Top NC health official can be sued for COVID shutdown

RALEIGH, N.C. (AP) — The North Carolina Court of Appeals ruled Tuesday that Gov. Roy Cooper’s secretary of health and human services should not be immune from a lawsuit over the administration’s restrictions on large gatherings in the early months of the coronavirus pandemic.

The Department of Health and Human Services temporarily shut down Ace Speedway, a small stock car racetrack in Alamance County, in June 2020 after it repeatedly defied Cooper’s executive order limiting outdoor crowds to mitigate the spread of COVID-19.

The racetrack filed counterclaims that August, alleging the department unlawfully singled out the business for its acts of protest and violated its employees’ constitutional right to earn a living.

The appeals court unanimously upheld a January 2021 trial court ruling denying a DHHS motion to dismiss Ace Speedway’s claims that the agency selectively enforced the governor’s orders and impeded the racetrack’s ability to make money.

“This case makes us consider the use of overwhelming power by the State against the individual liberties of its citizens and how that use of power may be challenged,” the judges wrote.

DHHS Secretary Kody Kinsley, whose predecessor filed the 2020 order to close the speedway, argued before the appeals court that executive officials should be immune from civil lawsuits. But the court ruled Ace’s claims were “sufficient to survive the secretary’s motion to dismiss” the lawsuit.

Three days after Cooper issued an executive order placing a 25-person cap on all outdoor gatherings, Ace Speedway hosted approximately 2,550 spectators for its first race of the season on May 23, 2020.

A sign posted on site at a subsequent race that June labeled the 2,000-person gathering a “peaceful protest of injustice and inequality everywhere,” the lawsuit states.

When the speedway continued to draw crowds of 1,000 or more, the governor’s office ordered Alamance County Sheriff Terry Johnson to intervene. After Johnson refused to issue a misdemeanor citation, the Cooper administration declared Ace Speedway an “imminent hazard” for the spread of COVID-19 and called for its closure until the emergency order expired.

A court has yet to rule on the merits of Ace Speedway’s claims. But the panel of three Republican judges drew attention Tuesday to a clause in the state Constitution guaranteeing North Carolinians a right to the “fruits of their labor.” Recent court precedents say the clause is synonymous with the right to earn a living.

The ruling noted that the order to close the racetrack “restricted or otherwise interfered with the lawful operation of a business serving the public.”