If passed as law, would 'unmasking bill' criminalize mask-wearing for health reasons? Republicans say no, others remain worried. (2024)

The proposed ending of statewide public health masking exemptions has some Triad residents questioning the sanity — and humanity — of state Senate Republicans.

In their pursuit of expanding criminal penalties for wearing a mask in public while committing a crime, or for blocking traffic to emergency vehicles, all 30 GOP senators voted Wednesday for reinstating a pre-pandemic ban on mask wearing for public health and safety reasons affecting North Carolinians ages 16 and over.

At that time, the public wearing of masks to protect one’s health and those of others could again become criminally prosecutable, as it was between 1953 in an anti-Ku Klux Klan-inspired bill and July 2020.

Violators could face punishment in a range of 1 to 120 days of active or intermediate jail time, or community punishment, along with fine amount at a judge’s discretion.

Triad residents’ response to HB237 since Wednesday have come in the form of interviews, letters to the editor and constituents emails and appeals to Triad and other legislators.

Among their concerns: having their actions while wearing a mask in public being scrutinized by law enforcement officers, store managers or venue operators; being pointed out for arrest or facing public ridicule, if not harassment, from anti-mask individuals; and individuals with immunocompromised conditions risking exposure to communicable diseases by being in public without a mask on.

The reality of public mask wearing being prosecutable again in a society still coming to grips with being in a post-pandemic environment has Greensboro resident Pat Levitin preparing to exercise her own version of civil disobedience. Levitin and her husband, Peter, shared their concerns in an interview.

“When I saw that this bill might pass, our attitude became ‘Fine, go arrest us for protecting our health,’” Pat Levitin said.

The severity and too-often fatal nature of the COVID-19 pandemic prompted a life change for the Levitins.

They wear masks in public at all times, primarily to reduce Peter’s risk of exposure to communicable diseases with his heart issues, as well as grandchildren dealing with asthma.

Pat Levitin said she had a mild case of COVID-19 in January, while Peter Levitin has not had a case. They are both COVID-19 vaccine-boosted to the full limit.

“People think COVID is over, and it’s not,” Pat Levitin said. “There’s a new strain out there and people are still dying of COVID.

“It is with great shock that I have heard that House Bill 237 is trying to make mask wearing in public illegal, and we could be fined, jailed and/or do community service for wearing one.

“When I think representatives cannot get any crazier, then this bill comes along. This is horrible. This is a kneejerk reaction, a throwing the baby out with the bathwater” situation.

Subject to punishment

Many North Carolinians currently wearing a mask in public are doing so not only to limit their risk to communicable diseases, but to also enjoy a new-found freedom of movement since the exemption went into effect in July 2020.

Tara Muller, policy attorney for Disability Rights N.C., cited as examples of people “subject to punishment” under the revamped HB237: older adults with illness or disease; chemotherapy patients or others with weakened immune systems; children and adults taking immuno-suppressants or with auto-immune disorders; and people with contagious diseases while wearing a mask in a public health department.

“They rely on masks to safely access and participate in their communities,” Muller wrote.

“We believe this policy change would compromise the safety of people with disabilities and would unreasonably restrict their ability to attend school and get an education, work in public sector jobs, or simply walk from their home to the bus stop, among many other examples.

“It would once again confine disabled people to their homes unnecessarily.”

Muller said people with disabilities face enough challenges in life without fearing having to identify themselves to law enforcement officers, business owners and operators of public venues “just because of how they move or appear.”

‘Ill-thought out travesty’

Heidi Grable wrote in an open letter to legislators about her worries of being an immunocompromised person in an unmasked public if HB237 becomes law. She described herself as having several autoimmune conditions and Long COVID.

Grable called the planned legislation “an ill-thought out travesty” that would affect not only her personal health, but also her livelihood as a chicken farmer.

“I already get snide comments and rolling eyes when I wear my mask in public,” Grable wrote. “This bill is just the push that the anti-masking people need to publicly and loudly call me out for my mask, and they will.

“If a man walked down the road with a rifle, and another man walked down the road with a mask to protect himself, the Republicans in North Carolina now label only one as a criminal.”

Grable said Senate Republican sponsors of HB237 either don’t want to accept or recognize that “we’re in a very different atmosphere from the world before 2020.”

“This bill would result in the further isolation of the vulnerable, not to mention that it would threaten our lives and livelihoods.

“Passing this bill goes against not only the laws of humanity, but also the commands of God. It could affect my ability to attend church if I cannot legally wear a mask when I am out and about.”

Joanna Hart wrote in a constituent email to Rep. Pricey Harrison, D-Guilford, that she is “severely immunocompromised” and may not be able to leave her home if public masking is prohibited.

She is concerned that passage of HB237 would “seemingly make it illegal for disabled/immunocompromised Americans to participate in public life, such as the American civil right of protest.”

“It would equate the use of protective medical grade face masks to that of masks worn by the KKK.

“Do you feel representatives should have the power to decide who deserves health and safety?”

Bill sponsors’ stance

The N.C. Sheriff’s Association has not adopted a position on HB237, according to its general counsel Eddie Caldwell.

