Coronavirus

Is Wearing a Face Mask in Public To Ward Off COVID-19 a Crime?

It depends on the state where you live.

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Some experts say people who are not infected by the COVID-19 virus but wear face masks in public as a prophylactic measure are behaving irrationally and maybe even irresponsibly given the dearth of such protective gear. In some states, they may also be committing a crime—yet another illustration of questionable rules highlighted by the current pandemic.

More than a dozen states generally ban the wearing of masks in public, a policy driven largely by concerns about the Ku Klux Klan. Virginia, for example, prohibits anyone older than 16 from wearing "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" in "any public place" with "the intent to conceal his identity." That's a Class 6 felony, punishable by one to five years in prison.

As relevant here, the Virginia ban exempts masks worn "for bona fide medical reasons," but only if the wearer carries a physician's affidavit that specifies "the medical necessity for wearing the device and the date on which the wearing of the device will no longer be necessary" or if the governor "expressly waives" the prohibition while declaring a public health emergency. Virginia Gov. Ralph Northam did declare a public health emergency in response to the COVID-19 epidemic on March 12. But the declaration says nothing about the mask ban.

Florida has a similar law. It does not specify any exceptions, and it does not require an intent to conceal one's identity. Violating the ban is a second-degree misdemeanor, punishable by up to 60 days in jail. Georgia, which also treats public mask wearing as a misdemeanor, makes exceptions for theatrical productions, masquerade balls, Mardis Gras celebrations, "traditional holiday costume on the occasion of the holiday," masks required for a particular occupation or sporting activity, and gas masks "prescribed in emergency management drills and exercises or emergencies."

In New York, a masked person who "congregates" in a public place with "other persons so masked" is guilty of loitering, a violation punishable by up to 15 days in jail. That 1854 law, enacted in response to violent protests by tenant farmers, includes an exemption for a properly permitted "masquerade party or like entertainment" but not for disease protection. In 2011, the New York Police Department deployed the mask ban against Occupy Wall Street demonstrators.

Since protesters often wear masks, either as a statement or as a way of protecting themselves against retaliation, these laws have obvious First Amendment implications. Some courts have deemed mask bans unconstitutional, while others have upheld them.

Although it seems unlikely that cops will start busting people for wearing face masks because they are afraid of catching COVID-19, such vague and excessively broad criminal laws give police dangerously wide discretion. A few years ago in Winchester, Virginia, for instance, local cops found the time to arrest a 31-year-old man named Jeremy Putman for walking around while disguised as The Joker.

Since Virginia's anti-mask law includes exceptions for people wearing "traditional holiday costumes" or "engaged in any bona fide theatrical production or masquerade ball," Putnam would have been in the clear if he 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 was a felony. Winchester police said they "received several calls" about Putman and wanted to "remind the community of the seriousness of the crime."

NEXT: Tech Companies Weren't Hoarding Masks, They Were Protecting Employees From Wildfire Smoke

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  1. We need moar lawz!

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  2. From the article about the guy in Winchester who was arrested for dressing up like the Joker.

    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.

    That is a very good point, and illustrates how law and legislation are not synonyms.

    1. Was the costume worn with the intent to conceal his identity or are they reading it as with the effect of concealing his identity?

    2. No “YOU’RE A NANARCHIST AAAUUUGHHH!” from lc?

      Dude freaked the fuck out on me in our first conversation when I tried to explain the difference between law and legislation. Then again he lacks the ability to understand the Nolan chart, and insists the political spectrum is linear. What a maroon.

      1. poor unreason.

        1. Dude, respond to the argument that legislation and law are not synonyms.

          Try it.

          Have a conversation.

          Pretend like you’re an intelligent man.

          I dare ya.

          I double-dog dare ya.

        2. You won’t though. Because you would indeed be pretending.

          All you can do is shout “MAGA” like the stereotype that liberals laugh about.

          Hmmm. New thought. Perhaps you’re the sock. You come off as the stereotypical FOX News bot who listens to talk radio.

          Hey Reason, is this guy on your payroll?

        3. Poor unreason sock trolls really need replies.

      2. “YOU’RE A NANARCHIST AAAUUUGHHH!”

        I loved this. When I grow up I want to be a Nanarchist.

        I wonder how much money they make?

  3. “”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””

    So any woman (or any person thinking they are a woman) wearing makeup is a crook. I always suspected it. Maybe call it fraud?

    Welcome to the revolution.

    1. Hope Hicks

      1. It must just kill you. All those hot Republican women when all you have is Hilldog, Granny Boxwine, Pocahontas, Mr. Maddow, AOC, etc.
        No amount of makeup can disguise the effects of twisted evil souls I suppose.

        1. You really think I’m a leftist? Dude… seriously… I mean… gross…

        2. Who is Granny Boxwine?

    2. Also bans the wearing of the full face covering Moslem headgear.

  4. such vague and excessively broad criminal laws give police dangerously wide discretion. A few years ago in Winchester, Virginia, for instance, local cops found the time to arrest a 31-year-old man named Jeremy Putman for walking around while disguised as The Joker.

    That’s the best example you could find of police abusing anti-mask laws?

  5. Virginia, for example, prohibits anyone older than 16 from wearing “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” in “any public place” with “the intent to conceal his identity.”

    “Unless, of course, the person self-identifies as Muslim.”

  6. You buried the lede. Stop hoarding those 5 masks for your personal use. Andrew Cuomo needs them in New York, pronto… capiche?

    1. I have 1 N95 mask in my desk. I can’t donate it because I’m not allowed in the office.

      1. I have a 3M 6800 full face gas mask at my house in San Luis Obispo, but I can’t even use it because I’m “sheltering in place” at my ex-wife’s place in Santa Cruz.

