This article is prompted by recent discussions on NextDoor about the County Board of Supervisors decriminalizing failure to wear masks when required and authorizing fines for violations. Much of the discussion involved how the enforcement process would work, who would be enforcing it, etc.
Standard disclaimer: I am not a lawyer. But I’ve become fairly knowledgeable about how and why “the law” works the way it does as a result of being an elected official. Of course, “the law”, by its nature, evolves as ordinances change and courts opine in response to challenges. So things may have changed by the time you read this.
I believe much of the confusion around the Board’s action derives from not understanding the difference between administrative (“civil”) violations and criminal violations. Both are violations of community rules (laws and regulations), and administrative violations can turn into criminal violations. But they start out very differently, and for good reason.
A criminal violation is what most people think of when they think about a law or regulation being broken. It puts an individual at risk of being arrested and processed through the criminal justice system, and possibly ultimately spending time in jail or prison.
Criminal violations come in several flavors, distinguished by their degree of severity. The lowest level is an infraction, such as a parking ticket. It is a criminal offense but doesn’t expose you to arrest and jail time and isn’t part of your permanent record. Next up are misdemeanors, which do expose you to arrest, prosecution and possible jail time, and are recorded in your record. The highest level criminal violations are felonies, which can result in substantial punishments.
Administrative violations are different. You aren’t at risk, at least initially, of being arrested. Instead, you must correct whatever violation you’ve committed and usually pay a fine.
A good example of an administrative violation is building too tall a fence on the border of your property. Many communities, including San Carlos, believe too substantial a fence undermines the quality of a neighborhood and so enact laws limiting fence heights. In our community you can build a six-foot-tall fence, with an optional additional foot of open lattice work.
If you build a 15 foot tall fence your neighbor can file a complaint with the city. A building inspector will come out to observe the situation, and you’ll be issued an order to bring the fence into compliance. A fine may also be levied against you.
But the citation won’t be issued by a sworn law enforcement officer1. And you won’t be subject to arrest.
That does not mean you can blithely ignore the citation and fine. If you do you risk further citations and fines – for failing to comply – and, if things get bad enough, you can be charged criminally. But not necessarily for the original violation. Instead, you’d likely be charged for failure to comply with a lawful order, which is a criminal offense. That’s when a sworn law enforcement officer can show up, read you your rights, and take you away to be brought before a judge.
Prior to the Board of Supervisors action on August 4th failure to comply with the State rules involving when and where to wear a mask was a misdemeanor. Violators were at risk of being arrested and processed by the criminal justice system. Paradoxically that also meant the rule was relatively lightly enforced.
The primary purpose of enforcement isn’t to punish people. It’s to conform behavior to what the community has determined is necessary to maintain public health and safety. If the threat of criminal prosecution is enough to get the needed level of compliance law enforcement would be perfectly happy to never have to arrest anyone.
Unfortunately, in the case of State masking requirements, the Board of Supervisors determined the level of compliance wasn’t high enough, putting the community’s health, safety and well-being at risk.
They could’ve ordered more vigorous enforcement of the existing misdemeanor statutes. Instead, they opted to both reduce the severity of enforcement – that’s the “decriminalization” part – and increase the potential for more frequent citations and fines. They did this by allowing transgressions to be treated as administrative violations, infractions (i.e., like parking tickets) or misdemeanors, depending upon the severity of the non-compliant behavior. By making enforcement less onerous and more common the hope is community members currently not complying with State regulations will change their behavior.
Just like citations involving unlawful fences do not need to be served by sworn law enforcement officers, administrative citations involving failure to comply with State mask regulations will no longer need to be served by sworn law enforcement officers2. Individuals will still have the right to contest administrative citations in an administrative hearing3. They will also know which agency is citing them because that’s part of the citation documentation, the ticket, they’ll be issued.
Moreover, they’ll also be able to avoid citation, and fines, by changing their behavior immediately. Because violators are required to be warned, and given an opportunity to correct the problem, before they are cited. The warnings will be recorded by the authorities, to keep track of people who agree to change their behavior but fail to do so.
But, as with any administrative violation, violators won’t be subject to detention and arrest…at least initially. However, just like with the fence example, failure to comply itself exposes one to the risk of triggering a criminal violation.
Some will argue even administrative citations are unfair because they believe the State’s masking requirements are based on flawed medical information and/or are unconstitutional. The freedom to act on such beliefs, through our system of government, is part of our system of government. Everyone has a protected right to challenge laws, and their constitutionality, through the political/legislative and judicial processes.
What none of us have the right to do is decide, by ourselves, what “the law” is and force it to conform to our personal conclusions. “The law” is a community asset, owned by the community. That’s true even of our constitutional framework, which is owned by all of us living under it. Both the law and the Constitution are subject to change…but not to individual demands.
A sworn officer is someone who must meet higher standards of training and performance and is accorded more authority by the community to act on its behalf including the authority to be armed and to use such serious and/or fatal tools in the course of his or her duties. A sheriff’s deputy is a sworn officer. The community services officer who gives you a parking ticket is not. ↩
Nor will infractions, if the situation warrants something more substantial than an administrative citation. ↩
Infractions and misdemeanors will still be handled by the court system. ↩