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DA says masking for anonymity at public meetings is illegal, but NHCSO won't unmask the Proud Boys

Members of the Proud Boys at a February meeting of the New Hanover County Board of Education.
Benjamin Schachtman
Members of the Proud Boys at a February meeting of the New Hanover County Board of Education.

District Attorney Ben David’s office provided guidance to Sheriff Ed McMahon this week, telling him the state’s 1953 anti-Klan bill banning masks and hoods used to “conceal the identity of the wearer” while on government property is “still in full effect.” But the Sheriff’s Office will continue to take a laissez-faire approach to enforcing that law against the neo-fascist group, saying it won’t get involved in the ‘mask debate.’

Members of the Proud Boys who show up to public meetings on government property in their trademark masks, designed to grant them anonymity, are violating state law.

That’s the guidance District Attorney Ben David provided to New Hanover County Sheriff Ed McMahon in a letter on Wednesday. David wrote the letter after McMahon called him Tuesday evening, asking for counsel on the issue.

David said he consulted senior prosecutors and experts in the field at the UNC School of Government and then rendered his opinion to McMahon. In short, David’s office found that a 1953 state law aimed at curbing the domestic terrorism of the Klu Klux Klan still makes it illegal for people to conceal their identity on government property in 2023. That law doesn’t apply to medical masks, however, thanks to a different law passed early in the pandemic.

"Free and open debate requires transparency. The law is intended to remove the cloak of anonymity from those who choose to engage in the public square,” David wrote in an email to WHQR, sharing his letter to McMahon (you can find the letter at the end of the article).

The letter notes the spirit of the law — in 1953 and now — is to avoid the effect of intimidation on the public.

“[T]he public policy behind this statute is intended to vindicate the rights of citizens who would be present at a public meeting but for the intimidating presence of those in violation of [the law],” according to the letter.

Sheriff’s Office still says it’s ‘all or nothing’ for masks

David’s letter is guidance, not policy. It’s routine for law enforcement agencies to consult prosecutors and district attorneys on cases that require nuanced readings of the law — and it’s commonplace for prosecutors and law enforcement officers to work together on determining what the appropriate charges are and even what kind of evidence is needed to move forward with a case. But those consultations aren’t binding. Police officers and sheriffs’ deputies don’t need the DA’s permission to make an arrest – and the DA’s office can’t demand or prohibit those arrests.

And, according to New Hanover County Sheriff’s Office (NHCSO) spokesperson Lt. Jerry Brewer, David’s letter does not change deputies’ hands-off policy towards the Proud Boys.

On Tuesday morning, prior to McMahon’s call to David, Brewer told WHQR, “it’s all or nothing,” meaning in the eyes of NHCSO, deputies would either have to remove everyone’s masks — regardless of the reason they were being worn — or allow everyone’s masks. The same logic would apply to tinted sunglasses, Brewer said, noting that Proud Boys could argue they were wearing them for medical reasons, just as they could argue their masks were for public health reasons.

Law enforcement is aware that these would be disingenuous arguments for most if not all Proud Boys, designed to ‘troll’ opponents and not based in any sincere concern about Covid-19.

Members of the Cape Fear Proud Boys chapter have publicly spoken out against mask mandates at local government meetings, and several have told WHQR and other outlets their disguises are solely for avoiding retaliation from opponents, largely on the political left, who would try and disrupt their businesses and private lives if their identities were known.

The desire for anonymity is also why they use false names or nicknames when introducing themselves and signing up for public forums. For example, one Proud Boy member appears to have signed himself up at a recent New Hanover County Board of Education meeting using only the name “Bubba,” according to copies of the sign up sheet provided by the school district. At several meetings over the last three years, another member has publicly spoken under the false name Johnny Ringo.

The letter from David’s office addresses this issue.

“It is not enough that the person may claim to be wearing a mask for physical health if the surrounding circumstance belie that the claim and make clear that the purpose is — for example — to conceal identity or to intimidate others,” David’s office wrote.

However, on Thursday morning, after receiving David’s letter, Brewer said the Office’s stance was still the same.

“From the beginning of COVID until now, we do not get to choose which masks are good, which masks are bad, what people use a mask for. If they're wearing a mask, they’re wearing a mask — and we’re going to allow them to wear a mask,” Brewer said.

The masking is the crime

The Sheriff’s Office has said in the past that, if a Proud Boy were to break the law at a public meeting, they would be arrested (at which point, their identity by law would become public unless they were a minor).

Lt. Brewer reiterated that point Thursday morning.

“Now, if we get into a criminal investigation or something, then that's something we addressed differently. But we were told from the git-go to not try and get into the debate over the mask, which we hadn't. If they're at the public meeting, and they're wearing a mask for COVID, then we're allowing them to wear the mask,” he said.

