Several Counties around California, including most of the Bay Area, now mandate masks be worn in public to curb the spread of the Coronavirus. Many people are wondering if the law applies to them.  Further, is this even Constitutional? The short answer to the question “Do I Need to wear a mask?” is IT DEPENDS. The longer answer is explored below by the criminal defense attorneys at Tully & Weiss.

I am not a doctor, and this is not medical advice.  Though I am a criminal defense attorney, this article is not legal advice for you and your case. This post is an overview and analysis of the health orders along with some legal insights. Please hire or consult with your own lawyer if you have a specific case to discuss. 

First off, authorities and businesses are not there to litigate your need for a mask. If you are asked to wear a face covering by a business owner or government official, you should not argue with them. Arguing with police or asking to “talk to the manager” will not help your case, as they have orders to follow. Making a scene is a good way to get exposed to COVID-19 and myriad other diseases in County Jail. If you are cited, the defense of your rights is best fought in front of a judge who is paid to listen to the evidence and adjudicate. If you don't want to get hassled, then bring a mask. That said, let's break down the orders and the authority they are based upon.

Do I Have to Wear a Mask?: The Order

Effective the week of April 22nd, several Bay Area counties, as well as other parts of California, are enforcing new emergency health codes aimed at curbing the spread of COVID-19. The language and restrictions vary from jurisdiction to jurisdiction across California. Some cities have their own laws, some counties have slightly different rules. Some require a mask at all times when in public, others only when indoors or engaging in essential services around other people. Notably, most counties (including Shasta) have no mask requirements at all. The authority for these health orders comes from State law granting such powers to local health officials.

In the Bay Area, San Francisco, Contra Costa, Alameda, San Mateo, Sonoma, and Marin counties have enacted mask requirements as of this posting. The wording of the orders is substantially similar across the Bay Area counties. They align with new guidance from the California Department of Public Health.

Here are the PDF texts of orders for three of the Bay Area counties. Our analysis will focus on these orders:

• Alameda – http://www.acphd.org/media/569455/health-officer-order-20-08-face-coverings-2020.04.17.pdf
• Contra Costa – https://813dcad3-2b07-4f3f-a25e-23c48c566922.filesusr.com/ugd/84606e_7aedf6a44a884872ad17824ef2855107.pdf
• San Francisco – https://www.sfdph.org/dph/alerts/files/OrderNoC19-12-RequiringFaceCovering-04172020.pdf

The similar orders have the same titles and preamble (though the specific code number is based on the local format):

ORDER OF THE COUNTY HEALTH OFFICER
GENERALLY REQUIRING MEMBERS OF THE PUBLIC AND
WORKERS TO WEAR FACE COVERINGS
(PUBLIC HEALTH EMERGENCY ORDER) 

Please read this Order carefully. Violation of or failure to comply with this Order is a misdemeanor punishable by fine, imprisonment, or both.
(California Health and Safety Code § 120295, et seq.; Cal. Penal Code §§ 69, 148(a)(1))

What is a mask (face covering)?

The wording of the Bay Area orders is careful to use the term “face coverings” rather than mask. The order expressly allows for a variety of respirators, masks, scarves, bandannas, and other coverings. The purpose is to contain exhaled nose and mouth respiratory droplets from easily circulating in the air. The variety of options makes it easier to comply, and less of a burden on the public. Worse case, in a pinch, pull your t-shirt collar over your nose and mouth.

Who is required to wear a mask?

• Adults must wear a face covering when outside their home around other people, and engaging in essential activities and work.
• When engaged in essential activities inside or standing in line to enter essential businesses, government functions, healthcare facilities, and anywhere people can still legally congregate.
• Essential workers and volunteers are required to wear face coverings while performing any duties that interact with the public, are in a space shared with the public, or are preparing food.

No Shirts, No Shoes, No Mask, No Service

Business owners are burdened by these orders with the responsibility of reasonably enforcing the use of face coverings in their facilities. The law applies to both employees and the public. You won't need to ask “Do I need to wear a mask?” when entering a business, as there will be signs posted, and the owner required to make all patrons comply.

From Section 5b: “Essential Businesses and entities or organizations that engaged in Essential Infrastructure work or Minimum Basic Operations must take all reasonable steps to prohibit any member of the public who is not wearing a Face Covering from entering and must not serve that person if those efforts are unsuccessful and seek to remove that person.”

