Wearing Masks: the Right Thing, or Being Forced to do it

First, you should wear a mask when around other people and in enclosed spaces. This isn’t even up for debate – the science is absolutely settled on the role masks play in limiting the spread of infection.

I could emphasize that masks protect OTHER people from you. I could emphasize that YOU can spread COVID-19 up to three days before you show symptoms. I could emphasize how settled the science is on these points but let’s be real – if you could understand the science and methodology you wouldn’t be whining about wearing a mask.

It is literally the barest, most minor of inconveniences that will both protect people and allow things to get back to normal sooner. If the possibility of saving a human life by wearing a piece of cloth over your sewer-like mouth isn’t enough then won’t you please think of the economy?

You can hear this picture, can’t you?

Clearly, I support mask usage unequivocally. But one thing I cannot support is the recent trend of instituting criminal liability for not wearing a mask. In several states, it is a misdemeanor to be out in public without a mask.

That is misguided and counterproductive, particularly in the midst of the very real and very important national conversation about policing. 

Every criminal law on the books creates the opportunity for implicit or explicit bias in its enforcement. Consider the following facts: Officers observe a car with black men in it. Officers continue to observe because they subjectively believed that these men were drug dealers – solely because they were black and driving in a nice car. These officers followed and waited for the driver to commit a minor traffic violation – accelerating too quickly or rolling through a stop sign or the like – and used that as pretext to stop the drivers. Put simply, the officers thought that these black men were drug dealers based on the color of their skin and waited for a minor traffic infraction to give them legal cover to act on their biases.

Man in Philadelphia dragged off public transportation by police for not wearing a mask.

And the Supreme Court upheld that action because there was “reasonable suspicion” that an offense had been committed. It didn’t matter that the officers were detectives in an unmarked vehicle that ordinarily do not pull people over for minor traffic offenses. It didn’t matter that, at face value, the driver was stopped solely for being black. The fact that there was a minor traffic violation was enough to end the inquiry.

This piece is not about implicit biases evident in law enforcement – suffice it to say they exist. This piece is not about explicit biases and racism in law enforcement – suffice it to say it exists. These are human failings and as long as law enforcement is conducted by humans these failings will, inevitably, exist.  

What kind of society are we trying to build anyway?

This piece is about subjecting people to criminal penalties for not wearing a mask. As demonstrated above, creating criminal liability for failing to wear a mask only gives more opportunity for implicit and explicit biases to rear their ugly heads. 

Moreover, the authority granted to the State when it suspects a citizen of violating criminal law is vast. Consider these facts: A woman in Texas was pulled over for a misdemeanor seatbelt violation. At the time, this carried a maximum penalty of $25 dollars. The officer who pulled her over arrested her and booked her into jail. The Supreme Court upheld this as well, stating that arrest for even a minor violation punishable only by a fine was permissible.

Once booked, you can be strip-searched, body cavity searched, and held for up to 48 hours before seeing a judge. All of that is permissible for a petty offense like a seatbelt violation and it would very likely be permissible for not wearing a mask. That is absolute insanity.

Woman strip searched by mixed-gender officers after booking for a misdemeanor. Source.

Lastly, and the most compelling point given the national discussion on policing, is enforcement of criminal law necessarily creates the opportunity for violence. A suspect can escalate, an Officer can escalate, a bystander can escalate. The enforcement of criminal law creates the circumstances for a person – Officer, suspect, or innocent bystander – to be injured or even killed. In Minnesota, a man alleged to have passed a counterfeit $20 was slowly murdered when an officer kneeled on his neck for almost ten minutes. In New York, a man alleged to have sold a loose cigarette (a minor misdemeanor, like wearing a mask) was killed during an enforcement action. In Georgia, a man suspected of committing a DUI (another misdemeanor) violently attacked two police officers, disarmed one of their taser and attempted to use it on officers before being shot.

It is an inescapable truth that enforcing criminal laws creates the conditions necessary for violence to occur. This is as true for violent crimes as it is for minor misdemeanors. 

That’s not to say that criminal law is unnecessary. It’s not to say that criminal laws should not be enforced – they absolutely should.

But as a society we need to weigh the costs and benefits of increasing our dizzying array of criminal laws. Absent substantial necessity and a compelling reason, we as a society should avoid adding more criminal laws on the books.

Criminalizing not wearing a mask makes things more dangerous for everyone. It creates more opportunities for violence against police officers. It creates more opportunities for violence against suspects and innocent bystanders. It creates more opportunity for disproportionate and unfair enforcement. It adds yet another responsibility onto the shoulders of police officers who are already overworked and overburdened with ancillary roles they were never trained or designed to fill.

Wearing a mask is important and vitally necessary to ending this pandemic and saving lives. Yet no reasonable person would agree that someone not wearing a mask deserves to be arrested, booked into jail, and strip-searched. No reasonable person would agree that someone not wearing a mask is worth a police officer or the suspect getting hurt. 

Moreover, mask laws are counter-productive. Police (at least those agencies that haven’t outright said they would not enforce mask laws) would find someone not wearing a mask and then arrest and book them into jail. Where they are, statistically, much more likely to be exposed to COVID-19. Then they’ll get released, shortly thereafter, and be free to potentially spread COVID-19? All because they violated a law intended to help limit the spread of COVID-19? Talk about cutting off your nose to spite your face.

Pandemic? Prisons? Yeah we already read this book and know how it ends.

While criminal laws related to mask usage come from a place of good intentions, they are horribly misguided and may ultimately cause more harm than they purport to avoid. While any expansion of the criminal code should be viewed with suspicion, mask laws in particular are susceptible to unfair, unequal enforcement. Accordingly, the States that have passed such laws should repeal them immediately and any State considering adopting them should immediately reverse course.

Maximillian Fightmaster
Maximillian Fightmaster
Derek Debus is a trial lawyer in Arizona and a graduate of the Sandra Day O'Connor College of Law where he earned recognition as a Willard Pedrick Honors Scholar and received the designation of Trial Advocacy Fellow. Prior to attending law school, Derek served in the United States Marine Corps as an infantryman and combat instructor and worked to train law enforcement as a professional firearms instructor. Derek also serves on the Board of Directors for the nonprofit organization Academe Grove -- a 501(c)(3) nonprofit focused on providing training and resources to education institutions and first responders. Follow him on twitter @derek_debus.
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