Federal Government Sues Milwaukee Over ICE Mask Ban

Federal agents wearing masks in Illinois. Paul Goyette from Chicago, CC BY 4.0, via Wikimedia Commons

The U.S. Department of Justice (DOJ) sued Milwaukee officials Thursday, escalating a constitutional fight over the city’s ban on masked and unidentified law enforcement officers.

The lawsuit names the City of Milwaukee, Mayor Cavalier Johnson, City Attorney Evan Goyke and Milwaukee Police Chief Jeffrey Norman as defendants. It challenges a city ordinance that generally prohibits law enforcement officers from concealing their faces while interacting with the public and requires them to display or provide identifying information.

The (DOJ) argues Milwaukee is unlawfully attempting to regulate federal law enforcement operations in violation of the U.S. Constitution’s Supremacy Clause.

“State and local leaders cannot tell federal officers how to do their job,” said Associate Attorney General Stanley E. Woodward, Jr. in a statement announcing the lawsuit. “And they certainly cannot prohibit them from ensuring their own safety in safeguarding our communities and enforcing federal law.”

The federal government says masks protect officers and their families from harassment, doxing and violence. It alleges the threat of local prosecution could discourage federal officers from performing their duties and compromise sensitive operations.

Milwaukee officials have argued that masked and unidentified officers create their own public safety risks, make accountability more difficult and prevent residents from distinguishing legitimate law enforcement personnel from impersonators.

The lawsuit follows Goyke’s July 17 rejection of a DOJ demand that Milwaukee exempt federal officers from the ordinance.

Goyke said his office considers the measure legal and enforceable and would prosecute federal officers who receive valid citations for violating it.

“The only assurances I can offer you are that [the ordinance] is a vital public safety measure, that I will not advise my clients to exempt federal law enforcement officers from enforcement of the ordinance against them, and that my office will prosecute any validly issued citation for acts in violation of the ordinance,” Goyke wrote.

The ordinance generally applies to local, state and federal officers, though it includes exceptions for undercover work, tactical operations and other circumstances. Officers acting in an official capacity must also display identifying information or, when asked, provide their agency affiliation and a last name, badge number or identification number.

Violators could face fines of $5,000 to $10,000.

Assistant Attorney General Brett A. Shumate said Thursday that the federal government, not Milwaukee, has the authority to determine what equipment federal agents wear while carrying out official duties.

“Milwaukee’s direct regulation of federal law enforcement operations threatens severe consequences for officers and public safety alike,” Shumate said.

First Assistant U.S. Attorney Brad Schimel said the ordinance could put local and federal officers in conflict when they should be cooperating.

“Not only is this ordinance an affront to the Constitution, but it jeopardizes the safety of our courageous sworn law enforcement officers,” Schimel said.

The dispute intensified following recent immigration enforcement operations in Milwaukee. Videos showed masked agents using unmarked vehicles to box in cars, break windows, point weapons and take individuals to the ground.

Goyke said those tactics increase the potential for dangerous confrontations.

“The city and the public have a right to know if masked, armed, and unidentified men seizing people on our streets are who they say they are,” he wrote in his July 17 response.

The Justice Department previously warned the city that federal agents would continue wearing masks and withholding individual identifiers at their discretion. It demanded assurances by July 17 that the ordinance would not be enforced against them.

Goyke refused, arguing that federal employees do not receive blanket immunity from generally applicable state and local laws. He said the ordinance does not prohibit federal agents from carrying out lawful duties and only incidentally affects the manner in which they perform their work.

The Justice Department counters that the ordinance directly regulates the federal government and discriminates against federal operations.

Federal courts have issued preliminary rulings blocking similar restrictions in other jurisdictions, including California. Goyke acknowledged those decisions but said none amounted to a final ruling binding Milwaukee. The California restriction applied only to federal agents, while Milwaukee’s ordinance applies to all levels of law enforcement.

The Common Council unanimously approved the ordinance in April as part of an “ICE Out” legislative package developed in response to President Donald Trump’s immigration policies. Ald. Mark Chambers, Jr. abstained from the 13-0 vote.

Lead sponsor Ald. Alex Brower previously acknowledged that the dispute could ultimately reach the U.S. Supreme Court but said he believed the city was acting appropriately.

The legal position articulated by Goyke differs from concerns city attorneys raised while the legislation was being developed. In March, Assistant City Attorney Clint Muche told a council committee that federal officers would likely be protected from local penalties for reasonable actions performed within the scope of their duties.

“It is likely that a federal agency would be entitled to federal immunity under this ordinance,” Muche said at the time.

Goyke later worked with council members to narrow the measure and approved the revised ordinance as legal and enforceable.

On Thursday, Goyke declined to comment on the lawsuit.