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Wearing a Winter Mask Still a Felony in Virginia

As of 1/23/14, we’re working on language for a new winter mask bill (HB542).

Did you know that wearing a mask in public in Virginia is illegal?  Just like in France…

There are exceptions — such as for holiday costumes or work safety gear — but a cyclist dressed for a cold commute could, technically, be charged with a Class 6 felony!  Naturally we’re concerned about this, as a discouragement to winter cycling, or an invitation for police to harass cyclists.

HB1810 would amend the current code section 18.2-422, with an exception for cold weather gear.  A team of cyclists went to discuss it with delegates at a committee meeting this morning.  Following are reports from VBF board members Michael Gilbert and Bud Vye.

From Michael:

Four of us – all motor vehicle drivers, cyclists, and one also a motorcyclist spoke in favor of the legislation. Delegate McQuinn amended it to ensure that “outdoors” was specifically added so the amended version read, “…including, during cold weather outdoors, cold weather gear that partially covers the face“. After accepting the amendment, one legislator attempted to kill the bill outright, by saying cyclists are already covered under physical safety, and that he further could not believe anyone would be charged with a felony under this law. Legislator Watkins made the point that she wants to be able to legally wear a mask when she enjoys skiing, and that it was not covered. At this point, the body yielded and asked for public input to determine the root of why the amendment was requested to begin with.

I spoke in favor of the bill, and explained that I had been stopped and told I was in violation of the law punishable by a felony. Legislator Bell asked if the mention of possibility of being charged with a felony was the initial cause for stoppage, or if there was another cause. I suspect this was to determine if it was mentioned casually or if this is something Officers are enforcing as an actual felony. I want to be clear that Legislator Bell was not in any way demeaning or threatening, and even came outside afterwards to talk to me further about the bill. I went on to note that although I had not been charged with a felony, the mere possibility was enough of an imposition [on liberty] for me to be unable to enjoy our beautiful Commonwealth, commute to work under freedom of choice of transportation, or even visit the historic battlefields without fear of becoming a felon. I also went on to say that though I am a cyclist, I am also a driver of a motor vehicle. Despite the fact that cyclists have the same rights and responsibilities of motor vehicle drivers, I don’t have the comfort of being protected by a box or with a heater, and the equivalent to my vehicle would be a face mask. This all seemed to resonate well with the body, and one legislator specifically said he did not want to impose on the liberty of law abiding citizens.

Counsel (Cohker I believe is the spelling) on site brought up a point that was made within VBF: that was physical safety and physical comfort are two different things. That counsel did specifically say that as the current enacted law reads, he believed that an individual wearing a mask that covers a substantial portion of the face, even to protect from weather (such as a cyclist), could still be charged as a Class 6 Felony and that the charge would be upheld. This made many delegates uncomfortable.

There was some technical debate about weather and what constituted cold weather and temperature and so on (e.g. 45 degrees?). The bill then proceeded to be “tabled” which, to the untrained ear, may sound like it’s being paused momentarily, but that actually means the bill is killed until the next legislative session. I am hopeful that we are able, between now and next legislative session, to tune the language. This bill was originally drafted to combat the KKK (I was told). If we are able to tune the language so that those engaged in sporting activities such as cyclists, hunters, skiiers, and so on, cannot be prosecuted as felons while also balancing and allowing Police Officers to conduct routine patrol, then we have some winning legislation.

From Bud:

…I got downstairs to the House Courts of Justice SubCommittee1 too late to hear the discussion on, or testify, on HB1810 the exception to punishment for wearing a face mask bill.  When I got home, I found that Michael Gilbert had posted a thorough report on how it went, although he  didn’t clearly state that the bill had been Tabled (which, except in very unusual cases, means that it is dead for this session).

I stayed around to the end of the meeting, after which I had a chance to talk to Del. Bell (from Charlottesville), who had chaired the meeting, and two other committee members. It seems that this Face Mask law goes back to Ku Klux Klan days, and the law enforcement people think it has real value in preventing hold ups. Del. Bell and the Committee members recognize the need for some exceptions, including for bicycling in the winter, and are willing to consider language that “will not open up Pandora’s Box and be an excuse used by hold up men”.  Until they see such language they are unwilling to modify the law.  They also asked me if I knew of any instances where cyclists had been stopped or charged by law enforcement for wearing a mask, and I had to reply that I hadn’t. Again, any suggestions from our lawyers, or others, sound as though they would receive consideration.

