Jay Breneman and his daughter, Anna Grace, browse footwear at Walkabout Outfitter in Richmond, Va., May 16, 2020. Even though some restrictions on businesses have been lifted, "we’re still trying to do everything as smart as we can,” said Jay. (Parker Michels-Boyce/ For the Virginia Mercury)

Timing wasn’t the only thing that set Gov. Ralph Northam’s new mask mandate apart.

When he announced the emergency order on Tuesday, more than a month later than nearby counterparts including Maryland and New Jersey, Northam repeatedly emphasized that enforcement would be different than similar requirements in other areas. 

While states like Maryland and Michigan explicitly defined violations as misdemeanor offenses (and, in the case of Maryland Gov. Larry Hogan, tasked law enforcement with carrying out the mandate), Northam said he was taking a different approach by assigning oversight to the Virginia Department of Health.

“This is a matter of public health, and as a result, any enforcement that is needed will be done by our health officials,” he said at a news briefing. “This is not a criminal matter, and our law enforcement, our police, and our sheriffs will not have a role in enforcing this.”

Northam’s chief of staff, Clark Mercer, later added that the governor had taken the option of criminally enforcing the new requirement “off the table.” But the full text of the order, released Tuesday evening, seemed to contradict that reassurance. “Any willful violation or refusal, failure, or neglect to comply” with the mandate would be punishable as a Class 1 misdemeanor, the full document read — an offense that can carry up to 12 months in jail and a fine of up to $2,500.

And at Tuesday’s news conference, both Northam and Mercer seemed to suggest that ultimately the General Assembly, expected to reconvene in Richmond this summer, would pass legislation allowing the governor to issue emergency orders enforceable through civil penalties.

For Northam’s opponents, the backlash was swift. “We don’t appreciate the governor saying there won’t be penalties for individuals,” the Virginia House of Delegates Republican Caucus wrote in a tweet on Wednesday, “then weaponiz[ing] the VDH to sanction businesses already stretched to the max.”

For supporters of the mask requirement, including some of the state’s largest labor unions, the enforcement component of the new emergency order was simply confusing. Some executive members of the Virginia AFL-CIO, a union representing more than 320,000 workers, were concerned that a misdemeanor penalty would disproportionately affect residents who couldn’t access or afford masks, said communications director Destiny LeVere. Others were worried that the new policy lacked the necessary teeth to protect vulnerable workers.

“These agencies need to have resources and manpower,” LeVere added. “That’s our concern. With the increase in the number of workplace complaints and retaliation complaints and unemployment claims, our concern is that they’re not going to have the capacity to enforce this.”

Signs advertise businesses and restaurants that are still open in the Carytown area of Richmond, Va., May 16, 2020. (Parker Michels-Boyce/ For the Virginia Mercury)

So, why did Northam say he wouldn’t be criminally enforcing the new order?

In an email Wednesday, Northam’s spokeswoman, Alena Yarmosky, wrote that the distinction lay in how VDH would be enforcing the mask mandate.

“In the case of egregious violations, VDH or [a] local health department could go through a judicial process to obtain a civil injunction or a summons and warrant,” she wrote, “which is punishable as a Class 1 misdemeanor for violating an order issued under the health code.”

It’s the judicial process — in this case, asking a judge to issue a summons or an order to desist — that makes Northam’s order different, Yarmosky insisted. Rather than a law enforcement officer issuing a criminal citation or making an arrest on the spot, health officials would need the courts to approve any enforcement actions. 

“Because VDH has to go through a judicial process prior to any potential arrest, this is distinguished from a Class 1 misdemeanor through the criminal code,” she wrote. 

But the enforcement mechanism doesn’t change the potential penalties. If violators are found guilty of a misdemeanor — one of the possible consequences for disobeying the mask order — they can still face fines or jail time.

“There’s no such thing as a civil misdemeanor,” confirmed Dana Schrad, the executive director of the Virginia Association of Chiefs of Police, which warned Northam Tuesday that the mask order could have “unintended consequences” such as setting the stage for confrontations between employees and patrons.

“Turning good advice into a mandate that has to be enforced with trespassing citations and physical removal of violators destroys police/community relations and puts business owners in a no-win situation: Either be prepared to confront people you value as customers, or avoid the risk of a potentially violent confrontation by keeping your business closed,” Schrad said in a statement.

