The Volokh Conspiracy
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Federal Court Blocks California Ban on Masked Federal Law Enforcement, Because the Ban Exempts State Officials
From U.S. v. California, decided yesterday by Judge Christina Snyder (C.D. Cal.):
"A state law or regulation impermissibly discriminates against the federal government if it treats a state entity more favorably than it treats a comparable federal entity." Furthermore, the Ninth Circuit has held that a state law may not "single[] out" the federal government for greater burdens "than that which applies elsewhere in the State," even where the statute seeks to address a specific harm controlled by the federal government.
The No Secret Police Act's facial covering prohibition applies to "law enforcement officers," who are defined as any "peace officer, as defined in Section 830 [of the Cal. Penal Code], 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 or any person acting on behalf of a federal law enforcement agency or law enforcement agency of another state." This definition does not "single out" the federal government because it also applies to local law enforcement officers and law enforcement officers for states other than California. However, it excludes California state law enforcement officers, such as California Highway Patrol officers.
In evaluating the government's unlawful discrimination claim, it is critical that the Court compare similarly situated federal and state actors. "So if the State defines the favored class by reference to job responsibilities, a similarly situated federal worker will be one who performs comparable duties." The Court is not persuaded by California's arguments that state law enforcement officers are not similarly situated to federal law enforcement officers. First, California concedes that some state law enforcement officers perform similar law enforcement functions to federal officers, including the types of interactions with the public that the facial covering prohibition generally targets.
Second, those state law enforcement officers are not differently situated merely because state law enforcement officers have not recently engaged in "large-scale operations while wearing facial coverings," like some federal law enforcement officers. While the Act may be a direct response to recent federal law enforcement practices, the Act's text plainly addresses the harms caused by the use of facial coverings by "law enforcement" generally during enforcement activities. The Act, therefore, does not directly regulate federal functions or target federal practices but rather generally applies to law enforcement officers in California. However, the Act treats federal law enforcement officers differently than similarly situated state law enforcement officers.
Accordingly, the Court finds that the United States is likely to succeed on the merits of its claim that the facial covering prohibition of the No Secret Police Act unlawfully discriminates against the federal government in violation of the intergovernmental immunity doctrine.
{At the hearing, counsel for the United States acknowledged that the No Secret Police Act would not be unlawfully discriminatory if it was amended to apply to all law enforcement officers in California.}
The federal government also argued that the law was independently invalid because it unduly interfered with federal law enforcement; this argument, if accepted, would have applied even for a law that was amended to include state officers as well. But the court rejected this argument, both as to the masking ban and a separate law that generally required law enforcement officials to visibly display their agency identification and a name or badge number. Indeed, since the identification display requirement applied to all officials and thus wasn't discriminatory, the court held the requirement was likely constitutional:
[A]n exercise of state police powers may still violate the intergovernmental immunity doctrine if it directly regulates the federal government—i.e., if the law itself obstructs the federal government's operations. The Supremacy Clause commands that ''[t]he United States may perform its functions without conforming to the police regulations of a state."
Accordingly, courts take "a functional approach to claims of governmental immunity, accommodating of the full range of each sovereign's legislative authority and respectful of the primary role of Congress in resolving conflicts between the National and State Governments." Therefore, the determination of whether a state law "directly regulates" the federal government in violation of intergovernmental inununity demands a functional inquiry into whether the regulations at issue "interfer[e] with or control[] the operations of the Federal Government." The critical question is whether state laws "affect incidentally the mode of carrying out [federal] employment," or rather seek to "control" federal functions. Johnson v. State of Maryland (1920)….
Although the challenged provisions dictate how a federal officer may carry out his law enforcement duties—prohibiting a facial covering and requiring the display of visible identification that includes their agency and either a name or badge number in non-exempted circumstances—the Court finds them analogous to traffic laws that, in a similar sense, dictate how a federal officer may operate a vehicle on state roads but are nonetheless enforceable against federal officers, subject to immunities.
The United States has not shown that its current practices with respect to masking and identification are essential to federal law enforcement operations such that state regulations in those areas seek to interfere with or control federal law enforcement functions. At the hearing and in its briefing, the United States argued that discretionary policies for masking and identification are critical to officer safety because the exposure of federal agents' identities subjects those agents to greater risks of being doxxed, harassed, assaulted, or threatened. The United States points to its supporting declarations which cite increases in threats and assaults against federal officers and detail specific incidents of federal officers suffering such harms. The United States argues that these increased risks, in turn, increase security costs the federal government incurs to protect its officers.
