Many school districts in Lancaster County are preparing to roll out Pennsylvania Gov. Tom Wolf’s Sept. 7 mask mandate for the first time after allowing students, parents and administrators a short grace period.

But it’s not clear who — if anyone — will actually enforce violations of the law here.

The county’s top prosecutor, a Republican, has stated publicly that she will not pursue criminal charges against those who ignore the law, which is designed to slow the spread of a virus that has killed more than 1,000 people here and nearly 29,000 across Pennsylvania.

Her proclamation has filtered down to local police departments, whose officers will try to educate offenders and try to get them to mask up instead of filing criminal charges, the head of the police chiefs association here said this week.

That leaves enforcement of a state law to school boards, principals — administrators have said they intend to remove repeat offenders from the classroom — and possibly even citizens themselves through a little-used provision that allows them to file criminal complaints on their own. 

The rollout of the order comes amid a growing furor among a relatively small but vocal portion of parents outraged about what they described as the mandate's infringement on their ability to make health decisions for themselves. 

"You can take your masks, you can take your Marxism, and you can stick it," one citizen, Dan Matthews, told the Elizabethtown Area school board this week.

Supporters of the mandate, including front-line doctors and pediatric infectious-disease experts, cite an overwhelming body of research that shows masks are effective at slowing the spread of COVID-19 and have no negative health effects. 

Nonetheless, it is clear the debate will continue at least until the governor revisits his mask mandate in October. Given the uncertainty surrounding who will enforce the law and how, we sought answers from local law enforcement officials and legal experts. 

Here is what they had to say.

Is the mask mandate a law? If someone doesn’t adhere to the mask mandate, are they breaking the law? 

Yes. The mask mandate is legal — rooted in a law enacted by the Legislature in 1955. And, if someone is not exempted from wearing a mask by one of the listed exceptions — for instance, medical condition, if a child is under 2 years old or if a mask would create an unsafe condition — then yes, that person is breaking the law.

In issuing her Aug. 31 order, state Department of Health Secretary Alison Beam cited, among other things, Pennsylvania’s Disease Prevention and Control Law. Section 5 of that law, which Beam’s order specifically cited, states: 

“Upon the receipt by a local board or department of health or by the department, as the case may be, of a report of a disease which is subject to isolation, quarantine, or any other control measure, the local board or department of health or the department shall carry out the appropriate control measures in such manner and in such place as is provided by rule or regulation.”

“It’s not a law if you define a law as a statute passed by the Legislature. But it's a legal order. It’s an order that the law allows (the acting health secretary) to make,” said Scott Burris, director of the Center for Public Health Law Research at Temple University’s Beasley School of Law. “It's not advisory. It’s not a suggestion. It's 100% law.

What are the penalties for violating the mandate?

According to Pennsylvania’s Disease Prevention and Control Law, anyone who violates a provision or regulation faces a fine of between $25-$300, plus costs, or up to 30 days in jail.

And health department spokeswoman Maggi Barton wrote via email, “By failing to adhere to the order, schools may personally face lawsuits from those who may be affected by noncompliance with the order, including children who may become ill as a result of the district's violation, or disabled children who are unable to attend school because of the district's failure to follow the order.”

Who is responsible for prosecuting violations?

The state’s Disease Prevention and Control Law states: 

“Prosecutions may be instituted by the department, by a local board or department of health or by any person having knowledge of a violation of any provisions of this act or any regulation.”

The section indicates the prosecution would be a summary offense and take place before a district justice.

“Any person” means anyone, Burris said.

Lancaster County does not have a department of health.

Lancaster County District Attorney Heather Adams said she will not prosecute violations. Can she do that? 

Bear with us.

“Generally speaking, police handle the prosecution of the large majority of summary offenses,” Adams said. “At times, we are requested to handle a hearing that may have numerous witnesses or, for a variety of reasons, may be unusually difficult.”

So, this level of offense — violating the masking order — isn’t generally something the DA gets involved in. Her office focuses on the more serious crimes of misdemeanors and felonies.

But in a statement issued on Sept. 8 in response to questions her office was getting about the mask mandate, Adams said the office had advised law enforcement that it would not prosecute violations. It was a continuation, she said, of the position her office took in May 2020 when she said that it would not prosecute Wolf’s stay-at-home order.

Adams said her office determined that Wolf’s prior orders were “subjective and based on vaguely defined standards.” Instead, she said, she suggested law enforcement to try to get people to comply through education and example.

So, too, Adams said, is the case with the current mask order.

It’s very unlikely police would act on their own to cite someone, anyway. 

