Governor Silas Wright’s 1845 anti-mask law meets Spider-Man, Cookie Monster and Batman in Times Square

            Recent news about violent police confrontations in Times Square with aggressive panhandlers dressed to look like such characters as Spider-Man, Batman, and Cookie Monster, has put New York’s ancient anti-mask law back on the agenda of New York City law enforcement officials.

ABC News, July 28, 2014

            The origins of the anti-mask law, section 240.35(4) of the New York Penal Law, 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.

Band of anti-rent "Indians"

            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.

Silas 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. It 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 New York City police used it to deny a parade permit to the American Knights, an offshoot of the Ku Klux Klan. Most recently, in 2011, the anti-mask law was used by New York City police to break up the Occupy Wall Street protest movement shortly after demonstrators donned Guy Fawkes masks to hide their faces.

            This summer, panhandlers dressed up as superheroes or television characters descended on Times Square and accosted tourists for tips in exchange for posing for photographs. One man dressed as Spider-Man punched a police officer while resisting arrest on charges of harassing a tourist for more money after she posed for a picture with him and only offered him a $1.00 tip. Subsequently, four other costumed panhandlers were arrested for aggressive panhandling and disorderly conduct.

New York Post, July 28, 2014

            City lawmakers are looking into requiring costumed characters to obtain licenses and undergo background checks before they are allowed to ply their trade on city thoroughfares. In addition, other observers are wondering if the police might use New York’s anti-mask law to sweep the panhandling impersonators off the streets.

            Bruce Golding, a reporter for the New York Post, asked me for my opinion about whether the anti-mask law was applicable. I told him that because a 2004 decision by the U.S. Court of Appeals, Second Circuit, had upheld the constitutionality of the law in a case brought by the Ku Klux Klan challenging the anti-mask law on First Amendment grounds, it might be lawful for the police to use the anti-mask law to arrest masked panhandlers.

            I had one caveat however. The anti-mask law contains an exception. It does not apply if the mask wearing “occurs in connection with a masquerade party or like entertainment.” If costumed panhandlers are deemed by judges to be merely street performers putting on “like entertainment,” they might well escape conviction. On the other hand, if judges rule that posing for photographs with tourists is not entertainment, “like” a masquerade party, Governor Wright’s anti-mask law will have new life and use on Times Square—and Spider-Man, Batman, and Cookie Monster should beware of it!