Did you know that wearing a ski mask in public is a Class 6 felony in Virginia? Although this law is rarely enforced — and was waived entirely during the COVID-19 emergency — Virginia code §18.2-422 states that anyone wearing a mask in public or on private property “to conceal his identity” can be arrested, charged, fined up to $2,500, and jailed for up to five years if convicted.
This relatively obscure law made headlines in late November 2023 when the Alexandria Redevelopment and Housing Authority — in collaboration with officers from the Alexandria Police Department — sent a letter to public housing residents informing them that police would begin enforcing this law now that the COVID-19 pandemic is no longer considered an emergency. “This means that anyone over the age of 16 who is caught wearing a ski mask in public will be arrested,” the letter stated.
After news of this threatening letter went public, the ARHA and APD quickly walked back the letter’s harsh language, clarifying that police would not be arresting individuals solely for wearing ski masks. Responding to the controversy on the local NBC News affiliate, Police Chief Don Hayes called the letter to public housing residents a mistake and pledged to apologize to residents door-to-door.
While this minor victory against over-policing is something to celebrate, this draconian anti-mask statute remains the law of the land in the Commonwealth, and similar laws exist in 17 other states. Further, city-wide anti-mask laws are now seeing a minor resurgence in response to the “crime wave” narrative promoted by police unions and corporate media. Philadelphia recently passed a law banning the wearing of ski masks in public, city councilmembers in Atlanta have proposed but tabled a ski mask ban, and the crime bill introduced by Washington DC mayor Muriel Bowser reinstated a prior ban that had been repealed in 2020.
If this trend continues, it could have serious consequences for civil rights - enhancing police power to harass Black and Brown citizens, and to dampen free-speech rights of antifascist and pro-Palestine liberation protesters who wish to remain anonymous to protect their safety.
Interestingly, most statewide laws prohibiting face coverings share a common origin story — they were passed to combat the Ku Klux Klan.
This trend began in 1868 with Tennessee’s Ku Klux Law, followed in 1870 with a provision in the federal Enforcement Act giving the federal government more power to fight masked Klan activity. In the 1920s, a second wave of mask bans was enacted in states such as Louisiana, Michigan, Minnesota, North Dakota and Oklahoma in order to unmask Klan members and prevent their infiltration into local governments. Finally, the 1940s and 50s saw a third wave of mask bans in southern states such as Alabama, Florida, South Carolina, West Virginia and Virginia as these states sought to appear more progressive on racial issues amid the growing movement for civil rights and Black liberation.
To be clear — this third wave was motivated more by optics than an actual commitment to antiracism, as these states had no intention at the time of desegregating or rolling back Jim Crow laws. They primarily wanted to hide the problematic visible imagery of masked Klan rallies in their states. As Rob Kahn, professor of law at the University of St. Thomas, discussed in a 2019 conference presentation:
When Alabama, Georgia and South Carolina all passed mask bans in the late 1940s and early 1950s, they were condemning the Ku Klux Klan, but not segregation as a whole. The goal of the mask bans was to preserve segregation by distancing the state from the Klan, whose violence was seen as counterproductive to the larger cause of White supremacy. … Alabama, Georgia and South Carolina did not deny the reality of Klan violence; rather they appeared to use the Ku Klux Klan to signal that masked terror and night riding had no place in a modern, progressive South, one committed to segregation as an institution in the best interests of all involved.
Given the resurgence in violent Klan activity after the Supreme Court ruling in Brown vs. Topeka Board of Education, it is pretty clear that the bans on Klan masks had little, if any impact. Klan mask bans in Georgia did not stop the Knights of the Ku Klux Klan from rallying atop Stone Mountain in 1956, or from attacking civil rights activists demonstrating against segregated businesses in Atlanta. Nor did the Klan mask ban in Alabama stop the bombing of the 16th Street Baptist Church in Birmingham or prevent Klan members from assaulting Freedom Riders in the 1960s.
