COPS NOTEBOOK: We were breaking the law ...sort of

Nobody, and I do mean nobody, knows everything that is illegal.

Local codes and ordinances, state penal codes and Title 18 of the United States Code and related codes, are the creations of tens of thousands of statutes, that over the course of the history of our nation have sought to outlaw all sorts of what, at the time of their enactment, were thought to be unsuitable conduct.

Thankfully, though, there are almost as many lawyers, in both public and private practice, who can be called on to busy themselves with making sure that conduct which we deem necessary in 2020 America is not in conflict with conduct deemed harmful is 1820 America.

Such was the case in May, when Gov. Andrew Cuomo issued an executive order compelling New Yorkers to wear facing coverings in public if they were unable to maintain social distance to prevent the spread of the novel coronavirus. Someone in the office of state Attorney General Letitia James thought it might be a good idea to task a probably young, and relatively newly employed, assistant attorney general to double check and make sure such an order did not run afoul of the New York Penal Law.

(Seriously, who would have worried about that? And that is why I am not the New York attorney general!)

Well lo and behold, who would have though, the governor's order violated N.Y. Penal Law 240.35(4). The nearly 200-year-old statute made it a criminal violation for groups of individuals to wear masks in public.

Specifically, that section of the Penal Law made “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” a criminal violation." 

If you violated the law, you could be subjected to a period of imprisonment of up to 15 days.

Alerted to this looming criminal crisis, Attorney General James notified the governor and the leadership of the state legislature and urged that "this specific provision of the penal code be suspended or repealed."

Fortunately for all wishing-to-be law-abiding, and healthy, New Yorkers, on May 28, the state Assembly and Senate approved legislation "permanently repealing N.Y. Penal Law 240.35(4)." Attorney General James expressed her appreciation. 

“Wearing masks in public remains necessary for the health and safety of New Yorkers. But there was a clear conflict of law, and repealing this outdated provision is commonsense policy,” James said.

Now I know you're thinking, like I am, which state trooper, county sheriff's deputy or city, town or village police officer would have gone out and rounded-up all those law-breaking mask-wearers? The attorney general opines on that.

“Even if it is difficult to imagine a police department enforcing, a prosecutor charging, or a judge upholding such a charge during the COVID-19 crisis, we should not tolerate a situation where following the law is dangerous," James said. 

The state senator who led the repeal effort, Senator Jamaal Bailey (D-Bronx), was happy to do his part.

“I am proud to announce that during this session, we have taken steps to remedy this problem by passing legislation expressly repealing that part of the existing statute, which makes it illegal to wear face masks in public," Bailey said. "No one should face increased scrutiny and potential criminal liability solely due to a conflict in the law."

State Assembly Member Dan Quart (D-Manhattan) called the face mask ban, "a disaster waiting to happen.”

Well, not any more. Man am I glad we fixed that one.

Rick Pfeiffer is a report for the Niagara Gazette.