The approach of Halloween together with recent news that the last scheduled criminal case stemming from the arrests of hundreds of Occupy Wall Street protestors had been dismissed, has swung the spotlight of history back on New York’s anti-mask law.
It was one of the first tools used by New York City police to break up the Occupy Wall Street protest when it began in September, two years ago. Within days of donning Guy Fawkes masks, demonstrators were charged by police for violating the anti-mask law, section 240.35(4) of the New York Penal Law. Its origins go back to a statute passed in 1845 to suppress armed uprisings by tenant farmers in the Hudson Valley who were using disguises to attack law enforcement officers.
Known as the “anti-rent movement” in New York history, tenants on huge manorial estates rose up to challenge their “leases in fees.” They required the tenants to pay their landlords rent and render them annual services for an indefinite term. In addition, a “quarter sale” provision in the lease called for the tenant to pay the landlord one-fourth of the sale price if the tenant sold the farm. When wheat prices fell and the soil became less productive, many tenants were unable to pay their rent and became indebted to their landlords.
A crisis occurred in 1839 when Stephen Van Rensselaer IV, owner of a 375,000 acre estate located in today’s Albany County, demanded payment of back rent owed and sought to evict farmers who did not pay. They fought back by organizing anti-rent associations which lobbied state legislators for relief and attacked the validity of the leases in court.
When law enforcement officers were sent to serve farmers with legal process and conduct distress sales of the farmers’ property, heavily armed bands of “Indians” thwarted them. Organized by the anti-renters, the Indians were boys and young men disguised in calico gowns and masks of sheepskin or painted muslin. They threatened and assaulted the law enforcement officials and robbed them of their legal papers. Violence escalated. Some process servers were tarred and feathered, and by 1845, three people had been killed, including a sheriff. Soon the anti-rent movement spread into eleven counties and claimed up to 60,000 supporters.
On January 7, 1845, in response to the civil unrest, Governor Silas Wright urged the legislature to pass an anti-mask law to prevent and punish crime being committed under the protection of masks and other disguises. The next day, Erastus Corning of Albany introduced such a measure in the state senate. It passed both houses and was signed into law on January 28, 1845 by Governor Wright.
The law made it a crime for any person to “appear in any road or public highway, or in any field, lot, wood or enclosure” with their “face painted, discolored, covered or concealed” or disguised in any manner to hide their identity. If they were arrested and could not give “a good account” of themselves, they faced being deemed a vagrant and being sentenced to six months in jail. If three or more people were disguised in this way and they assembled in one place, they faced possible arrest and up to one year in jail. The jail term could be doubled if they were armed with a sword, dirk, firearm or “other offensive weapon.”
The anti-rent movement died out in the mid-1850’s; however, the anti-mask law remained in force. As time passed, the legislature modified it but left its essential provisions in place. For example, in 1882, a person arrested for wearing a mask could still receive a six month jail term but if a judge ruled that the mask wearer was “not a notorious offender,” the sentence might be reduced to six months of hard labor in the county, city, town or village poor house.
The anti-mask law was reenacted in its present form in 1965. Even though the charge under it was changed from vagrancy to loitering, and the maximum punishment was reduced from six months to 15 days in jail, it remained a valuable tool in the arsenal of New York law enforcement officials.
In 1999, the American Knights, an offshoot of the Ku Klux Klan, felt the bite of the anti-mask law. They were were denied a parade permit by the New York City police department on the grounds that the Knights’ plans to wear masks as they marched would violate the anti-mask statute. The organization challenged the denial in federal court on the grounds that their First Amendment rights to freedom of speech had been violated.
On January 20, 2004, the U.S. Court of Appeals, Second Circuit, upheld the constitutionality of the anti-mask law. According to the court, the law’s history demonstrated that the statute was “indisputably aimed at deterring violence and facilitating the apprehension of wrongdoers.” The court overturned a lower court decision in favor of the Knights and refused to rule that the concealment of one’s face while demonstrating is constitutionally protected.
And how does the anti-mask law affect Halloween activities? Fortunately for all the potential super hero and scary creature look-alikes, the statute does not apply to “a masquerade party or like entertainment,” and it never has. In 1845, the anti-mask law excepted “any peaceable assemblage for any masquerade or fancy dress ball or other entertainment.”
Photo: Anti-rent protester costumes from a photo captioned “Disguises of the Delaware Anti Renters, 1845” From “Delaware County, New York; History of the Century, 1797-1897” (1898).