O.C.G.A.
O.C.G.A.

O.C.G.A. § 16-11-38 (2019)

Wearing mask, hood, or device which conceals identity of wearer

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) A person is guilty of a misdemeanor when he wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property or upon the private property of another without the written permission of the owner or occupier of the property to do so.

(b) This Code section shall not apply to:

(1) A person wearing a traditional holiday costume on the occasion of the holiday;

(2) A person lawfully engaged in trade and employment or in a sporting activity where a mask is worn for the purpose of ensuring the physical safety of the wearer, or because of the nature of the occupation, trade, or profession, or sporting activity;

(3) A person using a mask in a theatrical production including use in Mardi gras celebrations and masquerade balls; or

(4) A person wearing a gas mask prescribed in emergency management drills and exercises or emergencies.

History

(Ga. L. 1951, p. 9, §§ 3, 7; Code 1933, § 26-2913, enacted by Ga. L. 1968, p. 1249, § 1.)

Annotations

Law reviews. - For note, ‘‘Klan, Cloth and Constitution: Anti-mask Laws and

the First Amendment,’’ see 25 Ga. L. Rev. 819 (1991).

JUDICIAL DECISIONS Constitutionality. - O.C.G.A. § 16-11-38 proscribes mask-wearing conduct that is intended to conceal the wearer’s identity and that the wearer knows, or reasonably should know, gives rise to a reasonable apprehension of intimidation, threats or impending violence. O.C.G.A. § 16-11-38 passes constitutional muster and does not violate the rights of freedom of speech, freedom of association, and equal protection of the law. State v. Miller, 260 Ga. 669, 398 S.E.2d 547 (1990). Standard for conviction under the Anti-Mask Act requires that the state must show that the mask-wearer (1) intended to conceal the person’s identity, and (2) either intended to threaten, intimidate, or provoke the apprehension of violence, or acted with reckless disregard for the consequences of the wearer’s conduct or a heedless indifference to the rights and safety of others with reasonable foresight that injury would probably result. Daniels v. State, 264 Ga. App. 460, 448 S.E.2d 185 (1994). Evidence sufficient to support conviction. - There was sufficient evidence to permit a rational trier of fact to conclude beyond a reasonable doubt that the defendant juvenile intended to conceal the defendant’s identity and to threaten, intimidate, or provoke the apprehension of

violence in violation of the Anti-Mask Act, O.C.G.A. § 16-11-38, because the defendant in a mask and a friend in a hooded sweatshirt stood at the door to a stranger’s house and frightened the occupants by standing motionless and silent as to their intentions. In the Interest of I.M.W., 313 Ga. App. 624, 722 S.E.2d 586 (2012). Immunity from liability. - District court erred when the court denied the police officers’ motion to dismiss claims a demonstrator filed against the officers pursuant to 42 U.S.C. § 1983 and state law, which alleged that the officers violated the demonstrator’s rights under the First and Fourth Amendments to the U.S. Constitution and Georgia law when the officers arrested the defendant for violating Georgia’s mask statute, O.C.G.A. § 16-11-38, during a demonstration in Atlanta in 2014; the officers had qualified immunity from liability on the demonstrator’s claims under federal law because the officers had probable cause to arrest the demonstrator when the officers saw the demonstrator wearing a ‘‘V for Vendetta’’ mask after the police directed demonstrators to remove masks the demonstrators were wearing, and official immunity under Ga. Const. 1983, Art. I, Sec. II, Para. IX. Gates v. Khokhar, 884 F.3d 1290 (11th Cir. 2018).

OPINIONS OF THE ATTORNEY GENERAL Georgia Crime Information Center is authorized to maintain records identifying persons charged under former

Code 1933, § 26-2913 (see now O.C.G.A. § 16-11-38). 1976 Op. Att’y Gen. No. 76-33.

RESEARCH REFERENCES ALR. - What amounts to disguise within criminal law, 1 A.L.R. 642. Validity and construction of state statute or ordinance prohibiting picketing, parading, demonstrating, or appearing in

public while masked or disguised, 2 A.L.R.4th 1241. Validity of law criminalizing wearing dress of opposite sex, 12 A.L.R.4th 1249.

