Blasting ICE agents wearing masks, W. Va. judge points to case involving Chicago police officers

A federal judge in West Virginia has invoked a more than decade-old lawsuit against Chicago police officers to underscore what he called a constitutional failing in the Trump administration’s immigration enforcement tactics: the use of masked agents.

In an order last week, Judge Joseph Goodwin directed the release of an El Salvadoran man from federal custody and condemned masked U.S. Immigration and Customs Enforcement agents for concealing their identities during a Jan. 7 traffic stop they conducted because there was a plastic cover on the man’s license plate. The man said he was in the United States legally with a pending asylum case, a work permit and a driver’s license.

“An anonymous government is no government at all,” Goodwin wrote. “It cannot be held accountable. A masked agent freely uses force without justifying his actions and the public cannot name him to challenge his conduct. A regime of secret policing has no place in our society.”

He said the traffic stop violated the Fourth and Fifth amendments of the constitution. The ruling, issued Feb. 19, doesn’t bind courts in Chicago, which sit in a different federal appeals circuit. Still, lawyers said the opinion could serve as persuasive authority in cases challenging arrests by ICE or the Border Patrol in Illinois and elsewhere.

To bolster his reasoning, Goodwin pointed to a case that began in Chicago on a cold February night in 2013. Joseph Doornbos, then 35, stepped off a Red Line train at the Wilson Avenue station in Uptown after his work day at a Loop law firm where he was a customer service manager. He was headed to a friend’s house to watch a Blackhawks game when three plainclothes Chicago police officers approached him outside the station.

According to court records, Doornbos said one of the cops, whom he described as disheveled, ordered him to stop but didn't identify himself as a police officer. Believing he was about to be robbed, he shouted for help, prompting bystanders to call 911. When Doornbos tried to flee, one officer tackled him and two others joined the struggle.

The officers contended that they stopped Doornbos because he was carrying an open beer can in a paper bag, an allegation he denied. During the arrest, police recovered $5 worth of marijuana from his coat pocket. Doornbos was charged with drug possession and resisting arrest but was acquitted after a Cook County trial.

He sued the officers in federal court. He lost that lawsuit, but the 7th U.S. Circuit Court of Appeals overturned the verdict in 2016, finding the trial judge had improperly instructed jurors.

“The jury asked the judge whether plainclothes officers are required to identify themselves when they conduct a stop,” the appeals court wrote. “The judge said no. We conclude that the answer is yes.”

With limited exceptions, the court held, officers in plain clothes must identify themselves when initiating a stop.

In 2018, Chicago officials agreed to pay $100,000 to settle the case.

The question of identification has since taken on new urgency as immigration enforcement has intensified in several cities, including Chicago and Minneapolis. During a series of deportation operations here last year, masked agents deployed tear gas and other crowd-control munitions against protesters. In two separate episodes last fall, masked officers shot people in vehicles: An immigrant driver was killed in Franklin Park, and a woman who’s a U.S. citizen was wounded in Brighton Park.

In Washington earlier this month, House Democrats moved to partially withhold funding from the Department of Homeland Security, demanding changes to immigration enforcement practices, including a prohibition on masks. Congress remains at a stalemate on the issue.

In his ruling, Goodwin said there’s a key difference between the Chicago case and what’s going on with DHS agents wearing masks.

“Immigration enforcement is distinguishable from the Doornbos officer in a material way: We are not merely dealing with a plainclothes officer who fails to self-identify — we are dealing with groups of masked individuals arriving in unmarked vehicles, without badges or a means of discerning who they are. They are the problem that the court in Doornbos foreshadowed: a presence indistinguishable from lawbreakers,” he wrote.

Goodwin rejected the government’s position that masks are necessary to ensure the safety of the federal agents.

Torreya Hamilton, one of Doornbos’s attorneys in the 2013 lawsuit and a former Cook County prosecutor, said Goodwin’s reliance on the case reflects the novelty of the issue.

“These judges are having to scour all over the country to find legal opinions to cite because until recently our law enforcement officers have not worn masks and driven around in rental cars without license plates,” Hamilton said. “The reason the West Virginia judge is citing to our Chicago case is because there is not a lot of law out there on this topic. It has long been a forbidden practice for an officer to hide his identity while acting on behalf of the government.”

She added that the principle at stake is a basic one.

“Like the police officers in my case, these ICE and border patrol agents are government employees and therefore we are their employers," Hamilton said. “And we have every right to hold them accountable for their conduct, which we can’t do unless we know who they are.”