Last week, Jennvine Wong, staff attorney for the Cop Accountability Project at the Legal Aid Society, told me there were cops walking around outside of her Brooklyn apartment who weren’t wearing masks. It was notable, since it was just a day after New York City Mayor Bill de Blasio announced a mandate around mask-wearing inside stores to prevent the spread of the coronavirus, and New York State Governor Andrew Cuomo issued a separate order requiring everyone over the age of two to wear a face covering in public if they couldn’t keep six feet of distance from others. “If you’re going to be in public, and you cannot maintain social distancing, then have a mask,” he said. Police would apparently be enforcing these orders after they went into effect the following day.
The maskless cops stood out for another reason. “There’s also an anti-mask law on the books,” Wong explained, meaning that once the governor’s order went into effect, mask-wearing was now officially mandated and prohibited. “How are individual officers going to be enforcing this new executive order?” she asked. “And how is that going to play out with the existing anti-mask law?” Another question follows: Will they be enforcing it equally in every New York neighborhood, among all New Yorkers?
Laws prohibiting mask-wearing, on the books across the United States, passed in some states as a response to the Ku Klux Klan. New York’s law was different. Sam Feldman, an appellate public defender, noted this history on Twitter: Prohibitions on mask-wearing in New York were a direct response, in 1845, to anti-rent riots. The riots were “a widespread resistance to farming rents assessed by large estate owners,” as Ruthann Robson, a constitutional law scholar and professor of law at City University of New York, wrote in her book Dressing Constitutionally.
From broken windows to the war on drugs, the New York Police Department has a long record of racist enforcement. Now, with the competing mask mandates, “How is that going to play out specifically in communities of color?” Wong asked. “You may have young black men, for example, who are already concerned about wearing a face covering that isn’t immediately obvious as a surgical mask, because they are worried about being targeted by police. People have been hassled in other places for just that thing.”
Such selective enforcement is part of the anti-mask law’s history. As originally passed in 1845, it prohibited disguising oneself in public, as well as public assemblies of three or more people while disguised. This was partially amended after the Civil War, Robson wrote, exempting those attending “any masquerade or fancy dress ball or entertainment”—parties then popular among the wealthy and well connected. Today, New York’s anti-mask law is categorized as a loitering crime, among “Offenses Against Public Order.” According to those who revised the law in 1965, wrote Robson, “such offenses required no intent to cause either public or individual harm, but are ‘generally unsalutary or unwholesome from a social viewpoint.’” Since the late 1960s, New York’s anti-mask law has been enforced much in that spirit, policing the working class and activists: theater troupes staging public anti-war performances, bandanna-wearing anarchists in Union Square on May Day, protesters donning Guy Fawkes masks during Occupy Wall Street.
The anti-masquerade law was also understood as one upholding gender norms under threat of imprisonment. “In Brooklyn in 1913, for instance, a person who we would today call a transgender man was arrested for ‘masquerading in men’s clothes,’ smoking and drinking in a bar,” wrote Hugh Ryan, historian and author of When Brooklyn Was Queer. The anti-masquerade law didn’t single out cross-dressing, but that didn’t stop the police. After one judge tossed the charges, they rearrested the man for “associating with idle and vicious persons.” The new judge, wrote Ryan, “made it clear that despite the new charge, he was being punished for his dress.” The man was sentenced to three years in a reformatory.
While making masks mandatory during this pandemic is in direct opposition to the anti-masquerade law, a similar logic is behind it: As lawmakers understood the law in 1965, there is no need to demonstrate harm, merely public acts deemed “unwholesome from a social viewpoint.”
We have slowed pandemics before without orders forcing people to adopt barrier methods of protection. To prevent HIV transmission, sex without a condom wasn’t made a crime, wrote Steven Thrasher, a scholar of HIV/AIDS and professor of journalism at Northwestern’s Medill School of Journalism. What made condom use work was gay men making condom use common and expected, providing education, and ensuring access as peers with something shared at stake—and, Thrasher added, something similar could be happening with masks—and without orders.
The mask order, particularly without any subsequent plan to make masks accessible to the public, hands police another tool to regulate public space—and that is not the same thing as ensuring public safety. Public safety is ensuring people have the means and support to take care of themselves and others during a pandemic. Public order is why some people already have ended up in a jail cell for violating new coronavirus measures, crowded with others, without much more than a few drops of hand sanitizer.