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.
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.
— Sam Feldman ? (@srfeld) April 17, 2020
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.