Starting Monday, refusing to wear a mask in public spaces will be a criminal offense in Indiana, but the county’s top law enforcement officials say they’re not going to enforce it.
Gov. Eric Holcomb said Wednesday he will sign an executive order requiring everyone in the state to wear a mask starting next week. The requirements include wearing a mask while inside a public building or business, and outside when social distancing is not possible. Exceptions will be made for medical reasons, and when eating or drinking at a restaurant.
Refusing to wear a mask will be a Class B misdemeanor, Holcomb said during a Wednesday news conference, but he does not expect law enforcement to become “mask police” and arrest people for not wearing one.
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“We don’t want it to get to the point where misdemeanors come into play,” Holcomb said. “We don’t think we’re there yet.”
For now, the state is depending on Hoosiers to do the right thing, Holcomb said.
Johnson County Sheriff Duane Burgess said in a statement Thursday the sheriff’s office will not police the state’s mask mandate in the county, and people should not call 9-1-1 to report someone for not wearing one.
“It’s going to overwhelm our dispatch. We still have other crimes that have to be worked on,” Burgess said.
Burgess said a business does have the legal right to refuse service to anyone who is not wearing a mask, though, and failure to leave the property could result in a higher Class A misdemeanor charge.
He also said people should be respectful if they choose to confront someone about not wearing a mask.
“I’m not against it. I wear a mask when I go to the store,” Burgess said. “I’m not going to tell anybody to approach anyone. I think you should leave it alone and go about your day … We will respond to a disturbance, but we’re not going to go on runs for someone not wearing a mask all day long.”
The decision to not police the order should not be taken as law enforcement “picking and choosing” which crimes to enforce, Burgess said.
“I’m not against masks. I’m against this being a B misdemeanor. We’re not going to go out one day and say, ‘Oh, we’re going to go arrest people for not wearing masks and take them to jail,’” Burgess said.
Other local police agencies are following suit, saying they will not enforce the mask order. The Whiteland Police Department also released a statement saying its officers would not police it.
The Greenwood Police Department will not respond to calls related to mask-wearing, and concerned residents should call the county health department instead, Chief John Laut said.
“We do not have the manpower and staffing to go out and write tickets for people not wearing masks,” Laut said.
The Johnson County Health Department has not determined what it will do to enforce the mask mandate, but supports it, said Betsy Swearingen, health department director.
“I think people are somewhat relieved and it takes the pressure off of you deciding if you have to wear a mask or not; it’s made for you,” Swearingen said.
Officials across the state have been engaging in a mask-mandate debate since Holcomb’s announcement.
Republican Attorney General Curtis Hill issued an advisory opinion Wednesday night, just hours after Holcomb announced the mask order.
Hill’s opinion responded to a request from state Senate majority leader Mark Messmer of Jasper and four other Republican senators about Holcomb’s legal authority to impose a mask mandate.
The opinion, which does not block the governor’s action, said the state’s emergency law doesn’t give Holcomb authority for the mask mandate without the consent of the Legislature. Hill said the governor should call the Legislature back into session.
“The wisdom of wearing masks—or of laws requiring such measures—is not the issue here. Rather, the issue is whether we are following the proper and constitutional processes for enacting laws and whether we are respecting the distinct roles of each branch of state government,” Hill said in a statement.
Johnson Country Prosecutor Joe Villanueva echoed Hill’s comments, saying he also has concerns with Holcomb’s ability to enact the order without input from the legislature.
“I have serious concerns about the constitutionality of allowing the governor to have the authority to create a criminal penalty for an act which has not otherwise been deemed a crime by our General Assembly,” Villanueva said. “The Republican party holds a supermajority in our General Assembly. It would be very easy for the governor to reconvene them.”
Villanueva also does not plan to prosecute mask-related crimes, he said, adding that it is a higher offense than some drunk driving offenses. In Indiana, a first-offense drunk driver could be charged with a Class C misdemeanor, which is a lower penalty than the misdemeanor attached to not wearing a mask.
“My focus has been and will continue to be the protection of our citizens against criminals, real criminals, like domestic batterers, drug dealers, burglars, child molesters and others,” he said. “I am especially disinclined to prosecute them for a crime which is penalized more harshly than certain drunk drivers.”
Jonathan Weinzapfel, Democratic nominee for Indiana Attorney General, chimed in Thursday, countering Hill’s opinion.
“With the growing number of coronavirus cases across the state, I believe that Governor Holcomb made the right call. Wearing a mask is essential to stopping the spread and keeping Hoosier families safe, especially our kids as they prepare to return to school,” Weinzapfel said in the statement.
Democratic governor candidate Woody Myers, a physician and former state health commissioner, called for a statewide mask order July 1, and faulted Holcomb for not acting sooner.
“Holcomb stalled for months, caving to the anti-science conservatives—taking action only when every single state surrounding us implemented a mask order,” Myers said in a statement.
A renewed growth in the number of COVID-19 infections and hospitalizations across Indiana necessitated the mask order, Holcomb said.
“We want businesses to stay open, we want more Hoosiers to continue this trend of going back safely to work,” Holcomb said. “We don’t want to dial it back or put it in reverse or, as some are, shutting down again.”
The head of the state’s largest business organization called the mask mandate “a necessary step at this time in continuing to reopen Indiana safely.”
“Our economy will not be on the full road to recovery until some certainty is brought to this uncontrolled pandemic,” Indiana Chamber of Commerce President Kevin Brinegar said. “The wearing of masks is a proven strategy for protecting others and enhancing our health—both physical and economic.”
Holcomb said widespread mask use will also help in school reopenings, saying, “There is no more important task before us” than returning students to classes.
“We’re asking our kids and their teachers to mask up and our kids should not be getting mixed messages throughout the day,” he said. “When they leave school grounds, they need to see that everyone is doing what they’re doing.”
One exception to the mask mandate is eating and drinking inside restaurants. Employees are still required to wear masks. Restaurants are still limited to 75% capacity, with bars at 50% capacity under Stage 4.5 in the state’s Back on Track Indiana plan.
The county health department already receives regular calls from people reporting businesses for not requiring employees to wear masks, Swearingen said. But the health department does not have any guidance from the state on how to discipline businesses for this violation.
“I don’t know if that’s the same thing we can fine on, like we can fine a critical violation,” Swearingen said. “If it’s something that is mandated by the state that says we do have the ability to do that, then we may entertain that idea.”
Tony Priola, owner of The Willard in Franklin, said guests will need to wear a mask when entering and exiting the building, but once they are seated, they can remove their masks.
“We’re going to do what our officials ask us to do,” Priola said. “Hopefully that will slow the spread, and we’ll get out of this sooner rather than later.”
