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According to Chapter 876 Section 12;

Wearing mask, hood, or other device on public way.—No person or persons over 16 years of age shall, while wearing any mask, hood, or device whereby any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer, enter upon, or be or appear upon any lane, walk, alley, street, road, highway, or other public way in this state.

According to Chapter 876 Section 115 which I believe is how Section 12 applies;

Applicability; ss. 876.12-876.15.—The provisions of ss. 876.12-876.15 apply only if the person was wearing the mask, hood, or other device:

(1) With the intent to deprive any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws or for the purpose of preventing the constituted authorities of this state or any subdivision thereof from, or hindering them in, giving or securing to all persons within this state the equal protection of the laws;

(2) With the intent, by force or threat of force, to injure, intimidate, or interfere with any person because of the person’s exercise of any right secured by federal, state, or local law or to intimidate such person or any other person or any class of persons from exercising any right secured by federal, state, or local law;

(3) With the intent to intimidate, threaten, abuse, or harass any other person; or

(4) While she or he was engaged in conduct that could reasonably lead to the institution of a civil or criminal proceeding against her or him, with the intent of avoiding identification in such a proceeding.

So if a person is standing silently on a sidewalk, wearing a mask, with a cellphone, recording Police. Are they within their legal right to do so (Wear the mask in public)?

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In the situation you describe the person taking the pictures is not violating the mask law and should be acquitted at trial and possibly even before trial in a preliminary hearing, if charged with violating the mask law and if the finder of fact correctly ascertains the facts.

But, the police might very well been upheld in making an arrest on the basis of the mask law, on the grounds that they had probable cause to believe that the mask law was being violated, even though, when all facts came out, they were wrong. This could happen legally if the police believed that it was probable that the actual intent of the person making the recording was to "to intimidate, threaten, abuse, or harass any other person."

In the same way, if the person recording was fifteen years old and had an improper intent, the police might have probable cause to make the arrest because they believed that it was probable that the person was sixteen years of age or older, even though they were mistaken.

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  • Out of curiosity: If the Police were not upheld on the arrest. Could the person sue for damages or would qualified immunity come into play? – Digital fire Nov 3 '17 at 17:18
  • If the police were found not to have probable cause for the arrest, a 1983 suit for damages would probably be available. If they had probable cause but there was no conviction, they would not have liability. The question of qualified immunity would depend on the Florida cases interpreting the mask statute which were in existence at the time of the arrest. If a lack of probable cause finding was based upon a question of first impression interpretation of the mask statute they would prevail. If not, they would probably lose, although the damages would probably be pretty small. – ohwilleke Nov 3 '17 at 18:25
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Florida is an all-party consent state, so it must first be determined whether recording without consent is legal. That then depends on the circumstances surrounding the recording. There is no law against taking silent video of a person in public, but it may not be legal to record another person's oral communication. The fact that a person is a police officer, or is a police officer conducting his business, does not make the wiretapping law universally inapplicable. It does, though, mean that voice recording is legal only when there is no reasonable expectation of privacy. Police orders given at a demonstration are not uttered with an expectation of privacy, but private words uttered between another person and the officer on a public street may not pass the "reasonable expectation of privacy" filter. The importance of this is that if the recording is illegal, wearing a mask to do it is illegal.

Supposing that the wiretapping law was irrelevant, you would not be breaking the law, under a plain reading of the law, except for the potentially subjective elements pertaining to "the intent to intimidate, threaten, abuse, or harass" – let us assume that no other actions could be added to the charge, and the potential arrest rests only on the fact of recording while masked.

This does not mean that the police can't stop you, even if you have an unrecognized right to do this, because a police officer also has qualified immunity, so there may be no consequences for the officer who arrests you (it depends on whether there is a clearly-established constitutional right that is being violated). Fields & Garaci v. Philadelphia, decided a little over a week ago, is an important case changing the law in the 3rd Circuit, as to whether you have a right to record police. The lower court said there is no such right, the higher court disagreed and established such a right:

Simply put, the First Amendment protects the act of
photographing, filming, or otherwise recording police officers conducting their official duties in public.

The 11th Circuit (which includes Florida), is likewise on board with this position. Smith v. City of Cumming held that there is

a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct. The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest

You are "within your rights" to record in this context, but that right may not be recognized in court (because of limits on what is an established 1st Amendment right, and because of police qualified immunity, where Fields & Garaci lost). The court said

Government actors are entitled to qualified immunity unless they violated a constitutional right “so clearly established
that ‘every reasonable official would have understood that what he is doing violates that right.’”

Henceforth, in the 3rd Circuit, police are "on notice", but in this case, they were not, so qualified immunity existed. Since Smith v. Cumming is quite old, there would be no qualified immunity. However.

There is some Circuit-specific variation in the scope of the right. The 3rd Circuit recognizes a right of "otherwise recording police" (which includes voice recording), but the 11th district might be understood as saying that the right covers photographing or videotaping, but not voice recording. The problem is that unless it is so clearly understood that there is a right to voice record, then there is qualified immunity for the police.

Wearing a mask does not change the situation.

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  • I think that you are using the word "district" which refers to trial courts, when you mean to use the word "circuit" which refers to appellate courts, several times in the last few paragraphs of this answer. – ohwilleke Jul 20 '17 at 6:41
  • The focus on the question is mostly on the right to wear a mask in public. Not so much the recording of the police. – Digital fire Nov 2 '17 at 5:13

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