By Dessie Otachliska, J.D.
On January 20 — the day he was sworn in to office — President Biden signed an executive order mandating masks for federal employees, in federal buildings, and on federal land. But even as the Biden administration signals its support for more expansive mask guidelines, debate over the necessity of mask ordinances rages on — as of April 28, 2021, only 25 states, the District of Columbia, and Puerto Rico mandate any form of face coverings in public. Even more surprisingly, some states that previously had mask mandates in place—such as North Dakota, Mississippi, and Texas for example — have recently either relaxed or lifted these directives altogether.
In the past year, masks have gradually become both the new normal and one of the biggest sources of day-to-day contention among strangers. For instance, since the start of the pandemic, there have been more than 200 incidents involving airline passengers who have harassed or threatened flight attendants and crew members over mask policies. Similar mask-related altercations have prompted Los Angeles Mayor Eric Garcetti to issue the “Safer at Home” order, under which individuals who refuse to wear masks can face fines of up to $1,000 or six months in jail.
And while the majority of incidents appear to arise when someone — a flight attendant, a store employee, a police officer — asks another person to wear a mask, there has also been an alarming trend of altercations where people are targeted for wearing masks.
A few months ago, as the inauguration coverage was coming to an end, I went downstairs to pick up my mail. I live near the beach in one of the coastal towns right outside of Boston. In most respects, both the town and the building I live in are pretty sleepy — people are quiet, respectful, and generally willing to help their neighbors.
As I was coming back up the stairs with my mail that Wednesday, I ran into two neighbors I didn’t know in the hallway leading back to my apartment. Given that the hallway in question is less than 6 feet wide and that these two neighbors were not wearing masks, I decided to wait for them to pass in the little annex near the stairs. I should note that both building rules and state and local ordinances require face coverings in common areas such as hallways. That small act of what I perceived to be courtesy triggered such anger and aggression in these strangers — including cursing, spitting, and threatening to name just a few examples—that, even months later, I am lost for words.
What seemed incomprehensible to me was that in this interaction, I had neither admonished them for not wearing masks nor affirmatively asked them to accommodate my preferences in any way. Nevertheless, the simple act of wearing a mask and maintaining social distancing was perceived as an affront in itself.
More concerningly, there did not appear to be any recourse for me to take following this interaction. My building’s management, while extremely apologetic, informed me that there is only so much they could do in response. Short of evicting the residents, which they weren’t sure they could do given the patchwork of national, state, and local eviction moratoriums currently in place, as well as the financial strain the pandemic is placing on landlords, management could only issue “reminders” to wear masks and talk to infringers. Further, I learned that this was not the first incident of “mask madness” that had happened in my building. A couple of weeks before, another neighbor was attacked and spat on while taking out his trash—again for the perceived offense of wearing a mask in the building’s hallway.
While most states and localities around the U.S. currently do either recommend or require some type of face covering in public areas, the details—and especially the methods of enforcement — differ greatly. One common theme across jurisdictions is that enforcement of mask ordinances is largely left to state and local police. Given that lack of uniformity, it is perhaps unsurprising that many ordinances “go unenforced” due to the ever-increasing social, political, and economic pressure faced by police departments. In some cases, police even affirmatively chose not to enforce mask mandates on the basis of ideology. The practical reality of existing enforcement challenges quickly became evident in the microcosm of my building’s ongoing attempts to enforce mask-wearing—the police had been called the last time a mask altercation occurred, but nothing came out of it.
The altercation in my building’s hallways highlighted two distinct issues. First, the longer-term question of how to effectively achieve compliance with mask ordinances. Second, the more immediate question of what protections are available to people who have been threatened or attacked for wearing masks.
Traditional criminal sanctions, such as assault and battery, can provide a partial answer. Assault is typically defined as “an intentional act that puts another individual in apprehension of immediate harm.” Often seen as a corollary, battery is defined as “an intentional offensive or harmful touching of another person that is done without his or her consent.” Under these definitions, spitting on, coughing on, or otherwise threatening mask-wearers could amount to either an assault or a battery under existing law.
In fact, the act of coughing or spitting on another person in a manner that would lead the reasonable person to believe they may have been exposed to COVID-19 has already been the cause of multiple arrests across the U.S. For instance, in Pennsylvania, a man was arrested after coughing in the face of a recovering pneumonia patient after repeatedly claiming to be infected by the novel coronavirus. Just a few hours away, a Pennsylvania woman was arrested after coughing and spitting on over $35,000 worth of food at a grocery store and proclaiming she was COVID-positive. Similarly, a Tennessee man was charged with simple assault for deliberately coughing on people inside a local Walmart and “announcing he had COVID-19.” And, in New York, a woman was charged with making a terroristic threat — a felony charge — after coughing and spitting on a Walmart employee after claiming she had COVID-19.
What these incidents have in common is that in all four cases the perpetrator claimed to be infected with coronavirus. Under existing law, for the act of coughing on another person to be considered assault, two conditions must be met: (1) the perpetrator must either know they have been infected or claim that is the case, and (2) the behavior in question must have been reckless. The second condition is almost always satisfied in cases where a person intentionally spits on someone else. But when it comes to coughing—and especially coughing without claiming to be infected — the situation becomes more ambiguous because recklessness is not as easily proved. This suggest there may be a need for developing more specific causes of action that cover the intentional spitting on, coughing on, or otherwise threatening the transmission of COVID-19 to another person.
But in a pandemic that has already claimed the lives of over 500,000 people in the U.S. alone, it is unclear whether post hoc sanctions—such as assault and battery charges — that require a relatively high burden of proof would be sufficient to deter such dangerous behavior. And, while criminal law provides at least one avenue for victims to seek justice, often the damage has already been done and the victim has been exposed. Perhaps the answer lies in an altogether different approach —one that emphasizes education, mental health resources, and community building during a time of extreme isolation and division. For now, I will scan the hallways just a little more carefully before I go get the mail and hope that this will prove to be an isolated incident in an incredibly tough and discordant year.
