So even though Washington state (and others) passed a law banning law enforcement from wearing face masks to hide their identities, it’s not possible for the state to enforce it against federal workers. Fuck.
Legal experts say the answer may be complicated, especially when federal agents are involved.
“If you put it that way, the answer is no,” said Mary Fan, a former federal prosecutor and University of Washington constitutional law professor. “There is a doctrine that comes from the Supremacy Clause… states cannot regulate the federal government.”
The Supremacy Clause establishes that federal law generally takes priority over state law, meaning states may face limits when trying to regulate federal agencies.
Fan says Washington lawmakers attempted to work around that conflict by crafting the law broadly, applying it to all law enforcement, not just federal officers.
But enforcement relies largely on civil lawsuits.
“The idea is, if you are detained by an officer who breaks the new policy against masks, you can sue, theoretically,” Fan said.
In reality, advocates say that may be difficult.
“Unfortunately, what we’ve seen in the past couple of weeks since that law was passed was that nothing has really changed,” said Sandy Restrepo with Colectiva Legal del Pueblo in Burien.
Restrepo says people detained by masked agents often face significant barriers.
“They don’t know who is arresting them, they don’t know the name of the person, and a lot of them don’t have legal assistance,” she said.
When asked how likely it is that someone facing detention would pursue legal action, Restrepo said it’s unlikely.
“I don’t think that it’s very likely, given the legal obstacles people have already obtaining legal counsel,” she said.
Some viewers have contacted KING 5 asking whether the Washington Attorney General’s Office could step in, but under the law, enforcement relies on private legal action, not state enforcement.
Washington is not alone. As of last month, at least 16 other states have proposed similar legislation. In California, a similar law took effect earlier this year, but the federal government filed a lawsuit seeking to block it.