But the point of David’s letter is that masking on government property for the sake of anonymity is a crime. Specifically, a violation of state statute §14-12.8.

The law was passed in 1953 to curb the Klu Klux Klan’s use of masks and hoods, at least on government property. North Carolina is one of over a dozen states with similar legislation,according to the Southern Poverty Law Center.

North Carolina state statute §14-12.8 is short and to the point, and while it doesn’t mention the Klan by name, its meaning would have been readily apparent at the time.

§14-12.8. Wearing of masks, hoods, etc., on public property.

No person or persons shall in this State, while wearing any mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, enter, or appear upon or within the public property of any municipality or county of the State, or of the State of North Carolina. (1953, c. 1193, s. 7.)

David’s letter lays out how a law enforcement officer could apply that law to make an arrest.

“[I]f an officer has a reasonable suspicion, based on the totality of the circumstances, that a person on public property is not wearing a mask for a physical health purpose, then that officer has a right to demand to see that person’s face, and can charge §14-223(a), Resisting, Delaying, and Obstructing an Officer if that person refuses,” the letter states.

Not a Covid conundrum

On social media, some have trolled opponents of the Proud Boys — who tend to be on the left — by suggesting that the group’s apparent immunity from the law is a comically unintended consequence of mask mandates. In short, the joke is that the Proud Boys’ Teflon status is somehow Karmic revenge for the left’s allegedly overreaching public health response to Covid.

But that’s not how the law works.

In 2020, as the global Covid pandemic upended life in North Carolina, the language of the 1953 anti-Klan law suddenly became problematic for public health officials who were encouraging people to wear masks in order to curb the spread of the virus. This included crowded government meetings where, of course, the topic of mask mandates was often the subject of heated debate.

North Carolina passed a temporary public health exemption, allowing masking on government property in May of 2020 as the pandemic was first hitting — but that measure expired in just a few months.

So, the General Assembly later passed a law, with bipartisan support, that created several lasting exceptions to the mask ban, most notably for “[a]ny person wearing a mask for the purpose of ensuring the physical health or safety of the wearer or others.” Legal experts saySession Law 2020-93, which updated state statute §14-12.11, did not reauthorize the use of masks (or hoods) to disguise a person’s identity.

According to reporting at the time from Bloomberg Law, “[w]earing a mask in North Carolina would remain legal for public health reasons,” but it “still will prohibit wearing masks to conceal identities.”

New Hanover County agrees.

The county’s legal team offered the following “insight,” according to a spokesperson: "We anticipate Courts would interpret with a carve-out allowance for masks providing a medical function, in contrast to those masks with a primary purpose to conceal identity, such as those worn as part of a uniform or costume.”

When it comes to the masking law, it doesn’t matter what the school board thinks

Over the last week, over a dozen people have contacted WHQR asking why the New Hanover County Board of Education hasn’t done more (or anything) to address the Proud Boys. And at least one has filed a complaint against Board Chair Pete Wildeboer, reportedly for his failure to intervene in an altercation between a Proud Boy and an LGBTQ advocateduring last week’s school board meeting.

And while the board could — and has in the past — trespassed individuals for a host of reasons, they are not required to ‘press charges’ in order for Sheriff’s deputies, who have legal jurisdiction over school board meetings, to make an arrest.

Related: NHCS education activist Sandy Eyles is banned from meetings until end of June

Nor does the board’s support for Proud Boys, tacit or otherwise, in any way prevent law enforcement from exercising its right to enforce the law against the group’s members who continue to mask for the sake of anonymity.

Asked for comment, a district spokesperson said Wildeboer wouldn’t be weighing in.

“Mr. Wildeboer spoke with law enforcement, and we will have to defer to them with any questions on this topic,” according to a spokesperson.

According to District Attorney Ben David’s office, that’s appropriate. David’s letter to McMahon notes it is of “no legal significance if others who are present–even elected officials who may be in charge of a meeting where violations of §14-12.8 occur–say that they are willing to have such masked individuals present.”

Below: District Attorney Ben David's letter to New Hanover County Sheriff's Ed McMahon

Ben Schachtman is a journalist and editor with a focus on local government accountability. He began reporting for Port City Daily in the Wilmington area in 2016 and took over as managing editor there in 2018. He’s a graduate of Rutgers College and later received his MA from NYU and his PhD from SUNY-Stony Brook, both in English Literature. He loves spending time with his wife and playing rock'n'roll very loudly. You can reach him at BSchachtman@whqr.org and find him on Twitter @Ben_Schachtman.