Bill that would ban law enforcement in California from wearing masks advances, but faces legal questions

A bill seeking to ban law enforcement from wearing certain masks and face coverings passed a critical hurdle in the State Capitol this week, clearing the Assembly Public Safety Committee.

Democratic Senator Scott Wiener of San Francisco unveiled Senate Bill 627 last month in response to some federal tactics for immigration raids around the state.

“Law enforcement officers have an obligation to be actually building trust with communities and not running around with ski masks on,” Wiener said.

The bill has exceptions for law enforcement who use medical masks, riot gear and for undercover and SWAT operations. 

But it faces fierce opposition from law enforcement who say they shouldn’t be swept into a bill going after federal immigration operations.

“California law enforcement are not wearing ski masks and grabbing people out of churches, synagogues, and their homes,” said Randy Perry, a representative for the Peace Officers Research Association of California.

Law enforcement arguments seem to have resonated with some moderate Democrats on the committee. Both Democratic Assemblymembers Stephanie Nguyen of Elk Grove and James Ramos of San Bernardino didn’t vote for the bill.

“We have tried for many years to build this trust with our local law enforcement,” Nguyen said. “I feel like this bill is actually pushing that aside and making folks think that our local law enforcement engage in such things.” 

The missing committee votes from moderates suggest a possible uphill battle for the bill’s proponents as the legislature prepares for its final weeks of session starting in August.

Some Republicans and law enforcement also argue additional protections are needed for officers.

“There are people out there that want to do harm to anybody that’s in authority and that is not okay,” said Republican Assemblymember Heath Flora of Ripon, who will take over as GOP Assembly Leader in mid-September. “So, if law enforcement needs to wear a mask to protect their identity then they should be able to do that.”

Another bill that would require officers to display clearly visible identification while carrying out duties and goes after individuals who impersonate law enforcement may be more palatable for more moderate lawmakers. They voted for the bill in the same committee hearing and the Peace Officers Research Association of California supported the bill.

At a press conference near Los Angeles in response to immigration raids in the region, Governor Gavin Newsom said some federal tactics go too far.

“I’m walking down the street with my kids and someone grabs me with a mask on and tries to throw me in an unmarked van and I’m looking at my kids. I’m surprised  someone hasn’t gotten hurt, someone is going to get hurt,” Newsom said, referring to tactics used by some federal agents.

But when asked about Wiener’s bill on a podcast last week, Newsom acknowledged its on questionable legal footing, saying the state may not have the authority to go after federal agents.

Erwin Chemerinsky, a leading constitutional legal expert and Dean of the UC Berkeley School of Law, points out that federal law enforcement still has to abide by state laws while carrying out operations. He says the bill would be unconstitutional if it only applied to federal agents.

“But if this is a general law, then I think there’s a strong argument that it’s constitutional,” Chemerinsky said. “But to me what’s important, I don’t think law enforcement needs to wear masks when it’s doing their jobs.”

The legal landscape presents a challenge for proponents – removing state and local law enforcement could quell concerns from moderate colleagues in the legislature, but jeopardize the bill’s legality.

The federal government would likely sue if the bill is signed into law. It now heads to the Assembly Appropriations Committee.