Appeals Court Dumps California Law That Would Have Banned Federal Officers From Wearing Masks

Raids and arrests around the nation by federal immigration officers all feature the same thing: a bunch of people in masks shoving people into unmarked vehicles. What’s happening under Trump during his second term doesn’t feel like America. And it certainly doesn’t look like America. Instead, it looks like the actions of paramilitary jump-out squads, roaming US streets looking for people to “disappear.”

DHS and ICE officials have repeatedly tried to justify this level of person-by-person obfuscation as being essential to the safety of federal officers. But we all know what this is really about: protecting these officers from the consequences of their own actions. If safety was so paramount, the ICE officers sent to airports to… well, mainly just stand around… would have been wearing masks. But they weren’t. So the context (like detaining children or straight up murdering people on the streets) matters.

California’s legislature passed a law banning federal officers from wearing masks while carrying out their mass deportation efforts in the state. Governor Gavin Newsom signed it, triggering an immediate round of apoplectic responses from federal officials.

The law, however, didn’t last long.

A federal judge blocked the mask ban in February, ruling that it discriminated against the federal government because it did not apply to state troopers. The law made exceptions for undercover agents, protective equipment like N95 respirators or tactical gear, and other situations where not wearing a mask would jeopardize the operation. That judge let the ID law stand.

The state of California appealed this decision. Unfortunately for Californians and government accountability in general, the Ninth Circuit Appeals Court has upheld the lower court’s ruling.

We conclude that § 10 of the No Vigilantes Act attempts to directly regulate the United States in its performance of governmental functions. The Supremacy Clause forbids the State from enforcing such legislation.

While the lower court did suggest the California law might find its way around the Supremacy Clause issue by rewriting it to cover all law enforcement officers, not just federal officers, the Appeals Court wasn’t nearly as receptive to this argument. The legislature already has a bill prepped to do exactly this, but it seems unlikely to survive a federal court review following this ruling.

The district court asked the wrong question. By looking to the degree § 10 interfered with the activities of the United States, the district court applied a standard pertaining to States’ regulation of federal contractors and third-party employers, not the standard applicable to direct regulation of governmental activities of the United States.

[…]

The district court also misunderstood Clifton v. Cox, 549 F.2d 722 (9th Cir. 1977). There, in concluding that California could not criminally prosecute a federal officer despite allegations that he “exceeded his express authority” under federal law, we asked “whether the [officer’s] conduct was necessary and proper under the circumstances.” That standard is inapplicable here because § 10 of the No Vigilantes Act directly regulates inherently governmental conduct of federal officers carrying out their duties under federal authority.

Finally — and perhaps most distressingly — the Ninth Circuit completely sidesteps the public safety concerns that were the basis for this bill. The concerns weren’t theoretical. They were echoed by Trump’s own FBI, which issued a memo to law enforcement informing them that masked criminals posing as law enforcement officers had committed robberies, kidnappings, and sexual assaults.

None of that matters to the Ninth Circuit, which says it doesn’t even need to discuss the kind of public safety concern law enforcement generally uses to justify police misconduct or repeated rights violations.

California nonetheless contends that even if we determined that § 10 of the No Vigilantes Act likely violates the Supremacy Clause, we would still need to balance the equities. California specifically urges us to consider the public safety concerns which spurred the Act’s enactment. We decline to do so. Because the United States has shown a likelihood that the Act violates the Supremacy Clause, it has also shown that both the public interest and balance of the equities tip “decisively in . . . favor” of a preliminary injunction.

Oh, well. The masks stay on. And if it failed in this circuit, similar efforts are likely to fail in other appellate jurisdictions. The administration gets another “win” by arguing against the interests of the public it’s supposed to be serving.