The N.C. Conference of District Attorneys and N.C. Association of Chiefs of Police could not be reached for comment on their position.

HB237 would not eliminate public masking exemptions for the following reasons:

HB237 was placed Thursday temporarily in the House Rules and Operations committee as House Republicans determined their response to changes by the Senate that are likely to lead to a concurrence committee.

Sen. Danny Britt Jr., R-Scotland, told the Senate Rules and Operations committee Wednesday that “we’re still in discussions with the House on how to tailor the medical exception to this mask policy for folks who may suffer from communicable diseases.

“We want to ensure that this doesn’t violate the Americans with Disabilities Act, so there will be some tweaking along the way.”

Sen. Julie Mayfield, D-Buncombe, said precise language is necessary “because laws are meant to be enforced as written.”

Sen. Buck Newton, R-Wilson, a primary bill sponsor of the revamped HB327, said the decision to arrest and prosecute would be up to the discretion of local law enforcement and district attorneys, respectively.

“I trust peoples’ good common sense, law enforcement’s good common sense, businesses’ good common sense, district attorneys’ good common sense,” Newton said.

Senate Republican bill sponsors are attempting to stress that arrests and prosecution will be rare, if ever, as long as the mask-wearing public cooperates when asked to identify themselves to law enforcement, businesses and at public venues.

“People who wear a mask for a good reason shouldn’t be worried about getting into trouble. I just don’t see it,” Newton said.

“If someone (wearing a mask) goes into a store, work, whatever, and they are willing to show their identity and put the mask back on, those are the kinds of things I trust people to be able to work out.”

However, those same Senate Republicans rejected Wednesday two Democratic amendments to HB237 that would place that exemption scenario into the law.

Newton said bill opponents are trying “to scare people to death” by putting the focus on the potential for mask-wearing individuals being considered as breaking the law.

Public speakers, as well as several Democratic senators, said the latest version of HB237 leaves too much discretion to law enforcement officials in how to enforce, rather than having clear and concise guidelines.

They asked whether visitors to North Carolina would have to remove masks once they cross state lines, whether at a rest stop, attending a public event or getting a fill-up.

Freedom to wear masks

Triad residents’ response to HB237 show they aren’t confident in taking Senate Republicans’ word in the bill’s current form.

Health care providers say masks have been a critical component for lowering the spread of COVID-19 during the pandemic, as well as protecting those with immunocompromised conditions or enduring chemotherapy and radiation treatments for cancer.

Michael McCrory, an intensive care physician at Atrium Health Wake Forest Baptist, wrote in a letter to the editor that “the freedom to wear masks should not be criminalized, but rather explicitly preserved if we are to learn from this experience and prepare for the next pandemic.”

Victoria Coble, who lives in Greensboro, has gained more than 4,300 signatures on a Change.org petition opposing HB237.

Coble told the Journal that the public masking helps keep her from being at high-risk from severe acute illness from a COVID-19 infection, as well as limiting her potential exposure to her mother-in-law who lives with her, her husband and their two children.

“Since the pandemic began, we have had to move to homeschooling them to protect our family,” Coble said.

“We have been largely ostracized by our community, and now we will be criminalized for wearing masks in public, and hope that local law enforcement refrains from engaging with us over masking.”

Barbara Halbert said in a constituent letter to Harrison that with the potential exemption being removed, “I am fearful that people who dislike mask wearing will use it as an excuse to involve law enforcement to harass people.”

“Being concerned about keeping yourself protected from serious illness shouldn’t be penalized.”

700,000 North Carolinians

According to Sen. Sydney Batch, D-Wake, at least 700,000 North Carolinians experience immunocompromised health issues, including herself following her fight with non-invasive breast cancer.

Bill sponsors “are willing to compromise over 700,000 North Carolinians’ health to try to catch a few dozen or hundred criminals wearing a mask in public while committing a crime,” Pat Levitin said.

“This bill will not solve the problem of criminals wearing masks, but it will upset the lives of millions of North Carolinians.”

The Levitins question why Senate Republicans are so quick to do away with recommendations from state and federal health officials who say consistently that public masking is a best practice for limiting exposure to communicable diseases.

“I don’t believe that people who are sick wear a mask to protect me, and I am in the category where there have been the most deaths from COVID,” Peter Levitin said.

“Sometimes I feel foolish by wearing a mask in public all the time because everyone eventually is going to get COVID, but I don’t want to be an example of someone who didn’t take all prudent precautions and died.

“I should have the right to do the best that I can to protect myself in public, whether politicians agree or disagree with me.”

Mehreen Arshad wrote in an email to Harrison that bill sponsors are downplaying the significance of long COVID exposure in North Carolina given there is no FDA-approved cure or treatment.

“As someone with loved ones who are disabled and no longer able to work because of long COVID, we know research shows that long COVID can be triggered by mild or even asymptomatic infection, and fully vaccinated individuals can also develop long COVID.

“Masks are required to prevent long COVID from disabling us and making us too sick to work, play with our kids and participate in our communities.”

