Oneida County D.A. Scott McNamara to prosecute COVID mask requirement as a violation, not a crime By Luke Perry
A recent Oneida County requirement that local businesses ensure all customers wear masks has generated questions about how this public health order will be prosecuted by District Attorney Scott McNamara.
Oneida County Executive Anthony Picente said “there’s no excuse. Whether you’re picking up food or going to get gas, it needs to be done everywhere.” The requirement calls for any basic covering.
Oneida County distributed 50,000 cloth masks to county residents. Failure to comply was a misdemeanor crime with a potential fine of up to $2,000.
McNamara told Talk of the Town (WUTQ in Utica) he “100 percent” agreed with the policy reasons behind this order, but worried about its legality and ability to withstand scrutiny from an appellate court.
The order was “somewhat vague” in legal terms, prompting questions of who would be charged and the “culpable mental state.” McNamara did not think “strict liability” should apply, meaning a defendant is liable regardless of one’s mental state. For instance, someone forgetting to put on a mask differs from someone who willfully defies the order with malice intent.
McNamara was also concerned about this behavior being treated as a crime. He views the situation as analogous to not wearing a shirt or smoking in a restaurant. Businesses can eject people for doing this, but it is not a crime.
Executive Anthony Picente (photo from his office)
McNamara, Picente, and Oneida County Sheriff Rob Maciol discussed the order and agreed that failure to comply should result in a legal violation and fine, but not a crime.
“We’re not trying to criminalize anything,” McNamara said. “We want to be able to give businesses the opportunity that if someone comes in, and just defies them, you have to leave.”
At the same time, McNamara stressed that businesses must follow state and local health laws. “You also don’t want business just thumbing their nose and ignoring the order, and saying ‘hey listen, I don’t care what your order is. I’m going to do whatever I want to do.’”
Sheriff Rob Maciol (Oneida County Sheriff’s Office)
Each case will be evaluated on its own merits. CEOs, managers or clerks can be cited, contingent on who is most culpable.
McNamara said the intent of the order “was never to zealously prosecute it to the fullest extent of the law and hold everybody accountable to the fullest extent of the law.”
Businesses were calling Executive Picente and inquiring about how to respond to customers refusing to wear masks in their stores. McNamara said the county responded by “trying to give them the tools to address this issue.”
Luke Perry (@PolSciLukePerry) is Professor of Government at Utica College
