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Repeal the Minnesota anti-mask law? We’re all criminals now

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Minnesota anti-mask law: Did you know that Minnesota law makes wearing a mask in public a crime?

But many today are wearing masks in public to protect from the spread of the COVID-19 virus.  And that is a misdemeanor crime under this Minnesota state criminal law.

This law is yet another example of overcriminalization.

Too many laws, too much discretion in the government’s law enforcement

And these anti-mask laws have a troubling history

They’ve enforced these laws against protesters, in denigration of the First Amendment.  And even motorcyclists wearing safety gear.

So Let’s take a look at the Minnesota anti-mask law:

“A person whose identity is concealed by the person in a public place by means of a … mask, or other disguise, unless based on religious beliefs, or incidental to amusement, entertainment, protection from weather, or medical treatment, is guilty of a misdemeanor.”

Minnesota Statutes §609.735 CONCEALING IDENTITY.

How many people do you see in public every day wearing a mask?  Maybe you yourself do.  After all, wearing a mask to prevent spreading the contagious Novel Coronavirus is reasonable.

Of course, prevention of COVID-19 virus spread does not fit the “medical treatment” exception. What is the definition of medical treatment?  According to OSHA, “‘Medical treatment’ means the management and care of a patient to combat disease or disorder.”

“Medical treatment is defined in the recordkeeping requirements at [OSHA] 1904.7(b)(i). Medical treatment means the management and care of a patient to combat disease or disorder. Visits to a health care professional or a hospital for observation, testing, diagnosis or to evaluate diagnostic decisions are excluded from the definition of medical treatment. Diagnostic procedures are used to determine whether an injury or illness exists, and do not involve the therapeutic treatment of the patient.”

Minnesota Safety Council

Equal Justice, Under the Law?

But the law is the law.  So commit the crime, do the time, right?

No one is above the law? And then we have the Minnesota anti-mask law.

Can they require you to wear a mask?

No, not in criminal violation of current Minnesota law.

In Minnesota, wearing a mask in public is still a crime, and has been since the 1960s.

Aiding and abetting is also a crime, Minnesota Statutes §609.05; as is conspiracy, §609.175. So, aiding and abetting someone to illegally wear a mask in public is also a crime in Minnesota.

And, making a plan plus a concrete step towards completion of that plan to wear a mask in public is a conspiracy crime in Minnesota.

So a person helping or encouraging another to wear a mask in public to prevent contagion, is also committing a crime in Minnesota today.

Discriminatory enforcement

Minnesota anti-mask law: repeal vs.  discriminatory enforcement
Minnesota anti-mask law: repeal vs. discriminatory enforcement

Rare enforcement, is discriminatory: Discretionary enforcement means discriminatory enforcement.

The government enforces the Minnesota anti-mask law, like many others, against disfavored people. 

Sometimes that disfavor is conscious, like protesters.  But sometimes that disfavor is unconscious, like race.

And what about those with favor and privilege, like police wearing masks?

Make no mistake, though.  This is an evil law. 

It causes irreparable harm to our on free society.  And it is a tool in service of a police state.

And now during the COVID-19 pandemic, we’re all criminals.  Time to ring the Liberty Bell.

Emergency legislation to repeal now

Should laws have credibility or public acceptance?

The Minnesota legislature should enact an emergency repeal of this law now. We don’t need another “exception.”

Some say: “why bother repealing a law rarely enforced?” But that’s the wrong question.

The better question is: “Why keep a law that is rarely enforced?”

If a law is necessary, we enforce it. But if we rarely enforce violations of a law, that law is unnecessary. And in the rare hypotheticals some devise where Minnesota’s mask crime statute could be useful; we have other laws we can enforce. Indeed, that is what usually happens.

So there really is no good excuse for Minnesota’s anti-mask law, especially during the COVID-19 pandemic. Only one reasonable solution exists.

We need complete repeal of the Minnesota anti-mask law, now.

About the author

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Attorney Thomas C. Gallagher represents people facing criminal allegations.

And he engages in public policy discussions of liberty, law and justice.

“Useless laws weaken the necessary laws.”

– Charles de Montesquieu, philosopher and writer (1689-1755)