Minnesota Anti-Mask Law Doesn't Ban the Wearing of Masks for Public Health Reasons

"The statute does not make it unlawful to wear robes and masks; the statute makes it unlawful to wear disguises."

|The Volokh Conspiracy |

The Governor's Executive Order 20-81 mandates wearing masks indoors, but Minnesota Statutes § 609.735 provides,

A person whose identity is concealed by the person in a public place by means of a robe, mask, or other disguise, unless based on religious beliefs, or incidental to amusement, entertainment, protection from weather, or medical treatment, is guilty of a misdemeanor.

In yesterday's Minnesota Voters Alliance v. Walz, decided by Judge Patrick J. Schiltz (D. Minn.), "plaintiffs argue[d] that Executive Order 20-81 is invalid," and indeed "that it is illegal for any person to choose to wear a face covering in a public place for the purpose of preventing the spread of COVID-19." No, said Judge Schiltz:

[T]his Court believes that the Minnesota Supreme Court would hold that § 609.735 is violated only when someone wears a face covering for the purpose of concealing his or her identity.

The original version of the statute was enacted in 1923. Like similar laws enacted during the same era, the law grew out of concerns over the rise of the Ku Klux Klan.

The original version of the statute clearly required that the perpetrator act with the intent to conceal his or her identity: "It shall be unlawful for any person … to appear on any street or highway, or in other public places or any place open to view by the general public, with his face or person partially or completely concealed by means of a mask or other regalia or paraphernalia, with intent thereby to conceal the identity of such person." The original version of the statute also established a presumption: "The wearing of any such mask, regalia or paraphernalia by any person on any street or highway or in other public places or any place open to view by the general public, shall be presumptive evidence of wearing the same with intent to conceal the identity of such person[.]"

The statute was amended in 1963 … to delete the presumption in light of State v. Higgin, 99 N.W.2d 902 (Minn. 1959), {[which] held that, when specific intent is an element of an offense, a jury can never be instructed that a given set of facts gives rise to a presumption of such intent}. Although the remainder of the statute was rewritten—and although the rewritten version did not contain an explicit intent requirement—the Advisory Committee Comment explained that the substance of the new version was intended to be the same as the substance of the original version (save for the deletion of the presumption). Minnesota [law] appears to regard such commentary as authoritative.

In addition to the statutory history, the language of § 609.735 also suggests that intent to conceal is an element of the offense. The statute makes it unlawful to conceal one's identity in a particular way—"by means of a robe, mask, or other disguise." The word "other" in the phrase "robe, mask, or other disguise" indicates that the statute encompasses only the use of a robe or mask as a "disguise."

In other words, the statute does not make it unlawful to wear robes and masks; the statute makes it unlawful to wear disguises. "Disguise," in turn, connotes something worn for the purpose of concealing one's identity. Notably, three of the five exceptions to the statute—for religious beliefs, amusement, and entertainment—cover cases in which people could be wearing face coverings (such as Halloween costumes) with the intent to conceal their identities.

It is true that, if § 609.735 is not violated unless a person acts with intent to conceal his or her identity, then the exceptions for protection from weather and for medical treatment are redundant. But "[r]edundancy is not a silver bullet," and "[s]ometimes the better overall reading of the statute contains some redundancy."

Finally, the Court believes that the Minnesota Supreme Court would interpret § 609.735 to require intent to conceal one's identity because, without such a requirement, the statute would lead to absurd results. A construction worker could not wear a dust mask while remodeling a public space, a government official could not wear a hazmat suit while cleaning up a chemical spill in a public place, an emergency medical technician could not wear a surgical mask while tending to a person injured on a public road, and a nail artist could not wear a mask while giving a manicure. The Minnesota Legislature could not possibly have intended to criminalize such a broad range of commonplace conduct.

Indeed, as plaintiffs interpret the statute, § 609.735 not only bars Governor Walz from ordering Minnesotans to wear face coverings in public places, but § 609.735 bars Minnesotans from voluntarily wearing face coverings in public places if they are doing so to slow the spread of COVID-19.

It is very difficult to believe that the Minnesota Supreme Court would interpret § 609.735 to forbid a Minnesotan from wearing a face mask in a public place if her reason for doing so was to protect herself from being infected by a communicable disease or to prevent herself from infecting another person. Needless to say, such an interpretation of § 609.735 would raise significant constitutional concerns. Cf. Jacobson v. Massachusetts (1905) (upholding a mandatory-vaccination provision, but suggesting that the result would be different if the plaintiff could have shown that vaccination "would seriously impair his health, or probably cause his death").

This is not to say that plaintiffs' position that § 609.735 conflicts with EO 20-81 is frivolous. {For example, Minn. Stat. § 609.02, subd. 9, undermines defendants' argument regarding intent. [That provision reads, "When criminal intent is an element of a crime in this chapter, such intent is indicated by the term 'intentionally,' the phrase 'with intent to,' the phrase 'with intent that,' or some form of the verbs 'know' or 'believe.'"] But no party to this lawsuit has even cited § 609.02, subd. 9, much less addressed its impact on the issues now before the Court.} …

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  1. Interesting quibble (IANAL!). Someone needs to take advantage of this market opportunity and sell masks with the message “This is not a mask” or “This is not a disguise”. Or maybe, since it seems subjective intent is the only thing keeping a mask from being illegal, perhaps each of those could have “(I think)” or “(not intentionally)” in small print above the message.

  2. I first saw the law back in the 1980s. As I recall, at the time the only exception was entertainment. I remember thinking that wearing a face mask winter hat when it’s 40 below was illegal.

  3. The Virginia mask statute (§ 18.2-422, at https://law.lis.virginia.gov/vacode/title18.2/chapter9/section18.2-422/) is quite different and actually addresses health emergencies. Virginia’s Governor initially skirted its rather clear provisions, leading revision of an executive order: subsequently, the Governor has simply ignored the statute… and that fact is now before at least two Courts.

  4. I’d say the pandemic pretty much killed any chance of enforcing this law against masked rioters, even if they’re wearing the mask to avoid being identified, not to avoid spreading the virus. (Not that it was seeing much use prior to the pandemic.)

    The question is, as the pandemic ebbs, at what point would enforcement become feasible?

  5. I wonder how the law would have been construed a year ago. Say, if an unsympathetic defendant had been detained for or charged with a violation. The opinion would have emphasized the plain language of the law. The legislature wrote “medical treatment” rather than “medical reasons”.

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