Philadelphia is poised to pass a ski mask ban, drawing support from police and criticism from the ACLU

Philadelphia City Council is poised to ban the wearing of ski masks in certain public spaces this week, a move that police say could help them solve more crimes and stop more pedestrians they suspect of being involved in criminal activity.

The measure is cosponsored by 10 members, more than the majority needed to pass the bill, which is up for vote Thursday. Authored by Councilmember Anthony Phillips, who represents parts of Northwest and Northeast Philadelphia, the bill allows the city to fine people $250 for wearing ski masks in parks, schools, and on public transit. There are carve-outs for religious expression and “First Amendment activities” like protesting.

It comes as Council has raised a handful of measures aimed at showing it’s responsive to constituent concerns, especially around crime and public safety. But the ski mask ban has nonetheless drawn criticism from some, and the ACLU says it could violate free expression rights and be misused by officers stopping and frisking pedestrians — a controversial but legal law enforcement tactic that’s been embraced by Mayor-elect Cherelle Parker.

“This raises some serious concerns constitutionally,” said Steve Loney, senior supervising attorney at the ACLU of Pennsylvania. “We’ve seen situations where just the knowledge that face coverings are banned in a place can still chill First Amendment activities.”

Phillips defended his legislation, saying it’s “balanced and thoughtful.” There are also exceptions for people participating in winter sports, performing in a theatrical production, or wearing them for safety purposes while working.

He said the idea isn’t to infringe on rights, but to make people think twice before donning a ski mask, which he says “the majority of the city is in fear of.”

“I want them to come to the city of Philadelphia and walk by 10 individuals with a ski mask,” Phillips said, “and you tell me, in your high corporate offices, how you’re going to feel.”

City Council is scheduled to vote on the matter during its weekly session Thursday.

Phillips, who won an uncompetitive special election to replace Parker last year when she resigned from Council to run for mayor, said during a hearing on the bill earlier this month that several recent shootings were committed by people in ski masks. He cited the September 2022 shooting at Roxborough High during a football scrimmage, when 14-year-old Nicolas Elizalde was fatally gunned down. Several of the shooters were seen on surveillance footage the same day, but their faces were obscured by ski masks.

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Several states, including Virginia, Florida, and Georgia, have similar bans on people wearing facial coverings that are intended to disguise their identity.

The police department is supportive of the legislation, but its leadership says enforcing the rule and issuing citations may be complicated given the exceptions.

Deputy Commissioner Francis Healy told Council that the proliferation of mask-wearing during the COVID-19 pandemic “seriously impacted policing,” saying: “There was a time not too long ago where any average police officer will see a person donning a mask before entering a convenience store or bank and they would believe a robbery was about to occur.”

Healy said officers are not likely to “cite every person” wearing a ski mask in violation of the code. But, he said, it provides a new mechanism for officers to stop individuals, which he said is critically important — the city is under a yearslong monitoring agreement with the ACLU and must document every pedestrian stop and the legal reasoning behind it.

That agreement was the result of a 2010 federal lawsuit filed by the ACLU, which found police were overwhelmingly stopping people of color, often without legal justification.

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Pedestrian stops have plummeted since then, especially during Mayor Jim Kenney’s administration. The mayor ran on a promise to end illegal stop-and-frisk. Parker has said she supports the constitutional use of stop-and-frisk, but has vowed to root out any “misuse or abuse” by police.

Healy said that the ski mask ban would provide “lawful authority” to make stops. But Loney, of the ACLU, questioned that claim.

“It could potentially create another mechanism for profiling,” Loney said, “which we and people within the city have done a lot of work to put an end to.”

Loney said seeing someone donning a ski mask doesn’t rise to the level of suspecting that a crime is being committed or has been committed — the standard required to execute a legal stop — other than violating the ski mask ordinance. Frisking a person, or patting them down for guns or drugs, requires the officer to believe that person may be armed or is otherwise “presently dangerous.”

Phillips said he realizes some are concerned that the legislation could increase the number of interactions young people have with police officers. To mitigate that, he said he’s working to develop marketing campaigns that educate young people about the rule, plus encourage them to embrace their individuality and “reveal who they are under the mask.”

“The hope,” he said, “is that at some point it just becomes more of a psychological deterrent.”