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2018 Georgia Code 16-11-38 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 16-11-38 Case Law from Google Scholar Amendments to OCGA 16-11-38

TITLE 16 CRIMES AND OFFENSES

Section 11. Offenses Against Public Order and Safety, 16-11-1 through 16-11-224.

ARTICLE 2 OFFENSES AGAINST PUBLIC ORDER

16-11-38. Wearing mask, hood, or device which conceals identity of wearer.

  1. 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.
  2. 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.

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

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.

Cases Citing O.C.G.A. § 16-11-38

Total Results: 3  |  Sort by: Relevance  |  Newest First

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State v. Miller, 398 S.E.2d 547 (Ga. 1990).

Cited 66 times | Published | Supreme Court of Georgia | Dec 5, 1990 | 260 Ga. 669

...Fuller, Assistant Solicitor, for appellant. Michael R. Hauptman, for appellee. Bondurant, Mixson & Elmore, Virginia L. Looney, Charles R. Sheppard, Ralph S. Goldberg, Chathleen Conneally, amici curiae. CLARKE, Chief Justice. Shade Miller, Jr. 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....
...V of the Georgia Constitution of 1983; (2) that the statute is unconstitutionally vague and overbroad; and (3) that the statute violates his freedom of association under the First Amendment to the United States Constitution. Known as the "Anti-Mask Act," OCGA § 16-11-38 provides as follows: (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...
...Miller, "How to Stop Violence! Intimidation! In Your Community" (August 15, 1949). A nameless, faceless *672 figure strikes terror in the human heart. But, remove the mask, and the nightmarish form is reduced to its true dimensions. The face betrays not only identity, but also human frailty. OCGA § 16-11-38 was passed in 1951....
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Daniels v. State, 264 Ga. 460 (Ga. 1994).

Cited 22 times | Published | Supreme Court of Georgia | Sep 21, 1994 | 448 S.E.2d 185

...Supreme Court of Georgia. Decided September 21, 1994. Rosemary E. Myers, for appellant. Kenneth W. Mauldin, Solicitor, Ethelyn N. Simpson, Assistant Solicitor, for appellee. SEARS-COLLINS, Justice. 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. State, 211 Ga. App. 23 (438 SE2d 99) (1993). We granted certiorari to consider whether Daniels' actions constituted a violation of § 16-11-38....
...il the Act is intended to prohibit, that is, ridding the state of mask-wearing would-be desperados and the like. The Act expressly provides that it shall not apply to "[a] person wearing a traditional holiday costume on the occasion of the holiday," § 16-11-38 (b) (1), nor to "[a] person using a mask in a theatrical production including use in Mardi gras celebrations and masquerade balls," § 16-11-38 (b) (3)....
..." the children in this case necessary for conviction. [5] Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Judgment reversed. All the Justices concur, except Hunt, C. J., and Carley, J., who concur in the judgment only. NOTES [1] Section 16-11-38 provides as follows: (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 w...
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Nuckles v. State, 853 S.E.2d 81 (Ga. 2020).

Cited 5 times | Published | Supreme Court of Georgia | Dec 21, 2020 | 310 Ga. 624

...11 In support of this argument, Nuckles cites several statutes that employ phrases similar to “owner or occupier of real property.” See also OCGA §§ 2-6- 39 (b) & (c) (addressing authority of soil and water conservation supervisors to enter land); 16-11-38 (prohibiting wearing a mask on another’s property without written permission); 36-72-4 (prohibiting the disturbance of a cemetery without a proper permit); and 51-3-1 (addressing premises liability). However, she fails to show how the legi...