Two powerful Oregon Democrats are cautioning against lawsuits the state could run into as lawmakers attempt to regulate the Trump administration’s immigration crackdown, pitting them against activists eager to fight in court to prevent federal agents from covering their faces.
The issue has taken on urgency for lawmakers in the wake of several high-profile immigration raids during which federal officers have smashed windows, held individuals at gunpoint, detained U.S. citizens, and conducted operations in areas such as schools and hospitals, which have historically been avoided for immigration enforcement. Supporters say that the use of facial coverings by federal agents hampers efforts at accountability for excessive force and deepens mistrust in all law enforcement agencies across the board.
Democratic lawmakers have introduced bills to regulate federal agents wearing masks. But in recent forums, Eugene-based House Speaker Julie Fahey and Senate Judiciary Chair Floyd Prozanski, both Democrats, spoke about the challenging legal landscape state lawmakers face when trying to regulate the actions of the federal government.
Fahey controls which bills receive votes on the House floor and Prozanski rules over the committee most likely to consider mask-related bills, so their skepticism could doom efforts.
Prozanski, a long-time municipal prosecutor, told the City Club of Eugene last week that he does not believe states can prevent Immigration and Customs Enforcement agents from wearing masks. He pointed to the U.S Constitution’s supremacy clause, which ensures that federal law supersedes conflicting state laws.
Instead, he suggested that Oregon could require law enforcement to identify their agency and badge number or name on top of the mask itself. States could have that power under the 10th Amendment of the U.S. Constitution, which delegates authority to states for issues over which the federal government does not have direct control, he said.
“This is one of those things that we can have a little more accountability for all officers,” Prozanski said. “I believe that the courts would find that that would be something that under the 10th Amendment, that we have the right as a state to set for public health and safety.”
Differing approaches
Democrats are looking for different angles to regulate the conduct of ICE agents wearing masks. Senate Joint Resolution 203, led by Democratic Sen. James Manning Jr. of Eugene and Reps. Tom Andersen of Salem and Paul Evans of Monmouth, would ask voters to approve a constitutional amendment in November to ban “secret police,” prohibiting law enforcement officers performing official duties in Oregon from wearing masks. It would also require them to wear official uniforms that clearly display the name of their governmental agency and the officer’s badge number.
House Bill 4138, sponsored by Rep. Farrah Chaichi, D-Beaverton, and two dozen other Democrats, would require all law enforcement agencies operating in Oregon to adopt a policy restricting the use of facial coverings to narrow circumstances, such as for a medical necessity, undercover operation or SWAT assignment.
The legislation would empower individuals to sue public agencies or individual officers in state court for damages, attorney fees or a court order when that policy is violated. A member of the public or a local government would be able to file an objection with a law enforcement agency, allowing them 120 days to correct their policy before legal action.
An aide for Chaichi confirmed that amendments are forthcoming, including one that will remove the ability to sue individuals based on the legislation. Chaichi has met with Prozanski and Oregon law enforcement leaders, who have taken issue with the potential increased costs the policy could pass on to local police departments. Her bill introduced ahead of the legislative session that begins Monday does not adopt Prozanski’s suggestion, and it also contains a slew of other provisions aimed at boosting the state’s sanctuary laws.
“The advocates that we’re working for think this is worthy of calling the question. Let the courts tell us no, especially because fascism isn’t knocking at our doors anymore, it is knocking in people’s doors,” Chaichi told the Capital Chronicle on Tuesday. “We can’t do nothing.”
Fahey, meanwhile, told reporters on Wednesday that she’s focused on policies that will have the highest chance of withstanding a legal challenge. She noted that in California, where state lawmakers passed the nation’s first anti-masking law applicable to federal agents, ICE agents have ignored the law.
“We need to make sure that the policies we passed will make a difference on the ground for Oregonians, that they actually affect change, and that (they) have the highest likelihood of standing up in court,” she said. “It’s those two values that we’re evaluating.”
The Trump administration in November sued to block the California law’s implementation, and court arguments are ongoing. State attorneys agreed to hold off on enforcement until a federal judge rules on whether to grant a preliminary injunction preventing it from taking effect.
Advocates for Chaichi’s anti-masking legislation, including Oregon’s chapter of the American Civil Liberties Union, are more confident Oregon’s proposed legislation will stand muster in the courts because it doesn’t specifically target federal agents. California’s law, for instance, exempts state law enforcement and creates criminal and civil penalties for local and federal law enforcement. A 2021 Oregon law requires local law enforcement working crowds in large cities to display their first and last name along with their identifying numbers.
Feds still have a case regardless of tweaks, expert says
Prozanski’s office did not respond to requests for comment seeking clarification on his position. But any legislation dealing with masking and law enforcement accountability would need to pass through the Senate Judiciary Committee, which he chairs. One legal expert, however, told the Capital Chronicle that he still had doubts over whether the approach he put forth would stand in court if challenged by the Trump administration.
“It’s a fairly modest intervention, but it would still be a direct regulation of the conduct of federal immigration enforcement,” said Noah Chauvin, professor of law at the University of Oklahoma.
Oregon Republicans, meanwhile, have yet to stake out a clear position on the matter. House Minority Leader Lucetta Elmer, R-McMinnville, told reporters Wednesday that many in the Legislature would agree that “we don’t want to see violence, and we don’t want to see people scared.” She attributed the heightened tensions to Oregon’s sanctuary laws, which prevent local and state law enforcement from assisting immigration enforcement without a court order.
“We do need to remember that these are law enforcement people at all levels. I respect law enforcement. I stand with law enforcement. Wow, do they have a hard job to do,” she said. “They’re putting their lives on the line for you and me and all of us to keep us safe.”
The U.S. Department of Homeland Security has allowed agents to masks in light of concerns over doxing, though it has failed to provide transparent data backing up its assertion that threats against officers are dramatically on the rise. Meanwhile, the FBI has warned law enforcement agencies that impersonators are exploiting ICE’s increased presence to get away with committing crimes, urging them to identify themselves. In California’s lawsuit, a federal judge earlier this month expressed skepticism over whether ICE agents needed to wear masks in the first place.
But if that judge upheld the policy and denied a preliminary injunction, there’s a significant likelihood that on appeal California’s anti-masking law would be struck down, Chauvin said.
Even without an official policy from the Homeland Security Department authorizing masking by federal agents, he said that guidance from top Trump administration officials allowing the practice is enough to show that “this is something that’s within the scope of their powers.” That would be true even if Oregon took on Prozanski’s idea of allowing masks with identification, he argued.
“ICE is engaged in far more aggressive immigration enforcement operations than it was a year ago, and it’s being more aggressive in how it interacts with the public. It’s facing a lot more resistance than it was a year ago,” he said. “I can see that raising legitimate safety concerns on the part of some ICE officers just as it raises incredibly legitimate safety concerns on the part of the public.”