration that the rights of the Plaintiff and the citizens of the State of

Mississippi have been violated by the various actions of the Defendant and said

Defendant be enjoined from engaging in such violations and declaring them to be null

and void ab initio;

(4) Award of compensatory and/or nominal monetary damages;

23
 (5) Award of costs and expenses, including reasonable attorneys’ fees under 42

U.S.C. § 1983 and 1988; and,

(6) Such other relief as this Court deems appropriate.

Respectfully Submitted,

/s/ Michael D. Herrin

Michael D. Herrin, (MS 8699)
The Law Office of Michael D. Herrin PLLC
305 Dettor Street
Batesville MS 38606
Phone: 662-816-6989
attorneymichaelherrin@live.com

VERIFICATION

I declare under penalty of perjury that the forgoing Verified Complaint has been

examined by me and that the factual allegations therein are true to the best of my

information, knowledge and belief.

Dated: September 23, 2020 /s/Michael D. Herrin

24