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On Mask Wearing, Don’t Use Law Enforcement As Hall Monitors

Faced with the inability to slap the wrists of citizen’s themselves for not wearing masks in public, local officials in Texas are beginning to resort to the next best thing in an effort to halt the spread of coronavirus: penalizing businesses instead.

Bexar and Hidalgo counties—along with the city of Austin—have entered executive orders authorizing $1,000 fines per violation for businesses who fail to develop and implement Health and Safety Policies requiring mask usage.

Personally, I am more sanguine about the propriety of wearing a mask than some of my conservative and libertarian fellow travelers. I don’t think wearing a mask renders us as sheep, nor curtails our freedoms. They are indeed a nuisance—especially now that Texas heat has descended upon us—but extending courtesy to others while coronavirus remains an ongoing concern seems to me a rather benign act of civic solidarity.

However, I must step off the train if coercion—which is followed closely by someone with a gun and an implicit threat to use it—is the best strategy that local officials can muster to realize their goals. Even seemingly innocuous laws governing petty behavior can have gross consequences upon which we’d do well to meditate.

Take Sandra Bland. In July 2015, Bland was on her way to a grocery store when she was pulled over by DPS trooper Brian Encinia for failure to signal a lane change. After refusing to put out a lit cigarette that she was smoking, the trooper opened her door and threatened to pull her out. Bland was eventually arrested and transported to the Waller County jail where, three days later, she was found dead in her jail from suicide.

To be sure, neither Bland nor Encinia acquitted themselves gracefully during their encounter—spurned by Bland’s refusal to douse her cigarette, Encinia yelled “I will light you up!”—but the entire sequence of events that resulted in Bland’s death was precipitated by a simple traffic violation.

Consider also Eric Garner. New York, irked by the efforts of its citizens to avoid its onerously high taxes on tobacco by purchasing them from neighboring states and reselling them, criminalized the sale of loose, untaxed cigarettes. In July 2014, Garner—who had a previous history of selling loose cigarettes—died during the course of his arrest in New York City on suspicion of doing so. His death was ruled a homicide.

(Interestingly, New York still has the highest cigarette taxes in the country and still criminalizes the sale of loose cigarettes. New York’s lesson remains unlearned by those in New York who ought to have learned it.)

Halting coronavirus’ spread is an important task, but we’re forgetting our history when it is convenient for us (and 2014 and 2015 are hardly ancient). Which is why Bland and Garner’s deaths ought to tell a cautionary tale for using force to compel wearing a mask, even if it’s just (“just”) a fine. Eventually, someone will refuse to wear one. (Americans being “gloriously” and “dangerously” famous for disobedience.) Eventually, someone clothed in authority of the state will arrive and force the issue. What then?

At that point, we’ll come to the critical juncture: “Is society ready to kill someone for not wearing a mask (which themselves are meant to save lives)?” This isn’t some abstract hypothetical hatched from the mind of a persnickety libertarian. When governments create laws with enforcement mechanisms, everyone better be comfortable with the implied threat of force necessary to uphold it. Someday, there will be a negative consequence we’d rather not have visited upon us.

If you remain unconvinced, ask Sandra Bland or Eric Garner.

We should fear even lesser harms that attend the enforcement of petty misdemeanors. These United States are currently embroiled in passionate soul-searching about the role that law enforcement plays in our communities. Much of this questioning is healthy, as citizens seek accountability for those entrusted to see to the public order; some of it, in the case of rioting and property destruction, is dangerous and inconducive to sensible policing reform (let alone relationship building). To this end, I count myself skeptical that tasking law-enforcement officers—most of whom are good cops playing the role of watchmen in their own communities—with issuing $1,000 fines on businesses for failure to harangue their patrons into wearing masks will do anything to engender good feelings in a charged, emotional atmosphere.

We need healthy relationships between police and citizens—now more than ever. Maintaining social comity demands it.

This sort of ham-fisted policy reveals the same cognitive dissonance among those on the left that’s been evident elsewhere, including efforts to criminalize plastic straw usage. Despite longstanding condemnation of inappropriately enforcing lower-level offenses as a general rule—full disclosure: conservatives have also acknowledged a need to rethink this—the same people commonly thunder past that station in support of new enforcement measures when it confirms their priors. Police officers constantly issuing a litany of public-order fines as de facto revenue generators for the city? “That’s bad!” the critics will say, decrying that policy’s effect on the vulnerable and how it undermines community relations. (They’re right.) Police officers scouring the city for mask scofflaws, especially during a time of already frayed nerves? “Well, this is an emergency…”

Hypocrisy all the way down.

There must be other ways for government to advance our shared interests. For instance, we’ve achieved remarkable reductions in tobacco use through the decades not by criminalizing it, but from concerted public-health campaigns to discourage its use. There’s no reason the same principle doesn’t obtain here.

(Because I can already hear the retort, I’d wager that laws prohibiting public smoking have become more and more irrelevant in the face of so many people ceasing smoking in the first place. Smokers displaying simple courtesy by refraining from smoking around others can’t be discounted, either.)

We must realize the limit to what laws and executive orders can accomplish. Taking the drumbeat approach may be tedious, boring work for cities or counties who might prefer the hammer instead, but not every problem is a nail.

Wearing a mask indoors in public remains a good idea. But police groups themselves have already recognized the folly of performing a socially-loaded task. The police aren’t hall monitors. For the sake of repairing already fraught relations between citizens and the people who protect them, local officials need to realize the same before revisiting the drawing board.

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