Post by Nadica (She/Her) on Sept 4, 2024 2:02:05 GMT
“Perfect storm” of criminalization: Analyzing mask bans - Published Sept 3, 2024
Key points you should know:
=Mainstream media coverage of mask bans has given space for politicians’ false claims that masks are associated with wrong-doing, like crime and antisemitism, while overlooking that bans are, in many ways, an effort to suppress the reality of COVID-19.
=There are 21 states and numerous municipalities with laws against masks or disguises on the books. People who wear masks would benefit from knowing exactly how they are worded and any legal precedents, as police are often under-informed.
=Both Republicans and Democrats are pushing more severe mask bans than ever before in history. Democrats are more likely to give lip service to health needs without offering meaningful protections.
Masks can and will be criminalized by police regardless of the language of the law, as arrest trends follow social trends. Police are also permitted by the Supreme Court to make mistakes in enforcing laws.
On August 5, Nyss Fayrchyld traveled from New York City to Nassau County in Long Island with other organizers to testify against a local bill to ban masks. The next few hours were “traumatic” and “volatile,” they recalled, with supporters of the bill “yelling obscenities” at immunocompromised people who testified in masks, calling them ”pro-Hamas thugs and terrorists.”
Police also directed enforcement at people in masks. One masked attendee was arrested on several charges, including second-degree assault, a felony, facing up to nine years in prison. Fayrchyld insists that the person was de-escalating conflict, which seems corroborated by video evidence. Supporters of the ban were also given more time to speak.
Nassau County’s bill passed with a vote of twelve Republicans in favor and seven Democrats abstaining. The law includes a vague medical exemption but also gives police expansive powers to stop, unmask, and arrest people.
Fayrchyld witnessed the type of state-sanctioned hostility that has become increasingly common for people who wish to stay safe during the ongoing COVID-19 pandemic. Nassau County is just the latest jurisdiction to pass a mask ban, after North Carolina and Washington, D.C. early this year.
New anti-mask bills were also recently introduced in Chicago, the New York State legislature, and the federal House of Representatives, which proposes a sentence of up to 15 years. Leaders in New York City and Los Angeles have discussed possible future bans, and other states are enforcing pre-existing anti-mask laws on the books. The University of Virginia has banned masks on campus, unless the person can show documentation of medical need.
While mainstream media stories about mask bans often mention that immunocompromised people might be harmed, these stories also give unskeptical space to politicians’ claims that increased mask-wearing has contributed to all kinds of wrong-doing, from crime to antisemitism. In reality, mask-wearing is increasingly rare compared to early in the pandemic. There are countries with far less violence than the U.S. where wearing a mask is normalized. One analysis found no correlation between mask bans and crime rates. Many pro-Palestine protestors are masking explicitly to prevent spreading COVID-19.
Most media coverage fails to connect the new wave of mask bans to the ongoing political efforts to minimize COVID-19. Overblown concerns about facial recognition and protestors are only possible with a concurrent effort to downplay the threat of COVID-19 and erase signs of it from public life — now a priority for most mainstream politicians.
While the conversation around mask bans has focused on new laws and bills, 21 states and many municipalities have laws banning masks and/or disguises in different settings, which is more than other organizations have reported. Even where these bans have apparent limitations or exemptions, the finer language of the laws leaves all COVID-conscious people vulnerable. And the historic practices of police endanger people even in states with no legal bans.
“We have come so far downhill when it comes to protecting one another that [supporting mask-wearing] is a controversial opinion to have these days,” said disability activist and author Imani Barbarin. The political climate, she said, “creates this perfect storm where it’s going to further criminalize Black and Brown people who need masks to survive.”
The politics and propaganda of mask bans
Historically, mask bans tend to come in waves. This current wave has been led by Republicans, with Democrats following closely behind. While Democrats tend to pay slightly more lip service to health needs, their actions undermine their promises.
The Republican effort to ban masks started before the COVID-19 pandemic, with a series of bills aimed at antifascist protestors. In 2011, Occupy Wall Street protestors were arrested for wearing masks. Republican leaders reignited their efforts in early 2023, introducing bills that sought to end the COVID-19 era of masking altogether.
Republicans insist mask bans have been around for a long time. But their recent efforts go further in criminalizing masking than ever before. North Carolina’s new law requires members of the public to “remove the mask upon request by a law enforcement officer,” for any reason, for as long as police want. Previously, the state’s law limited this demand to traffic stops and when police believed someone was committing a crime.
