2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 11 - Offenses Against Public Order and Safety
Article 2 - Offenses Against Public Order
§ 16-11-38. (See Editor's notes.) Wearing Mask, Hood, or Device Which Conceals Identity of Wearer

Universal Citation: GA Code § 16-11-38 (2020)
  1. A person is guilty of a misdemeanor when he wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property or upon the private property of another without the written permission of the owner or occupier of the property to do so.
  2. This Code section shall not apply to:
    1. A person wearing a traditional holiday costume on the occasion of the holiday;
    2. A person lawfully engaged in trade and employment or in a sporting activity where a mask is worn for the purpose of ensuring the physical safety of the wearer, or because of the nature of the occupation, trade, or profession, or sporting activity;
    3. A person using a mask in a theatrical production including use in Mardi gras celebrations and masquerade balls; or
    4. A person wearing a gas mask prescribed in emergency management drills and exercises or emergencies.

(Ga. L. 1951, p. 9, §§ 3, 7; Code 1933, § 26-2913, enacted by Ga. L. 1968, p. 1249, § 1.)

On April 13, 2020, Governor Brian Kemp issued an Executive Order which provides as follows: "Whereas: On March 14, 2020, due to the impact of COVID-19 on the State of Georgia, I issued Executive Order No. 03.14.20.01, declaring a Public Health State of Emergency in Georgia; and

"Whereas: The Georgia General Assembly concurred with Executive Order 03.14.20.01 by joint resolution on March 15, 2020; and

"Whereas: On April 8, 2020, I renewed the Public Health State of Emergency until May 13, 2020 by issuing Executive Order 04.08.20.02; and

"Whereas: The Centers for Disease Control and Prevention guidance for limiting the spread of COVID-19 includes the recommendation that persons wear masks to prevent spread of this novel coronavirus; and

"Whereas: Code Section 16-11-38 states that it is a misdemeanor for a person to, in part, '. . . wear[ ] a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer. . . '; and

"Whereas: Code Section 16-11-38 provides limited exceptions for the statute, including subsection (b)(4), which excludes enforcement of the statute against '[a] person wearing a gas mask prescribed in emergency management drills and exercises or emergencies'; and

"Whereas: Guidance for law enforcement may be necessary to ensure that residents and visitors of this State are able to comply with Centers for Disease Control and Prevention recommendations without fear of offending Georgia law; and

"Whereas: Code Section 38-3-51(c)(4) vests the Governor with the power to perform and exercise such other functions, powers, and duties as may be deemed necessary to promote and secure the safety and protection of the civilian population; and

"Whereas: Code Section 38-3-51(d)(1) vests the Governor with the power to suspend any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency if strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency or disaster; and

"Now, therefore, pursuant to Code Section 38-3-51, and the authority vested in me as the Governor of the State of Georgia, it is hereby Ordered: That Code Section 16-11-38(b)(4) shall not apply to any person wearing 'a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer' if that person is wearing such device for the purpose of complying with the guidance of any healthcare agency or to prevent the spread of COVID-19.

"It is further Ordered: That if one or more of the provisions contained in this Order shall be held to be invalid, in violation of the Georgia Constitution, in violation of Georgia law, or unenforceable in any respect, such invalidity, violation, or unenforceability shall not affect any other provisions of this Order, but, in such case, this Order shall be construed as if such invalid, illegal, or unenforceable provision had never been contained within the Order.

"It is further Ordered: All provisions of the Order shall become effective upon signature and shall expire at the conclusion of the Public Health State of Emergency declared in Executive Order 03.14.20.01 and renewed by Executive Order 04.08.20.02. If the Public Health State of Emergency is renewed, this Order shall carry forward with the Public Health State of Emergency until such State of Emergency is terminated or ceases to be renewed by the Governor."

Law reviews.

- For note, "Klan, Cloth and Constitution: Anti-mask Laws and the First Amendment," see 25 Ga. L. Rev. 819 (1991).

JUDICIAL DECISIONS

Constitutionality.

- O.C.G.A. § 16-11-38 proscribes mask-wearing conduct that is intended to conceal the wearer's identity and that the wearer knows, or reasonably should know, gives rise to a reasonable apprehension of intimidation, threats or impending violence. O.C.G.A. § 16-11-38 passes constitutional muster and does not violate the rights of freedom of speech, freedom of association, and equal protection of the law. State v. Miller, 260 Ga. 669, 398 S.E.2d 547 (1990).

Standard for conviction under the Anti-Mask Act requires that the state must show that the mask-wearer (1) intended to conceal the person's identity, and (2) either intended to threaten, intimidate, or provoke the apprehension of violence, or acted with reckless disregard for the consequences of the wearer's conduct or a heedless indifference to the rights and safety of others with reasonable foresight that injury would probably result. Daniels v. State, 264 Ga. App. 460, 448 S.E.2d 185 (1994).

Evidence sufficient to support conviction.

- There was sufficient evidence to permit a rational trier of fact to conclude beyond a reasonable doubt that the defendant juvenile intended to conceal the defendant's identity and to threaten, intimidate, or provoke the apprehension of violence in violation of the Anti-Mask Act, O.C.G.A. § 16-11-38, because the defendant in a mask and a friend in a hooded sweatshirt stood at the door to a stranger's house and frightened the occupants by standing motionless and silent as to their intentions. In the Interest of I.M.W., 313 Ga. App. 624, 722 S.E.2d 586 (2012).

Immunity from liability.

- District court erred when the court denied the police officers' motion to dismiss claims a demonstrator filed against the officers pursuant to 42 U.S.C. § 1983 and state law, which alleged that the officers violated the demonstrator's rights under the First and Fourth Amendments to the U.S. Constitution and Georgia law when the officers arrested the defendant for violating Georgia's mask statute, O.C.G.A. § 16-11-38, during a demonstration in Atlanta in 2014; the officers had qualified immunity from liability on the demonstrator's claims under federal law because the officers had probable cause to arrest the demonstrator when the officers saw the demonstrator wearing a "V for Vendetta" mask after the police directed demonstrators to remove masks the demonstrators were wearing, and official immunity under Ga. Const. 1983, Art. I, Sec. II, Para. IX. Gates v. Khokhar, 884 F.3d 1290 (11th Cir. 2018), cert. denied, 2019 U.S. LEXIS 403, 139 S. Ct. 807, 202 L. Ed. 2d 575 (U.S. 2019).

OPINIONS OF THE ATTORNEY GENERAL

Georgia Crime Information Center is authorized to maintain records identifying persons charged under former Code 1933, § 26-2913 (see now O.C.G.A. § 16-11-38). 1976 Op. Att'y Gen. No. 76-33.

RESEARCH REFERENCES

ALR.

- What amounts to disguise within criminal law, 1 A.L.R. 642.

Validity and construction of state statute or ordinance prohibiting picketing, parading, demonstrating, or appearing in public while masked or disguised, 2 A.L.R.4th 1241.

Validity of law criminalizing wearing dress of opposite sex, 12 A.L.R.4th 1249.

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