Feds push to overturn Virginia ban on masks for ICE agents

RICHMOND, Va. (CN) —The Justice Department urged a federal judge Monday to strike down a Virginia law that prohibits U.S. Immigration and Customs Enforcement from wearing masks on the job.

Senior U.S. District Judge Robert Payne, a George H.W. Bush appointee, did not indicate if he would grant a requested preliminary injunction barring the commonwealth from enforcing the law before it goes into effect on Wednesday. The Justice Department argued the law, signed by Democratic Governor Abigail Spanberger, violates the principles of intergovernmental immunity and runs afoul of the supremacy clause of the U.S. Constitution, under which federal laws and policies trump conflicting state laws.

“States can not regulate federal officers,” Justice Department attorney Tiberius Davis said at Monday’s hearing. “They essentially want to flip the Constitution on its head.”

Democrats controlling the General Assembly passed the law in what they claim is an effort to restore public confidence in policing following an uptick in immigration enforcement following the second election of Donald Trump.

“The mask law promotes transparency,” state attorney Triston O’Savio said.

Payne heard the case as courts in New York, New Jersey, Illinois and elsewhere weigh similar efforts from state governments to restrict ICE agents’ conduct. The Justice Department nudged Payne to give substantial weight to a recent Ninth Circuitrulingprohibiting California from enforcing a law requiring federal law enforcement agents to wear visible identification while on duty.

In granting the federal government a preliminary injunction, a unanimous Ninth Circuit panel held the state law likely violates the supremacy clause by regulating the performance of federal functions. The panel further held that laws invalid under the doctrine of intergovernmental immunity cause the federal government irreparable harm needed to seek injunctive relief. The commonwealth attempted to distinguish its mask law from the California law.

“Unlike the law in California, it does not single out federal officers; it applies equally to all law enforcement personnel operating in the commonwealth, regardless of employer,” Virginia wrote in its opposition brief. “It does not compel any federal agency to adopt a policy, impose any qualification unique to federal personnel or dictate how the United States must structure or carry out its law enforcement operations.”

O’Savio argued the mask law doesn’t conflict with federal law because there is no federal policy that law enforcement officials must wear facial coverings.

The Justice Department focused its argument on the intergovernmental immunity claim. Payne asked Davis what law says federal police powers trump states’ police powers to protect public safety, ensure transparent law enforcement practices and regulate the conduct of officers policing within the commonwealth. Davis responded that the supremacy clause applies to issues concerning policing.

“Virginia doesn’t get to impose policy views on the federal government,” Davis said.

Davis also said allowing states to control how federal law enforcement officials conduct their business is a slippery slope, posing as a hypothetical a state that requires officials to wear bright pink to make themselves more apparent to the public.

Payne seemed interested in another potential argument against the mask law based on discrimination. The mask law provides exceptions for health reasons related to protecting officers from diseases, toxins, smoke, gas and severe weather conditions. It also excludes state and local law enforcement officers assigned to undercover, drug, gang, SWAT or surveillance units. Davis said Payne could grant the injunction without reaching the discrimination argument, but that if he did find the exclusion provision discriminatory, the entire law must be enjoined.

The law imposes a criminal penalty for wearing facial coverings and for failing to display identifying information while performing official duties. The commonwealth argued the law prevents those impersonating law enforcement from harming the public.

“It does not dictate how federal officers conduct arrests, detentions or tactical operations and it does not impede ICE operations in any way. Nor does it override federal standards or impose conflicting obligations,” the commonwealth said in its brief. “The mask law simply ensures that officers interacting with Virginians are identifiable and accountable—an interest firmly within the commonwealth’s police powers."

The Justice Department countered that the law will lead to doxxing and increased assaults on federal law enforcement.

“Citizens have an absolute right to protest,” Payne said. “They do not have a right to interfere with their duties."

The Justice Department also sued Fairfax County Commonwealth’s Attorney Steven Descano individually, claiming Descano is an appropriate party because he oversees law enforcement in the commonwealth’s most populous county and because he is a member of the Fight Against Federal Overreach coalition of state prosecutors seeking to hold federal officials accountable when they exceed their lawful authority. The Justice Department, however, agreed to dismiss Descano after he stipulated an injunction would apply to him.

The Justice Department is also seeks to block a new Virginia law that invalidates cooperation agreements under the Immigration and Nationality Act between state and local law enforcement and ICE. Payne set a hearing on the matter for Aug. 3.

Davis declined to comment on the hearing. The state attorney general’s office said it would wait for a ruling to comment. Payne did not signal when he would rule.