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Can a county or a municipality refuse or restrict entry to outsiders? Or even kick them out although they have residences there?
That question has arisen with the spread of COVID-19 as several counties in Colorado and elsewhere have taken various steps to keep out outsiders, including those who own second residences within their boundaries, out.
People in the U.S. have a right to travel freely and buy second homes wherever they want. But communities have emergency powers to keep residents safe.
Between these two rights, battles are brewing.
Gunnison County, Colorado, for instance is an area with several thousand second homes—many of them owned by Texans who come to the area to ski. In mid-March, Colorado Gov. Jared Polis ordered all ski resorts in the state closed, but by then the out-of-staters had brought coronavirus with them, and Gunnison County's lone 24-bed hospital was overburdened.
The county's Department of Health and Human Services decided to act, and on April 3 it issued an order to owners of the 4,000 second homes in the county: If you're not here now, don't come here. If you're here, please leave. The agency said people who disobey could face a $5,000 fine and 18 months in jail.
The action triggered an angry response from Texas Attorney General Ken Paxton, who charged that the order was "patent discrimination" that "runs afoul of the United States Constitution." He asked that the county modify the owner to recognize the rights of nonresident property owners, apparently resulting in some softening in Gunnison County. By April 10, the county had approved 199 exemption requests for people who were living there at the time.
Other locales, meanwhile, have also gotten tough with nonresidents.
Mammoth Lakes, California, another ski area with limited medical facilities, has set up checkpoints on roads coming into the county for purposes of turning away tourists.
On April 9, Clear Creek County, Colorado issued an order putting up roadblocks on all county roads.
So, can counties or municipalities legally do that?
It depends on whom you ask.
The Texas attorney general says no. But Deputy Gunnison County Attorney Matthew Hoyt disagreed. In a letter responding to Paxton, he said that laws are firmly in place to support the county's action. Nonresidents' "liberty interest gives way to the paramount government interest in protecting public safety when the community faces a disaster," he wrote.
Barbara Green, attorney for the Town of Crested Butte in Gunnison County agreed with Hoyt in comments to the Colorado Sun. "There is police power to protect the health, safety and welfare of the people," she said.
But David McDonald, an attorney with the conservative Mountain States Legal Foundation, agreed with the Texas AG. “This violates the rights of Americans to travel freely," he told the Sun. "And it feels like a rather knee-jerk reaction."
At this point, it's worth pointing out a bit of history. More than a century ago, as the Spanish Flu Pandemic was ravaging the county much like COVID-19 today, the restrictive actions taken in Gunnison County are still cited as extraordinary in historical accounts.
The measures included closures and social distancing, but also blockades, required quarantines of anyone who arrived by the train that continued to operate, and fines for anyone who broke the rules. By the time the flu had run its deadly course, 8,000 people had died in Colorado, but only five of them in Gunnison County.
The message here seems to be: Constitutionality aside, tough measures can save lives.