The Court recognizes that federal law enforcement officers, like many public figures, including judges, politicians, and celebrities, are exposed to the risk of being doxxed, harassed, assaulted, or threatened by virtue of their public occupations. The Court does not discount these real harms that impact federal officers. However, these harms are the result of criminal behavior. A rule that prohibits law enforcement officers from wearing masks or requires them to have visible identification does not facilitate or enable criminals to harm law enforcement officers.
At the hearing, the United States argued that federal law enforcement, specifically immigration law enforcement, is already more difficult in states and cities with "sanctuary" policies prohibiting cooperation between federal and local law enforcement, and the political environment and heightened rhetoric around federal immigration enforcement makes federal officers' jobs particularly dangerous. But the United States has not adequately explained how discretionary masking and identification policies are essential to the operations or safety of federal law enforcement amid this tense political environment. Security concerns exist for federal law enforcement officers with and without masks. If anything, the Court finds that the presence of masked and unidentifiable individuals, including law enforcement, is more likely to heighten the sense of insecurity for all.
Moreover, the notion that it is necessary for federal law enforcement officers to conceal their identification is belied by the historical tradition of law enforcement officers not masking their identities and the current practice of some federal officers who choose to expose their identity alongside colleagues with masks. If masking or concealing identification were as critical to federal operations as the United States asserts, the Court would expect that federal agencies would not leave such decisions to the discretion of individual officers. But notably, no federal law or agency regulation explicitly requires masking or concealing identification. Thus, the challenged provisions do not "override[] federal decisions."
Likewise, the Court is not persuaded by the United States' arguments that enforcement of the challenged provisions against federal officers would interfere with federal duties by facilitating evasion of arrest. The United States argues that federal law enforcement officers have encountered situations where people blow whistles to alert those nearby of the presence of enforcement operations, and that there are websites dedicated to tracking federal immigration officers.
First, blowing whistles, recording officers, posting those recordings online, or otherwise communicating about the public presence of a law enforcement officer is generally protected by the First Amendment. See City of Houston, Tex. v. Hill (1987) ("[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers…. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state."); Askins v. U.S. Dep't of Homeland Sec. (9th Cir. 2018) (The First Amendment protects "the right to record law enforcement officers engaged in the exercise of their official duties in public places."). Second, the United States has not demonstrated how enforcement of the challenged provisions would specifically facilitate evasion of arrest. It is not evident to the Court that a masked federal agent is any less susceptible to tracking or to having their local public presence revealed through whistling or other forms of communication.
Nonetheless, the Court acknowledges that there may be situations where masking or concealing identification is reasonable or even essential to federal operations, such as for undercover operations. The challenged provisions include numerous exempted circumstances that account for these situations. The United States has not identified any situation where a violation of the challenged provisions may be both reasonable and not exempted under the Acts. To the extent there exist any such situations, the burdensome effect of enforcement on the operations of the federal government is mitigated by Supremacy Clause immunity to prosecution. "[Supremacy Clause] immunity will shield a federal agent from state prosecution only when his acts are both (1) authorized by the laws of the United States and (2) necessary and proper to the execution of his responsibilities."
Finally, the threat of prosecution facing federal officers for a violation of state criminal law cannot be a cognizable interference with federal operations. If that were the case, then no state criminal law would be enforceable against federal employees exercising their federal duties. But the law is clear that federal officers do not have absolute immunity from state prosecution. Johnson v. State of Maryland (1920) ("Of course an employee of the United States does not secure a general immunity from state law while acting in the course of his employment."); see also State of Colorado v. Symes (1932) ("Federal officers and employees are not, merely because they are such, granted immunity from prosecution in state courts for crimes against state law.").
To be sure, a federal officer may be immune from state prosecution under a generally applicable state law when discharging federal duties. In re Neagle (1890). But such Supremacy Clause immunity depends on the facts of each case. See Clifton v. Cox (9th Cir. 1977) ("[W]e do not mean to imply that the exercise of authority in and of itself places a federal officer beyond the reach of a state's criminal process. The significant question of whether the conduct was necessary and proper under the circumstances must still be answered."). Supremacy Clause immunity for individual federal officers facing state prosecutions is a constitutional safeguard "to prevent states from nullifying federal laws by attempting to impede enforcement of those laws." Supremacy Clause immunity thus ensures a constitutional balance of state and federal powers without requiring the facial invalidation of state laws that incidentally affect the federal government.
