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| 3 minutes read

Are Coronavirus Policies Aiding Criminal Activity?

Like I'm sure many others, I have spent a lot of time over the last week watching what is happening across the country and trying to process everything I have seen. In particular, it has struck me how many times I have heard elected officials and peaceful protesters complain that people from outside their communities are inciting violence and destroying property. Why has the killing of George Floyd - an act that has been denounced by even the most ardent supporters of the police - sparked multiracial violence and looting across the United States? Have people just had enough? Or is there something else at play here?

One possible answer is Coronavirus policy as it relates to anti-masking laws. Anti-masking laws - laws that make it a crime in and of itself to wear a mask in public in certain situations, typically if attempting to intimidate or incite violence - have been used for generations. New York first passed an anti-masking law in 1845 to provide for public safety after disputes between landlords and tenants. Since then, they have been used by many states to protect communities from the Ku Klux Klan, Occupy Wall Street and Antifa, among others.  

Enforcement of these laws has been spotty - and arguably uneven - but there is widespread agreement that these laws aid law enforcement in numerous ways. First, as noted in the attached article, "criminologists point out that anonymity is commonly linked to deviant behavior." I have not seen the studies, but this seems obvious to me. If someone knows that they could be identified by someone on the street - or, more recently, by facial recognition technology from security cameras that are now all over most major cities - they are less likely to commit crime. However, just as important is this fact - by criminalizing the act of wearing a mask, law enforcement can arrest masked protesters before they commit violence. 

While the use of masks at rallies and protests certainly didn't start with Antifa, it is not disputed that this group has been closely associated with wearing masks in recent years. Nor can it be disputed that police have used anti-masking laws to arrest masked Antifa members for the act of wearing a mask, even where they have not committed any violent acts (this is a politically charged subject so rather than post to an article that comes with an opinion that I may not totally agree with, here are links to search results for "Antifa arrested for wearing masks" from both Bing and Google).  Indeed, even pre-pandemic, academics were framing anti-masking laws as First Amendment violations and proclaiming that Antifa has become "in effect...the twenty-first century target of mask bans, replacing the Klan."  (see page 68 of 80). 

So what did Coronavirus bring us? Widespread acceptance of wearing masks in public and, in some circumstances, compulsory use. This changing landscape caused the New York State legislature to repeal the nearly 200 year old anti-masking law on May 28, 2020. New York is not alone, or even first - according to the attached article, a Georgia law that made wearing facial coverings a misdemeanor criminal offense was suspended for public health reasons at least a month before New York. But the result of these Coronavirus compliant policy changes appears to be immediate, and dramatic - with the vast majority of people wearing masks, it is extremely difficult for law enforcement to identify who is inciting the violence, particularly when they are not members of the local community. I might be able to recognize my neighbor in a mask and a hood, but could I identify a stranger? Without this method of tying a specific individual to a specific act, elected officials and others seem to be more prone to speculate as to who is behind the violence and people seem more likely to commit crime.   

Whatever you think of current recommendations and mandates regarding masks to combat Coronavirus, it seems these decisions are making it easier for some individuals to anonymously break the law - increasing the risk for communities that public health policies are designed to protect.    

Some civil liberties advocates have long called for the end to mask bans, while criminologists point out that anonymity is commonly linked to deviant behavior.