Can individuals be charged for not wearing a mask?

Technically, yes, according to the language of the executive order. But the administration has signaled that it intends to enforce the mandate only for the most blatant violations.

“This is for grossly negligent actors,” Mercer said at the briefing on Tuesday. “We’re not talking about someone who forgets to wear their mask. … This is for businesses that would be grossly negligent in refusing to adopt this policy.”

Having VDH enforce the policy makes it especially difficult to issue day-to-day citations, Schrad pointed out. Unlike law enforcement, the agency doesn’t have regular interactions with the general public. And while it’s still unclear whether VDH will inspect public-facing businesses for compliance or rely on a complaint-driven system, neither lends itself well to individual enforcement.

“That only will happen when they get lack of compliance or they get multiple infractions or violations happening at a business,” Schrad said. “That’s where they can charge the business with failure to comply. We want to make sure that the public understands that an initial violation doesn’t mean they’re going to get charged with a criminal misdemeanor.”

Gov. Ralph Northam toured a warehouse this month housing state supplies of personal protective equipment. (Governor’s office)

Why not just have police enforce the requirements?

During Tuesday’s briefing, both Northam and Mercer brought up the issue of racial equity — a nationwide concern as the COVID-19 pandemic continues. In April, for instance, police in Philadelphia were recorded forcibly removing a black man off a public bus for not wearing a mask.

“Criminal code is just not a place to enforce a lot of these [emergency orders],” Mercer added after the briefing. “There’s tremendous equity issues to enforcing masks — who gets to enforce it and who doesn’t.”

But asking police to implement the mandate was also unpopular with some of the state’s largest law enforcement associations. John Jones, the executive director of the Virginia Sheriffs’ Association, confirmed Tuesday that he had consulted with the governor on the new order, writing in an email that the organization favored a “non-criminal means to support this order.”

Though Schrad and the VACP opposed the policy, Schrad said it was a relief not to have police in charge of enforcement.

“That helps at least on one level,” she added in an interview on Wednesday. “Local and state law enforcement don’t have enough resources to come in and do prevention. And we don’t want our businesses expecting law enforcement to be outside their door, enforcing a mask order all the time.”

There could also be political repercussions for asking law enforcement to carry out the new order, said Raymond Scheppach, the former executive director of the National Governors Association and a professor of public policy at the University of Virginia. 

“There’s very little enforcement, in terms of police, that the state really has,” he said in a phone interview on Wednesday. The Virginia State Police, with roughly 2,000 troopers, would handle a minority of the enforcement. Otherwise, the governor would be relying on local agencies to handle violations.

“I don’t think he really wants to rely on local forces — taking them away from their normal kinds of activities,” Scheppach added. Some local law enforcement agencies have refused to enforce mask requirements, including one sheriff in Orange County, California, who told local officials that his department wasn’t the “mask police.” Culpeper County Sheriff Scott Jenkins has already said he would refuse to enforce the governor’s reopening guidelines, which include requirements for restaurant waitstaff to wear masks.

How will enforcement actually work?

Without law enforcement, it’s still unclear how VDH will oversee the new requirements. Mercer said Tuesday that the administration was looking into hiring new inspectors, but couldn’t provide an estimate of how many employees would be responsible for enforcement or how many new positions the agency would need.

VDH didn’t immediately respond to a request on Wednesday for more specifics, including which office within the department would be responsible for carrying out the mandate. Mercer said the agency would be responsible for overseeing all public-facing businesses, but it’s still uncertain whether compliance will be assessed through regular inspections or a complaint-driven system.

“I think the hope is largely that businesses will help enforce it and that individuals will sort of comply because they agree with it,” Scheppach said. “I think [the governor’s] attitude is that he’s not going to get into enforcement — he’s going to rely on businesses to do it.”

But in cases where companies refuse to comply, or when patrons refuse to obey the new mandate, Schrad said it’s all but certain that law enforcement will become involved. If a customer refused to leave a business for noncompliance, “that person could be arrested by police for trespassing,” Yarmosky said. And if a business itself refused to comply, VDH might have to call in law enforcement to handle a confrontation, Schrad added.

“It’s going to happen,” she said. “We know that. It just has to be handled on a case-by-case basis.”