The Kansas mask order begins Friday. Here’s what could happen if you refuse to wear one

Beginning Friday, Kansans will be required to wear face masks in public spaces under Gov. Laura Kelly’s planned order. But don’t expect the unmasked to face arrest or criminal charges.

In some areas, those who refuse to wear a mask will likely face few consequences.

A new state law removes the possibility of criminal charges for violating pandemic-related executive orders from the governor. If Kelly’s directive falls under the new law, sheriffs and police departments will have few options to enforce it beyond simply encouraging residents to comply – and some law enforcement agencies are ruling out taking any action altogether.

The mask mandate is likely to be the first test of the law. It will be the first statewide coronavirus rule since Kelly lifted all remaining restrictions in May.

The governor and public health officials view masks as critical to stemming a recent spike in new cases that threatens to send more people to the hospital and lead to more deaths if the upward trend continues. As Kansas tallies hundreds of new cases each day, scientific evidence is clear that masks are effective in reducing transmission of the contagious virus.

“Ideally, people would comply with this willingly. We’ve seen, obviously, that’s not the case, that the best advice hasn’t necessarily led to that and I think it will be a real struggle, quite honestly,” Lee Norman, secretary of the Kansas Department of Health and Environment, told reporters Wednesday.

But local authorities now have far less power to respond to violators than they did at the start of the pandemic, when executive orders closed businesses and banned large gatherings.

Kelly and Republican leaders forged a compromise last month after weeks of disputes over the extent of the governor’s emergency authority during the pandemic. The Legislature passed, and Kelly signed, a bill that limited the sweep of her power while also preserving critical parts of the state’s coronavirus response.

When the mask order goes into effect, county leaders will have the power to alter or overturn the order. And even if they leave the order in place, breaking it won’t be a crime.

Previously, violations of executive orders were class A misdemeanors, punishable by fines and jail time. Intentional violations are now subject to a civil penalty of up to $2,500. There is no jail time.

Local prosecutors and the attorney general may bring a civil action – basically a lawsuit – against violators. They may also seek a court order to compel mask wearing.

Asked about the extent of his authority, including whether he can personally order mask use, Norman -- the state health officer -- said only that he can shut down unsafe gatherings.

Still, those procedures will play out in the courts, not on the streets. In practice, a police officer who encounters an unmasked person will be able to do very little beyond forward information to a prosecutor.

Although the role of law enforcement is already highly limited, more than half a dozen agencies have said explicitly they won’t enforce the order.

“The Bill of Rights was not adopted to give us certain rights,” Comanche County Sheriff Michael Lehl said in a statement where he vowed not to enforce a mask mandate. “It was adopted as a protection to limit government and to keep our government from infringing upon our God-given rights.”

The St. Marys Police and Fire Department said in a statement that people shouldn’t call 911 regarding someone wearing or not wearing a mask and that Kelly’s orders “are not laws, and they are not enforceable.” The agency said it wouldn’t make arrests or issue citations.

The McPherson Police Department said that it had received guidance that violators won’t be arrested or cited.

“In summary, if we receive complaints about violations of the Orders, we will respond and our goal is to educate the violator of the existence of the Order, their violation, and ask for their compliance. We will complete a report and forward the report to local prosecutors, and that is all,” the statement said.

The department didn’t say who had provided the guidance.

C.J. Grover, a spokesman for Attorney General Derek Schmidt, said it would be “premature” to offer guidance because the order hasn’t been published. A spokeswoman for the Johnson County District Attorney’s Office also said it would be premature to comment.

Ed Klumpp, a lobbyist for several Kansas law enforcement associations, said conversations about the coming order are ongoing. He said Schmidt is expected to eventually offer information.

“We’re waiting to see exactly what the order says,” Klumpp said. “We can’t project how we’re going to deal with something – we don’t even know what it is yet.”

The Sedgwick County District Attorney’s Office didn’t provide details Wednesday about how it would approach enforcement.

“The order has not been released yet so it is impossible to determine what, if any, enforcement provisions are in the order,” spokesman Dan Dillon said. “However, if law enforcement investigates a crime and presents the case to our office, we will review it just like any other case brought before us where we have jurisdiction.”

A Wichita Police spokesman said it would speculative to assume what role law enforcement will play before Kelly’s order is released on Thursday. He said officers will use “educational efforts and seek voluntary compliance from citizens.”

The Eagle’s Michael Stavola contributed reporting

This story was originally published July 1, 2020 at 2:03 PM with the headline "The Kansas mask order begins Friday. Here’s what could happen if you refuse to wear one."