The provision, which carried a one-year maximum sentence, was rarely enforced even when it was on the books. And D.C. repealed it in 2020 to encourage the use of face masks during the covid-19 pandemic.
That reasonable public health policy had an unintended consequence: normalizing masking for all sorts of purposes, legal and otherwise. Now, identity-obscuring ski masks have become a de facto uniform for those who commit retail thefts, carjackings and robberies. The disguises make perpetrators more difficult to identify and their crimes scarier — which of course is the point. One of the more remarkable aspects of last week’s City Center Chanel store break-in was that a video camera recorded a burglar without a face covering.
Other cities are debating anti-mask measures or have already adopted them: Philadelphia in November banned ski masks in public places — parks, schools, day-care centers, city-owned buildings and public transit — and at least 11 states have some kind of anti-mask ordinance on their books, most decades old. The goal is to prevent citizens from feeling “under siege,” as one Philadelphia council member put it, and to promote a sense of public safety.
Safety, actual and perceived, is a valid goal, especially urgent in the District. Still, the case for mask bans is more complicated than it might seem. There is a tension between the security mask bans seek to protect and the First Amendment liberties some mask wearers can legitimately claim in certain contexts. Undeniably, dress can be a form of expression: as a fashion trend, the interest in ski masks spans classes and groups — spotted everywhere from music videos (ski masks are sometimes nicknamed “shiesties” after the Memphis rapper Pooh Shiesty) to high-fashion runways. The Guy Fawkes mask favored by anti-capitalist protesters has developed into a political symbol.
At the same time, anonymity has a long association with criminality or deviance, and social science research shows that it can enable untoward behavior and make crimes more terrorizing. Hence one of the earliest anti-mask mandates in the United States, the 1871 Ku Klux Klan Act, which made it a federal offense to “go in disguise upon the public highways” with the intention of violating others’ constitutional rights. Much of democracy depends on citizens’ participating in politics visibly and with accountability; masks can be read as antisocial in the most basic sense.
Probably the biggest potential problem with anti-mask decrees is a practical one: enforcement. D.C. police are not eager to enforce such a ban; some officers have told us that it is a distraction from more important tasks and could heighten the risk of discrimination claims. The fact that ski masks are particularly popular among youths of color all but guarantees that enforcement will appear targeted. Seemingly disparate enforcement could engender resentment, as when the Alexandria housing authority issued a notice about upcoming enforcement of the city’s ski mask ban that only went to public housing residents. These fears aren’t unfounded: enforcement of a mask law could easily facilitate unconstitutional behavior if wearing a popular accessory becomes a rationale for racial profiling.
Fortunately, relatively minor tweaks could address the concerns. A mask ban could be limited to particular and clearly delineated spaces — public transit, for instance, or city property and places of commerce, where mask-wearing is commonly understood to induce anxiety and serve little public good. Reasonable exceptions for religious practice or political expression should be spelled out in the statute. An anti-mask provision could be used to enhance penalties for other crimes of which the masked perpetrator is accused, rather than a stand-alone offense. A law that clearly provides that wearing a mask itself is not criminal, but committing a crime with one is, would be harder to use as a pretext for selective enforcement or harassment.
Ultimately, mask bans present a fresh iteration of a familiar problem: reconciling public safety with individual liberty. That balance is delicate at the best of times — but Ms. Bowser and the council should be able to strike it.
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