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Protesters could face felony charge if arrested while wearing a mask under obscure Ohio law

A group of dozens of faculty and staff from Ohio State University march towards the Ohio Union to participate in a protest on OSU's South Oval on May 1, 2024.
George Shillcock
/
WOSU
A group of dozens of faculty and staff from Ohio State University march towards the Ohio Union to participate in a protest on OSU's South Oval on May 1, 2024.

Especially since the COVID-19 pandemic, it’s not uncommon to see protestors wearing masks.

At recent protests on The Ohio State University’s campus, protesters passed out free medical masks at the edges of a gathering on the South Oval.

At the protest where 36 people were arrested, a WOSU reporter saw a man with a scarf wrapped around his face antagonizing police officers as they arrested people.

The man shouted insults at police for several minutes. When police suddenly lunged forward to grab the man, he ran off and got away from officers.

Now Ohio Attorney General Dave Yost warns that protesters arrested for misdemeanors, like trespassing, can also face a felony charge if they are wearing a mask.

An obscure 1953 law says, “no person shall unite with two or more others to commit a misdemeanor while wearing white caps, masks, or other disguise.”

Rob Barnhart, an Assistant Professor of Law at Capital University, said the law was created to increase penalties for Ku Klux Klan demonstrations.

“This isn't what the statute is designed to do,” Barnhart said. “It is not designed to stop people or to enhance the penalties for folks wearing medical grade, or you know, medically indicated masks from committing trespass."

In a letter addressed “Dear Presidents,” Yost made some Ohio college and university leaders aware of the law on Monday.

“I write to you today to inform your student bodies of an Ohio law that, in the context of some behavior during the recent pro-Palestinian protests, could have that effect,” the letter reads.

Yost goes on to say that the fourth-degree felony could be punishable by six to 18 months in prison, up to $5,000 in fines and up to five years of probation.

"I find it really hard to believe that this is some public service announcement to students to be aware of a 70-year-old law that nobody uses."
- Robert Barnhart, associate professor of law at Capital University

Barnhart, who practiced law for 15 years before becoming a professor, said until he read Yost’s letter, he had never heard of the law.

It was not brought to the public’s attention during the Black Lives Matter protests during the COVID-19 pandemic, when most protesters were wearing masks. Barnhart said he has also been involved in cases where robberies were committed by people wearing masks and the law was not applied.

“As far as I can tell, it has never been used or at least if it has been used, has never appeared in a published court opinion,” Barnhart said.

Barnhart said that while it is possible that a protester could be charged with the law, he has a hard time imagining county prosecutors or university jurisdictions trying to use it. Felony charges typically have to come from a county prosecutor’s office.

"So, I find it really hard to believe that this is some public service announcement to students to be aware of a 70-year-old law that nobody uses,” Barnhart said.

Yost writes in his letter that he doesn’t want anyone to be “surprised that they violated the law.” He added that students should “own their advocacy and avoid wearing masks.”

Ohio State University spokesperson Ben Johnson said the school received Yost’s letter and is reviewing it.

Columbus City Attorney spokesperson Pete Shipley said that decisions about original charges for protesters arrested at Ohio State were made by Ohio State Police.

When asked if it would pursue felony charges against arrested protesters, the Franklin County Prosecutor’s Office said in a statement, “we will review any case brought to us for such purpose. We have no further comment.”

Yost's office did not respond to WOSU's request for additional comments.

WOSU reporter George Shillcock contributed to this report.

Allie Vugrincic has been a radio reporter at WOSU 89.7 NPR News since March 2023.