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OPINION: Halloween -- Trick or Treaters Beware?

Four girls in Cobble Hill prepare to trick-or-treat for Halloween 2012. Eagle photo by Mary Frost

For Brooklyn Daily Eagle

Did you know that New York State has an Anti‐Mask Law?

According to New York Penal Law §240.35 (4) (Loitering): “A person is guilty of loitering when he: Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or
disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities.”

This law is over 150 years old. It was enacted in 1845 after protesters disguised themselves as Indians so they could attack law enforcement officials and not be recognized. This Law has been used several times recently by the NYPD:

In 1999, a branch of the Ku Klux Klan (KKK) wanted to wear white masks during a rally in lower Manhattan, claiming their masks were a form of political expression, protected by the First Amendment. They petitioned the NYPD to be able to wear their masks and were turned down. The case went up to the Second Circuit Court of Appeals, which upheld the Law, holding that the KKK’s hoods and robes sufficiently conveyed their political beliefs.

In September 2011, during the Occupy Wall Street (OWS) protests, the NYPD charged four people for wearing masks (even though one of them had the mask on top of his head, not hiding his face). The cops used this law as a tool to try to break up the OWS protests.

More recently, in August 2012, three women were arrested outside the Russian Embassy in New York, for wearing masks (Balaclavas) to protest the conviction in Russia of members of the Russian feminist punk band known as Pussy Riot, who wore Balaclavas during their performances in Russia, which were generally anti-Putin. After two well‐known civil liberties lawyers filed papers challenging the 150-year-old law as a violation of the defendants’ freedom of expression, the Manhattan District Attorney’s office dismissed those charges in the Interest of justice.

So what about Halloween? Do masked “trick or treaters” need to be worried about being arrested? Not if they’re part of an officially sanctioned Halloween Parade -‐ because of the “masquerade party or like entertainment” loophole in the law, but otherwise, it’s not clear.
While it’s highly unlikely you would get arrested for wearing a mask or otherwise disguising your face on Halloween, you never know if some overzealous cop might decide to use this law as an excuse (probable cause) to arrest you and then search you pursuant to this arrest -– like “stop and frisk”. So just to be on the safe side, maybe you should leave the mask and face paint home.

Happy Halloween.

Joyce David is a Brooklyn criminal defense attorney with more than 36 years of experience in both state and federal courts. She is a former president of the Kings County Criminal Bar Association.

October 28, 2013 - 11:30am


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