Just as the anti-KKK mask bans of the 1950s targeted a visual symbol of racism rather than addressing systemic racism, the current wave of anti-mask laws target a visual symbol of criminality rather than address the root causes of crime. As one supporter of the proposed Atlanta mask-ban bill testified during a public hearing, “I think it’s absolutely absurd that there is objection to this bill. I want to walk around in public and feel safe.”
However safe these laws might make residents feel, there is no solid evidence that anti-mask laws actually reduce crime. If they did reduce crime, we would expect to see a reduction in overall crime rates in the states that passed mask bans around 1950.
To test this hypothesis, our Northern Virginia DSA analyzed crime data from the FBI’s Uniform Crime reports in major cities of six states that passed mask bans around 1950 (Alabama, Connecticut, Florida, Georgia, South Carolina and Virginia). Using a sample of 47 cities in these six states, we examined crime rates in the years before and after these bans were passed. Our analysis found that crime rates in all six states increased in the years following passage of the ban, a trend that mirrors the average US crime rate for the years examined (See Figure 1).
We found similar results when comparing crime rates broken out by type of crime. Rates of murder, robbery and aggravated assault remain relatively static in both the sample cities and the US average. Burglary rates show a rising trend overall in the sample cities and the US as a whole. Auto theft and larceny rates decline until 1950 and then rise afterwards in both the sample cities and the US as a whole. (See figures 2 and 3):
This analysis demonstrates that the anti-Klan mask bans of the early 1950s did not have a measurable impact on overall crime rates. While proponents of bans such as Mayor Bowser regard these laws as “commonsense,” this is simply not supported by evidence.
On the rare occasions when these laws are enforced against someone who wears a mask while committing a crime — such as the case of Michael Hartley, who was convicted in 2013 for a robbery at a Washington DC Metro station — the anti-mask law simply provides a bonus charge that prosecutors can use to extend a convicted person’s prison sentence and steer more money into the hands of the prison-industrial complex.
There is an even more insidious use for anti-mask laws — to stifle protest and suppress free speech. There was a brief trend of “anti-Antifa” anti-mask laws proposed in the late 2010s to combat the perceived “Klan-like threat” of antifascists and Black Lives Matter protesters calling for police accountability and racial justice. It seems hardly coincidental that city anti-mask ordinances are now being proposed in Atlanta — where Stop Cop City activists are being increasingly criminalized — and here in Washington DC where protests for human rights and racial justice are regular occurrences.
Racial justice and pro-Palestine activists are the frequent targets of doxxing and harassment campaigns and broad anti-mask ordinances can and will be used to enable this harassment. The American Civil Liberties Union cites several instances from recent years in which anti-mask laws have been used against Black Lives Matter and antifascist protesters. The perverse irony of anti-KKK laws being used against antiracist activists protesting against Confederate statues or white supremacist rallies cannot be overstated.
Since many of the existing state and local laws do not exempt religious attire, there is also a risk that law enforcement could use these laws to target Muslims wearing the niqab or other face coverings. Several European countries have passed extremely Islamophobic laws specifically prohibiting face veils, and it is not inconceivable that US states and localities could use their existing laws to target Muslim activists.
These antiquated face-covering laws are particularly dystopian in the current era of AI-enhanced mass surveillance. Misuse of facial recognition technology has led to misidentification and false arrest in at least six cases to date, and this is likely to grow as law enforcement agencies increasingly rely on this technology. These bans are also a potential health hazard at a time when diseases such as COVID, RSV and influenza are spreading rapidly due to the laissez-faire public health policy of the current administration.
It’s time to stop making laws based on perceptions of crime. We must oppose new mask bans wherever they are proposed, and we need to urge our state and local legislators to roll back these ridiculous mask laws and begin making serious efforts to address crime through measures that actually work — public housing, universal healthcare, mental health services, fully-funded education, living wages and strong communities.
