Masks and Bandannas at Protests

Masks and Bandannas at Protests
by Susan Basko, esq.

On Saturday, April 21, 2018, Nazis held a rally in Newnan, Georgia, USA. Counterprotesters showed up, outnumbering the Nazis. There was a heavy presence of militarized police.  The video above is raw footage by Ford Fisher.

Police, aiming what appeared to be live bullet rifles (as opposed to less than lethal weapons) at the protesters at very close range, demanded they remove their masks or bandannas, or be arrested.  Protesters were shoved to the ground and brutally arrested.  This sort of brutality and pointing of guns seems so out of place for such a trivial offense as wearing a mask or bandanna.

LET'S LOOK AT THE LAWS REGARDING MASKS AND BANDANnAS.  Most of these laws are found in State laws, though some might be found in municipal laws.  The law might be an outright prohibition on wearing a mask, disguise, facial covering, etc., in public.  Or a law might prohibit two more more people, gathered, from wearing masks.  Or it might be an enhancement to a sentence if a crime is committed while wearing a mask.

BELOW, WE WILL LOOK SPECIFICALLY AT THE STATE MASK LAWS for Georgia, Illinois, California, and New York.  

 In some states, wearing a mask in public is in and of itself a crime.  In other states, wearing a mask is a crime if another crime is being committed and if the purpose of wearing the mask is to avoid being recognized.

While every state law is different, any mask law is likely to be found in the body of law that will be called the Criminal Statutes or the Criminal Code or the Penal Code.  Then, inside that code, it will usually be in a section called Public Order or Public Safety.  In those sections, the mask law will usually gets its own subsection.  The law might refer to such words as: mask, hood, disguise, conceal, and hilariously in the California law -- "false whiskers."

IF YOU plan to wear any sort of mask, bandanna, etc., to a protest, check the criminal law of that state.  It could be argued that a bandanna is not a "disguise," but police seem to think it is and they are the ones with the guns and zipties.  Interestingly enough, at the Newnan Nazi rally, the police were not concerned that the Nazis were wearing big sunglasses.  These two items seem to be equally taking up space on a person's face.

If you have already been arrested and charged under one of these anti-mask laws, be sure to look up the law and read the wording carefully so you know how to argue against the charge.  Also, if you are taken into court, be sure to ask for a public defender lawyer if you cannot afford a private lawyer.  If you work part time or don't make much money, you most likely qualify for a public defender lawyer, so when you first go before a judge, say, "I want a public defender lawyer."

The Georgia Law makes the wearing of a mask a Misdemeanor.  A misdemeanor is a crime more minor than a felony, so this makes it more outrageous that these police aimed rifles mere inches from these people.  It also seems outrageous that peaceful protesters were shoved onto the ground and manhandled.  Being treated this way should not be the price one pays for a lawful activity of freedoms of assembly and speech.  I assume lawsuits might be forthcoming against those police for excessive use of force against those injured by being tossed face first onto the ground.

What does the Georgia law prohibit?  "Wearing a mask, hood, or device which conceals identity of wearer" on the public way or on private property without permission.  The law does not apply if a person is wearing a holiday costume on the holiday.  That would mean costumes for Halloween is okay.  Another is exception is if the face covering is for occupational or sports safety.  Another exception is theatrical productions and Mardi Gras and masquerade balls.  Another exception is wearing a gas mask in a drill or emergency.

2010 Georgia Code
§ 16-11-38 - Wearing mask, hood, or device which conceals identity of wearer
O.C.G.A. 16-11-38 (2010)
16-11-38. Wearing mask, hood, or device which conceals identity of wearer 

(a) A person is guilty of a misdemeanor when he wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property or upon the private property of another without the written permission of the owner or occupier of the property to do so.

(b) This Code section shall not apply to:

(1) A person wearing a traditional holiday costume on the occasion of the holiday;

(2) A person lawfully engaged in trade and employment or in a sporting activity where a mask is worn for the purpose of ensuring the physical safety of the wearer, or because of the nature of the occupation, trade, or profession, or sporting activity;

(3) A person using a mask in a theatrical production including use in Mardi gras celebrations and masquerade balls; or

(4) A person wearing a gas mask prescribed in emergency management drills and exercises or emergencies.


ILLINOIS: Wearing a "hood" or "robe" while committing assault makes it aggravated assault, which is a much more serious crime.

(720 ILCS 5/12-2) (from Ch. 38, par. 12-2) 
    Sec. 12-2. Aggravated assault. 

(c) Offense based on use of firearm, device, or motor vehicle. A person commits aggravated assault when, in committing an assault, he or she does any of the following:
(4) Wears a hood, robe, or mask to conceal his or her identity.

 CALIFORNIA: It is illegal to wear a mask or disguise to evade discovery in the commission of a public offense or to escape.  Thus, in California, wearing a mask is not itself a crime, except when wearing it while committing another crime for the intent of not being recognized.

Penal Code.
PART 1. OF CRIMES AND PUNISHMENTS [25 - 680]  ( Part 1 enacted 1872. )  
TITLE 7. OF CRIMES AGAINST PUBLIC JUSTICE [92 - 186.34]  ( Title 7 enacted 1872. )  

CHAPTER 8. Conspiracy [182 - [185.]]  ( Chapter 8 enacted 1872. )
Section One Hundred and Eighty-five. It shall be unlawful for any person to wear any mask, false whiskers, or any personal disguise (whether complete or partial) for the purpose of:

One—Evading or escaping discovery, recognition, or identification in the commission of any public offense.

Two—Concealment, flight, or escape, when charged with, arrested for, or convicted of, any public offense. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor.

NEW YORK: The State of New York considers it the crime of "loitering" when two or more people in a disguise congregate in a public place, unless it is a masquerade party or other such entertainment.

New York Consolidated Laws, Penal Law § 240.35 Loitering
A person is guilty of loitering when he:
4. 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;  

WIKIPEDIA has a nice entry on anti-mask laws.   This is an interesting look at the history of anti-mask laws worldwide.