ORANGE COUNTY, Fla. – Criminal defendants accused of breaking the law while wearing masks could seek reduced charges or sentences by arguing they covered their faces to abide by government mask mandates or health-related guidelines, legal experts predict.
Law enforcement agencies throughout Central Florida have recently asked for the public’s help identifying criminals such as robbers, burglars and shoplifters who were caught on camera committing offenses while wearing medical masks or similar face coverings.
Some of those crimes occurred in counties like Orange, Osceola and Seminole where emergency orders are in place requiring face coverings to be worn in public to minimize the spread of COVID-19.
Under Florida law, wearing a mask during the commission of a crime to conceal one’s identity can increase the potential punishment, in some cases doubling or tripling the maximum prison sentence.
“If the defendant can show they are merely wearing a surgical mask, or a mask in compliance with a county guideline, that may be compelling to a fact finder (like a jury or judge),” said News 6 legal analyst Steven Kramer.
Weeks after Orange County mayor Jerry Demings signed an emergency executive order in June requiring face coverings in public places, sheriff’s investigators said Keith Earle Young tried to rob a bank.
Surveillance video retrieved from the Wells Fargo branch off East Colonial Drive shows a man wearing a white mask, which covered his nose and mouth, approach a teller and allegedly demand money before leaving empty-handed.
If someone commits a felony or misdemeanor while wearing a hood, mask or other device to conceal his or her identity, the offense “shall be reclassified to the next higher degree”, according to Florida statute.
Attempted bank robbery is a second-degree felony punishable by a maximum of 15 years in prison.
That potential sentence can double to 30 years in prison if prosecutors reclassify the offense to a first-degree felony due to the defendant wearing a mask.
Recently released surveillance photos show a masked man, later identified by Orange County sheriff’s deputies as Adam Christopher Gonzalez, trying to burglarize a vehicle while the county’s mask mandate was in effect.
Instead of facing a maximum of five years in prison if convicted of attempted burglary, Gonzalez could potentially face up to 15 years of incarceration should prosecutors reclassify the offense from a third-degree felony to a second-degree felony.
The state attorney has not yet filed formal charges against Young and Gonzalez, so it is unknown whether prosecutors will seek greater penalties as a result of the masks.
“Going to prison for 15 years is a lot different than going to prison for five years. Going to jail for a year is dramatically different than a maximum of 60 days,” said Kramer, who believes criminal defendants could try to fight any reclassified offenses by citing government mask requirements.
“The key component of this law is that the defendant must be using that mask, hood, or other device to attempt to conceal their identity,” Kramer said. “A defendant at a trial is going to make the argument, especially if the defendant was wearing a surgical mask or N-95 mask or even a bandanna, that the defendant is merely trying to stay safe in a pandemic.”
Even prior to virus-related mandates, Kramer said criminal defendants have tried challenging enhanced sentences for wearing masks.
Bobby Clark unsuccessfully appealed his burglary conviction in 2018, arguing that he did not cover his face when a surveillance camera captured him pulling his shirt over the back of his head.
“(It) is reasonable to conclude the that the defendant took this action to conceal his identity,” the appeals court wrote in affirming his conviction.
“We want to keep people safe, but at the same time we don’t want to let crooks manipulate the system to get away with crimes and commit crimes,” Kramer said. “That’s why it’s important to look at this on a case-by-case basis.”
Orange-Osceola State Attorney Aramis Ayala would not discuss any specific cases being prosecuted by her office but indicated she will still seek enhanced criminal penalties related to masks.
“(The) normalization of face coverings does not impact our duties and responsibilities as prosecutors,” a state attorney spokesperson said in a statement. “When charging cases, we will continue to consider the totality of the circumstances and determine whether there is sufficient evidence of a person’s intent to conceal his or her identity during the commission of a crime.”
“Sadly, there are some who will take advantage of COVID-19 safety protocols, which means that we must all be vigilant and aware of our surroundings for our own safety,” the state attorney spokesperson added.
A spokesperson for Phil Archer, the state attorney for Seminole and Brevard counties, indicated his office would also reclassify offenses in appropriate cases despite Seminole County’s face covering mandate.