        Think I can sue Newsom for cruel and unusual punishment?

  7. “Although it seems unlikely that cops will start busting people for wearing face masks because they are afraid of catching COVID-19, such vague and excessively broad criminal laws give police dangerously wide discretion.”

    More importantly, if I lived in Virginia, I shouldn’t dare wear a medical mask until I moved out – which I’d certainly do after reading this.

  8. Democrats in Virginia really are desperate to get stuff done before they lose control of that state again.

    1. pussy won’t have a conversation with me because my intelligence eclipses his ignorance

    2. poor unreason. Staff REALLY needs the replies to their sock troll accounts.

  9. Maybe not a criminal, but certainly an ignorant and paranoid sheep.

    1. Certain masks keep some particles from entering your mouth and nose.

      Sounds informed to me.

  10. Florida has a similar law. It does not specify any exceptions, and it does not require an intent to conceal one’s identity.

    Big deal. Whether or not any state’s statute has exceptions, or requires an intent to conceal identity, I would think that the necessity defense would apply. Sure, you have to plead it affirmatively, but my bet is that juries would be very receptive.

    1. “Juries”—how quaint. That’s not how it’s done anymore. They would pile enough charges on you to put you away for 900 years and then scare you into pleading guilty to just the mask charge.

    2. Any affirmative defense is inherently risky, and necessity is a pretty damned subjective one. If the prosecutor’s more charismatic than your defender, or there’s some crotchety old folks on your jury who’re mad that you had masks when their store was sold out (and it’s Florida, there’s lots of them), or your jury was just thinking more about getting lunch than the trial and doesn’t pay much attention, you’re going to jail.

      And even if you win, you still had to pay an attorney to go all the way to trial, which is going to be like fifteen grand, and this assumes you made bail and didn’t spend at least two months in jail anyways waiting for trial.

      So, yes, I think statutory limitations are a far better tool than an affirmative defense.

  11. Lone Ranger hardest hit

  12. I am sorry, but this a totally not well thought out article…and the point of this is?

    1. “…and the point of this is?”

      To remind us that the law is an ass, yet again. Admittedly, it is a small point because it is greatly outweighed by the more important reminder, from out betters, that we are most fortunate to live in the most free country in the world with unbound liberty that is protected right up until the moment you try to exercise it or your betters determine present conditions are not right and it must be reigned in.

      So, go out and celebrate your liberty but make sure you do not do it with more than 10 people, without proper permits or while donning a mask. Go out and purchase a firearm to celebrate your natural rights and shore up your defenses except, of course, in those areas where your betters have prohibited you.

  13. Why do people in Japan and China wear face masks? Because they don’t want to either get or give a respiratory bacteria or virus. It sounds like a win-win situation. In China, they take your temperature before you can enter places and also make you wear a mask or you won’t be able to enter. It all sounds like common sense. We are starting to see people wearing masks in the U.S. now too. Some have gotten the message, especially those that don’t want their relatives to pay off their medical bills after they are gone.. Leave some cash on the table so they can buy a new car. Wear your mask. Stow it in a paper bag for four days and wear it again. Gloves and or hand cleaner recommended.

    1. I agree. Surgical masks (as opposed to N95’s) may not do much to keep a person from *contracting* COVID-19, but they apparently do lower the risk that person *spreads* it to others. That seems like a valid consideration with all of the evidence that a person can spread this virus when they have no symptoms or only very mild symptoms.

      South Korea found and quarantined a lot of their cases right away with contact tracing and testing, but they still keep finding about 100 new cases each day. My educated guess is that the combination of people wearing masks, good hygiene, and a measure of social distancing when in public is helping to keep the rate of infection from taking off.

      More testing is part of the answer for the U.S., but people need to be realistic about what South Korea has done. They’ve tested something like 0.6% of their population in total over the past several weeks. No country is going to “test everybody”.

  14. If the Joker guy was breaking the law so does every woman. Have you seen some of the makeup videos on YouTube. They literally look like different people with and without makeup.

    1. You have…interesting…taste in Youtube videos.

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  17. Well, the good news is that now when your betters limit more of your rights the enforcers will have a new refrain of “since Covid-19” to explain your detainment instead of that tiresome but inarguable rationale of “since 9-11” to justify you getting jammed up. Gotta hand it to the betters who are able to use a virtually invisible force as the pretext. Not to worry as the field testing tools will be as reliable as they are for drugs. So, don’t cough too loudly or too frequently lest your fellow citizens sick the law on you and leave you having to prove you don’t possess something that cannot be seen except in a lab.

  18. California Penal Code section 25300.
    (a) A person commits criminal possession of a firearm when the person carries a firearm in a public place or on any public street while masked so as to hide the person’s identity.

    (b) Criminal possession of a firearm is punishable by imprisonment pursuant to subdivision (h) of Section 1170 or by imprisonment in a county jail not to exceed one year.

    (c) Subdivision (a) does not apply to any of the following:

    (1) A peace officer in performance of the officer’s duties.

    (2) A full-time paid peace officer of another state or the federal government who is carrying out official duties while in this state.

    (3) Any person summoned by any of the officers enumerated in paragraph (1) or (2) to assist in making an arrest or preserving the peace while that person is actually engaged in assisting that officer.

    (4) The possession of an unloaded firearm or a firearm loaded with blank ammunition by an authorized participant in, or while rehearsing for, a motion picture, television, video production, entertainment event, entertainment activity, or lawfully organized and conducted activity when the participant lawfully uses the firearm as part of that production, event, or activity.

    (5) The possession of a firearm by a licensed hunter while actually engaged in lawful hunting, or while going directly to or returning directly from the hunting expedition.

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