Nassau County's mask ban raises concerns over civil liberties and police discretion

Last week, Nassau County Executive Bruce Blakeman signed a bill into law that seeks to ban the wearing of face-covering masks in all instances except those as required by an individual’s religion or those worn for health concerns.

But it will be up to police to determine if the two exemptions apply on a case-by-case basis.

Uh huh.

Blakeman said Nassau police are being trained on administering the new law, which will be a misdemeanor if violated and carry a fine of up to $1,000 — or up to a year in jail.

Ah hah.

For those counting along at home, by the way, the 12 Republicans in the Nassau County Legislature voted for the mask ban. The seven Democrats abstained.

Abstained? Way to take a stand…

Here in the Bronx, Assemblyman Jeffrey Dinowitz has proposed a bill that would ban mask wearing for those who are, in his words, “up to no good.”

Dinowitz’s bill would also allow masks for religious or health reasons though, unlike the Nassau bill, it would not be solely up to police to determine the validity of the exemption.

“Balancing the need for public safety and First Amendment rights as well as determining what leeway the police have is difficult,” Dinowitz told The Press, adding his bill is a “work in progress” that he’d like to differentiate between people wearing an N95 or surgical mask and someone who has “a shirt or towel…wrapped around their entire head and face.”

Gov. Kathy Hochul expressed an interest in a possible mask ban during a June press conference where she cited an instance in which a group of masked pro-Palestinian protesters menaced subway passengers. She now says she’d rather see additional penalties tacked on to crimes committed by those in masks.

So, if these politicians are not targeting people wearing an N95 out of health concerns or consideration, or a face covering of some kind the individual’s religion requires, whom are they targeting?

Who is “up to no good?”

Even though it’s not written into either mask-ban law, people protesting the Israel-Hamas war on the Palestinian side would seem to be the ones at whom these laws, enacted and proposed, are aimed.

Should that be?

The American Civil Liberties Union doesn’t think so. It denounced the Nassau law last week as a potential danger to those who might protest Israeli activities in Gaza and need to keep their identities a secret for fear of reprisal in some form.

The argument could also be made that, absent violence or the violation of other laws, wearing a mask during a protest is a form of expression protected by the First Amendment to the Constitution of the United States.

Ah yes, but what about the Ku Klux Klan?

In decades past, anti-mask laws have been used to stop the Klan from wearing their pointy-headed hoods in public as they did things like burned crosses on people’s lawns and lynched Black people.

But this isn’t that, is it?

It must be made clear: no one committing violence at a protest should be immune from arrest, regardless of whether they are wearing a mask of some kind. The issue surrounding the Nassau law and the Dinowitz bill is are the masks themselves — regardless of who one is protesting — enough to warrant intervention from police?

The assemblyman said that question should be moot.

“If you’re proud of what you’re doing and you believe in what you’re doing, why on Earth would you conceal your identity?” Dinowitz told The Press last week.

That’s not a bad point, but neither is the ACLU’s.

If there’s one aspect of this situation that has the attention of this space, it’s the part of the Nassau bill that will train police to determine whether a religious or health-related mask is legitimate.

“What they can do is further question you,” Blakeman said, according to CBS News. “They can detain you if you give evasive answers like you don’t know where you’re going to, or you don’t know what your medical condition is.”

Yeah. Don’t love that.

That level of police discretion would seem to be an invitation to wrongful detentions and arrests, to say nothing of lawsuits. Blakeman’s statement also suggests Nassau police will have the ability to question masks worn by people not already engaged in a protest or other suspicious activity.

That, as the idiom goes, is a slope as slippery as a Jones Beach dune.

Is that how the idiom goes?

Anyway, it should be of some comfort to those opposing the Nassau County mask ban that the Dinowitz version, which would be enacted at the state level, is being weighed more carefully with respect to what constitutes a banned mask and what the police role will be in making that determination.

But it’s unlikely such considerations will sway the opinion of the ACLU, and those similarly aligned, which consider any ban on masked, nonviolent protestors to be unconstitutional.

In this space, the belief is the right to peacefully protest should not be curtailed by the wearing of a mask — and reprisal for nonviolent protest should not exist — but no mask should be used as a shield to successfully save one from the consequences of doing the wrong thing, so far as the law is concerned, in the name of one’s beliefs.

It’s a difficult issue.

So perhaps the best solution of all would be for the Israeli-Hamas war to just end now, before we all tear each other apart.