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Tuesday, May 28, 2024

Protest bill, to criminalize mask-wearing for health reasons, passes Senate committee

Senator Marcus of Mecklenburg — seated beside senators Lazzara (Onslow) and Michael Lee (New Hanover) — speaks against HB 237 for its criminalization of masks in public for people who need to wear them for health reasons. (Screenshot of Senate committee hearing)

Since pro-Palestinian protests have increased statewide on college campuses and other government entities — many featuring masked participants — a bill has been reinvigorated in the North Carolina General Assembly after stalling last year. 

READ MORE: Riot bill stiffens punishment on protestors, has enough votes to override governor veto

House Bill 237, also known as “Unmasking Mobs and Criminals,” proposes to strengthen penalties on protesters who commit a crime while wearing a mask during a rally or march. The bill also makes it illegal to block roadways or emergency vehicles while protesting — as done in February in Raleigh when a group of people impeded Fayetteville Street.

If found guilty, a protester would spend 150 days in jail and receive a fine for willfully impeding traffic during a protest, with repeat offenses classified as a Class H felony; this has a maximum three-year sentence.

Last year, the legislature passed a similar law aimed at increasing penalties for rioting and civil disorder and was also characterized by opponents as a deterrent to protesting. 

HB 237 passed down party lines Monday in the Senate judiciary committee hearing, but not without push back from some lawmakers and the public.

While no one was against the stricter punishments for lawbreaking, about a dozen took issue with another provision in the bill — the overall repeal of the pandemic-era law that permitted people to wear masks in public due to health reasons. 

It has been illegal to wear masks in public in North Carolina since the 1950s. Exemptions are made for a multitude of reasons, which include someone who is:

  • Wearing holiday costumes
  • Working in a trade where a mask is required for safety
  • Wearing it for theatrical purposes, masquerades or Mardi Gras celebrations
  • Wearing gas masks for emergencies or drills
  • In an elect society or organization engaged in ritual, initiation, ceremony and celebration 

During the Covid-19 pandemic, with social distancing and measures enforced to disseminate viral spread, another provision was added. It allowed anyone to wear a mask “for the purpose of ensuring the physical health and safety of the wearer.”

“We’re not here to prosecute Granny for wearing a mask in the Walmart,” Sen. Buck Newton (R-Wilson County) said in the chamber as he presented the bill. “Unless she got arrested sticking steaks in her bag.”

The bill’s purpose, he added, was to disallow protesters a way to conceal their identities if they choose to destroy property or block a right-of-way.

Stating it is not a healthcare bill, Newton expressed confidence in law enforcement, the district attorney’s office or even business clerks and management to use “common sense” before going after anyone with a mask in public who needs it because they’re immunocompromised.

“We’re just really resetting the law to what it was pre-COVID,” Newton added. “Some of us are old enough to remember that we had this legislation in place, banning masks to deal with secret societies like the KKK — and that’s what the purpose of this legislation was then. And that’s really what the purpose is now, to deal with organizations and individuals who are intent on breaking the law and hiding their identity as a way to intimidate other people to get away with it.”

Newton said the law wasn’t intended to tell people who wanted to wear masks for health reasons not to. He said it would be up to law enforcement’s discretion on how to act. While he admitted to receiving flack from constituents regarding the criminalization of public mask-wearers, he stated those concerns are only playing on unfounded fears as no one was arrested prepandemic for wearing a mask for health reasons in public.

Senator Sydney Batch (D-Wake County), who received cancer treatments during Covid-19, disagreed.

“I don’t think that it’s stoking the fears of individuals who walk through this world compromised through no fault of their own,” Batch said. “My issue is, we are removing the specific section that gave people who are immunocompromised or people who were sick and just care about the community — someone walking around with tuberculosis who wants to wear masks to protect everybody else — is no longer able to do that based on this bill.”

She asked staff if the removal of the provision from state statute G.S. 14-12.11 would criminalize people who wear masks in public. Legislative analyst Robert Ryan confirmed as much.

Batch also added Newton’s example of the KKK would be moot, considering it keeps the provision “for people in an elect society or organization engaged in ritual, initiation, ceremony and celebration.”

“So Senator Newton, this bill will protect the Ku Klux Klan to wear masks in public, but someone who’s immunocompromised like myself cannot wear a mask?” Batch reiterated.

“I would just say that’s the way the Democrats passed the law in the past,” Senator Warren Daniel (R-Buncombe, Burke, McDowell) interrupted. “So if you want to repeal the Democrat provision, we’ll repeal it.”

