Statement on Wearing of Masks by ICE Agents

Rule of Law Facts & Resources

The New York City Bar Association (the “City Bar”) views with alarm the U.S. Immigration and Customs Enforcement (“ICE”) officers’ new practice: wearing masks and otherwise obscuring their identities when conducting detentions and arrests. This abrupt change comes at a time when these government agents’ actions are the subject of widespread scrutiny, numerous legal challenges, and a public outcry from individuals and organizations – including the City Bar[1] – vehemently opposing unlawful detentions and emphasizing the need for due process of law for detainees.

In this light, the decision to begin concealing the faces of law enforcement agents who are carrying out arrests and detentions appears to be an effort to evade accountability, and to decrease transparency in response to increasing allegations of government overreach, abuse of power, and violations of constitutional rights. The use of masks is one among a panoply of legal issues presented by the administration’s recent actions against immigrants and visitors (and some citizens) but a significant one that can – and should – be immediately addressed and remedied. 

The Code of Federal Regulations’ provision governing the conduct of immigration officers requires that “[a]t the time of the arrest, the designated immigration officer shall, as soon as it is practical and safe to do so[,] [i]dentify himself or herself as an immigration officer who is authorized to make the arrest.”^[2] Just as police officers are routinely required to identify themselves as law enforcement and to display identifying information (such as their name and badge number), federal law enforcement officers likewise have a responsibility to safeguard the rights and safety of anyone under their authority by ensuring a means of accountability and allowing recourse to the courts to challenge any unlawful conduct.^[3] The new mask policy endangers those detained by compromising the legal mechanisms needed to ensure that their constitutional rights are protected and that they can seek recourse for any violations of law associated with their arrest or detention. It also opens the door to abuse of power within the ranks of law enforcement: the inability to personally identify law enforcement officers removes a deterrent for physical abuse of detainees or violation of their rights by arresting officers. The recent agreements between the Department of Homeland Security and other law enforcement agencies to conduct arrests on suspicion of immigration law violations broaden the range of agency personnel who could be operating in masks and plain clothes while making summary arrests on the street.[4] In addition, these dangers extend to all those who, in recent days, have been protesting immigration actions and decrying unlawful detentions. They may be subject to the same risk of violations of their rights in encounters with masked federal law enforcement agents without the safety of accountability.

Safeguarding the legal rights of all persons confronted by federal law enforcement officers is all the more important where this administration’s actions have already resulted in the unlawful detention of visa-holders, legal permanent residents, and United States citizens, the denial of due process to wrongfully detained individuals, and defiance of court orders demanding their return, alongside an escalating practice of detaining individuals as a reprisal for the exercise of their First Amendment rights. Just as no democratic government should seek to avoid answering to its people, no law enforcement officer should seek to avoid the scrutiny required to ensure their actions comport with the law. In the absence of the ability to identify individual masked agents, those who supervise, authorize, and oversee their actions should also share liability for the deprivation of rights under the Constitution.^[5]

Allowing masked ICE agents to conduct detentions also makes it increasingly likely that third-party actors will impersonate federal agents and use their anonymity to subject vulnerable populations to harassment and violence under the apparent color of law.^[6] In recent months, ICE agents have regularly refused to present warrants when requested. Coupled with the new practice of face coverings during detentions, it becomes nearly impossible to distinguish the conduct of an imposter from that of an authorized agent. Even before this apparent mask policy went into effect, a rise in crimes perpetrated by individuals impersonating ICE agents and other law enforcement officers – including harassment, theft, extortion, assault, battery, sexual assault, and kidnapping – was being reported.^[7] Tragically, at this writing, the suspect in the recent shootings of Minnesota state legislators and their spouses — two fatally — allegedly disguised himself as a police officer when approaching them at their respective residences at the time of the attacks.[8]

Neither the federal government nor the Department of Homeland Security has issued an official policy governing the use of masks by ICE agents or provided a clear justification for concealing officers’ identities despite the weighty concerns balanced against it.^[9] Protecting an officer’s identity may be warranted in some circumstances, and the government clearly has a responsibility to take the safety of its officers into account when crafting policy, including concerns such as violence, harassment, or doxxing. The vast majority of these officers in face coverings, however, are not under serious threat or dealing with organized gangs or terrorist organizations; instead, they are arresting people in schools, workplaces, churches, shopping centers, or courthouses where they appear for lawful immigration proceedings and present no reasonable threat to detaining ICE agents. The widespread practice of hiding the identity of all officers conducting detentions is more likely to be exactly what it seems: an attempt to evade accountability for abuses by those purporting to enforce the law, and not justified by any need for the safety of the agents.

ICE agents’ use of masks not only screens potential abuses of power and shields officers from accountability, it is part of a pattern of government actions enabling the rise of repressive and authoritarian tactics. The images of people being grabbed off the street by masked, armed men, shoved into unmarked vehicles, and taken away to unknown locations bears a fearsome resemblance to the oppressive tactics of authoritarian regimes, methods of repression meant to eliminate opposition and instill terror.^[10] We must not tread this path.

The right to challenge the government’s and its agents’ potentially unlawful acts is fundamental to our democratic system of government. This mask policy invites further rule of law erosion and compromises the courts’ ability to act as a check on the federal government by evaluating possible constitutional and statutory rights violations associated with ICE’s nationwide detention campaign. It poses a severe risk to a detained person’s rights and safety, and to the public at large. Weighed against these concerns, the administration cannot justify concealing its officers’ identity while they are rightfully subject to legal and public scrutiny. The New York City Bar Association urges ICE to terminate this practice immediately and ensure the transparency and accountability for its agents’ actions that our laws and our democracy require.

See more statements on the City Bar’s Rule of Law Facts & Resources page here.