Virginia Law Banning Law Enforcement Officer Masks Blocked as to ICE
· Reason
From U.S. v. Virginia, decided yesterday by Judge Robert Payne (E.D. Va.):
On May 20, 2026, citing concerns that federal law enforcement officers were "undercut[ting] basic expectations of accountability, sow[ing] fear and confusion, and erod[ing] the public trust," Governor Abigail Spanberger signed the Mask/Identity Law. The Mask/Identity Law makes it a misdemeanor [with some exceptions] for a "law-enforcement officer" to "wear a facial covering that conceals, obscures, or otherwise covers his face while such law-enforcement officer is engaged in the performance of his official duties." A "law-enforcement officer" includes both state and federal law enforcement officers….
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The court concluded that the law likely couldn't be applied to federal officers:
The United States argues that the Mask/Identity Law directly regulates ICE's enforcement of the federal immigration laws. The United States relies heavily on the decision in U.S. v. California (9th Cir. 2026). The Ninth Circuit's analysis focused on California's mandate of "visible display of identification" for law enforcement. As the Ninth Circuit correctly explained, there is a direct regulation of the government where a state law, "lays hold of federal officers in their specific attempt to obey orders and requires qualifications in addition to those that the [federal] Government has pronounced sufficient." {The district court found that the mask component of California's law discriminated against the Federal Government. That finding was not appealed.}
In Johnson v. Maryland (1920), the Supreme Court held that a federal postal service employee could not be convicted of violating a state law that required drivers in the state to have a state driver's license because doing so would "lay[ ] hold of" employees and require additional qualifications the Federal Government did not have for its own employees. When so doing, the Supreme Court distinguished state laws like driver's license requirements from a "general rule[ ]" that "incidentally" might affect "the mode of carrying out the employment" (citing "the mode of turning at the corners of streets" as an example of a permissible law). Applying, Johnson, the Ninth Circuit concluded that the California identification requirement "requires qualifications in addition to those that the [federal] Government has pronounced sufficient." In other words, California added requirements for federal officers to follow while conducting law enforcement activities, and thereby regulated the federal activity.
In U.S. v. Virginia (4th Cir. 1998), the Fourth Circuit found invalid a similar kind of state law that sought to regulate the FBI's use of private contractors by imposing hiring requirements beyond those that had been set by the FBI. Such additional requirements do "not merely touch the Government servants remotely by a general rule of conduct; [they] lay[ ] hold of them in their specific attempt to obey orders and require[ ] qualifications in addition to those that the [federal] Government has pronounced sufficient."
And, the same is true here. The Mask/Identity Law requires that federal law enforcement officers satisfy additional requirements placed on them by Virginia—identification requirements, and masking requirements—which are not required under federal law, and which the federal authorities specifically say they need not meet. That offends the principle of intergovernmental immunity that forecloses application of the State law here.
Virginia argues that intergovernmental immunity "is violated only when a state law forces the federal government to fundamentally alter or abandon its operations, not when it merely affects the manner in which federal employees carry out their duties." But, the cases on which it relies for that contention do not support it. Both Geo Grp. v. Newsom (9th Cir. 2022) and Geo Grp. v. Inslee (9th Cir. 2025) relate to state regulation of Federal Government contractors, not the Government itself. As Newsom and Inslee discuss, the state may regulate contractors more than it may regulate the Government directly.
Virginia also cites Texas v. DHS (5th Cir. 2024) for its argument that a state law that incidentally affects immigration enforcement is valid under the Supremacy Clause. That decision does not help Virginia. To begin, there was no state statute at issue there. Instead, Texas sued DHS for common law trespass and conversion, and APA violations, following damage done by DHS to concertina wire on Texas' state property. The Fifth Circuit rejected the Government's state regulation argument because Texas was acting as a private proprietor, not as a regulator. And because Texas did not "seek to control how Border Patrol agents carry out their duties," Texas had not violated intergovernmental immunity. In fact, Border Patrol officers cut the wire to allow the passage of migrants, not to conduct border enforcement. Nor did the DHS Border Patrol officers cut the wire to access any land that it could not otherwise access. In other words, Texas' suit did not seek to control any activity in furtherance of federal law enforcement activity because the Border Patrol officers did not cut the wire in furtherance of their operations.
Virginia appears to argue that the Mask/Identity Law is generally applicable and that, like Border Patrol officers in Texas v. DHS, the wearing of masks by federal law enforcement officers is not acting in furtherance of their duties in enforcing federal law. To that end, Virginia points out that there is no federal policy that requires officers to wear masks or a written policy that gives ICE officers discretion to conceal their identities. But, the facts here are not at all like those in Texas v. DHS most importantly because, the claim in Texas v. DHS was not based on a state regulatory law, but upon common law trespass and conversion causes of action that could be maintained against a private citizen who had cut the wire. Like traffic laws about how to turn at a corner, the Texas claim was based on a generally applicable rule—no one could cut wire on Texas property. The only exception to that general rule was if the cutting occurred while a law enforcement officer was acting in pursuance of his duties, which, in Texas v. DHS, was not the case.
Here, in contrast, ordinary citizens are not allowed to engage in law enforcement activities. So, the state law here "does not regulate conduct that any ordinary citizen could perform."
Virginia also argues that, under the Constitution, states retains robust police powers, and that ensuring accountability, public trust, and safety are firmly within Virginia's police power. It is correct that, under the Constitution, Virginia retained a police power that allows her to regulate the conduct of her citizens and her law enforcement officers. But, Virginia cites no authority that would permit her to exercise her police power to regulate the constitutionally delegated federal power to enforce the federal immigration laws. Nor was the Court able to locate any authority to support such a proposition.
Finally, Virginia argues that the conduct of ICE's enforcement of the federal immigration laws while masked and while not wearing identifying garb or badges creates dangerous conditions that the Mask/Identity Law will remedy. That may or may not be correct depending on the circumstances presented during the enforcement of the federal law. But that argument is addressed to the wisdom of the federal policy. And settled law establishes that federal, not state, authorities make the policies that animate the enforcement of federal immigration laws.
Alessandra Faso, Alexandra Schulte, Gerard Mene, and Tiberius Davis (DoJ) represent the government.
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