Batch responded she was specifically speaking to Newton.

Ryan clarified the elect society provision explained that someone from that organization would gain permission from the governing body of the area municipality or county board of commissioners to wear coverings for their organization.

“It’s unlike the first four exceptions, which are just blanket exceptions,” Ryan said.

Sen. Lisa Grafstein (D-Wake County) questioned the idea that common sense would play out in the real world as it should. She was particularly concerned for the disability community at large. Grafstein doubted most folks realized before Covid-19 that mask-wearing was not allowed in public in North Carolina.

“The fact is this would criminalize that process,” Grafstein said. “There’s not really a way to distinguish when someone walks in whether they are wearing a mask for specific health reasons … One of the things that we see in the disability community is people being quizzed over why they’re behaving in such a way — why you need X, Y or Z. There are requirements under federal law about what you can and cannot ask people about their disability, and to me it opens up a tremendous problem for storekeepers for law enforcement to get into into the business of discussions with shoppers or people on the street about why they’re wearing a mask and what their specific health condition is.”

Her sentiments were shared by public speakers, including Tara Mueller from Disability Rights North Carolina, who said children with immunocompromised issues who are in close quarters with others — riding school buses, standing in line in school cafeterias — wouldn’t be protected. She used the example of families who go out in public could easily bring back illnesses to those with health deficiencies in their households.

Sen. Natasha Marcus (D-Mecklenburg) said she received a lot of emails as well about the bill and lawmakers in the chamber should be very in tune with how to craft specific language. Marcus questioned how the verbiage of the bill keeps in protections for motorcyclists to wear face masks because they are needed for safety reasons and states costumes are fine — “because we think that’s, well, fun.” To criminalize masks for health reasons seemed off-kilter.

“You also say, ‘Well, this wasn’t a problem before COVID,’ but the world is different now,” Marcus added. “We can’t go back to when pandemics didn’t happen. People now want to be able to wear their masks when they’re on a plane, when they’re shopping, whatever it is, and that should not be a criminal act.”

Representatives from the American Civil Liberties Union, North Carolina for the People, North Carolina Justice Center, and Emancipate North Carolina also opposed the bill.

Dawn Blagrove, an attorney and executive director of Emancipate North Carolina, said the “common sense” Newton spoke of doesn’t align with what happens in reality. She cited Black people are disproportionately stopped by law enforcement than white people, often by 10 times or more.

“It is absolutely unconscionable to create a law where you build in exceptions or assume that there is a certain portion of the population that will be protected simply because of who they are,” Blagrove said. “If that is true, then so is the opposite. There is a certain part of the population that is more exposed to harm, who has less Constitutional rights because of this bill. We asked this committee to pull this bill from consideration, take more time and do what is right, not just for the white grannies, but for all grannies.”

The NAACP has called the bill “dangerous” and an assault on First Amendment rights to protest, particularly going after underserved groups of people who may wear scarves, hoodies or religious coverings. 

“HB 237 seeks to intimidate and silence marginalized communities, particularly Black, Indigenous, and people of color, who rely on protest to make their voices heard and hold those in power accountable,” Deborah Maxwell, North Carolina NAACP president and New Hanover County resident, said in a statement.

The NAACP also takes an issue in the bill that punishes organizers of protests by holding them liable for any injuries or property damage caused during an event. Marcus brought up this issue with Newton during Monday’s hearing. She called it “guilt by association” rather than showing intent for someone to be found criminally responsible.

“That’s saying if one person organizes the protest, doesn’t intend for it to block any street or any emergency vehicle or anything else — just a protest, which I think is Americans, we agree should be allowed — that they are now liable if others at the protests end up blocking this street or blocking a vehicle,” Marcus said. 

“I fully expect our negligence rules still apply in a lawsuit,” Newton responded. “That would need to be vetted out in court and I’m pretty confident that the defense on the other side can handle those issues if there really is a defense.”

The bill advances to the Senate Committee on Rules and Operations, to be heard Wednesday, May 15, at 9 a.m.

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Shea Carver
Shea Carver
Shea Carver is the editor in chief at Port City Daily. A UNCW alumna, Shea worked in the print media business in Wilmington for 22 years before joining the PCD team in October 2020. She specializes in arts coverage — music, film, literature, theatre — the dining scene, and can often be tapped on where to go, what to do and who to see in Wilmington. When she isn’t hanging with her pup, Shadow Wolf, tending the garden or spinning vinyl, she’s attending concerts and live theater.

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