Legal experts weigh in on unintended outcomes of public mask ban

Republicans in the North Carolina General Assembly are quickly pushing legislation forward to crack down on criminals who wear masks in public. While they claim that the legislation wouldn’t criminalize the wearing of masks in public for common-sense health reasons, the language ultimately revokes health and safety exemptions, a concern expressed by legal experts at the John Locke Foundation.

Just this week, the North Carolina Senate passed House Bill 237, “Unmasking Mobs and Criminals” along party lines. The legislation restricts the wearing of face masks in public to hide a criminal’s identity. The law was originally enacted to prevent the Ku Klux Klan from hiding their identities while terrorizing black North Carolinians in the 1950s.

SEE ALSO: Bill banning masks in public passes NC Senate

While it has always been in place, Jon Guze, Senior Fellow in Legal Studies at Locke, suspects it was a ‘dead letter’ until Covid made masks relevant again in 2020. When mask-wearing became common during the COVID-19 emergency, legislators amended the criminal law to provide an exemption for “wearing a mask for the purpose of ensuring the physical health or safety of the wearer or others.”

But now, Republican lawmakers are prepared to repeal the health exemption. 

“HB 237 eliminates that [health] exception. I presume that’s the main thing the bill’s opponents find objectionable, and I think they have a point,” said Guze.

Democrat lawmakers are entirely opposed to the bill as written because they have concerns about prosecuting immunocompromised individuals wearing a mask for health reasons. On the other hand, Republicans argue that law enforcement and district attorneys will use common sense when prosecuting masked individuals. Republicans rejected health modifications offered by Demorats on the Senate floor this week and passed the bill along to the House. 

“On its face the bill would criminalize the wearing of masks for medical purposes in all the relevant situations,” explained Guze. “While many now doubt the efficacy of wearing masks during Covid, that doesn’t justify making it a criminal offense to wear a mask for medical purposes. There may very well be legitimate medical reasons why some people need to wear masks now, and it’s perfectly possible that masks will turn out to be effective against a different kind of epidemic in the future. If the bill becomes law and is enforced against someone wearing a mask for medical purposes, I suspect this provision will be struck down under the Law of the Land Clause of the NC Constitution.”

Jessica Thompson, the Director of Government Affairs & General Counsel at Locke, shares the same worries concerning the criminalization of masks for medical purposes regardless of whether a mask is effective at preventing the spread of a virus.

Still, Republicans insist they intend to only target criminals who conceal their identity in order to evade prosecution for a crime. 

“This bill really is not trying to address healthcare issues that individuals may have – chemotherapy or other immunocompromised-type situations,” said Sen. Buck Netwon, R-Wilson. “I understand why that may concern them… this was not a problem pre-COVID.”

“What I believe that to say is that, as such a legal interpretation would indicate, that wearing a mask for public health and safety is not in fact a crime, and removal of the explicit exception does not open anyone up for prosecution,” Sen. Danny Britt, R-Robeson said before Wednesday’s vote. 

Another concern Guze raised is the vagueness when it comes to the level of criminal intent necessary for conviction. The bill provides for enhanced sentencing when a person who is convicted of another crime is found to have been wearing a mask at the time of the offense.

Guze says the bill could be improved by deleting the first section of the bill and leaving the medical purpose exemption in place. If it’s not addressed now, the courts will have to decide later on what the interpretation is and when the law is applicable, something Sen. Natasha Marcus, D-Mecklenburg, has repeatedly cautioned of during debate. 

“The bill sponsor says that probably no one would be charged just for wearing a mask for their health reasons if they’re not up to no good. But how does he know that?” She questioned.

“As written, wearing a mask while committing a crime could result in enhancement regardless of why it was being worn. Maybe that’s how the GA wants it, but they should say so,” Guze further explained. “It’s fine to enhance the sentence of someone who wears a mask with the intent to conceal their identity while committing a crime. It’s less fine to do so for someone who wears a mask for medical purposes, or because the crime occurred during a Halloween party.”

The bill awaits consideration in the House Committee on Rules, Calendar, and Operations.

The post Legal experts weigh in on unintended outcomes of public mask ban first appeared on Carolina Journal.


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