New York's Governor Hands Down A Mask Mandate While The State's Anti-Mask Law Remains On The Books

from the house-divided-against-itself-can-still-disproportionately-arrest-young-black-men dept

The spread of the coronavirus throughout the nation is turning some old laws into new ridiculousness. One of the hardest hit areas in the US is New York, which has nearly 30% of the nation’s total cases. This has led to lockdown orders and spread deterrent efforts more severe than seen elsewhere in the country.

One of the new mandates handed down by Governor Andrew Cuomo is a mask requirement when in public. The executive order that went into effect a few days ago says this:

Effective at 8 p.m. on Friday, April 17, 2020 any individual who is over age two and able to medically tolerate a face-covering shall be required to cover their nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain, or when not maintaining, social distance.  

Sounds good and necessary, but as appellate public defender Sam Feldman points out on Twitter, this executive order conflicts with a law that’s been around since the middle of the 19th century. That’s going to be a problem.

If you can’t read/see the tweets, Feldman says the new order does not suspend Penal Law § 240.35(4), which has been in existence since 1845. People trying to follow the executive order may find themselves engaging in criminal behavior. Here’s Feldman:

As of 8pm tonight, wearing a mask in public places around other people who are also wearing masks is both forbidden and required by New York law. I’m sure the police will enforce these contradictory mandates in a completely rational & nondiscriminatory fashion.

Here’s the law that’s still on the books while the governor is mandating mask-wearing:

Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place;  except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities…

Perhaps the swiftest (or at least most entertaining) resolution would be for Governor Cuomo to issue an executive order declaring the entire state a “masquerade party” until the COVID-19 threats subsides. It might be the best thing for Cuomo himself, who appears to have run afoul of the law by “knowingly permitting or aiding persons so masked or disguised to congregate in a public place.”

Given the law’s origins, maybe it’s time to take it off the books. Unlike others in the nation targeting KKK members, this one was a response to the “Anti-Rent War” in which protests by tenants culminated in a battle between anti-renters and local law enforcement. Some protesters disguised themselves as Indians, leading to the anti-mask ordinance. Rent is a pretty hot topic at the moment, what with 22 million Americans now unemployed. With planned rent strikes on the way in New York City, the new mask mandate is likely to run head on into the state’s anti-mask law once law enforcement arrives on the scene.

A mask-wearing mandate coupled with an anti-mask law is selective enforcement just waiting to happen. And if it’s anything like the last few hundred years of selective law enforcement, it will be minorities who pay the price for conflicting messages. We’ve already seen this happening elsewhere in the nation, where social distancing mandates are being enforced against minorities who throw parties but ignored when a bunch of white people decide stay-at-home orders violate their god-given right to act as attack vectors during a pandemic. Leaving it up to police officers to decide whether a person wearing a mask is a compliant citizen or a lawbreaker is going to result in a lot of blown judgment calls.

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Comments on “New York's Governor Hands Down A Mask Mandate While The State's Anti-Mask Law Remains On The Books”

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84 Comments
Anonymous Coward says:

Re: Re:

The obvious reason it’s invalid is that it does not define "social distance". It neither specifies a distance, nor delegates that regulatory authority to any party. Nor does it describe from whom one must be distanced (typically, authorities make no suggestion that co-habiting parties remain distant).

Anonymous Coward says:

Re: Re: obvious reason it's invalid

geeez — state governors can NOT make laws !

ALL Laws must come from the legislative branch of government — according to all state constitutions and US Constitution.

Government commands to the populace are properly known as "laws".
Labeling a Governor’s "command" as a "mandate" or "Executive Order" does not change its nature!

Cuomo (and many other state/local government executives) are directly violating constitutional law and citizen rights.

Blatantly ignoring the rule of law is extremely dangerous.

Anonymous Coward says:

Re: Re: Re:2 obvious reason it's invalid

…the 3 independent branches of American government (Legislature, Executive, Judiciary) can not delegate their duties and constitutional authoritities to each other nor anybody else.

There are no "emergency" powers in American constitutions that somehow override those constitution and negate citizen rights guaranteed in those constitutions.

