Not Wearing A Face Mask & Criminal Charges – How Serious Is It?

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BY ALFONSO GAMBONE, ESQ.
Pennsylvania has implemented mandatory face masks and social distancing requirements indefinitely due the COVID shutdown. This means that it is now ILLEGAL to gather in groups or enter any supermarket, grocery store, convenience store, or pharmacy without a face mask or some type of face covering.

Many people have asked what type of criminal charge a person could face for disregarding or refusing to obey this executive order from Gov. tOM Wolf. In Pennsylvania, under Title 18 § 5503(a), a person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance, or alarm or recklessly creating a risk of such circumstances, he or she:

1. Engages in fighting or threatening or non-violent tumultuous behavior;
2. Makes an unreasonable noise;
3. Uses obscene language or makes an obscene gesture;
4. Creates a hazardous or physically offensive condition.

Not Wearing a Face Mask – Misdemeanor of the 3rd Degree or Summary Charge?

Not wearing a face mask or intentionally disregarding the social distancing requirements now falls under Pennsylvania’s crimes code. Disorderly conduct is a misdemeanor of the 3rd degree if the actor causes substantial harm, serious inconvenience or if he or she persists in disorderly conduct after a reasonable warning or request to desist; in all other cases, disorderly conduct is a summary offense.

Given this definition, there is a strong possibility that Pennsylvania could charge a person with a misdemeanor offense and the maximum penalty for this type of crime is 1 year of state incarceration and a $2,500.00 fine. This is the statutory maximum for a misdemeanor of the 3rd degree in Pennsylvania, but it is highly unlikely that anyone would face such a criminal penalty if charged and convicted of it. In most situations, the Commonwealth would charge a person with disorderly conduct graded as a summary offense as it could be difficult, if not impossible, to establish beyond a reasonable doubt that the offender caused substantial harm or serious inconvenience unless the Commonwealth could present strong evidence of it.

While failing to stop the conduct after a reasonable warning could be enough to establish the misdemeanor charge, it could be difficult, if not impossible, for the Commonwealth to establish beyond a reasonable doubt that a person had received the warning. Obviously, Pennsylvania is putting the mandate out through every possible media outlet but a defense in this situation could probably establish that there is no proof that the offender received the warning.

I have written articles in the past indicating that ignorance of the law is no defense when it comes to crimes involving the illegal possession of a gun, firearm, or even narcotics; but all of those laws are well established; unlike this current mandate which is brand new and technically unconstitutional. The only reason why any of these executive orders in Pennsylvania and New Jersey are currently enforceable is because all courts are closed and there is no ability to actively challenge them at any level.

New Jersey and Face Masks – Disorderly Persons Offenses

New Jersey has already implemented the mandatory face-mask requirement and social distancing. As I have written in previous articles, disregarding these executive orders in the Garden State will likely lead to disorderly persons or petty disorderly persons offenses, which are like Pennsylvania’s summary offenses. The Garden State does not distinguish between misdemeanor or felony offenses but rather indictable crimes and non-indictable offenses.

If You Are Charged for Not Wearing a Face Mask

If you are charged with an offense for not wearing a face mask, social distancing, or “illegally” entering Pennsylvania or New Jersey from New York or some other highly restricted quarantine state, you should contact a criminal defense lawyer to understand your rights. Remember, a misdemeanor offense conviction is not immediately expungeable in Pennsylvania and will result in a criminal record that will last beyond the COVID shutdown.

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