On the evidentiary record before the Court, the effects of the challenged provisions on federal operations are likely to be minimal and comparable to the effects of enforcement of any other generally applicable rules, such as speed limits. {At the hearing, the United States argued that these provisions are not "generally applicable" because they only apply to law enforcement officers. The Court disagrees. The provisions apply neutrally to law enforcement officers in California, just as generally applicable laws may apply only to drivers, employers, physicians, or other subsections of the general population.}
Cases in which the Ninth Circuit found state or local regulations to violate the intergovernmental immunity doctrine are distinguishable from the instant case by the degree of interference with the federal government's functions or operations. See, e.g., United States v. Fresno Cnty. (1977) (a tax burden exclusively on federal employees could threaten "to destroy the federal function performed by" the government employees); Geo Grp., Inc. v. Newsom (9th Cir. 2022) ("AB 32 would give California the power to control ICE's immigration detention operations in the state by preventing ICE from hiring the personnel of its choice."); Boeing Co. v. Movassaghi (9th Cir. 2014) ("SB 990 directly interferes with the functions of the federal government [by] mandat[ing] the ways in which Boeing renders services that the federal government hired Boeing to perform.").
The closest analog that the United States cites is United States v. City of Arcata (9th Cir. 2010). There, the Ninth Circuit found that "[b]y constraining the conduct of federal agents and employees, the ordinances seek to regulate the government directly." In Arcata, the ordinances at issue "specifically target[ed] and restrict[ed] the conduct of military recruiters," by prohibiting them from recruiting or attempting to recruit individuals under the age of eighteen, which the Court found to be intrusive of the federal government's expressly, constitutionally delegated "power to 'raise and support Armies' and to 'make Rules for the Government and Regulation of the land and naval Forces.'" Here, by contrast, the challenged Acts do not intrude on any federal power or function and only "affect the federal government incidentally as the consequence of a broad, neutrally applicable rule" for law enforcement officers in California.
The intergovernmental immunity doctrine prohibits states from "interfering with or controlling the operations of the Federal Government." The United States has not demonstrated that the challenged provisions threaten to interfere with or control federal law enforcement operations….
I'm not sure the court was correct. Among other things, Johnson v. Maryland, which the court cited, held that a state couldn't require driver's licenses of federal employees performing federal duties, even under a generally applicable rule:
Of course an employee of the United States does not secure a general immunity from state law while acting in the course of his employment…. It very well may be that, when the United States has not spoken, the subjection to local law would extend to general rules that might affect incidentally the mode of carrying out the employment—as, for instance, a statute or ordinance regulating the mode of turning at the corners of streets. This might stand on much the same footing as liability under the common law of a State to a person injured by the driver's negligence. But even the most unquestionable and most universally applicable of state laws, such as those concerning murder, will not be allowed to control the conduct of a marshal of the United States acting under and in pursuance of the laws of the United States. In re Neagle.
It seems to us that the immunity of the instruments of the United States from state control in the performance of their duties extends to a requirement that they desist from performance until they satisfy a state officer upon examination that they are competent for a necessary part of them and pay a fee for permission to go on. Such a requirement does not merely touch the Government servants remotely by a general rule of conduct; it lays hold of them in their specific attempt to obey orders and requires qualifications in addition to those that the Government has pronounced sufficient. It is the duty of the Department to employ persons competent for their work and that duty it must be presumed has been performed.
Though it appears that masking or not displaying identification isn't required as a matter of categorical rule by federal higher-ups, it is at least endorsed by them (especially as to masking). It thus seems to me that the "United States has … spoken" in favor of masks being used by ICE agents under many conditions, and Johnson might therefore be read to bar a contrary state policy.
But I appreciate that the line-drawing here is not entirely clear; I expect there will be an appeal, likely both from the State (as to the anti-masking law) and from the federal government (as to the identification requirement law), and a Ninth Circuit panel will have more to say.
None of this, of course, resolves whether or when ICE agents' masking and not displaying identification (which may consist just of the agency name and badge number, without their names) is good policy. Here, the court is just considering whether the federal government or state governments should make those decisions.
