Most law enforcement officers don’t wear masks, but in recent immigration enforcement surges, many ICE officers have done so. ICE apparently permits the practice but does not require it. Proponents of masking contend that it is necessary to prevent officers from being identified and doxed or harassed. Opponents argue that masking makes it harder to hold officers accountable for misconduct and creates a frightening atmosphere.
At the federal level, a bill has been introduced that would prohibit immigration officers from wearing masks. It does not appear likely to pass. Congress is currently debating whether to include anti-masking provisions in a measure to fund the Department of Homeland Security.
Some states have also considered addressing the practice. According to this primer by the State Democracy Research Institute at the University of Wisconsin, “lawmakers in at least seventeen states have proposed legislation to prohibit law enforcement from masking.” However, legislation has actually passed in only one state: California. A number of localities have also considered enacting ordinances to the same effect, though apparently only Los Angeles County has passed one.
The California law was enacted last fall. It is commonly called the “No Secret Police Act.” It contains legislative findings that masking creates fear and reduces transparency. It requires every “law enforcement agency operating in California” to have a publicly-available policy on the use of face coverings. The measure also makes it an “infraction or a misdemeanor” for an officer to “wear a facial covering that conceals or obscures their facial identity in the performance of their duties,” subject to certain exceptions. The act applies to officers “employed by a city, county, or other local agency as well as any officer or agent of a federal law enforcement agency or any law enforcement agency of another state.”
The United States Department of Justice sued to block California’s law, contending that it impermissibly discriminates against federal officers because it does not cover state officers, and that its purported applicability to federal officers exceeds state authority over federal officers. Last week, a federal district court ruled in favor of the federal government.
The case is United States v. California. Procedurally, the court was considering the federal government’s motion for a preliminary injunction against enforcement of the California law. Preliminary injunctions are considered extraordinary relief and the burden to obtain one is substantial.
The government’s arguments were rooted in the Supremacy Clause – specifically the “intergovernmental immunity doctrine.” As that doctrine has evolved, it generally prohibits the states from enacting laws that “directly regulate the federal government or discriminate against it.”
As to the “directly regulate” aspect of the doctrine, the federal government contended that the California law directly regulates the federal government because it constrains the behavior of federal agents, thereby exposing them to the risk of doxing and harassment. California responded that any impact on federal agents was an incidental result of the state’s legitimate exercise of its police power.
On this point, the court sided with the state, noting that no federal agency requires its officers to wear masks, so the act is not in direct opposition to any federal policy. The court further reasoned that the burden of compliance placed on officers was likely to be “minimal,” and no greater than that borne by judges, politicians, celebrities, and others at risk of doxing or harassment.
The court then turned to the discrimination prong of the intergovernmental immunity doctrine. The federal government argued that the act discriminates against federal officers because, although it applies to local officers, it does not apply to California state officers. Therefore, it imposes a distinct and unjustified burden on federal officers. The state responded that most state law enforcement agencies were specialized agencies of limited jurisdiction that have little direct interaction with the general public. Therefore, the state contended, state and federal officers were not similarly situated and there was no unfair discrimination. On this issue, the court agreed with the federal government, noting that many state officers, such as Highway Patrol officers, do interact with the public.
After finding that the federal government was likely to prevail on the merits, the court proceeded to consider whether the federal government would suffer irreparable harm if an injunction were denied and whether the balance of the equities was in favor of the federal government. Answering both questions in the affirmative, the court granted a preliminary injunction to the federal government.
One or both parties are expected to appeal. In the meantime, California legislators may consider whether to amend the act to include state officers. If other states enact similar laws, they may be challenged in other courts. In other words, this opinion is important, but is not likely to be the end of this issue.
North Carolina does not have a law that specifically addresses whether law enforcement officers may wear masks. We do have G.S. 14-12.7 and G.S. 14-12.8, which generally prohibit people from being on public property or roadways while wearing “any mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer.” There are a number of exemptions in G.S. 14-12.11, including for people “engaged in trades and employment where a mask is worn for the purpose of ensuring the physical safety of the wearer, or because of the nature of the occupation, trade or profession.” No appellate case explores the applicability of the provisions or exceptions to law enforcement officers.
Anti-masking laws are one way that some states are responding to what they see as inappropriate conduct by federal law enforcement officers, but they not the only way. For example, there has been considerable discussion about the possibility of state criminal prosecutions of federal officers who injure or kill state residents. The extent to which such prosecutions are feasible depends on the extent of the Supremacy Clause immunity at issue in the California anti-masking case. Readers interested in delving more deeply into those questions may want to review this paper, also from the University of Wisconsin.