Scary Devil Monastery (profile) says:

Re: Re: Re:5 obvious reason it's invalid

"But there no ‘except in an emergency’ escape clause to the Bill of Rights in the Constitution. They apply all the time. Emergency or not."

…and until SCOTUS makes a ruling to the contrary the emergency powers clause will stand. I believe that’s how it works.

What is really odd is the use to which Cuomo put that power. A set of laws which have you in violation no matter what you do? I can only say christmas came early for any triggerhappy NYPD LEO with a hard-on for nightstick-and-pepper-spray play.

btr1701 (profile) says:

Re: Re: Re:6 obvious reason it's invalid

…and until SCOTUS makes a ruling to the contrary the emergency powers clause will stand. I
believe that’s how it works.

The Supreme Court has ruled:

"Neither the legislature nor any executive or judicial officer may disregard the provisions of the Constitution in case of emergency." –ex parte Milligan, 71 U.S. 2 (1866)

Uriel-238 (profile) says:

Re: Re: Re:9 National Emergencies leading to Extrajudicial Detention?

Well, there’s the Declaration of National Emergency by Reason of Certain Terrorist Attacks (Proclamation 7463) and Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism (Executive Order 13224) the latter of which formed the DHS. I can’t say either of those facilitated the torture of prisoners of war in the Iraq War, or the CIA Extrajudicial Detention and Interrogation program, but then it raises the question how it happened in the first place.

It was sure an indicator to me as events were unfolding that the federal government was using its power (perhaps the force of gunpoint) to suspend the bill of rights whenever it wanted.

Habeus Corpus rights being suspended in Pirates of the Caribbean: At World’s End (2007) was a direct reference to the same rights being suspended in the United States. Shit was going down.

bhull242 (profile) says:

Re: Re: Re:5 obvious reason it's invalid

I think the idea is that the legislature (and the executive branch) can delegate their constitutional powers to another, even if the recipient is another branch of the government. While not expressly in the state or federal constitutions, there is a lot of case law supporting this as a valid transfer, even if conditional.

Uriel-238 (profile) says:

Re: Re: Re:6 valid transfers of power between branches.

Wow. This puts us two steps away from an Ermächtigungsgesetz.

It wouldn’t surprise me that the doctrine of necessity that is the notion extralegal action by the state is justified to restore order to the state, is used in the US to justify suspending constitutional rights when it serves our institutions to do so.

After all, it’s demonstrated multiple times every year the police can resolve a suspect asserting his or her rights with the simple application of a bullet.

Scary Devil Monastery (profile) says:

Re: Re: Re:7 valid transfers of power between branches.

"Wow. This puts us two steps away from an Ermächtigungsgesetz."

Is this where we start discussing the "Patriot Act" and the legal term "Enemy Combatant" coined under those provisions?

Trump’s whole presidency is nothing more than the logical consequences of the pre-existing state of US politics. He’s no legislator, he’s an opportunist who keeps showing us the more obvious ways of abusing the erosion of "checks and balances" which took place under GWB and the brief neocon hegemony.

The real issue is that the US is already halfway into an ermächtigungsgesetz due to multiple bad administrations removing safeguards because it was convenient to do so.

Anonymous Coward says:

Re: Re: Re:3 obvious reason it's invalid

…the 3 independent branches of American government (Legislature, Executive, Judiciary) can not delegate their duties and constitutional authoritities to each other nor anybody else.

I’m surprised, because it’s incredibly common. I can only conclude that the Judiciary branch does not share your view. The inability to delegate would essentially make the SEC and EPA illegal, for example; lots of people that want them gone, and are filing lawsuits, but to my knowledge none use this theory.

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This comment has been deemed funny by the community.
Anonymous Coward says:

Re: Re: Re:

Actually AC is strapped into a chair with his eyes peeled open Clockwork Orange style and is given a keyboard and a screen for a computer that only has access to Techdirt and if he doesn’t comment when new articles are posted, he gets electric shocks to his groin.

Have a little consideration here!

This comment has been deemed insightful by the community.
Scary Devil Monastery (profile) says:

Re: Re: Re:

"Since laws are enforced by police at the end of a gun, exactly what do you think should be done when laws conflict?"

Officer; "Drop to the ground and take that mask off!!"
Suspect; "Don’t shoot! I’m taking it off now!"

