Police

Dressing Like the Joker Is a Felony in Virginia

A man made up to look like the Batman villain runs afoul of the state's anti-mask law.

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Winchester Police Department

Last Friday police in Winchester, Virginia, arrested a guy for walking around dressed as The Joker. Yes, the Batman villain. And yes, that is illegal in Virginia.

Jeremy Putman, 31, was charged with violating Virginia's anti-mask law, which makes it a Class 6 felony, punishable by one to five years in prison, for "any person over 16 years of age, with the intent to conceal his identity, wear any mask, hood, or other device, whereby a substantial portion of the face is hidden or covered, so as to conceal the identity of the wearer, to be or appear in any public place." According to police, Putman's Joker makeup qualified.

The law includes exceptions for people wearing "traditional holiday costumes" or "engaged in any bona fide theatrical production or masquerade ball," so Putman would have been in the clear if had done the same thing on Halloween, Purim, or Mardi Gras, or if he had been shooting a movie or performing a play. But dressing like The Joker just for the hell of it—that's a felony.

WPD

Winchester police say they "received several calls" about Putman and "want to remind the community of the seriousness of the crime." But just because the penalties are serious does not mean the crime is. In fact, what Putman did is a crime only because legislators made it so, since there is nothing inherently injurious about putting on white makeup and a black cape (or a creepy clown mask), even if you do it on a day when no one else is wearing a costume.

More than a dozen states have laws similar to Virginia's, many of which were enacted in response to the Ku Klux Klan. Like the Guy Fawkes masks worn by Occupy Wall Street protesters, KKK masks are both a form of a political expression and a way of protecting people who otherwise might be penalized for their views. Some courts nevertheless have ruled that anti-mask laws are consistent with the First Amendment.

In 1990 the Georgia Supreme Court rejected a First Amendment challenge to that state's anti-mask law by a Klansman named Shade Miller, finding that "the statute was passed in response to a demonstrated need to safeguard the people of Georgia from terrorization by masked vigilantes." The court held that the interests served by the law "are in no way related to the suppression of constitutionally protected expression" and that "the statute's incidental restriction on expression is de minimis." In response to Miller's argument that the anti-mask law was unconstitutionally vague and overbroad, the court read it as applying "only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence."

In 2004 three members of the U.S. Court of Appeals for the 2nd Circuit, including future Supreme Court Justice Sonia Sotomayor, heard a challenge to New York's anti-mask law by Jeffrey Berry, head of a KKK group known as the Church of the Imperial Knights of the Ku Klux Klan. A federal judge had agreed with Berry that New York's mask ban violated his right to freedom of speech. The 2nd Circuit panel conceded that wearing KKK regalia is a kind of expressive conduct but deemed the mask "redundant," saying it "adds no expressive force to the message portrayed by the rest of the outfit." The appeals court also rejected the argument that the right to engage in anonymous political speech protects mask wearing at public rallies, saying "the individual's right to speech must always be balanced against the state's interest in safety, and its right to regulate conduct that it legitimately considers potentially dangerous."

[Thanks to Rory Rohde for the tip.]

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  1. In fact, what Putman did is a crime only because legislators made it so…

    That’s pretty much every crime. “This guy’s a criminal.” How many times have we said something like that. Even civil libertarians forget sometimes the pejorative “criminal” should be a pejorative against lawmakers not those who’ve been convicted of anything because it can easily be of bullshit like this.

  2. …only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.

    So mustache and mirrored shades, coupled with Tom of Finland-style quasi-military apparel, grounds for arrest?

  3. WAY TO BURY THE LEDE

    There’s someone cosplaying as Heath Ledger’s Joker in 2017!

  4. Illegal mask-wearing is epidemic.

  5. No one cared who he was until he put on the mask.

  6. He’s 31 and dressing as a comicy book character while walking around town.

    * snicker *

  7. inherently unconstitutional on all fucking levels….god i hate people.

    1. and if this is me….I would have shot that fuck twice in the chest, once in the pelvic, and once in T box and put for garbage stickers on him for trash day.

      later would get murdered by 30 thugs but i would take a few with me.

    2. so does this mean when i go snowblow my neighborhood in my yeti costume i might get arrested or shot? Maybe it is a good idea i wear my RBAV when i do this…too bad chicago hasn’t had snow in like 4 months TT

  8. The law includes exceptions for people wearing “traditional holiday costumes”

    Oh, so only state-recognized and approved holidays? Seems like a good 1A argument right there.

    Which, of course, won’t supersede the BFYTW Clause.

  9. This is the town over from me. Sullum fails to mention that he was carrying a sword, which is why people called the cops in the first place.

    1. I agree that it’s a little askance of Sullum not to mention it, but were there any charges related to it? The blotter seem to suggest that the ‘sword’ was irrelevant (decorative, sheathed, etc.) or a significantly lesser crime/charge (not that it justifies other anti-mask or anti-sword laws).

      1. Nothing illegal about carrying a sword in VA as long as its done openly.

  10. This is why I never leave my parent’s basement

  11. with the intent to conceal his identity

    So don’t they have to prove intent, not just that he wore the greasepaint? What if his intent was to just be provocative or entertaining?

    What if I also wore a T-shirt with my name emblazoned on it? It would be hard to argue that I was trying to conceal my identity.

    1. This is indeed the crux, but the squirrels wouldn’t let me say so this AM. Seems to me his object is to be noticed as they guy who dresses like Joker, pretty much the opposite of intent to conceal his identity.

    2. I don’t even understand how intent to hide your identity is a crime? So is using TOR or Tails a crime now?

      Wanting my privacy is a crime? Fuck off slavers!

  12. The crux of the issue here is “intent to conceal his identity”, which I doubt was the case. This person probably wanted to be very conspicuously known as “the person who dresses as the Joker”, pretty much the opposite of concealment.

  13. I wonder if the no mask laws apply to police, or if this is just one more law that they hold themselves above while enforcing it on the rest of us.

  14. How much make-up does a woman have to be wearing to be arrested ?

  15. How does makeup qualify as a “device”?

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