by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Six Outer Banks property owners have filed a federal lawsuit against Dare County, North Carolina, claiming their constitutional rights have been violated by an emergency order preventing access to their homes.
Like some other resort areas, Outer Banks’ emergency management officials have restricted visitor and non-resident property owner access to the chain of barrier islands to help stop the spread of coronavirus.
The suit, filed Tuesday in the U.S. District Court for Eastern North Carolina, was brought by John P. Bailey, Paul W. Michael Jr., his wife Sheryl S. Michael, E. Thompson Brown, Todd A. Edgar and his wife Babette S. Edgar.
The Michaels and Brown, who live in Virginia, use their properties in Dare County as second homes, while Bailey and the Edgars use their homes as rentals. Bailey lives in South Carolina and the Edgars in Maryland.
“This action is brought by plaintiffs who seek to protect their right to travel, to engage in a common calling or occupation, and to obtain medical treatment as is guaranteed to them as citizens of the United States” by the U.S. Constitution, the suit reads.
On March 20, the Dare County Control Group — a multi-jurisdictional policy-making body that assumes a leadership role for the entire county during emergencies — amended a March 17 emergency declaration restricting visitor access to include non-resident property owners. Law-enforcement checkpoints have been established at both bridges into Dare County.
The plaintiffs in the suit are not legal residents of North Carolina, and are therefore prohibited from accessing their property.
Raleigh, North Carolina attorney S.C. Kitchen, who is representing the property owners, said the plaintiffs aren’t questioning any of the other coronavirus restrictions in place in Dare County, and they are not seeking monetary damages.
“They simply want to get to the property they own and pay for,” he said in a phone interview.
The lawsuit contends that the prohibition on the entry of out-of-state property owners violates the U.S. Constitution’s Privileges and Immunities Clause, which says citizens of each state are entitled to all privileges and immunities of citizens in every state. …
In addition to the constitutional violation, the suit claims Dare County officials amended the local state of emergency declaration by resolution rather than by ordinance, as required by state law. Therefore, the suit contends the move to prohibit property owners was enacted without legal authority.
The lawsuit asks the court to immediately allow access to all property owners.
“If not enjoined by this Court, Dare County will continue to discriminate against the Plaintiffs, and deprive them of their Constitutional rights. The Plaintiffs will suffer irreparable injury due to this deprivation of Constitutional rights,” the suit reads.
Dare County spokeswoman Dorothy Hester said the county has not been served the lawsuit and is unable to comment on possible litigation.
Personally, I tend to favor of border restrictions as a way of dealing with COVID-119. Municipalities, counties, and even states that have low infection rates should try to keep new cases out if they can. As this case illustrates, there are legal complications. Maybe quick-result test kits will provide a solution.