The new provision “smacks of blatant authoritarianism,” said Corye Dunn, Director of Public Policy for Disability Rights North Carolina. North Carolina’s mask ban also adds a new provision requiring a person wearing a mask to “temporarily” remove it at the request of an “owner or occupant” of a “public or private property.”
“Occupant doesn’t mean anything” in state law, Dunn said. She’s concerned that this “dangerous” provision will “embolden bullies and set up people with disabilities to face hostility” from fellow citizens demanding mask removal.
Elaine Nell, who co-founded the group Advocates for Medically Fragile Kids NC, is “angry, sad, and scared” about how the law might be enforced when it takes effect in October, especially in public spaces: “You get jury duty [and you] may not be able to wear a mask.” Nell is also concerned about her medically vulnerable children, who already lead restricted lives. “This may just take away even more,” she said.
Meanwhile, the conservative Manhattan Institute for Policy Research recently proposed a mask ban template focused on protests that don’t include any health exemption. While the Institute doesn’t pretend that COVID-19 is over, the template outlines a grim scenario: “Someone who wears a mask for health reasons probably should not be congregating in large groups of people.”
This statement suggests that immunocompromised people shouldn’t have the right to protest, work, or exist in crowded spaces, harkening back to the “ugly laws” that once forbade disabled people from being in public.
Democrats in the New York legislature proposed a mask ban bill similar to the Manhattan Institute’s template, with a medical exemption that only applies during a “declared public health emergency.” On paper, the federal government ended the COVID-19 emergency in 2023.
Across the country, Democrats are proposing mask bans based on flimsy and inconsistent logic, often citing incidents in which the main aggressors weren’t even masked. New York City Mayor Eric Adams, a former police officer, might be the one Democratic leader willing to make the subtext clear. He has expressed the desire to “go back to the way it was pre-COVID” by banning masks on subways, in stores, and in “other areas where it is not health-related” — as if there are any locations where health is not an issue.
Adams articulated out loud the Biden administration’s consistent priority: to erase the signs of COVID-19, or, as the podcast Death Panel calls it, the “sociological production of the end of the pandemic.” This started in the spring of 2021 when the CDC proposed that vaccinated people no longer need masks. The administration has also steadily chipped away at COVID-19 data collection efforts.
Mask bans are the latest step towards that goal, further disincentivizing the public from wearing them for protection. Biden administration leaders have explicitly associated mask-wearing with unnecessary, humiliating, and “fringe” behavior. And Biden recently insisted that he “ended the pandemic,” just before he reportedly caught COVID-19. His administration has been able to erase almost all signs of COVID-19 besides the viral illness itself.
How police criminalize masking
On August 22, Disability Rights New York filed a lawsuit challenging the Nassau County mask ban by invoking the Americans with Disabilities Act (ADA). But mask ban enforcement won’t rely on the determination of the courts alone. Political propaganda against masking is likely to influence how police criminalize masking, as arrest trends follow social trends more than laws.
Before COVID-19, mask bans were among the obscure laws rarely enforced by themselves, though police have long used face coverings, particularly ski masks, as a pretext to stop and search people. Elijah McClain was stopped by police in 2019 in large part for wearing a ski mask, or “looking suspicious,” and was killed while in custody. Yet Colorado has never had any kind of mask ban, giving police no justification for the stop.
Supreme Court decision Helen v. North Carolina (2014) allows police to be “reasonably mistaken” in their understanding of the laws they are hired to enforce. Police commonly arrest people for legal knives and other weapons due to poor training and bias. People may lose days, weeks, or months of income while in jail — and exposure to a deadly and disabling virus — before prosecutors or judges catch up to police mistakes.
It doesn’t help that anti-mask laws have always been ambiguously written, contributing to “reasonable” misunderstandings and decades of legal testing in the courts. New York’s proposed law would ban masking during “lawful or unlawful assembly or riot.” But “New York, unhelpfully, does not define a local assembly in law,” said Allie Bohm, Senior Policy Counsel at the American Civil Liberties Union of New York.
Bohm is concerned that D.C.’s new law — which outlaws masking while committing a crime or “threats to do bodily harm” — is “just giving police freedom to stop anyone in a mask,” even without justification. Similar laws exist in Arizona, California, Michigan, and many other states.
Bohm’s fears were confirmed by the D.C. law’s sponsor, Councilmember Brooke Pinto, who said the law was intended to give officers “a basis for a stop, for articulable suspicion.” D.C. police officers were sent a memo summarizing the new law without additional formal training, according to emails from the Metropolitan Police Department.
