Protesting “Obamacare” While Masked – – – Police Officer Reportedly Arrested For Wearing Guy Fawkes Mask

According to a report in the Sun Sentinel by Lisa J. Huriash relying on a police report,  a “North Miami Beach police officer has been arrested, accused of refusing to take off a mask he wore while on the street protesting the federal government’s new healthcare law.”  The protesting police officer interestingly adopted the Guy Fawkes mask (pictured below) made popular during Occupy protests, as a symbol.


Guy Fawkes Mask

According to the police report, the protesting police officer  wouldn’t tell police who he was, “stating his anonymity was his cause, thus the mask. … He stated the mask was used by movement groups around the world for protest.”  He was also carrying a gun, but was charged only with obstruction of traffic and “wearing a hood or mask on the street.”

The charge may be a difficult one to make stick.  Florida’s anti-masking laws derive from attempts to criminalize KKK activities and are thus linked to intimidation and civil rights violations.

The Florida statute §876.21 definitely applies to the reported conduct:

Wearing mask, hood, or other device on public way.—No person or persons over 16 years of age shall, while wearing any mask, hood, or device whereby any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer, enter upon, or be or appear upon any lane, walk, alley, street, road, highway, or other public way in this state.

BUT, another Florida statute, §876.155 limits the provisions the various anti-masking statutes, stating these statutes will apply only if the person was wearing the mask, hood, or other device:

(1) With the intent to deprive any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws or for the purpose of preventing the constituted authorities of this state or any subdivision thereof from, or hindering them in, giving or securing to all persons within this state the equal protection of the laws;
(2) With the intent, by force or threat of force, to injure, intimidate, or interfere with any person because of the person’s exercise of any right secured by federal, state, or local law or to intimidate such person or any other person or any class of persons from exercising any right secured by federal, state, or local law;
(3) With the intent to intimidate, threaten, abuse, or harass any other person; or
(4) While she or he was engaged in conduct that could reasonably lead to the institution of a civil or criminal proceeding against her or him, with the intent of avoiding identification in such a proceeding.

This is unlike statutory provisions in other states, such as New York, which prohibit “loitering while masked” or indeed the new Canadian criminal provision specifically aimed at protesting while masked.

The Florida statutory scheme could certainly be construed to include the protesting police officer’s acts under subsection (4) above, given that he stated he was trying to avoid identification (to protest anonymously) and that he was reportedly charged with another violation (obstructing traffic).

Constitutionally, the protesting police officer could also challenge the charge as a violation of the First Amendment.  The likelihood of success on the challenge is mixed, a subject I discuss in the book, Dressing Constitutionally.