The U.S. Department of Justice on Thursday filed a much-anticipated lawsuit against the city of Portland, challenging the city’s recent regulation barring enforcement, including federal agents, from wearing masks and requiring officers or federal agents to wear clear identification.
The lawsuit comes one day after the 9th U.S. Circuit Court of Appeals ruled in a California case that states are prohibited by the U.S. Constitution’s Supremacy Clause “from directly regulating federal operations even when regulating state operations in the same manner.”
Before Portland’s City Council passed the ordinance in May, City Attorney Robert Taylor cautioned city commissioners that the law likely would be directly challenged in court. Mayor Keith Wilson also had urged Commissioner Sameer Kanal, who proposed the ordinance, to drop it, calling it a “grave mistake.” The mayor said it would force the city into “unlawful or otherwise legally untenable” interactions with the federal government.
Kanal on Thursday issued a statement: “While we cannot comment on the litigation, we strongly believe that law enforcement officers who are easily identifiable promote transparency in their duties and strengthen trust between agencies and the communities they serve.”
Courts in California, Virginia, New York and Philadelphia have halted similar state and local laws.
“This Court should join the growing number of other courts that are putting an end to this type of blatant unconstitutional regulation of the Federal Government and invalidate and enjoin” the city ordinance, U.S. Justice Department attorney Brandon D. Neuman wrote in the lawsuit.
The suit is not filed against the state of Oregon.
Earlier this year, Gov. Tina Kotek signed into law a different regulation drafted with an eye toward withstanding a potential court challenge. House Bill 4138, dubbed the Law Enforcement Accountability & Visibility Act, bans facial coverings on law enforcement officers operating within the state, including federal immigration agents. Exceptions, however, allow masks for undercover and tactical operations. It gives law-enforcement agencies 180 days to develop policies to comply with the law and make them available on their websites.
On Wednesday, a three-judge panel of the 9th U.S. Circuit Court of Appeals directed a lower court to issue a preliminary injunction that prevents the state of California from enforcing a similar law, the state’s so-called “No Vigilantes Act,” against federal officers. The law requires any non-uniformed “federal law enforcement officer” operating in California, with narrow exceptions, to “visibly display identification” while performing federal law enforcement duties.
California’s law requires any non-uniformed “federal law enforcement officer” operating in California, with narrow exceptions, to “visibly display identification” while performing federal law enforcement duties. Because the California law “attempts to directly regulate the United States in its performance of governmental functions, and Congress has not authorized such regulation,” the 9th Circuit found the federal government is “certain to succeed.”
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