Associate Brian Szmak Featured on WUSA9 “Verify” Segment

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by | June 13, 2021

Criminal Defense Associate Brian Brian Szmak was recently featured on WUSA9’s Verify segment regarding Virginia’s criminal prohibition on wearing masks, and how that related to the ending of Mask Mandates.

You can see the full article and video segment here.

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From the Article:

Virginia is one of several states in the U.S. with laws against wearing masks.

“Frankly, these anti-masking laws in purpose, were in large part intended to react to, frankly the KKK and similar types of hate groups,” Brian Szmak said.

This Virginia law has a very specific provision baked in: the person must be wearing a mask with the intent to conceal their identity.

Here’s that provision

“It shall be unlawful for any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing.”

It would therefore be difficult, Szmak explained, to prove that a person violated the law without proving this specific intent.

“When that comes down to be proven, it’s usually through context of, well, you were wearing a white hood at a KKK rally and shouting at people, or you were wearing a ski mask in a bank,” Szmak said. “But wearing a regular mask while you walk your dog, I think is different. It makes it much harder to prove that intent if someone even wanted to prosecute for it.” 

The law also provides a pretty specific exemption for those with a “medical necessity” for wearing the mask, and who also carry a doctor’s note explaining “the date on which the wearing of the device will no longer be necessary.”

More broadly though, the anti-mask statute includes an exception during a state of emergency, where there’s an explicit waiver of the law and a clear end date.

A spokesperson for Governor Northam told us that the state of emergency is set to end on June 30th and that, “we continue to explore options for folks who want or need to wear a mask after then and will be sharing more information soon.”

Even though the emergency order has been waiving the anti-mask law as it pertains to medical masks, respirators and other COVID face coverings, the law has been and will continue to be in full effect for masks that are not for these medical purposes.

“The waiver applies to medical uses,” Szmak said. “So it is now not legal to wear a mask while you rob a bank…the law isn’t just gone in its entirety.”

So while we can’t verify what the governor’s next move will be, our expert believes a prosecutor would have a hard time proving that a medical mask used to protect against COVID-19 violates the anti-mask law.

“I would be very surprised to see somebody get arrested for this, let alone get actually prosecuted and certainly not convicted,” Szmak said.

The District of Columbia also has an anti-mask law, where it only applies when someone is trying to hide their identity with the intent to intimidate or harass someone else.