On May 19, 2021, the Court of Appeals of Georgia decided Hutzel v. State[i], which involved the arrest of a counter-protestor who was wearing a mask.  The relevant facts of Gonzales are as follows:

So viewed, the record shows that in April 2018 there was a planned rally for the National Socialist Movement (“NSM”) in the City of Newnan (“the City”). The NSM group applied for and received a permit for the rally from the City, and a law enforcement officer testified that officers “prepared months in advance” for both the NSM  protestors and anticipated counter-protestors from potential Antifa  groups. A law enforcement officer testified that both groups were known for violence.

On the day of the rally, law enforcement officers encountered a group of counter-protestors gathered at an intersection of a public roadway. The counter-protestors were “singing, chanting, beating on a drum.” A law enforcement officer observed that multiple individuals in the crowd were masked. Some of the counter-protestors were wearing backpacks, and at least one protestor was outfitted with a make-shift shield containing an Antifa symbol and protruding screws.

A law enforcement officer testified that he instructed the masked protestors to remove their masks. The officer further testified that “almost immediately, as I began to address the group, they ․ began to focus their attention on us. There were individuals who would come up with cameras and demand my name․ Others were pointing their middle finger at us; others were saying expletives towards the police; others were chanting; the drum was beating.” The counter-protestors were chanting, “ ‘F — the police,’ as they, you know, shot us the bird, people calling us Nazis and stuff like that.” They also began to “act[ ] in concert with one another to help shield these individuals who wore masks in the group.”

Hutzel was one of the masked counter-protestors. Hutzel failed to comply with law enforcement officers’ orders to remove to his mask, and he was ultimately arrested. The law enforcement officer who arrested Hutzel testified that “[Hutzel] was part of this group that was acting what I construed violently. He was asked to take the mask off multiple times, but never did.” Hutzel testified that law enforcement officers instructed him to remove his mask and that he refused to comply with that instruction. Hutzel also admitted that he interlocked his arms with other counter-protestors as officers approached him.

Hutzel was initially charged in an accusation with wearing a mask to conceal identity. After Hutzel filed a demurrer, the State amended the accusation by including an allegation in the wearing a mask to conceal identity count and adding a misdemeanor obstruction of an officer count. Hutzel was convicted on both counts.[ii]

Hutzel appealed the denial of his motion for a directed verdict and argued that the facts presented were insufficient for a jury to determine that he wore the mask with intent to threaten, intimidate or provoke violence or with a reckless indifference to such consequences.

The court of appeals first examined the relevant statutory and caselaw related to the anti-mask law.  The Georgia statute for which Hutzel was charged states, in pertinent part,

A person is guilty of a misdemeanor when he wears a mask by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property.[iii]

Additionally, the Supreme Court of Georgia has interpreted the statute to require the State to prove

[T]hat the mask-wearer (1) intended to conceal his identity, and (2) either intended to threaten, intimidate, or provoke the apprehension of violence, or acted with reckless disregard for the consequences of his conduct or a heedless indifference to the rights and safety of others, with reasonable foresight that injury would probably result.” Daniels v. State, 264 Ga. 460, 464 (2) (b), 448 S.E.2d 185 (1994).[iv]

The court of appeals also noted that the accusation charged that Hutzel

[W]hile upon the area ․ being a public way, did unlawfully wear a mask, by which a portion of his face was so hidden as to conceal his identity, with the intent to threaten, intimidate, or provoke the apprehension of violence and did so with reckless disregard for the consequences of his conduct, to wit: [Hutzel] did wear said mask during a rally of the National Socialist Movement.[v]

The court then examined the evidence from the case.   The evidence showed that (1) Hutzel was wearing a mask that concealed his identity while in public, (2) Hutzel testified that he wore the mask solely to conceal his identity, (3) Hutzel interlocked his arms with other counter-protestors to hinder officers from arresting him, (4) all while counter-protestors were shouting obscenities, chanting anti-police slogans, and banging a drum, (5) he was asked to remove the mask several times and refused, (6) an officer testified that Hutzel was part of the group that he considered to be acting violently, (7) and the officer believed the group was attempting to encircle the police.

Based upon the above evidence established at trial, the court of appeals held that

[T]he facts were sufficient to permit the jury to determine beyond a reasonable doubt that Hutzel intended to threaten, intimidate, or provoke the apprehension of violence, or acted with reckless disregard for the consequences of his conduct or a heedless indifference to the rights and safety of others, with reasonable foresight that injury would probably result. See In the Interest of I. M. W., 313 Ga. App. 624, 626-627 (1) (a), 722 S.E.2d 586 (2012).[vi]

Thus, the court of appeals affirmed the conviction for a violation of the anti-mask statute.

The court of appeals also considered Hutzel’s conviction for obstruction of a law enforcement officer under Georgia law.

The court noted that they had previously held that

Refusing to obey lawful commands of an officer who is seeking to protect his safety will sustain a conviction under this statute.” Arsenault v. State, 257 Ga. App. 456, 457 (1) (a), 571 S.E.2d 456 (2002).[vii]

OCGA § 16-10-24(a) makes it unlawful for a person to “knowingly and willfully obstruct or hinder a law enforcement officer…in the lawful discharge of his official duties.

Here, the evidence showed that Hutzel was told several times to remove his mask, and he refused.  Further, he interlocked his arms with other counter-protestors who were behaving violently.  The court of appeals held that this was sufficient to sustain the charge and conviction for obstruction of law enforcement officer.

Therefore, the court of appeals affirmed Hutzel’s conviction.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] 359 Ga. App. 493 (859 S.E. 2d 495)(2021)

[ii] Id. at 494

[iii] Id. (citing OCGA § 16-11-38)(It should be noted that anti-mask statute does have exceptions, such as wearing a mask for a holiday event, artistic performances, to prevent the spread of infectious diseases.)

[iv] Id. at 496

[v] Id. at 495

[vi] Id. at 499

[vii] Id.