The Justice Department sued Denver on Thursday over a city ordinance that forbids police officers, sheriff's deputies and federal agents alike from covering their faces while questioning, detaining or arresting someone, and that requires them to identify themselves by name or badge number.
The complaint names the city along with Mayor Michael C. Johnston, City Attorney Michiko Ando Brown and Police Chief Ronald Thomas. It challenges Sections 28-300 through 28-303 of the Denver Revised Municipal Code, which the department described as an unconstitutional attempt to regulate federal law enforcement officers.
"Under the U.S. Constitution, the Supremacy Clause makes clear that states and localities do not have the authority to regulate the Federal Government," said Associate Attorney General Stanley E. Woodward Jr. "And they certainly cannot enact laws that place the safety of federal law enforcement at risk and undermine federal operations."
The department also built its case around officer safety. The complaint alleges that federal officers are already facing "an unprecedented wave of harassment, doxxing, and even violence," and the department said that threatening officers with prosecution "for simply protecting their identities and their families chills the enforcement of federal law and compromises sensitive law enforcement operations."
"The Federal Government gets to decide which equipment federal officers may or may not wear when performing their official duties," said Assistant Attorney General Brett A. Shumate of the department's Civil Division. He said the Denver ordinance "directly regulates federal law enforcement operations and threatens severe consequences for officers and public safety alike."
Denver is the latest target of a series of Civil Division lawsuits against state and local policies that the department says are designed to thwart federal law enforcement. Earlier suits in that series have involved Maryland, New York, Virginia, Connecticut, New Jersey, California, Philadelphia and Milwaukee. The attorney general has instructed the division to find state and local laws, policies and practices that facilitate violations of federal law or impede lawful federal operations.
The City Council passed the ordinance unanimously on March 2, and Johnston approved it the next day. Its definition of law enforcement personnel reaches police officers, sheriffs and state troopers as well as "all federal law enforcement officers or agents of a federal law enforcement agency." Those officers may not wear an opaque covering such as a balaclava, tactical mask or ski mask when their duties include questioning, detaining or arresting someone or otherwise restraining a person's movement, and they may not hide their identity behind a face covering inside any city facility.
Uniformed officers must display a legible name, badge or identification number on their outermost garment or gear, and officers out of uniform must show or provide their agency and a name or badge number when asked. The ordinance exempts authorized undercover work, tactical operations that require protective gear and officers on SWAT or emergency response duty, and it does not treat clear or medical masks as face coverings.
Council leaders said at the time that they had drafted the ordinance to avoid the problem a federal judge found in California's version. That judge blocked California's mask law in February, saying it did not apply equally to all officers and "unlawfully discriminates against federal officers." "You have to treat all law enforcement the same," City Council President Amanda Sandoval told CBS Colorado after Denver's vote. "So, our sheriffs can't have masks. Our State Patrol can't have masks. And federally you can't have masks." The ordinance itself says its rules apply equally to local, state, federal and tribal officers, and that nothing in it may be interpreted or applied in a way that violates the Supremacy Clause or intergovernmental immunity.
Supporters said the measure would protect immigrants, ease residents' safety fears and bring transparency to policing. "The public has a right to know who is exercising that power," said Councilmember Chris Hinds. Councilmember Flor Alvidrez called it "literally the bare minimum that we can do."
The Department of Homeland Security said after the vote that its officers would not comply. "To be crystal clear: we will not abide by a city council's unconstitutional ban," the department said, adding that its officers wear masks to protect themselves from being doxxed and targeted.
How Denver would enforce the rules against federal agents was unclear from the outset. Days after the vote, Thomas told The Denver Gazette that he did not know what enforcement would look like, though he agreed that federal immigration agents "shouldn't be wearing masks when they engage in the way that they do." At a February hearing, Brian Pacelko, president of the Denver Police Protective Association, said his main concern was how enforcement would affect Denver officers who might have to take action against a federal agent, along with the possibility of conflict with other federal agents.