Providing the rest of the USA with an object lesson in how not to react to a pandemic,  Dare County, North Carolina, has established checkpoints on all roads crossing the county borders, at which travelers must show their papers to enter the county.

Pursuant to a series of emergency declarations issued by the Dare County Board of Commissioners, law enforcement officers are demanding that each person seeking to enter the county show either a government-issued ID card with an address in Dare County, or both some other government-issued photo ID and a county-issued entry permit.

A Federal lawsuit has been filed, seeking to have this enjoined as unconstitutional (at least as applied to the named plaintiffs). But as discussed below, the lawsuit barely scratches the surface of the issues this raises.

Why is Dare County doing this? What’s wrong with this ID requirement? Is it legal?

Dare County consists of barrier beaches and other islands on the Outer Banks of the North Carolina coast. There are only three roads in and out of the county, and all routes in or out of the county cross bridges or causeways.

If you live on an island, it’s understandable that your first instinct in a time of plague might be to retreat into your castle and raise the drawbridge to keep out the threat from the outside world. Understandable, but misguided, as one would hope that residents of Dare County and other islands and regions would realize on second thought.

Dare County already has confirmed COVID-19 cases and at least one death from COVID-19. People leaving Dare County are as likely to infect people elsewhere as people entering Dare County are to bring in infection. Any measure rationally related to controlling the spread of the disease by limiting movement between counties (not that we think such a measure would be appropriate or lawful) would need to apply equally to people crossing the county line in either direction. But Dare County authorities, with instinctive but wrongful xenophobia, associate contagiousness with “otherness”, and apply restrictions only to “outsiders” seeking to enter, not to themselves if they want to leave.

The details of the Dare County emergency declaration make it even more patently irrational and unconstitutional. The limitation on entry to Dare County doesn’t apply to everyone.  You might think that any bar to travel would be based on whether a would-be entrant to the county (or traveler seeking to leave the county) is known or reasonably suspected of being infected with a contagious disease.  But that’s not the criteria being used.

Instead, the criteria for entry are possession and display to law enforcement officers at the checkpoint of a government-issued ID card showing an address in Dare County, or both a county-issued entry permit and some other government-issued ID card. Entry permits can be issued only to “permanent residents” of Dare County, or for employees of Dare County businesses, by application not by those employees but by employers who hold both drivers license showing a Dare County address and Dare County business license.

The implied minor premise — implicit but baseless and unconstitutional — is that residence status or location, what address is shown on ID cards or business licenses, or whether one possesses such an ID card (or chooses to show it to law enforcement officers), are proxies for, or indicia of, infection status or contagiousness. Such an assumption cannot be allowed to go unquestioned, or allowed to stand.

“Permanent residence” is a legal fiction. Whatever meaning it may have, it is of no medical significance. Some people have more than one residence. Some have none. “Freedom of movement” means nothing if you are not allowed to spend time, for whatever reasons you please (as long as you aren’t trespassing), in places that are not your “residence”.

During the current pandemic, many people are “sheltering in place” in locations that are not their “primary permanent legal residence.” Young adults have returned to stay with parents in places they still consider “home” even though they have established their own residences elsewhere. Younger and/or healthier family members are staying with elderly or at-risk relatives to help them cope and reduce their exposure during the quarantine. These people may need to leave Dare County for essential services (shopping for things not available in the county, specialized medical services, etc.). But if they do, they can’t return.

Business addresses are even more likely to be in jurisdictions of convenience of little practical significance and no medical significance at all. Businesses chartered or registered in any county or parish of any state are legally entitled to operate nationwide. How many Delaware corporations, whose registered addresses in Delaware appear on all their corporate documents and operating licenses, confine their operations and their employees’ activities to the boundaries of the state of Delaware?

The Outer Banks try to be as self-sufficient as they can be. But the largest town in Dare County has only about 7,000 people. It’s not unusual for specialized tasks to require calling in a company or worker from the mainland.  It doesn’t appear that there is any way, under the emergency declaration, for a self-employed worker or an employee or contractor of a business based outside Dare County to obtain an “entry permit”, even to perform essential infrastructure installation, maintenance, repair, or other services, and even if there may be no business or worker based in Dare County that is able to do the needed on-site work.

