Backlash shows limits of what citizens will tolerate during crisis
The week before Easter in New Hanover County, you could not buy school supplies or new underwear, walk on the beach, exercise your constitutional right to fish or attend a drive-in Easter church service, even though you are protected from other people who are also contained in their cars.
All public beach parking and walkway access were closed in New Hanover County like many places, but New Hanover went further, ordering the beach strand off-limits — even to oceanfront property owners.
Officials in Wrightsville Beach say if people are caught on the beach in violation of the public beach closures, they could face fines of up $650 and potential court costs. Before the change, offenders faced a misdemeanor that carried a $150 fine. After handing out 18 citations to people violating public beach closures over the weekend, the town said changes were needed.
Public and private tennis courts were ordered closed.
Wrightsville Beach resident and former mayoral candidate Greg Buscemi told WWAY-TV that he believes the town is acting outside their authority and if they do not rescind their actions, he plans to sue the town.
The public began speaking out after the Wilmington Police announced drive-in church services would not be permitted on Easter. A rule that stood in conflict with guidance from Gov. Roy Cooper issued to the state’s sheriffs.
“We’re not talking about putting 500 people inside of the church here, we’re talking about a parking lot worship service where people will stay in their cars,” Reverend Dante Murphy said.
Late Thursday, the Wilmington law firm Coastal Legal Counsel challenged the ban. In a press release the firm stated:
“As attorneys, we believe that the City’s attempt to prohibit drive-in worship services is a violation of each citizen’s civil rights under the First and Fourth Amendments to the United States Constitution (“Constitution”) as made applicable to the States by the Fourteenth Amendment. The First Amendment to the Constitution ensures that the Government will make no law prohibiting the free exercise of religion.”
A proscription against the freedom to exercise religion safely from inside your motor vehicle is in direct violation of the Constitution, according to the release.
On Thursday April 9, the Wilmington Police reversed course and some churches quickly put together Easter services, although the lateness of the change and the confusion no doubt impacted believers’ ability to exercise their rights to worship on Easter.
Boaters and people who fish have been up in arms about their inability to enjoy the open water and catch food.
All public and private boat ramps and marinas within New Hanover County have been ordered closed.
“To take away somebody’s ability to go fishing, to take their family out on the boat,” boater John Buechele said. “People who are already together, I think is appalling.”
In 2018, North Carolina voters overwhelmingly passed a state constitutional amendment that guaranteed the right to fish, which New Hanover had effectively banned from a boat or the beach.
In what is the most illogical restriction in all of North Carolina, New Hanover County told stores that sell food along with a variety of products, they can’t sell any items that are not deemed “essential for health, sustenance, shelter, mobility, & hygiene.”
Do the county commissioners in New Hanover County believe no other items are essential? Funny thing is, in a free society, consumers have a way of deciding what is essential to them.
This means people already in a store shopping for food could not buy school supplies for home learning, paper for working from home or clothing for growing children. Even books are off limits.
A sign closing off the Cosmetics section reads, “By order of New Hanover County, items in this ‘non-essential’ area are not available for purchase.”
The conflicting rules issued by New Hanover and other counties were a topic of discussion with General Assembly members all week, including the inability of citizens, unlike those in other parts of the state, to purchase automobiles.
“You’re looking at the state order and trying to compare it with the local order, and they’re completely different,” North Carolina Retail Merchants Association President Andy Ellen said. “For example, you can’t buy a car in New Hanover County. So, if your car and your transmission goes down, it’s going to cost $4,000 to repair it. And your car’s only worth $3,000. You can’t drive to a different county to buy a car.”
Pressure to relax the government restrictions began to mount late last week and exploded over the weekend.
An online grassroots group with a fast-growing social media presence is fighting back against the extreme measures in New Hanover and other communities across North Carolina. The Facebook group ReOpenNC swelled to nearly 34,000 members as of April 15.
Kristy Bays posted in a section about the New Hanover situation:
“The government does not know my situation or finances. Many stores are not accepting returns right now so if I ordered something online and it doesn’t fit me or a child I’m out of the cash. With many out of work people are counting their pennies and this is an unneeded burden.”
Mike Drogo who became an early member of ReOpenNC added:
“I just sent this message to Governor Cooper:
At what point does the solution to the Covid-19 Virus become worse than the virus itself? I for one am more worried about what this quarantine and business /work shut down is doing to our country and our way of life. At some point the solution of shutting this economy down does become more dangerous than this virus.”
Wilmington Councilmen Clifford Barnett Sr. pointed out the irony of all ironies in limiting what people could buy in stores.
“I’ve gotten a number of calls from people who have tried to buy let’s say hospital uniforms. That’s in the clothing department, but it’s an essential.”
According to the North Carolina Institute of Constitutional Law, it was just a matter of time before people began to say enough.
“The time has long since come for North Carolinians to ask, how far is too far?” NCICL President and general counsel Jeanette Doran wrote.
According to the NCICL the first step is asking whether government orders could survive strict scrutiny. Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of certain laws. In short, strict scrutiny means that the government action places as few restrictions as possible to achieve the compelling government interest.
“The courts apply strict scrutiny to cases involving fundamental rights because those are our most cherished rights,” said Doran in an interview with Civitas. “When our most valued rights are at risk, nothing less than the highest, most intense level of judicial review will do.”
No question, slowing the spread of COVID-19 would satisfy the “compelling government interest” prong of strict scrutiny. But, what about the “narrowly tailored” prong? When New Hanover prohibits sole individuals from walking on the beach, using their own boat docks, or buying and selling underwear, the narrowly tailored prong would be laughed out of any reasonable court.
Elected officials took a beating over the last week, from church goers, from boaters from shoppers and store owners, and from grassroots organizational efforts.
On Easter Monday they reversed course. The county announced:
- Stores providing essential goods no longer have to close off sections that are deemed non-essential. Auto dealerships, boat dealerships and other motor vehicle sales points are one once again allowed to operate. Public and private marinas and boat ramps can be re-opened
- Public and private tennis and pickleball courts can be re-opened
New Hanover County’s motto is the “Model of Good Government.” They have exhibited anything but, and their citizens called them on it. The grassroots uprising made a difference, quickly. Other government bodies should take note, even in a crisis, there is only so much people will tolerate.