SC cities can require you to wear a face mask, attorney general says
South Carolina’s attorney general said Wednesday that cities like Columbia can require residents to wear face masks while out in public.
Attorney General Alan Wilson made the statement the day after Columbia passed an emergency ordinance requiring masks in most instances where a person might come into contact with another member of the public, the latest effort to halt the spread of the coronavirus in South Carolina. Greenville passed a similar ordinance on Monday.
While in some instances actions by a local government can be preempted by the state, South Carolina currently has no statewide rule on face coverings that would overrule local efforts to require residents to wear a mask.
“Our state constitution and state laws have given cities the authority to pass these types of ordinances under the doctrine of Home Rule,” Wilson said in a statement. “The basic premise behind the Home Rule doctrine is to empower local governments (ie: towns, cities and counties) to effectively govern themselves without interference from state government.”
The attorney general’s office released a statement Wednesday after Wilson said it received several requests for clarification after the two cities passed mask ordinances, and other local governments looked set to follow.
“Many people are upset about these ordinances and I can understand their frustration,” Wilson said. “However, just because you believe something is bad government does not make it unconstitutional government. Sometimes the remedy for a bad government action is not a legal remedy but a political remedy at the ballot box.”
Columbia City Council passed a 60-day emergency ordinance Tuesday requiring anyone aged 10 and up to cover their mouth and nose when entering a public building, when outdoors within six feet of others or in a confined space with unrelated individuals. Violators could be fined $25 under the ordinance.
State epidemiologist Dr. Linda Bell said Wednesday that city-by-city measures may not curb the spread of the disease fast enough, but suggested a statewide mandate may be effective. Public health experts have long encouraged masks as a means to stop air droplets expelled through the mouth and nose from spreading the disease, but South Carolina has not adopted a statewide mask requirement.
Wilson said a court may find a mask requirement “arbitrary and capricious” in the absence of a public health emergency, but the ongoing threat posed by COVID-19 makes that kind of challenge unlikely, the attorney general said.
Wilson also said a state law aimed at the Ku Klux Klan that prohibits wearing a mask in public is not applicable, because mask-wearers in Columbia and elsewhere are reacting to a public health crisis and are not attempting to conceal their identity while committing crimes.
The attorney general compared the mask ordinance to an emergency curfew the capital city passed after riots broke out downtown following protests against the death of George Floyd. Both mask and curfew ordinances are emergency measures that, when applied generally, would not violate an individual’s rights.
When Columbia and other municipalities previously passed stay-at-home orders during the initial coronavirus outbreak, Wilson took an opposing view. Then, he said the local measures were preempted by Gov. Henry McMaster’s statewide emergency order in response to the pandemic, but McMaster later issued a similar statewide order. Wilson reiterated his view on the stay-at-home orders on Wednesday.
The attorney general has previously clashed with the capital city over other the scope of the city’s powers, even taking Columbia to court over several gun-related measures the city has passed. On Wednesday, he cited gun laws as an area where state law does pre-empt local action.
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