Bohm identified a fundamental legal problem with most mask bans: “We will always be in the position of law enforcement deciding whether the person in front of them is masking for a ‘legitimate’ reason.” Most anti-mask laws assume that police can properly judge “intent” and behavior despite studies showing that such judgment is colored by racial and other biases.
Dunn recalled one North Carolina legislator saying in a hearing, “Nobody is looking to go after ‘meemaw’ at the Walmart,” referring to an older woman. The statement explicitly identified the kinds of “selective enforcement” likely to happen around masking, Dunn said. She has coached the family of one North Carolina Black teenager, whose immune system is suppressed from leukemia treatments, on how to balance his health needs with staying safe during a police interaction — what she calls a “horrifying choice.”
What should people who wear masks do now? (Nadica suggests reading up on illegalism)
Unfortunately, marginalized people might not be able to rely on all of the organizations that have historically fought for their rights. Both the National Association for the Advancement of Colored People in New York and the National Urban League support New York’s proposed anti-mask law.
People who wear masks should consider learning the finer details of the laws and precedents in their states and cities, given that police may not be well informed. Does your state require “intent to disguise” your identity for masking to be illegal, as in D.C.? Then you can cite the law and try to assure police that your intention is health-related.
Bohm advises people who wear masks in New York, if confronted by police, to state that they are worried about COVID-19 and ask if they can leave, as there is no current mask ban in effect. Dunn recommends North Carolinians invoke their desire to “prevent the spread of contagious disease,” citing the language of the new law’s very narrow medical exemption. Disclosing a medical condition might seem like a good strategy, but it’s worth keeping in mind police bias: half of people killed by police are disabled.
More broadly, activists need to build solidarity among all of the groups affected by mask bans, including disabled people, pro-Palestine protesters, religious minorities, people of color, and LGBTQ+ people. Some of the laws that ban disguises have been used against trans people.
Barbarin even thinks it would be smart to “hop on personal liberty” as a way to associate masking with American freedom, which she acknowledges is not “in vogue” on the left. The Klan has long been a plaintiff in lawsuits to end mask bans, and Proud Boys, a right-wing extremist group, often cover their faces.
In order to further broaden support against mask bans, the public needs to understand that COVID-19 is still a serious risk. Beyond that, the media needs to communicate that stopping legal bans — or adding medical exemptions — won’t be enough to protect people from police. It will take changing the political discourse around masking altogether.
Key points you should know:
=Mainstream media coverage of mask bans has given space for politicians’ false claims that masks are associated with wrong-doing, like crime and antisemitism, while overlooking that bans are, in many ways, an effort to suppress the reality of COVID-19.
=There are 21 states and numerous municipalities with laws against masks or disguises on the books. People who wear masks would benefit from knowing exactly how they are worded and any legal precedents, as police are often under-informed.
=Both Republicans and Democrats are pushing more severe mask bans than ever before in history. Democrats are more likely to give lip service to health needs without offering meaningful protections.
Masks can and will be criminalized by police regardless of the language of the law, as arrest trends follow social trends. Police are also permitted by the Supreme Court to make mistakes in enforcing laws.
On August 5, Nyss Fayrchyld traveled from New York City to Nassau County in Long Island with other organizers to testify against a local bill to ban masks. The next few hours were “traumatic” and “volatile,” they recalled, with supporters of the bill “yelling obscenities” at immunocompromised people who testified in masks, calling them ”pro-Hamas thugs and terrorists.”
Police also directed enforcement at people in masks. One masked attendee was arrested on several charges, including second-degree assault, a felony, facing up to nine years in prison. Fayrchyld insists that the person was de-escalating conflict, which seems corroborated by video evidence. Supporters of the ban were also given more time to speak.
Nassau County’s bill passed with a vote of twelve Republicans in favor and seven Democrats abstaining. The law includes a vague medical exemption but also gives police expansive powers to stop, unmask, and arrest people.
Fayrchyld witnessed the type of state-sanctioned hostility that has become increasingly common for people who wish to stay safe during the ongoing COVID-19 pandemic. Nassau County is just the latest jurisdiction to pass a mask ban, after North Carolina and Washington, D.C. early this year.
New anti-mask bills were also recently introduced in Chicago, the New York State legislature, and the federal House of Representatives, which proposes a sentence of up to 15 years. Leaders in New York City and Los Angeles have discussed possible future bans, and other states are enforcing pre-existing anti-mask laws on the books. The University of Virginia has banned masks on campus, unless the person can show documentation of medical need.
