Local government controls on travel to the Outer Banks (barrier-beach islands) of North Carolina remain in place, but local officials are making changes to try to head off a court decision on the Constitutionality of their emergency orders restricting free movement.

A month ago, as we reported earlier,  Dare County, North Carolina, set up checkpoints on all three roads leading into or out of the county. Police began denying passage along these public rights-of-way on the basis of  criteria including whether travelers have government-issued ID (even if they are passengers rather than drivers, or traveling on foot or by bicycle,  for which no drivers’ license is needed); what address is shown on their ID (if any —  U.S. passports, for example, show no address); which direction they are traveling; and whether they have been sponsored for an “entry permit” by an entity with a business license issued in Dare County.

County officials represented their emergency orders imposing these restrictions on travel  as health measures in response to the COVID-19 pandemic. But none of the criteria for who is allowed to pass through the checkpoints, or in which direction, have anything to do with whether travelers were believed, suspected, or likely to be infected with the novel coronavirus.

The emergency orders gave no indication of what, if any, procedures were available for administrative or judicial review of decisions to deny passage in or out of the county. But non-resident owners of homes in Dare County quickly brought suit in Federal court against the prohibition on traveling to their own seasonal, rental, or second homes.

Since then, the case has been referred for mediation, and the parties (non-resident property owners and the Dare County government) have requested and been granted a delay on the basis that they are in negotiations towards a possible settlement.

Today Dare County is beginning to allow passage across the bridges and into the county by non-resident owners of real property in Dare County, if and only if they have both an “entry permit” issued by the county and matching government-issued ID.

In an effort to save face, Dare County described these changes as a “Plan for Gradual Lifting of Restrictions on Entry to Dare County”. In reality, it appears that the county is scaling back its intrusions on freedom of movement just enough, and in just the ways, to end the lawsuit without a court decision that it had exceeded its Constitutional authority.

Non-resident owners of Dare County property — i.e. the people who sued the county — who have papers the county deems satisfactory, and who successfully navigate the permit issuance process, will be allowed in. Others will still be improperly kept out.

Those still being denied entry include people without papers (especially common for younger or older non-drivers), those living in homes that aren’t recorded in government records as their “primary residence” (U.S. residents don’t normally have to tell the police or any government agency when we move), and mainland residents with business reasons for travel to the Outer Banks — including provision and support of essential infrastructure and services — but who aren’t “employees” of Dare County business license holders.

We are pleased that Dare County officials have — apparently — realized that their actions “went too far” and might be deemed unconstitutional as applied to non-resident owners of property in the county. But we are disappointed that, because non-resident property owners are the only class of affected individuals who have taken the county to court, appeasing them may enable the county to avoid a court judgment on the Constitutionality of  the remaining restrictions.

Dare County did, and is still doing, the wrong thing. It substituted irrelevant ID and paperwork requirements for medical evidence of infection or risk as the basis for deciding who is, and who is not, allowed to exercise their right to travel. We would welcome a clear-cut court decision that this was and is unconstitutional. We’d be interested in hearing from attorneys and/or individuals interested in challenging the continued restrictions.