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To mask or not to mask? State yet to provide guidance to law enforcement

Though Gov. Ralph Northam is not extending the COVID-19 state of emergency past June 30 allowing people to wear masks, he has said people should still have the option to wear them.

In an interview last week while in Suffolk, Northam said it is his expectation that no one would be cited for continuing to wear a mask in public.

“Now in our code it says that it’s unlawful to wear a mask,” Northam said. “We’re in a different time now. We’re in this pandemic and there’s still individuals that haven’t been vaccinated, and still feel the need to wear a mask. We certainly encourage that.

“We’ll make it clear to law enforcement that they won’t be harassing people, they won’t be arresting people,” Northam said.

But without the state of emergency, the only legally binding way for people to continue wearing masks in public is for the law to change. Northam, who announced a General Assembly special session Aug. 2, said he expects a mask-wearing measure to be taken up then, but any changes to the law would need to move through both houses of the General Assembly and reach Northam’s desk.

“We’ll put in legislation that will apply to our code that will make it lawful to wear a mask,” Northam said. “We’ll clear all that up.”

How will that be cleared up by June 30 when the state of emergency expires?

“It’ll come from our office,” Northam said. “And obviously, we have ways of communicating with our law enforcement, and they’re doing a great job across Virginia, and we’ll make sure that they know it’s OK to wear a mask and then we’ll put it in the code on Aug. 2.”

In announcing the special session in a news release, Northam called it in order to fill judicial vacancies and decide how to spend more than $4.3 billion in federal relief money. His spending priorities for the relief money include funding public schools and the Unemployment Trust Fund, upgrading state and local public health services, increasing affordable housing, supporting small businesses, increasing broadband access and making “generational investments.”

However, with state law stating that it is illegal for people to wear masks for health reasons unless they possess an affidavit from a physician allowing them to do so, it is unclear what will happen to those who continue to wear one until the General Assembly amends the current law to allow for mask-wearing beyond what’s currently allowed.

Virginia law — specifically, Virginia Code 18.2-422 — makes it a Class 6 felony for anyone over 16 to conceal their identity through the wearing of “any mask, hood or other device,” and no one is allowed, by law, to wear a mask on public or private property without getting written permission from the property owner. Anyone cited could get up to 12 months in jail and a $2,500 fine.

People who can continue to wear a mask? Doctors and nurses, those in theatrical productions and those wearing one as part of a holiday costume.

Interim Suffolk Police Chief Al Chandler said he is unsure how his department is supposed to enforce a mask ban, and it, and other police departments around the state are in the same predicament. He said his department can only enforce laws that are on the books “to make sure that we do that and (in) keeping with the spirit of the law and the letter of the law.”

He expects that local and state officials will provide the needed guidance, and said the department will be on good legal footing to do what’s in the best interests of residents.

“My expectation is the powers that be will step in and make some type of adjustments to give us something to work with,” Chandler said, “because we find ourselves in that difficult position of, we have some who will say, ‘No, we need to keep the mask on.’

“But if the law says that they’re not supposed to have a mask, we’ll have others that say, ‘Hey, you’re supposed to be enforcing the law,’ so that’s when we need our elected officials and the lawmakers to step in and give us clear guidance. … We don’t want to have to deal with violations that aren’t violations.”