If Covid is over how much longer will masks still be allowed in public spaces and public protests?
Face masks, once an essential Covid-19 protective measure, are now being worn by criminals to conceal their identities, according to New York police who are urging businesses to unmask customers before letting them in stores.
The recommendation is a 180-degree turn from mask-wearing norms at the onset of the pandemic. During peak periods of infection, federal agencies mandated mask-wearing in public places, while many businesses required customers to wear them on the premises.
Now, however, some businesses are banning customers from entering the premises with face masks on, saying the policy change is needed to identify thieves. And after numerous incidents, the New York Police Department is urging business owners to make shoppers remove their face masks and flash their features before being let in.
“We’re seeing far too often where people are coming up to our businesses, sometimes with masks and latex gloves, and they’re being buzzed in, they’re being allowed to enter into the store and then we have a robbery or some kind of property being stolen,” NYPD chief of department Jeffrey Maddrey said recently in an address to the local business community.
How a pandemic measure is being exploited by criminals: security experts
While some people are still wearing medical masks to protect themselves and others from COVID-19, others are donning them for a totally different reason: to disguise their identity.
Security experts have noticed thieves and purse snatchers are often wearing medical masks while they commit crimes.
“We are seeing a lot of people who are up to no good keeping masks on, and I’m sure it’s to aid in their ability to do what they want to do,” said James Blight with Paladin Security.
Last week in Richmond, two men wearing masks were caught on surveillance video trying to steal bags from patrons of a popular seafood restaurant. They were chased down by staff who managed to retrieve a stolen bag, but RCMP say the masked men have not been identified.
“I think the normalization of the medical mask makes it very challenging, it adds to the anonymity that a thief can have when they want to do something criminal,” said Blight.
There is a separate criminal code charge for committing a crime while concealing ones identity.
“If you commit a crime while you’re disguised, it is worse on the eyes of the law than if you commit a crime when you’re not disguised. But because of the normalization of medical masks, I don’t think we are going to see that pursued by Crown,“ said Blight.
He says stores and restaurants can combat shoplifting and bag theft by doing crime prevention through customer service. Everyone, masked or not, should be approached by staff and asked how they can be helped, and what they’re looking for.
“Getting close to them, making eye contact removes some of that anonymity, and would make customers feel more welcome, but makes thieves feel less comfortable about doing the crime they were maybe thinking about committing,” Blight said.
“It is certainly tougher now because so many people are wearing masks,” said Michael Jagger with Provident Security. “But the behaviour that you’re looking for in a store or in a restaurant, with or without a mask — acting in a suspicious way, lingering around in a different way — those are markers you can sort of tell.”
Both security experts say there are ways to avoid becoming easy targets for purse snatchers.
“The valuable item, the purse in this case, needs to be somewhere you can see it. So if someone is tampering with it or trying to reach inside or move it or re-position it, you see it happen and you are able to intervene before they get away,” said Blight.
“The simplest thing, sitting in a restaurant or coffee shop, never hang the purse off the back of a chair with your jacket. Put it through your legs so someone can’t just pull it and take it away from you so easily,“ added Jagger, who also suggests people keep an inventory of what’s in their bag.
“What’s worse than having your bag stolen is the moments afterwards, realizing the bag is gone…it’s trying to remember exactly what’s in the bag,” he said.
Their most important piece of advice? Always pay attention to your surroundings, and your belongings. “Criminals are looking for any opportunity to take advantage of our inattentiveness,” said Blight.
Some 15 states have anti-mask laws, as do many counties and municipalities.
The earliest laws banning masked demonstrations date back to the antebellum era. In 1845 New York made it illegal to appear “disguised and armed.” Most anti-mask laws were passed, however, in response to the Ku Klux Klan, whose members used masks to hide their identities as they terrorized their victims.
Around 15 states have anti-mask laws, as do many counties and municipalities. Most anti-mask laws do not target specific groups explicitly. Instead, they use neutral language, typically banning mask wearing that intimidates others.
Supporters of such laws argue that wearing masks emboldens people to commit crimes and makes those crimes more frightening to the victims.
Opponents argue mask laws impair freedom of association
Opponents, in turn, make three arguments.
First, they invoke freedom of association, claiming that mask laws deprive wearers of the anonymity needed to express their views. They rely on NAACP v. Alabama (1958), which held that because its members feared harassment from opponents of civil rights, the NAACP did not have to reveal its membership list unless Alabama could supply a compelling state interest.
Klan members argued that if their masks were removed, they would face harassment. The Klan’s unpopularity added fuel to this argument. For example, in American Knights of the Ku Klux Klan v. City of Goshen (N.D. Ind. 1999), a court found that Klan members had indeed suffered harassment, through vandalism and bomb threats, and ultimately invalidated the city’s anti-mask law.
The Second Circuit Court of Appeals, in Church of the American Knights of the Ku Klux Klan v. Kerik (2d Cir. 2004), held that harassment of Klan members was irrelevant because the Constitution guarantees only the right to speak, not the conditions under which one speaks. Furthermore, in most cases involving the Klan, courts held that protecting citizens from intimidation was a compelling state interest.
Non-Klan mask wearers generally fared better when making freedom of association claims. In Aryan v. Mackey (N.D. Texas 1978) and Ghafari v. Municipal Court (Ct. App. 1978), political opponents of the shah of Iran successfully argued that they needed masks to avoid reprisals from the shah’s security forces.
Anarchists convicted under New York’s anti-mask law failed, however, to raise a constitutional claim in People v. Aboaf (Crim. Ct. 2001) because they could not show any harassment beyond famous anarchists having been persecuted in the past.
Some have argued masks constitute symbolic speech
Second, opponents of anti-mask laws argued, largely unsuccessfully, that masks constitute symbolic speech.
In Klan cases, courts held that the masks added little to the expressive content of the rest of the Klan regalia. They also ruled that the state’s concerns about safety and avoiding intimidation easily satisfied the substantial state interest test for symbolic speech cases.
Distinguishing between threatening and nonthreatening masks
Third, opponents contended that most anti-mask laws violate the equal protection clause because they make exceptions for Halloween masks, masquerade ball masks, and masks worn for medical reasons, but not masks for political acts.
These arguments convinced the California court in Ghafari but not the Georgia Supreme Court in State v. Miller (S.E. 2d 1990), which defended Georgia’s exemptions as distinguishing between threatening and nonthreatening masks.
Overall the general trend has been toward upholding anti-mask laws, at least where mask wearers cannot show direct, specific evidence of harassment.
This article was originally published in 2009. Professor Rob Kahn teaches at St. Thomas University School of Law in Minneapolis, Minnesota. His 2004 book Holocaust Denial and the Law: A Comparative Study (Palgrave 2004) dissertation examines Holocaust denial litigation. He has also written on topics such as cross-burning in the United States, blasphemy regulation and the defamation of religions debate, and use of law to ban statements about the past.
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