Who Does NOT Need to Wear a Mask?

• People at sheltering at home
• Persons engaged in outdoor recreation, as long as they are socially distancing
• People in their vehicle, alone or with others they are sheltering with
• People working alone in a personal office or workspace away from others
• Children under 2 should not wear masks
• Children under 13 are not required
• Anyone who can prove a health or safety risk imposed by wearing a mask

What are the penalties?

The State has broad standing laws for punishing those found guilty of failure to comply. When quarantine or preventative measures are established by a health officer, all persons shall obey his or her rules, orders, and regulations. Below are the price to be paid for refusing such orders.

• Standard punishment – Failure to comply with the orders is punishable under California Health and Safety Code section 120295 as a misdemeanor (as well as a fine of $50-$1,000 or by 90 days county jail, or both).
• Enhanced punishment – Health and Safety Code section 120280 grants courts the power to impose additional punishments, if the court deems it necessary, including confinement for up to one year and two years of probation.
• Intentional transmission – If a person has COVID-19 and does not wear a mask when ordered, that person may be found guilty of additional misdemeanors. Under Health and Safety Code section 120290, a prosecutor may charge such a person with misdemeanor intentional transmission or misdemeanor willful exposure of an infectious or communicable disease.
• Additional criminal charges – Failure to follow a law enforcement/EMS workers orders could result in much more serious charges, including a potential felony. Section 148 refers to resisting, obstructing, or delaying a police officer or EMS worker. This is a misdemeanor. Penal Code Section 69 refers to unlawfully resisting an executive officer by means of threat or violence. It is a wobbler (a crime that could be filed as either a misdemeanor or a felony).

These Penal Code sections are referenced because a police officer or medical professional could order someone to wear a mask. If there's violence/a threat, then it'll probably fall under section 69. If not, it'll be section 148.

Do They Have the Authority?

Sure, they have given themselves the authority. Where Federal law usually allows reasonable restrictions, States and Counties can get away with almost anything in the name of Public Health.  

• Health and Safety Code section 101040 – a local health officer may take any preventive measure that may be necessary to protect and preserve the public health from any public health hazard during any “state of war emergency,” “state of emergency,” or “local emergency,” as defined by Section 8558 of the Government Code, within his or her jurisdiction.

The local council or law can block gun stores, concealed carry applications, assemblies, and any number of “constitutional” activities. All manner of unfair laws and orders have been enacted throughout history. Imposed in the name of protecting “Public Health” and eliminating a “Public Nuisance”.

Are mask requirements and social restrictions Constitutional?

Encroachment of our fundamental rights during an “emergency” is nothing new. There is well established precedent for our rights being eliminated by politicians and courts in the face of a widespread threat. 

Here are some examples of fundamental rights being suspended during national emergencies:

• Suspension of Habeas Corpus – During the Civil War, President Abraham Lincoln chose to suspend the right of habeas corpus. 
• The Sedition Act of 1918 – During WWI, President Woodrow Wilson signed into law the Sedition Act of 1918 which forbade the use of “disloyal, profane, scurrilous, or abusive language” about the United States government.
• Executive Order 9066 – During WWII, President Franklin Roosevelt signed Executive Order 9066, which resulted in the internment of American citizens on the basis of ancestry. 

In short, in the middle of a crisis, the Constitution is not sacrosanct. In order to protect ourselves, our families, and our Constitutional rights we need to stay alert, informed, and vigilant.

It's important to know not just what the law is, but also the motives behind those that make our laws. After all, history has shown us that, when unchecked, the Government will violate our fundamental rights. 

That is why it is called “California: State of Collusion”

The laws, and the enforcement of the laws, are tilted in the favor of Government. Those in power will always seek to maintain and enhance their power. The title of my best-selling book sums up the situation. California: State of Collusion explores how government abuses can turn into entrenched practices. The ultimate result is a judicial system that is stacked against the average citizen. The Government gets away with too much in the name of safety, because of the social and political environment established leading up to the encroachment. The best time to fight for our Constitutional rights is BEFORE they are threatened. The government, when unchecked, will violate fundamental rights before, during, and AFTER national emergencies.

At Tully & Weiss, we are working every day to defend our clients and fight for their liberty. Give us a call if you have a criminal legal matter to discuss. We offer a free initial consultation.