DOJ Warns Milwaukee Over Ban On Masked Federal Agents

The U.S. Department of Justice warned Milwaukee officials Friday that the city’s prohibition on masked law enforcement officers is unconstitutional and could expose federal agents to local enforcement while carrying out their duties.

“Such a law cannot stand,” says a July 10 letter sent to Mayor Cavalier Johnson, Common Council President José G. Pérez and City Attorney Evan Goyke.

The letter, signed by Brad Schimel, the first assistant U.S. attorney for the Eastern District of Wisconsin, and Assistant Attorney General Brett A. Shumate, says Milwaukee’s ordinance threatens the safety of federal officers and interferes with lawful federal operations.

“This potentially exposes federal officers to enforcement against them in the performance of their federal duties, chilling their ability to perform those duties,” says the letter. “And it raises the specter of a confrontation between local and federal law enforcement.”

The letter comes after U.S. Immigration and Customs Enforcement agents recently arrested more than three dozen individuals in the city. Video of arrests showed masked agents surrounding vehicles, breaking car windows, pointing weapons and taking individuals to the ground.

The Common Council unanimously approved the ordinance in April as part of its “ICE Out” legislative package, developed in response to the Trump administration’s immigration enforcement efforts. But concerns were already raised about the city’s ability to enforce it.

Lead sponsor Ald. Alex Brower believes the ordinance remains legal.

The measure generally prohibits law enforcement officers at any level of government from concealing their faces while interacting with the public in the performance of their duties. Exceptions are included for undercover operations and officers actively participating with a special weapons and tactics team.

Violators could face fines ranging from $5,000 to $10,000. The ordinance also requires officers to identify themselves when asked.

But in March, representatives of the City Attorney’s Office already said they believed the city would have a difficult time enforcing the provision against federal agents because they are generally protected from local prosecution for reasonable actions taken within the scope of their federal duties.

“It is likely that a federal agency would be entitled to federal immunity under this ordinance,” Assistant City Attorney Clint Muche told the Public Safety & Health Committee.

Goyke declined to comment Friday on the DOJ letter. The mayor’s office deferred legal comment to Goyke, but said some agents of ICE have been “inappropriate and dangerous.”

The letter does not identify a specific consequence if the city refuses to repeal or stop enforcing the ordinance, but it could be a precursor to a federal lawsuit.

The Justice Department argues Milwaukee is violating the U.S. Constitution’s Supremacy Clause, under which valid federal law takes precedence over conflicting state and local requirements.

“Unfortunately, some states and localities have seemingly forgotten this bedrock principle of American law, passing so-called ‘sanctuary policies’ to impede federal immigration enforcement and going so far as to even directly regulate federal law enforcement in the performance of their duties,” says the letter. “That is precisely what Milwaukee has done with its mask ban.”

“The Supremacy Clause of the United States Constitution does not give the federal government the right to do whatever it wants whenever it wants,” said Brower. “That is entirely missing the point here. Right now, we believe these federal agents are violating people’s constitutional rights.” He said citizens were being subjected to unconstitutional searches and seizures, denied speedy trials and their right to an attorney. “They are barely enforcing federal law at this point; they are obviously just targeting people.”

Goyke initially blocked the council from adopting a broader version because of concerns that it might not be “legal and enforceable.” A revised proposal narrowed the ban to officers interacting with the public, removed a requirement that law enforcement vehicles be identified and added specific exemptions.

At the time of its passage, Brower said that Goyke’s revisions gave the ordinance “the best chance of withstanding a court challenge.” The ordinance passed on a 13-0-1 vote, with Ald. Mark Chambers, Jr. abstaining.

On Friday, Brower said the biggest issue is not the legality, but ICE’s conduct. “Whether or not we are allowed under the Constitution to enforce our own local ordinances, the biggest thing here is whether ICE is doing the right thing or not,” he said.

The letter gives the city a date of July 17 to drop compliance.

“To be clear, federal officers will not comply with Milwaukee’s unconstitutional ordinances and will continue to wear masks and not use individual identifiers in their discretion,” says the letter.

“These two individuals who signed this letter are obviously right-wing fascist hacks of the Trump administration,” said Brower of Schimel and Shumate.

Brower said Trump’s “goons” on the U.S. Supreme Court may ultimately strike down the city’s ordinance, but he is confident the city is acting appropriately.

After the surge in ICE activity in Milwaukee, members of the Common Council subsequently asked the Milwaukee Police Department to investigate whether masked agents violated the city ordinance and to examine ICE’s use of a police district station parking lot during the operation.

A federal judge earlier this year blocked enforcement of a California law prohibiting federal officers from wearing masks, concluding the measure likely violated constitutional protections against state interference with the federal government. Unlike the Milwaukee ordinance, the California law treated federal personnel differently than many state and local officers.

The Ninth Circuit Court of Appeals separately blocked a California requirement that federal immigration agents display identification, finding the federal government was likely to succeed in arguing that the state was improperly regulating federal operations. Neither ruling represents a final nationwide decision on the legality of Milwaukee’s ordinance.

Milwaukee officials have argued the ordinance is necessary to help residents distinguish legitimate officers from impersonators and to create accountability during federal enforcement operations.

“Legitimate government power never hides behind a mask,” Forward Latino President Darryl Morin told council members in March. “Transparency builds trust and accountability, ensures the lawful use of authority, and yes, in this instance, it will save lives.”