BANG!

Officer; "I warned him, your honor, and then he broke the law again! He could have had COVID! I feared for my life!"

Judge; "Ok, that’s fair. Case dismissed."

Scary Devil Monastery (profile) says:

Re: Re:

"Wow. Sam found an old law and it doesn’t fit the current situation, covid or no covid. And then Tim creates an article about it. Wow!"

You don’t see a problem with official laws which essentially make it illegal to exist?

Oh, wait. Of course you don’t. You’ve gone pretty weaksauce lately though, Baghdad Bob, poking the techdirt writers with nothing but limp one-liners. Self-distancing get to you? Or didn’t you get invited to the latest covid-party protesting the "democrat hoax"?

This comment has been deemed insightful by the community.
PaulT (profile) says:

Re: Re:

"Wow. Sam found an old law and it doesn’t fit the current situation, covid or no covid"

Yes. Do you not have a problem when legal orders directly conflict with each other, thus making them either unenforceable or (much scarier) potentially giving the cops ammunition to hold you in breach of one of those laws no matter what you do?

I certainly find that problematic.

"And then Tim creates an article about it"

…and then one of our village idiots is compelled to comment about how he doesn’t like the article. The circle of life is again complete.

nasch (profile) says:

Re: Re: Re:

Wait, so if I conspire to commit a crime without wearing a mask or a white cap (assuming I don’t actually go on to commit the crime in question)… that’s all fine

No, that’s still criminal conspiracy (if you plan and take some action to move the plan forward).

https://www.gtlawfirm.com/blog/what-is-a-conspiracy/

Scary Devil Monastery (profile) says:

Re: Re:

"Aren’t most anti-mask laws basically anti-KKK laws?"

It depends on which brand of mob the jurisdiction has historically had to deal with, honestly. In europe for instance, most anti-mask laws are because of hooliganism at soccer events.

In the end what it pans out to is that anti-mask laws are because the legislature feels that a mob of masked men may feel encouraged to violently resist the riot police because they can’t be identified and prosecuted if they can’t be identified.

It’s a crappy argument but tends to carry weight and bring votes among a sufficiently frightened citizenry.

Uriel-238 (profile) says:

Re: Re: Autism

On the internet, no-one knows I’m a cat. (or an autist — high-functioning, late diagnosis, but incidents of symptoms can be traced to when I was six). And when it comes to confrontational or bureaucratic processes it’s hard for me to navigate phone calls, let alone deal with people face to face.

But yes, we crazies are lower on the intern-and-perge lists than racial minorities, othered religions and LGBT+ but we are on the list and ultimately will be detained and processed when the fascists take over.

And police like to shoot at us, even more than they like to shoot at blacks (bonus points for being both). While black lives don’t matter, mental health patients compel police to fear for their safety even sooner. Those who are both are just a police stop away from death.

My solution has been to operate at home and to utilize automated systems to get what I need when I can before resorting to human systems. You may not have that privilege, Naughty Autie but I do hope you manage to find your way free of hazard.

Scary Devil Monastery (profile) says:

Re: "result in a lot of blown judgment calls."

"For a moment there I thought that said "a lot of BROWN judgement calls""

That only applies if the LEO faces the conundrum of a suspect wearing a full-face mask with hood and gloves. Being Brown In Public might be suspicious behavior to many officers in law enforcement but suspicion of being brown might not fly as well with the judge when the hearing commences about the guy in the "anonymous" mask catching 8 bullets with his back.

Some judges might make the call the officer observed bad judgment as the masked suspect could have been white and therefore innocent until proven guilty.

This comment has been deemed insightful by the community.
Jeroen Hellingman (profile) says:

Under any rational interpretation of the law, any new regulation at the same level as an old regulation that contradicts that old regulation should automatically supersede that old regulation. Only problem: Officers are not exactly known for doing the rational thing, and getting justice through the courts is either too costly or takes too long.