While mainstream media stories about mask bans often mention that immunocompromised people might be harmed, these stories also give unskeptical space to politicians’ claims that increased mask-wearing has contributed to all kinds of wrong-doing, from crime to antisemitism. In reality, mask-wearing is increasingly rare compared to early in the pandemic. There are countries with far less violence than the U.S. where wearing a mask is normalized. One analysis found no correlation between mask bans and crime rates. Many pro-Palestine protestors are masking explicitly to prevent spreading COVID-19.
Most media coverage fails to connect the new wave of mask bans to the ongoing political efforts to minimize COVID-19. Overblown concerns about facial recognition and protestors are only possible with a concurrent effort to downplay the threat of COVID-19 and erase signs of it from public life — now a priority for most mainstream politicians.
While the conversation around mask bans has focused on new laws and bills, 21 states and many municipalities have laws banning masks and/or disguises in different settings, which is more than other organizations have reported. Even where these bans have apparent limitations or exemptions, the finer language of the laws leaves all COVID-conscious people vulnerable. And the historic practices of police endanger people even in states with no legal bans.
“We have come so far downhill when it comes to protecting one another that [supporting mask-wearing] is a controversial opinion to have these days,” said disability activist and author Imani Barbarin. The political climate, she said, “creates this perfect storm where it’s going to further criminalize Black and Brown people who need masks to survive.”
The politics and propaganda of mask bans
Historically, mask bans tend to come in waves. This current wave has been led by Republicans, with Democrats following closely behind. While Democrats tend to pay slightly more lip service to health needs, their actions undermine their promises.
The Republican effort to ban masks started before the COVID-19 pandemic, with a series of bills aimed at antifascist protestors. In 2011, Occupy Wall Street protestors were arrested for wearing masks. Republican leaders reignited their efforts in early 2023, introducing bills that sought to end the COVID-19 era of masking altogether.
Republicans insist mask bans have been around for a long time. But their recent efforts go further in criminalizing masking than ever before. North Carolina’s new law requires members of the public to “remove the mask upon request by a law enforcement officer,” for any reason, for as long as police want. Previously, the state’s law limited this demand to traffic stops and when police believed someone was committing a crime.
The new provision “smacks of blatant authoritarianism,” said Corye Dunn, Director of Public Policy for Disability Rights North Carolina. North Carolina’s mask ban also adds a new provision requiring a person wearing a mask to “temporarily” remove it at the request of an “owner or occupant” of a “public or private property.”
“Occupant doesn’t mean anything” in state law, Dunn said. She’s concerned that this “dangerous” provision will “embolden bullies and set up people with disabilities to face hostility” from fellow citizens demanding mask removal.
Elaine Nell, who co-founded the group Advocates for Medically Fragile Kids NC, is “angry, sad, and scared” about how the law might be enforced when it takes effect in October, especially in public spaces: “You get jury duty [and you] may not be able to wear a mask.” Nell is also concerned about her medically vulnerable children, who already lead restricted lives. “This may just take away even more,” she said.
Meanwhile, the conservative Manhattan Institute for Policy Research recently proposed a mask ban template focused on protests that don’t include any health exemption. While the Institute doesn’t pretend that COVID-19 is over, the template outlines a grim scenario: “Someone who wears a mask for health reasons probably should not be congregating in large groups of people.”
This statement suggests that immunocompromised people shouldn’t have the right to protest, work, or exist in crowded spaces, harkening back to the “ugly laws” that once forbade disabled people from being in public.
Democrats in the New York legislature proposed a mask ban bill similar to the Manhattan Institute’s template, with a medical exemption that only applies during a “declared public health emergency.” On paper, the federal government ended the COVID-19 emergency in 2023.
Across the country, Democrats are proposing mask bans based on flimsy and inconsistent logic, often citing incidents in which the main aggressors weren’t even masked. New York City Mayor Eric Adams, a former police officer, might be the one Democratic leader willing to make the subtext clear. He has expressed the desire to “go back to the way it was pre-COVID” by banning masks on subways, in stores, and in “other areas where it is not health-related” — as if there are any locations where health is not an issue.
Adams articulated out loud the Biden administration’s consistent priority: to erase the signs of COVID-19, or, as the podcast Death Panel calls it, the “sociological production of the end of the pandemic.” This started in the spring of 2021 when the CDC proposed that vaccinated people no longer need masks. The administration has also steadily chipped away at COVID-19 data collection efforts.
