Proposals to prohibit federal immigration agents from masking their faces have gained new life in states — thanks in part to a court ruling that blocked the nation's first such law, in California.
A little over a month after the California law was suspended, Washington state's Democratic governor, Bob Ferguson, was set to sign a law Thursday limiting facial coverings on law enforcement officers. It will take effect immediately and could soon spread
to other states.
Similar anti-masking bills won final approval earlier this month from Democratic-led legislatures in Oregon and Virginia and have cleared at least one chamber in Hawaii, Maryland and Vermont. The proposals push back against President Donald Trump's immigration enforcement tactics in which federal agents — some wearing masks — have swept up thousands of people for potential deportation, stirring criticism that the masks free them to act aggressively with impunity.
The Department of Homeland Security denounced the new Washington state measure as “irresponsible, reckless and dangerous.”
“To be crystal clear: we will not abide by this unconstitutional ban,” the department said in a statement.
But the question of its constitutionality is not clear cut.
A federal judge in February ruled that California's mask ban discriminated against federal law enforcement officials because it applied to federal and local officers but not to state-level law enforcement officers. The ruling marked a victory for Trump's administration, which challenged the California law. But it also laid out a pathway for states to make another attempt.
The new Washington measure restricts facial coverings for all federal, state and local law enforcement officers — a key distinction intended to avoid claims of discrimination against federal officials. Most bills pending in other states also would apply to all law enforcement officers.
“I think that the California decision, in many ways, operated like a green light for some states that had been thinking, `Can we actually do this?'" said Bridget Lavender, staff attorney for the State Democracy Research Initiative at the University of Wisconsin Law School.
Though U.S. law enforcement officers do not routinely wear masks, Trump’s administration has given individual officers the leeway to do so as a means of protecting themselves and their families from potential harassment and threats. Some protesters also have worn masks while clashing with immigration agents.
California lawmakers began pursuing restrictions last year after some federal immigration agents wore face coverings during large-scale enforcement actions in Los Angeles. In September, Democratic Gov. Gavin Newsom became the first to sign a law banning federal officers from wearing facial coverings that obscure their identities. The law contained exceptions for medical masks, tactical gear and a few other things.
Since last year, Democratic lawmakers in more than 30 states have filed legislation seeking to restrict the use of facial coverings by law enforcement officers, according to an Associated Press analysis using the bill-tracking software Plural. That includes a new California bill, which attempts revive the mask restrictions by also applying them to state law enforcement officers.
Washington's new measure prohibits law enforcement officers from wearing facial coverings while interacting with the public, with exceptions for undercover and tactical team officers, religious purposes and medical masks. among other things. It includes no specific penalties. But it allows people detained by masked officers to sue them, seeking money for damages.
“Masking up creates intimidation and fear,” said Washington state Sen. Javier Valdez, a Democrat who sponsored the legislation. "If you’re a law enforcement official, the public deserves to know who you are.”
A measure passed last week in Virginia provides an incentive for law enforcement agencies to adopt policies restricting facial coverings. Officers who violate the state ban could face misdemeanor charges punishable by up to 12 months in jail and a $2,500 fine. But if their agency has a policy on facial coverings, any violations would be handled by that agency instead of resulting in state charges.
The Virginia measure was sponsored by Democratic state Sen. Saddam Azlan Salim, who came to the U.S. from Bangladesh as a child and has since become a citizen.
“I grew up here knowing if somebody comes here with a mask, no identification, either they are going to rob you or you’re going to get kidnapped,” he said.
During debate earlier this month in Oregon, Republican lawmakers raised objections that the anti-masking provisions would apply only to law enforcement officers — not protesters — and warned that the ban could contribute to negative perceptions.
“The demonization of public safety officers is something that has a deep impact that reverberates across our citizenry," state Sen. David Brock Smith said after voting against the bill. “There are individuals that riot and dox these public safety individuals.”
During debate in the Washington House, Republican state Rep. Jim Walsh recalled attending a Seattle event where angry protesters wore masks. No harm occurred that day, but “it would be reasonable for a law enforcement officer to obscure his or her face to protect themselves from the mischievous criminal,” Walsh said.
Though Oregon and Washington aren't on the list, 23 other states and the District of Columbia have laws prohibiting people from wearing masks in public places to conceal their identity, intimidate others or avoid recognition while committing crimes, according to the International Center for Not-for-Profit Law. Some Republican state lawmakers are looking to add to those limitations.
Arizona already directs courts to consider identity-obscuring masks as an aggravating factor when sentencing people for felonies. A bill passed earlier this month by the Republican-led House would expand the covered offenses and require an enhanced sentence, unless the mask was worn for sincerely held religious beliefs.
A bill awaiting a vote in the Missouri House would create a misdemeanor crime of “masked intimidation” for concealing one's face with the intent to instill fear in others. It's aimed at public demonstrations, not police.
“I think it just speaks to the priorities that you have," said Missouri House Speaker Jon Patterson, a Republican. “It is somewhat interesting that some states want to ban the masking of criminals; others want to ban the masking of law enforcement.”