NAACP stance

The NAACP North Carolina State Conference said in a Thursday statement addressing HB237 that it “vigorously opposes HB 237 as a direct assault on the fundamental right to protest, a cornerstone of our democracy.”

The statement did list the ending of public health masking exemptions as a concern.

Deborah Maxwell, the conference’s president, said that “under the guise of increasing public safety, HB237 seeks to intimidate and silence marginalized communities, particularly Black, Indigenous and people of color, who rely on protest to make their voices heard and hold those in power accountable.”

Al Jabbar, president of the NAACP’s Winston-Salem chapter, said the chapter “stands in solidarity with the state president’s statement.”

Senate Republican bill sponsors want to expand the criminal punishment if a person wears a mask during the commission of a crime, and impose criminal and civil liability on individuals who obstruct emergency vehicles during demonstrations.

HB237 would elevate by one class higher the misdemeanor or felony charges an individual would face if they wore a mask in public during the commission of a crime.

HB237 also includes that “a person who organizes a demonstration that impedes traffic would be civilly liable to any injury or death that results from obstructing an emergency vehicle’s use of the road. The organizer would be liable regardless of any related criminal proceeding.”

One likely impetus for revamping HB237 is civil disobedience protests occurring in North Carolina, particularly on college campuses such as Wake Forest University and UNC Chapel Hill, related to the civil strife and military activities in Israel.

Newton said HB237 “is simply to unmask people who are hiding their identity to engage in a crime.”

Meanwhile, Maxwell said HB237 “is a thinly veiled attempt to suppress dissent in response to recent protests advocating for Palestinian human rights and against police brutality. This bill aims to stifle legitimate expressions of public outrage and calls for justice.”

“This bill will disproportionately impact Black communities, potentially criminalizing everyday actions, such as wearing scarves, hoodies, or religious coverings.

“We urge lawmakers to reject HB237 and instead focus on addressing the root causes of the protests: systemic racism, police violence and social inequities,” she said.

Legal perspective

Jill Moore, an associate professor of Public Law and Government with UNC School of Government, said in a blog posted Thursday that some North Carolinians “have always worn medical masks in public places — either upon medical advice or simply by personal preference” even though it was against the law from 1953 to July 2020.

“While some of the prohibitions are limited to people over the age of 16, the prohibition on wearing masks on public property does not have an age restriction and therefore appears to apply to children as well,” Moore said.

“As amended, the law would not clearly provide an exception for individuals with medical conditions that make them particularly vulnerable to infectious diseases, or for those with infectious conditions that pose a danger to others.”

Moore said it is likely that the revamped HB237 would violate the protections of the Americans with Disabilities Act, which requires many public and private entities to reasonably accommodate individuals with disabilities, including some conditions that make an individual more susceptible to infection.

“Allowing such an individual to wear a mask in a place where it would otherwise be prohibited would likely be a reasonable accommodation,” Moore said.

“Similarly, laws that protect students with disabilities may require schools to allow some students with disabilities to wear masks, though the protections of these laws may not extend to caregivers or parents.”

Moore said it would behoove bill sponsors to make explicit “about whether, how and by whom determinations would be made about who would still be able to wear a mask in public for health reasons without potential legal repercussions.”

Guidance needed

“The pandemic changed everything” when it comes to public mask wearing, said Daniel Maxwell, a distinguished lecturer in the Criminal Justice Department at the University of New Haven, and a former law enforcement officer.

“The paradigm (on public mask wearing) has shifted since COVID-19, with law enforcement becoming used to people wearing a mask for everyday needs. This has settled in for them.”

Maxwell said that as people “were masking up with the pandemic, people were still committing crimes with masks on and off, and law enforcement marched on with investigations.

“They tend to know who is wearing a mask for the right reasons and those for something nefarious. We need to give them more credit than we often do.”

Maxwell predicted that most law-enforcement agencies would be looking for guidance from their local district attorney’s office on whether, or how much, to pursue arrests for public mask wearing.

“With this potential law, they are going to be asked to make a decision about whether to arrest someone who’s wearing a mask,” he said.

“Police don’t want to go around arresting people for wearing a mask,” Maxwell said, citing potential escalations involving a nervous public citizen wearing a mask being approached or stopped by a law-enforcement officer on heightened alert to potential danger.

He said the N.C. legislative debate on whether public mask wearing returns to being a crime is taking place “in a sterile environment.”

“The only way to see if a criminal law actually works as intended is for people to get arrested and see what happens when it works its way through the legal and courts systems.

“The legislators need to be in contact with the district attorneys as to what the parameters should be for reinforcing the public masking laws. The state Attorney General’s Office should provide clarity of what it would consider as a prosecutable case.

“There could be some law-enforcement groups who really get into the mask thing (in terms of arrests), and towns get a reputation that you may not want to go there because you could be pinched, while some may not care about it at all.

Maxwell said that if there are arrests for wearing a mask in public for health and safety reasons, “how is this going to affect the rest of the public once they find out — will they accept it, yes or no?

“A heavy-handed approach is not going to sit well with anybody.”