Columbia police chief Jack Brommer, who is head of the Lancaster County Chiefs of Police Association, said, “The DA is obviously the top law enforcement official in the county and she provides direction to law enforcement.”

As such, police will try to educate people on compliance, he said. 

In her statement, Adams referred to guidance from the state education department on what school districts and parents can do about noncompliance. The guidance for parents states:

“Parents can submit complaints about noncompliance with the masking order to their child's school principal or building administrator. If a building or districtwide issue, parents should contact the central district's office administration/superintendent prior to submitting to the school board.”

The guidance for schools states:

“The Order, issued under the Disease Prevention and Control Law, establishes a legal mandate. School entities are expected to enforce the Order as they do other state laws and school rules and policies. Reasonable steps may include developing and implementing a policy, enforcing already existing policies, training staff on conflict management, and monitoring and taking corrective actions in instances of noncompliance among staff, students, or visitors. School entities should follow their local policies and procedures on managing student and staff misconduct.”

Nowhere in that guidance, Adams said, is law enforcement mentioned. 

Adams said, however, that law enforcement can file charges “if there are situations that escalate to the point where there are violations of the crimes code, specifically any harassing, threatening, or other violent behavior.”

So, can the DA choose not to prosecute a crime? 

Yes. It’s called prosecutorial discretion. Prosecutors have latitude on what charges they will file and prosecute. Police do this, too. For example, a speeding driver might be given a warning instead of a ticket. 

Greg Rowe, executive director of the Pennsylvania District Attorneys Association, said prosecutorial discretion, generally speaking, is when “law enforcement decides whether to proceed on a case or matter brought before it for various reasons that that agency feels are important.”

“As a general matter, discretion would include what a prosecutor thinks is an appropriate charge under the circumstances,” Rowe said, explaining that a prosecutor may consider if someone is the lead conspirator in a criminal enterprise or a lower-level participant, if the defendant is a recidivist, or if the person is a cooperating witness.

The association has not advised members on how to deal with the mask mandate, Rowe said, explaining that’s a decision for each district attorney to make.

Burris, the Temple law professor, said Adams was making a “political statement” by saying her office won’t prosecute violations.

Other district attorneys, including Lebanon’s and York’s, also said they will not enforce the mandate.

If district attorneys won’t prosecute, who will?

Likely, no one. 

An individual could try to bring a private criminal complaint, but that seems a longshot.

A private criminal complaint is a mechanism under Pennsylvania law that allows individuals to seek prosecution of a person or group for allegedly breaking a law. The private citizen acts, essentially, as a police officer in swearing to the allegation, and the allegation must be proven beyond a reasonable doubt.

Bernard Ilkhanoff, an attorney with the East Petersburg law firm Ilkhanoff & Silverstein, said private criminal complaints are rare.

“Sure, many parents would love to do that” — file a private criminal complaint over mask mandate violators, Ilkhanoff said. 

But given that Adams has already said she wouldn’t enforce the mandate, Ilkhanoff didn’t think such a tack would be successful.

The district attorney’s office had 94 private criminal complaints in 2020, 104 in 2019, and 80 in 2018 — a fraction of the 5,300 cases the office prosecutes annually.

According to the law governing private criminal complaints, district attorney approval is not needed for summary complaints and it is up to a district judge’s discretion whether to proceed.

The DA’s office does not track private complaints at the district justice level; one district judge told LNP he could not remember the last time a private complaint was filed with his office.

Could the governor order enforcement?

LNP|LancasterOnline contacted the state attorney general’s office and the governor’s office with questions about prosecuting the mask mandate. Both referred the questions to the health department. 

After repeated questioning of the health department over a couple days with no clear answer, spokeswoman Barton on Thursday told LNP, “Rather than focus on costly, time-consuming prosecution efforts, we really want to focus on getting people vaccinated and mask wearing measures.”

The health and education departments have been working with schools to educate them on the mandate and risks of noncompliance, Barton said. 

Burris, the Temple professor, said prosecution isn’t the way to go.

“Criminal law isn't enforcement, it’s punishment … That’s not the way to get widespread mask use,” he said.

Instead, Burris said, school districts that are having trouble with compliance could seek civil remedies, such as going to court to obtain a judge’s order.

“The democratically elected governor, and his Cabinet, have issued an order — based on legislation created by our democratically elected Legislature — to protect the health and welfare of the commonwealth. Any citizen has an obligation to obey that law,” Burris said. “And if they’re not doing that, they’re engaging in antisocial behavior.”

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