Anonymous Coward says:

"One of the new mandates handed down by Governor Andrew Cuomo (& other Democratic Governors, ed.) is a mask requirement when in public. … Sounds good and necessary".
Haven’t we heard this before? Let me present a response from some one far more experienced than myself:

Necessity is the plea for every infringement of human freedom.
It is the argument of tyrants; it is the creed of slaves.
— William Pitt, 1783 (UK Prime Minister)

This comment has been deemed insightful by the community.
TFG says:

Re: Re: Re:

I also don’t really see how "must wear a mask in public so as to lower the chance of infection of yourself or others" really impinges on anyone’s freedom.

This kind of order is the kind that goes away when the threat goes away, as well.

The anti-mask law, on the other hand, is absolutely an example of the type of thing that quote refers to.

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"I do. Whether to wear a seatbelt or not should be my choice, not forced on me by the government."

Ideally it would be the car owner forcing you to either wear the belt or gtfo. Particularly if you’re in the back seat where not wearing a belt, in the case of collision, would turn you into a human cannonball killing the people in front of you.

However, the car owner and driver would, in a collision, only kill himself which is, in the end, one of those objectively poor life choices one should be able to make.

I’d say the law requires more nuance. That such a law is required at all is, honestly, an argument in favor of China’s way of doing things. If people in general regularly demonstrate idiocy endangering others, at what point do you, as a politician, just give up and try to take the right to kill other people through casual stupidity away?

Homo Sapiens Sapiens?…yeah, right.

We’d be better served with the latin for "Dumbass motherfsckers".

Uriel-238 (profile) says:

Re: Re: Re:3 Passing laws for your own safety.

Late medieval Europe is rife with local laws forbidding the ringing of steeple bells during a thunderstorm. When we thought lightning was a direct divine act (rather than a product of natural forces), it was believed God would be deterred from toppling a steeple if the bell was rung continuously during the thunderstorm.

It didn’t work and it became a common way for men of the cloth to fast-track themselves to God. As a result, many counties would pass a regional law to prevent church bell ringing during electrical weather.

These days, replaceable grounded lightning rods come standard on church steeples.

Stephen T. Stone (profile) says:

Re:

Do you support COVID-19? Because it seems like you’re arguing that mask requirements should be rescinded. In that case, you’d also be arguing for members of the general public to risk the health of both themselves and other people by becoming disease vectors. And that sounds like support for spreading the disease instead of eradicating it.

Scary Devil Monastery (profile) says:

Re: Re: Re: Re:

"…the 19th century mask ban should be repealed so as to allow people to follow the new law without breaking the old one."

Which is the sensible choice. Prohibiting people from endangering other people is something backed by proportionality of law.
Mandated dress code, forcing people to cover or uncover parts of their own body in public…not so much, I find.

Stephen T. Stone (profile) says:

Re:

The point is that cops usually see Black people holding a party as “a problem”, but see White people holding a party as “a normal, everyday thing”. Cops assume, more often than not, that a gathering of Black people carries some inherent criminality which a gathering of White people do not. COVID-19 is merely giving cops a better excuse to make that assumption.

Think about those anti-lockdown protests that have been going on this week. People with guns showed up to some of those ridiculous displays of selfishness. How lenient do you believe the cops would’ve been towards those armed protestors if most of them had been Black people instead of White people?

btr1701 (profile) says:

Re: Re: Re:

How lenient do you believe the cops would’ve been towards those armed protestors if most of them had been Black people instead of White people?

Well, considering we have armed black people patrolling the border of CHAZ right now, carrying weapons that actually do violate the laws of the state of Washington, and the cops aren’t doing anything about it, I’d say pretty lenient.

Scary Devil Monastery (profile) says:

Re: Racial Bias

"Why is it that– according to you– minorities just throw parties, but when white people throw parties, they’re exercising ‘their god-given right to act as attack vectors during a pandemic’?"

That’s not what I’m getting out of this. What I read is that a party with white attendees gets more law enforcement leeway than a party with non-white attendees.

And to be fair the exact wording of the OP says this:

"…social distancing mandates are being enforced against minorities who throw parties but ignored when a bunch of white people decide stay-at-home orders violate their god-given right to act as attack vectors during a pandemic."

I think every sane person won’t give a single fsck about the motivation anyone has for endangering other people, but the fact that the law is enforced based on skin color, with white people in particular feeling safe to act out their "god-given rights" to defy the law where a black person might know differently due to the talk…THAT is an issue worth noting.

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