Can Allegheny County ban ICE from wearing masks? It's complicated

Efforts to unmask Immigration and Customs Enforcement agents have been steadily spreading across the country, including into Allegheny County where an ordinance was proposed last week to prohibit the face coverings except in specific cases.

The drive hit a setback Wednesday, when an appeals court judge in California ruled that forcing federal agents to identify themselves is likely unconstitutional.

Despite the ruling in response to a lawsuit that the Department of Justice filed against the state of California, the question of whether states, cities and counties can prohibit ICE from wearing masks in their jurisdictions remains murky.

Bridget Lavender - a staff attorney with the University of Wisconsin-Madison Law School's State Democracy Research Initiative who has been tracking such legislation nationwide - said state and local governments still have a legal avenue to enact unmasking laws.

But it's complicated.

"As of current law, they can do this," Ms. Lavender said. "It is within their realm, but [the legislation] has to be well crafted and it is still subject to legal challenge. But there is nothing immediately preventing them from doing this."

The ordinance proposed last week in Allegheny County Council would prohibit all law enforcement agencies - including ICE - from wearing masks. The bill was sent to committee, where it would still need to be approved before going before a full council vote.

Although the legislation still has a ways to go before potentially becoming law, the proposal pulls Allegheny County into the national debate over whether cities, states or counties have the ability to enact laws that force law enforcement to unmask themselves.

More than a dozen states have proposed legislation - including Pennsylvania, Maryland and Vermont - that would generally prohibit officers from wearing masks. The requirements tend to include a few exceptions for undercover operations or in situations where face coverings are needed for protection from fires or other hazards.

California, Washington, Oregon and New Jersey have already passed statewide laws, but the legislation remains at the center of the legal battle between the federal government and the state of California.

In September, California was the first to pass such a bill, titled the "No Secret Police Act."

In November, the Department of Justice filed suit against the state, Gov. Gavin Newsom and California Attorney General Robert Bonta, challenging the legislation as unconstitutional.

The DOJ also claimed unmasking federal officers puts them in danger.

Law enforcement officers risk their lives every day to keep Americans safe, and they do not deserve to be doxed or harassed simply for carrying out their duties," former Attorney General Pamela Bondi in November.

"California's anti-law enforcement policies discriminate against the federal government and are designed to create risk for our agents. These laws cannot stand.

At the heart of the lawsuit is the question of whether such legislation violates intergovernmental immunity, a doctrine established in 1819 by the U.S. Supreme Court based on the Supremacy Clause in the U.S. Constitution. It essentially holds that federal law takes precedence over conflicting state law.

Ms. Lavender said determining whether a state is violating intergovernmental immunity is a two-prong test: Does the law directly regulate the federal government or does it discriminate against the federal government?

In California's case, District Judge Christina Snyder blocked the state from enacting the law in February because the legislation exempted state law enforcement.

By doing so, the state discriminated against the federal agents, making the law unconstitutional, Judge Snyder ruled.

That decision provided a template for other states and municipalities pushing for similar legislation.

"When you're doing something like this, you can't really target the federal government and treat the federal government differently than state actors," Ms. Lavender said.

"So that's something the other [mask] bans avoid, perhaps because they learned from California. It's something the Allegheny County [proposed bill] seems to avoid as well."

On Wednesday, the U.S. Court of Appeals for the Ninth Circuit issued a new opinion, ruling that it is likely unconstitutional for California to require federal law enforcement officers to identify themselves, although litigation over that issue remains ongoing.

While Ms. Lavender said states and counties currently have a legal path to enact unmasking legislation, enforcing such legislation will likely be considerably more difficult.

Under the proposed Allegheny County ordinance, any officer who covers their face or fails to identify themselves could be found guilty of criminal concealment, which carries penalties that include fines of up to $500 and up to 90 days of imprisonment.

In a statement on Wednesday evening, a Department of Homeland Security spokesperson said the federal government will not comply with the law if it is passed in Allegheny County.

"Sanctuary politicians attempting to ban our federal law enforcement from wearing masks is despicable and a flagrant attempt to endanger our officers," the spokesperson said.

"To be crystal clear: we will not abide by unconstitutional bans. The Supremacy Clause makes it clear that Allegheny County's sanctuary politicians do not control federal law enforcement."

The spokesperson also said the sole reason that ICE officers are wearing masks is to protect themselves and their families against "real world threats including agitators."

Ms. Lavender said she is not aware of any charges that have been filed against law enforcement officers related to mask bans in states that have enacted them.

That is likely because ICE has refused to comply with the laws, she said.

And that makes it hard to file charges.

"You have to know who the officer is," she said. "The enforcement mechanism, when the federal government just seems pretty intent on violating these mask bans and fighting them in court, through whatever means necessary, is a significant problem for jurisdictions … how do you charge someone who is masked if you don't know who they are?"

Ms. Lavender said there is currently nothing in the law to stop local governments, including in Allegheny County, from passing a mask ban and attempting to punish those who violate it.

"That doesn't mean that it'll ultimately prevail in court, but it is not clearly prohibited by current law," she said.

"There are good arguments on both sides…so my answer would be, yes, [local governments can pass unmasking laws] with the caveat that we don't actually know how the courts are going to rule on it ultimately."

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