Enforcing the Use of Protective Masks

Interviewer: We’re talking with Ben Barry, an attorney with Martin, Harding & Mazzotti. And Ben, we’ve been talking a lot recently about the mask issue. Businesses are being opened, the little spigot has been opened, but they are being asked…well, not being asked, mandatorily they need to wear mask as employees of those businesses. But as far as consumers are concerned, that is just been a guidance, a recommendation. But we are hearing stories of people coming out and confronting others. We got a call from a caller who said was over at the Costco and got confronted by somebody who was actually pretty upset about the fact that he wasn’t wearing a mask.

Ben: Yes. I’m hearing the same. There have been articles and opinion pieces on different perspectives regarding the order to wear masks and the enforcement of it. What I would say from a legal perspective is that sort of vigilante justice on one side or the other, whether you’re an anti-mask person or a mask person can be very problematic from a legal perspective. I think that the enforcement of any mask rule really should be left in the hands of the government and the enforcement agencies as opposed to individuals attempting to enforce rules. I think really what’s probably the safest is really kind of the social pressure that people can put on individuals who are not coming into conformity with what is being recommended or what the laws are. And we can see this in almost every other criminal statute out there.

People don’t commit crimes in large part because they’re afraid of what other people will think. They may want that bracelet, but they don’t want to be a shoplifter. And so, I think that in this time of heightened tensions, confusion, concerns for one’s own safety and the safety of other, I think that it is, again, it’s best left to the government to do any enforcement, if any is taken at all, as opposed to individuals confronting individuals who are not kind of in line with their thinking on the matter. Whether that’s wearing a mask again, or not wearing a mask. Because there are legal issues that might arise.

Interviewer: From the perspective of the law, Ben, would it make it clear for citizens or would it be helpful in the perspective of the law if there was a mandate from government saying, you must wear masks when you’re entering a retail establishment rather than leaving it up to each business?

Ben: I think that the government is in the best position to provide guidance to its citizenry. And I do think that there is always a reluctance of the government to place enforcement in the hands of citizens because it will typically go awry. And so, I think it would be better or at least clear up some confusion if the government were to take away the power for any citizen to enforce it if they even have the power to begin with. But also say we are going to be enforcing this in the way that we see fit through the legislature as opposed to just leaving it kind of gray and allowing people to operate on their own suppositions.

Interviewer: Ben, if a person were to confront another individual who’s not wearing a mask and get all irate about it, is there law, is there a line that they’re crossing that they need to be aware of outside of being annoying?

Ben: Sure. Yeah. I think that it all depends. There is a difference certainly between I would say there are sort of two different scenarios that I could envision happening to me. One, you know, somebody pushing a shopping cart, walking by me in the aisle saying, “You know, you really should have a mask on,” versus, you know, a guy that’s 7 foot 4 and towering over me and kind of pointing his finger in my face saying, “Get your mask on right now or I’m going to show you who’s boss.” Those are two totally different scenarios and in one situation, I might have a real true, genuine fear for my health and safety, and distinct from the mask versus the other situation where it’s a gentle reminder. It’s a social suggestion versus a real threat. And so, in those two different worlds, yeah, I do think that my reaction to it could be justifiable. For example, if I were to, I don’t know, act in self-defense versus doing something else. Putting on my mask and saying, “Yeah, you know, that lady has a point.”

Kurt: If a person was not wearing a mask, another person was wearing a mask and the other individual was not wearing a mask, and someone could make the case that they actually literally picked up the virus from the person not wearing the mask, could they bring any kind of a legal case against that person, if they were able to prove it somehow?

Ben: If they were able to prove it, I don’t think so.

Kurt: That the person…

Ben: Don’t think so.

Kurt: Interesting.

Interviewer: Well, this conversation is not going to probably stop because we’re going to be in this situation between masks and no masks. And as we open up the spigots and we continue to open up commerce and how people feel, their comfort level around this virus and around other human beings, this conversation is going to continue for quite a while. Ben Barry, attorney with Martin, Harding & Mazzotti. Thank you so much for your insight.

Ben: Thank you so much for having me.

Kurt: Thank you, Ben.

Interviewer: All right, Ben. We’ll talk to you later. Thank you.

Ben: All right, thank you, guys. Nice to talk to you. Bye-bye.

Interviewer: Yeah. Bye.