So while “face mask law reform” is probably dead for this season (2013), it will undoubtedly be back (it is, with HB 542). This law treads very close to, if not on, basic rights and freedoms that Americans are passionate about.

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13 comments… add one

  • What defines a mask, something that covers the nose and mouth or is it also that gives coverage to the top of the head, throat and neck. Which is what I wear. If that’s illegal, then I have concerns.

  • Steve: the current code section and the revised one in the bill are linked to above.

  • Hmm. The law appears to make niqab & burka felonious, too.

  • Canada has “Disguise with Intent” that criminalizes the wearing of a disguise during a criminal action or with the intent to commit a crime. This would provide the “real value in preventing hold ups” and would not “impose on the liberty of law abiding citizens.”

    The amended law would still restrict the wearing of a traditional Hijab and conflicts with the CDC recommendation to wear a face mask to prevent the spread of disease. Granted, you could obtain an “affidavit from [a] physician”, but the law still inhibits the prudent use of a face mask to prevent the spread of disease.

  • Couldn’t the cycling mask be a ‘traditional holiday costume’? What holiday, you ask? Bike to work day!

  • When face masks are outlawed, only outlaws will wear them. How does the law prevent bank robbers from wearing face masks? They are willing to rob a bank, but don’t want to be caught wearing a face mask?!

  • I just found out about this from wtop. I didn’t own a ski mask until now. http://www.skimaskcity.com/guy-fawkes-neoprene-face-mask/

  • My brother was arrested in Haymarket Va in October for wearing a mask while riding his Harley Davidson!

  • hmph. I can wear a pistol (and do) but not a mask? We have lots of laws which make it an additional specific crime to “use a firearm in the commission of ….” so why not “wearing a mask while in commission of…”?

    And I give you the latest fashion, straight from China…the facekini, popular for protecting against the sun. And, in Virginia, for making you a felon, stripping you of many of your Constitutional rights.

    Never rely on cops’ “judgment” or “discretion” to keep you out of jail.

  • The code says, “with intent to conceal his identity”. If the intent is to protect your face from cold, not to conceal your identity, then there is no violation.

    Now, wearing a mask to conduct a robbery, burlgary, or similar crime it should be prima facie that your intent is to conceal identity.

  • The code says, “with intent to conceal his identity”. If the intent is to protect your face from cold, not to conceal your identity, then there is no violation.

    Now, wearing a mask to conduct a robbery, burlgary, or similar crime it should be prima facie that your intent is to conceal identity.

  • Yes, the current version of the code does include the wording “with the intent to conceal his identity”, however this verbiage was added in March 2014, after most of the above comments were made. See: http://leg1.state.va.us/cgi-bin/legp504.exe?141+ful+CHAP0167
    (“stricken through” [removed] verbiage is marked with a line, added verbage is italicized)

  • It shall be unlawful for any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing. However, the provisions of this section shall not apply to persons (i) wearing traditional holiday costumes; (ii) engaged in professions, trades, employment or other activities and wearing protective masks which are deemed necessary for the physical safety of the wearer or other persons; (iii) engaged in any bona fide theatrical production or masquerade ball; or (iv) wearing a mask, hood or other device for bona fide medical reasons upon (a) the advice of a licensed physician or osteopath and carrying on his person an affidavit from the physician or osteopath specifying the medical necessity for wearing the device and the date on which the wearing of the device will no longer be necessary and providing a brief description of the device, or (b) the declaration of a disaster or state of emergency by the Governor in response to a public health emergency where the emergency declaration expressly waives this section, defines the mask appropriate for the emergency, and provides for the duration of the waiver. The violation of any provisions of this section is a Class 6 felony.

    engaged in professions, trades, employment or other activities and wearing protective masks which are deemed necessary for the physical safety of the wearer or other persons;
    Cyclists wearing a mask to keep warm could be deemed a protective mask for the physical safety of the wearer due to the possibility of frost bite.

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