Then there are those who don’t have papers at all.

“Undocumented” doesn’t mean “infected with a contagious disease”, and cannot be deemed sufficient basis for denial of the right to travel along public rights-of-way.

“Right of way” isn’t just a figure of speech. A road or other route is called a “right of way” because the public has the right to travel along it. Travellers on public roads are not, and cannot be, required to have a “pedestrian license” or “passenger license”. Not having a license to operate a motor vehicle is not, and cannot be deemed to constitute, a waiver of, or basis for interference with, the right to travel along public roads on foot, by non-motorized vehicle for which no license is required (e.g. by bicycle), or as a passenger in a common carrier or private motor vehicle driven by a licensed  operator.

Some people — including long-term or seasonal but legally “temporary” residents or nonresidents — are ineligible for drivers licenses or state ID cards. Others don’t need, or simply haven’t chosen to acquire, a drivers license or state-issued ID card.

On its face, the declaration of emergency and the posted entry restrictions apply equally to all individuals, regardless of age. So children without government-issued ID cards, even if they are permanent residents of Dare County, are barred from entry to the county. And if a baby is born to Dare County permanent resident parents in a mainland hospital, perhaps because of a difficult pregnancy or birth, the parents can’t bring their baby home until they get an ID card, showing a Dare County permanent residence address, for the newborn infant. If an elderly or disabled Dare County resident doesn’t drive, and hasn’t needed or obtained a state ID card, they can’t return from a medical appointment on the mainland until they get one — even if they are traveling in a car driven by a Dare County permanent resident with the proper papers to prove it.

In practice, we suspect that the officers staffing the checkpoints are using their “discretion” not to enforce the rules against children accompanied by their parents, and perhaps elders or people with disabilities being driven by family members. We don’t know how they are determining family relationships, and would welcome any reports on what is actually happening at the checkpoints. Regardless of the good intentions of checkpoint staff, prosecutorial or enforcement discretion is an arbitrary, unfair, and inadequate protection for rights. It is insufficient to salvage otherwise-unconstitutional laws or orders.

Employers who don’t have drivers licenses can’t apply for entry permits for their employees. An elderly or disabled person who doesn’t drive, but employs a caretaker or helper — perhaps a live-in aide who maintains a permanent residence out of the county — can’t apply for an entry permit for her employee.

Even if such an employer has a state ID, and even if that is an acceptable alternative to a drivers license despite not being mentioned on the official application for an employee entry permit, such an employer may not have a business license. Not all employers are businesses that need to be, or are, licensed. Many employers are individuals.

The requirement to have a state-issued ID for entry to Dare County, or as a prerequisite to applying for entry permits to the county for one’s employee(s), is especially invidious at a time whan all North Carolina DMV offices for drivers license and state ID issuance in Dare County are closed due to COVID-19.

There are about 35,000 year-round residents of Dare County, but roughly 250,000 people live there in the summer. Many homes in Dare County are owned by people whose permanent residence (if any) is outside the county. These Dare County properties are used as second homes, seasonal or weekend residences, or rental accommodations. Not surprisingly, “non-resident” (or non-permanent or non-primary resident) owners of homes in Dare County are the first to have mustered the resources to go to court to challenge the county emergency declarations and the denial of access to their own homes.

The Federal lawsuit, Bailey v. County of Dare, North Carolina, was filed in the U.S. District Court for the Eastern District of North Carolina on April 7, 2020. The plaintiffs are all non-resident owners of homes in Dare County. The plaintiffs’ claims are well-founded, and begin with, “This action is brought by Plaintiffs who seek to protect their right to travel.” As of a week later, no action has been taken on the complaint and request for injunctive relief.

We hope that other jurisdictions will look carefully and critically at what Dare County is doing, and not try to emulate its errors.