SCOTUS rejects case tied to Dare County’s COVID-related shutdown

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  • The US Supreme Court will not take the case of Virginia-based owners of a Dare County beach home who challenged the county's COVID-related shutdown in 2020.
  • Joseph and Linda Blackburn challenged an order blocking them from their beach home as an unconstitutional taking of their property.
  • A federal trial judge and unanimous 4th Circuit Court of Appeals panel had rejected the Blackburns's argument.

The US Supreme Court has decided not to take a COVID-related shutdown case filed by Virginia owners of a Dare County beach house. The owners had challenged Dare County’s actions in 2020 as an unconstitutional taking of private property.

Supreme Court justices offered no reason for the decision announced Tuesday morning. The court’s latest orders list included the case, Blackburn v. Dare County, as one of dozens of lawsuits rejected for further consideration.

A federal judge dismissed the lawsuit in September 2020. A unanimous three-judge panel of the 4th US Circuit Court of Appeals ruled against property owners Joseph and Linda Blackburn in January.

The Blackburns had asked the Supreme Court in April to address the question: “Whether a governmental regulation prohibiting all physical access to a landowner’s property is a ‘per se’ taking under the Fifth Amendment of the United States Constitution.”

The lawsuit challenged a March 20, 2020, Dare County order preventing nonresident property owners from accessing their property.

“Here the Defendant Dare County specifically excluded the Plaintiffs from their real property under the threat of imprisonment. Both the District Court and 4th Circuit Court of Appeals found that no claim for taking had been pleaded, specifically that the Defendants’ total deprivation of the Plaintiffs’ rights to access and use of their property does not constitute a ‘per se’ taking under the Fifth Amendment. Both lower courts focused upon the regulatory balancing test, … however this analysis does not adequately address the Fifth Amendment concerns presented, specifically the total prohibition of the Plaintiff’s access to their property,” according to the Blackburns’ Supreme Court petition.

“This right to enjoyment and use is as fundamental to property rights as that of exclusion,” the April petition added. “Logically the rights of enjoyment and exclusion are intertwined and cannot exist without the other. An invasion of either right is in essence a physical occupation. The government asserting physical dominion over a piece of property by acquiring title has the same chilling effect as asserting dominion over property by surrounding and prohibiting access. The effect being the loss of dominion and control over one’s property.”

Dare County responded in August. County officials asked the Supreme Court to consider: “Whether a temporary regulation which prevented Petitioners from traveling to their vacation homes for a 45-day period constituted a per se taking under the Federal Constitution’s Fifth and Fourteenth Amendments, when such restriction did not require or result in any physical invasion, entry, occupation, or appropriation of Petitioners’ property for public use.”

“Appellants have not presented any compelling reasons for this Court to grant their Petition,” the county argued. “Instead, they have asked the Court to adopt a novel and unworkable rule that any prohibition on access to property should be deemed a physical appropriation or invasion. Since Appellants have not — and cannot — allege that any physical appropriation or invasion occurred by way of the 45-day emergency access restriction at issue, the lower courts appropriately rejected Appellants’ per se taking arguments.”

Judge Julius Richardson had explained in January the 4th Circuit’s unanimous ruling against the Blackburns. “The ban did not physically appropriate the Blackburns’ beach house. And though it restricted their ability to use the house, compensation is not required under the ad hoc balancing test that determines the constitutionality of most use restrictions.”

“[E]ven accepting the Blackburns’ allegations at face value, Dare County’s non-resident property order did not physically appropriate anything from them,” Richardson wrote. “The order did not authorize government officials or third parties to physically occupy or possess the Blackburns’ vacation home.”

“The Blackburns try to get around this problem by emphasizing that the non-resident property order effectively excludes them from their own property,” he added. “This, they say, makes the order a physical appropriation, because the Supreme Court has repeatedly held that an appropriation occurs when the government eliminates a property owner’s right to exclude.”

“But temporarily excluding an owner from their own property differs from eliminating the owner’s right to exclude,” Richardson explained. “Indeed, the Supreme Court has stressed that, when asking if a physical appropriation has occurred, the ‘essential question’ is ‘whether the government has physically taken property for itself or someone else — by whatever means — or has instead restricted a property owner’s ability to use his own property.’”