Mask bans are the latest step towards that goal, further disincentivizing the public from wearing them for protection. Biden administration leaders have explicitly associated mask-wearing with unnecessary, humiliating, and “fringe” behavior. And Biden recently insisted that he “ended the pandemic,” just before he reportedly caught COVID-19. His administration has been able to erase almost all signs of COVID-19 besides the viral illness itself.
How police criminalize masking
On August 22, Disability Rights New York filed a lawsuit challenging the Nassau County mask ban by invoking the Americans with Disabilities Act (ADA). But mask ban enforcement won’t rely on the determination of the courts alone. Political propaganda against masking is likely to influence how police criminalize masking, as arrest trends follow social trends more than laws.
Before COVID-19, mask bans were among the obscure laws rarely enforced by themselves, though police have long used face coverings, particularly ski masks, as a pretext to stop and search people. Elijah McClain was stopped by police in 2019 in large part for wearing a ski mask, or “looking suspicious,” and was killed while in custody. Yet Colorado has never had any kind of mask ban, giving police no justification for the stop.
Supreme Court decision Helen v. North Carolina (2014) allows police to be “reasonably mistaken” in their understanding of the laws they are hired to enforce. Police commonly arrest people for legal knives and other weapons due to poor training and bias. People may lose days, weeks, or months of income while in jail — and exposure to a deadly and disabling virus — before prosecutors or judges catch up to police mistakes.
It doesn’t help that anti-mask laws have always been ambiguously written, contributing to “reasonable” misunderstandings and decades of legal testing in the courts. New York’s proposed law would ban masking during “lawful or unlawful assembly or riot.” But “New York, unhelpfully, does not define a local assembly in law,” said Allie Bohm, Senior Policy Counsel at the American Civil Liberties Union of New York.
Bohm is concerned that D.C.’s new law — which outlaws masking while committing a crime or “threats to do bodily harm” — is “just giving police freedom to stop anyone in a mask,” even without justification. Similar laws exist in Arizona, California, Michigan, and many other states.
Bohm’s fears were confirmed by the D.C. law’s sponsor, Councilmember Brooke Pinto, who said the law was intended to give officers “a basis for a stop, for articulable suspicion.” D.C. police officers were sent a memo summarizing the new law without additional formal training, according to emails from the Metropolitan Police Department.
Bohm identified a fundamental legal problem with most mask bans: “We will always be in the position of law enforcement deciding whether the person in front of them is masking for a ‘legitimate’ reason.” Most anti-mask laws assume that police can properly judge “intent” and behavior despite studies showing that such judgment is colored by racial and other biases.
Dunn recalled one North Carolina legislator saying in a hearing, “Nobody is looking to go after ‘meemaw’ at the Walmart,” referring to an older woman. The statement explicitly identified the kinds of “selective enforcement” likely to happen around masking, Dunn said. She has coached the family of one North Carolina Black teenager, whose immune system is suppressed from leukemia treatments, on how to balance his health needs with staying safe during a police interaction — what she calls a “horrifying choice.”
What should people who wear masks do now? (Nadica suggests reading up on illegalism)
Unfortunately, marginalized people might not be able to rely on all of the organizations that have historically fought for their rights. Both the National Association for the Advancement of Colored People in New York and the National Urban League support New York’s proposed anti-mask law.
People who wear masks should consider learning the finer details of the laws and precedents in their states and cities, given that police may not be well informed. Does your state require “intent to disguise” your identity for masking to be illegal, as in D.C.? Then you can cite the law and try to assure police that your intention is health-related.
Bohm advises people who wear masks in New York, if confronted by police, to state that they are worried about COVID-19 and ask if they can leave, as there is no current mask ban in effect. Dunn recommends North Carolinians invoke their desire to “prevent the spread of contagious disease,” citing the language of the new law’s very narrow medical exemption. Disclosing a medical condition might seem like a good strategy, but it’s worth keeping in mind police bias: half of people killed by police are disabled.
More broadly, activists need to build solidarity among all of the groups affected by mask bans, including disabled people, pro-Palestine protesters, religious minorities, people of color, and LGBTQ+ people. Some of the laws that ban disguises have been used against trans people.
Barbarin even thinks it would be smart to “hop on personal liberty” as a way to associate masking with American freedom, which she acknowledges is not “in vogue” on the left. The Klan has long been a plaintiff in lawsuits to end mask bans, and Proud Boys, a right-wing extremist group, often cover their faces.
In order to further broaden support against mask bans, the public needs to understand that COVID-19 is still a serious risk. Beyond that, the media needs to communicate that stopping legal bans — or adding medical exemptions — won’t be enough to protect people from police. It will take changing the political discourse around masking altogether.