Notes of Decisions
Cited in 10 cases (1 in the last 5 years), 1990–2021 · leading case: Austin Gates v. Hassan Khokar, 884 F.3d 1290 (11th Cir. 2018).
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Austin Gates v. Hassan Khokar, 884 F.3d 1290 (11th Cir. 2018). · cites it 5× “JULIE CARNES, Circuit Judge: This action arises from Plaintiff Austin Gates's arrest for violating Georgia's mask statute, O.C.G.A. § 16-11-38, during a protest in downtown Atlanta on November 26, 2014.”
State v. Miller, 398 S.E.2d 547 (Ga. 1990). · cites it 12× “was arrested for violating OCGA § 16-11-38 when he appeared in public wearing the traditional regalia of the Ku Klux Klan ("Klan"), including a mask that covered his face.”
Daniels v. State, 438 S.E.2d 99 (Ga. Ct. App. 1993). · cites it 20× “*24 Two young girls, ages ten and twelve, were walking along a street in their neighborhood when they observed a man wearing a green wrestling mask and a plastic football helmet exit the home of Frank Bradford.”
Daniels v. State, 448 S.E.2d 185 (Ga. 1994). · cites it 7× “Roy Daniels was convicted of violating the “Anti-Mask Act,” OCGA § 16-11-38 1 [or “the Act”], and his conviction and sentence were affirmed by the Court of Appeals, Daniels v.”
Duggan v. State, 483 S.E.2d 373 (Ga. Ct. App. 1997). · cites it 2× “This decision reviewed the sufficiency of evidence at a bench trial for violation of the Anti-Mask Act, OCGA § 16-11-38, and is of no relevance here.”
State v. Berrill, 474 S.E.2d 508 (W. Va. 1996). “12-16 (West 1994); Ga.Code Ann. § 16-11-38 (1992); Mich.Comp.”
Molette v. City of Forest Park Et Al., 780 S.E.2d 780 (Ga. Ct. App. 2015). · cites it 4× “1 Molette’s action arose from a December 22,2012 encounter with Sergeant Kurtz, who had ordered Molette to remove his mask because it was in violation of OCGA § 16-11-38, Georgia’s anti-mask statute.”
In the Interest of I. M. W., 722 S.E.2d 586 (Ga. Ct. App. 2012). · cites it 4× “Following a bench trial, this 13-year-old juvenile was adjudicated delinquent for a violation of OCGA § 16-11-38, which prohibits wearing a mask, hood, or other device that conceals the identity of the wearer, and a violation of OCGA § 16-11-36, for loitering or prowling.”
Hernandez v. Superintendent, Fredericksburg-Rappahannock Jt. Sec. Ctr., 800 F. Supp. 1344 (E.D. Va. 1992). “Ga.Code Ann. § 16-11-38(a) (1988); Ala.Code § 13A-11-9(a)(4) (1982); Fla.”
Alan Hutzel v. State (Ga. Ct. App. 2021). · cites it 16× “2 On appeal, Hutzel contends that the trial court erred by denying his motion for directed verdict, denying his constitutional challenge to OCGA § 16-11-38, denying his special demurrer, and denying his two motion in limines.”
— 16-11-38(a) — 2 cases
Austin Gates v. Hassan Khokar, 884 F.3d 1290 (11th Cir. 2018). “JULIE CARNES, Circuit Judge: This action arises from Plaintiff Austin Gates's arrest for violating Georgia's mask statute, O.C.G.A. § 16-11-38, during a protest in downtown Atlanta on November 26, 2014.”
Hernandez v. Superintendent, Fredericksburg-Rappahannock Jt. Sec. Ctr., 800 F. Supp. 1344 (E.D. Va. 1992). “Ga.Code Ann. § 16-11-38(a) (1988); Ala.Code § 13A-11-9(a)(4) (1982); Fla.”
— 16-11-38(b) — 1 case
Austin Gates v. Hassan Khokar, 884 F.3d 1290 (11th Cir. 2018). “JULIE CARNES, Circuit Judge: This action arises from Plaintiff Austin Gates's arrest for violating Georgia's mask statute, O.C.G.A. § 16-11-38, during a protest in downtown Atlanta on November 26, 2014.”
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