Residents’ constitutional rights can be forced to take a backseat when compared to a state’s right to protect the public from a disease epidemic, a federal judge ruled Friday in a case challenging the constitutionality of recent state-mandated beach closures across Orange County.

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“States and municipalities have greater leeway to burden constitutionally protected rights during public emergencies,” wrote U.S. District Judge James V. Selna in his decision rejecting a request by Newport Beach Councilman Kevin Muldoon seeking a restraining order against Gov. Gavin Newsom.

“Muldoon argues that the closure of the Newport Beach beaches and other beaches violates his constitutional rights,” Selna wrote.

“But ‘a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,’ ” his ruling adds, quoting from the U.S. Supreme Court’s 1905 decision in Jacobson v. Massachusetts.

Selna went on to quote further from the Jacobson decision: “In every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

Selna rejected Muldoon’s request for a restraining order against Gov. Gavin Newsom, saying it was moot because the beaches have re-opened, and even if it wasn’t moot, the state’s interest in protecting the public from COVID-19 take precedence.

[Click here to read the ruling.]

“Although I’m pleased my lawsuit pressured the Governor to quickly reopen Orange County’s beaches, I view this as a partial victory, since families with young children and the disabled are still not allowed to sit on the sand,” Muldoon said in a statement to Voice of OC Monday about the ruling.

“There are proven physical and mental health benefits to being outside that all people deserve,” Muldoon added.

The governor’s press office did not respond to messages seeking comment on the ruling.

In his decision, Selna said the councilman didn’t claim he was blocked from going to the beach, or that he wanted to go.

“Notably, Muldoon does not declare that he attempted to visit a local beach and was prevented from doing so, or that he even wanted to go to the beach,” Selna wrote.

“This deficiency, in combination with the re-opening of Newport Beach’s beaches, casts doubt on Muldoon’s claims regarding irreparable harm,” the ruling states.

“Finally, the balance of hardships tips substantially in favor of state, given the public’s strong interest in reducing the spread of COVID-19 with measures designed to limit physical contact.”

Nick Gerda covers county government for Voice of OC. You can contact him at

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