It’s true, there is a law in New York State that bans the wearing of masks in public, one of the many strange, outdated laws that remain on the books. N.Y. Penal Law 240.35(4) prohibits two or more people wearing masks or any face covering from congregating in a public place. This law, which has been in place since 1845, would lead to a criminal violation and up to fifteen days in prison. The law has continued to be in the books during the coronavirus pandemic, despite Governor Andrew Cuomo’s executive order for New Yorkers to wear a face mask in a public place or when unable to maintain social distance, and his most recent order that businesses can deny entry to those who do not wear a mask.
Chris Rock, Governor Andrew Cuomo and Rosie Perez wearing masks. Photo from Office of Governor Andrew M. Cuomo.
N.Y. Penal Law 240.35(4) was passed in response to the lowering of wheat prices. At the time, tenant farmers would cover their faces with masks and dress up as “Indians” to attack the police. The exceptions to the rule included masquerades and Halloween. The law was also used in a case against the KKK, with a revised version of the law passed in 1965. But on May 27th, the bill S8415/A10446-A to repeal the law passed the New York Senate (and has also passed the Assembly) and awaits Cuomo’s signature to make it law.
New York State Attorney General Laeticia James supported the push to repeal the law stating, “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 But there was a clear conflict of law, and repealing this outdated provision is commonsense policy. 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. I thank Senator Bailey and Assemblymember Quart for their leadership and for permanently repealing this law.”
“We are living through an unprecedented health crisis. Governor Cuomo issued an executive order requiring that New Yorkers wear face masks while in public to help stop the spread of COVID-19, but this mandate conflicts with an outdated penal law provision banning the use of such masks,” said Senator Jamaal Bailey from the Bronx, who sponsored the legislation. “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. No one should face increased scrutiny and potential criminal liability solely due to a conflict in the law. I would like to thank Majority Leader Andrea Stewart Cousins and Attorney General Letitia James for ensuring the passage of this bill.”
“This is a disaster waiting to happen,” said Assemblymember Dan Quart. “Not only is the continued criminalization of face coverings confusing for all New Yorkers, it exposes men of color to police harassment. If we are to stop the spread of COVID-19, we must ensure that everyone feels safe wearing a mask in public, without the threat of arrest, prosecution, or worse.”
Still, the bill was not passed with an overwhelming majority. In the Senate there were 35 aye votes, and 27 nay votes. (The current breakdown of the Senate is 40 Democrats and 22 Republicans). One Republican senator, Robert Ortt, who voted against the bill stated on Twitter “New York’s mask law was enacted to prevent dangerous groups like the KKK and antifa from intimidating the general public. By removing this law, even after COVID related health concerns have passed, we are opening the door to issues of public safety, and worse, acts of intimidation.”