How a last-minute deal ended California’s ban on masked ICE agents

The judge was confused.

“Why aren’t federal law enforcement officers included?” US District Judge Christina A. Snyder wanted to know.

The judge pressed California Deputy Atty. Gen. Cameron Bell to explain the idea behind a series of new laws aimed at exposing the immigration agents who patrol the streets of the Golden State and force them to turn themselves in.

One of the laws required all law enforcement officers to display clear identification while on duty, which included nothing less than plainclothes, undercover intelligence and SWAT. It applies to everyone, including US Immigration and Customs Enforcement officials.

But the other law, which prohibits masks worn by law enforcement officers on duty, applies only to local police and federal agents, with a broad exemption for the California Highway Patrol and other state peace officers.

Snyder wanted to know: Why were the rules different?

He didn’t get an answer. Bell said he could not comment on the Legislature’s action.

In the halls of the statehouse last year, Sen. Scott Wiener’s (D-San Francisco) No Secret Police Act and Sen. Sasha Renée Pérez’s (D-Alhambra) No Vigilantes Act is referred to as “legal twins,” a nod to their shared conception and joint legislative destiny. If passed, both would be immediately challenged by the Trump administration.

That’s exactly what happened. Both measures became law — but only the ID law survived its first court battle, sending state lawmakers back to the drawing board on mask bans.

Polls show exposing ICE is popular with voters, and both Wiener and Gov. Gavin Newsom congratulated himself for passing the bill.

But behind the scenes, according to about a dozen sources familiar with the legislative process who spoke to The Times, a battle was brewing between the two Democrats.

Days before the amendment deadline last summer, Newsom’s office proposed changes to Wiener’s mask ban, which, according to legal experts and opponents, would have removed many of the duties of ICE and Customs and Border Protection from the bill. The management team denies that was the intention of their proposal. The result of that consensus was to outlaw the country’s peace officers instead.

Snyder rejected it on February 9, writing that he was “compelled” to do so because the state police exemption “unlawfully discriminates against federal officials.”

Interviews with more than 20 lawmakers, policy advisers, lawmakers and legal experts show how the Labor Day deal came together, ensuring Wiener and the governor a political victory that eventually became a presidential victory.

Now there are more than a dozen similar bills moving through state houses from Olympia, Wash., to Albany, NY, as lawmakers try to rein in a practice that most Americans see as dangerous and destructive. In Sacramento, similar efforts are underway to pass a smaller version of the law, and both Newsom and Wiener said they were proud to make California the first state to pass an ICE mask ban.

Both sides have said the legislative process is messy, and that eleventh-hour amendment disputes are inevitable in the House, where more than 900 bills were passed and nearly 800 were signed into law last year.

However, neither the governor’s office nor the legislative team have provided clear answers as to why they both accepted last-minute changes to a nationally-reviewed bill that each was told could surrender its constitutional position in court.

“Seeing this recording, I was immediately surprised,” said Bridget Lavender, a staff attorney at the State Democracy Research Initiative, the country’s leading expert on numerous legal efforts to expose ICE across the U.S. “That’s what ultimately got lost.”

Others were dull.

“When I saw the final bill I said, ‘What happened here?'” said one prominent constitutional scholar, who asked not to be identified because they are advising several other state legislatures on similar efforts to ban masks. “I can’t believe what happened.”

Legally, the mask ban was always going to be a cat fight. Law enforcement groups were disgusted. Constitutional scholars were wary. The Department of Justice argues both the mask ban and the ID law unlawfully interfere with the operation of the federal government, a violation of the constitution’s maxim clause, while California equates itself to road speed limits, which apply to everyone equally.

“There is a strong argument that the law is constitutional as long as it applies to all law enforcement officers,” said Erwin Chemerinsky, dean of the UC Berekely Law School and an early champion of the No Secret Police Act, known in Sacramento as SB 627.

Others saw it differently.

“It’s a very complicated question whether states can pass laws that bind the federal government,” said Eric J. Segall, a professor at Georgia State University College of Law. “The answer [here] maybe not. I regret that that is the law, but I am sure that that is the law.”

Everyone agreed, Golden State will set an example.

“All eyes were on California,” Lavender said.

Judge Snyder agreed with the state, upholding the ID law. Judges in the 9th Circuit Court of Appeals threw sharp questions at the federal government and California in Tuesday’s case, repeatedly emphasizing the lack of clear precedent and the law’s constitutional uncertainty.

“California has done something we’ve never seen before,” said Judge Jacqueline Nguyen.

Most scholars believe that it will ultimately be resolved by the Supreme Court.

The mask ban would be on the same track now, if not for the release of the state police.

“We knew we really had to shoot that needle carefully,” said Sen. “You it was necessary to include all law enforcement officers in it. I say that as a non-lawyer, but I knew that.”

Wiener knew it too. The Harvard-educated attorney and former San Francisco deputy city attorney, rejected early calls to exempt state and local officials from the bill and broadcast Chemerinsky’s July 23 speech to the Sacramento Bee outlining the need for a nationwide ban, including the governor’s delegation.

Powerful state law enforcement unions were on fire. They railed against the bill publicly and in the Legislature, testifying endlessly about the harm that would come to them from the ban — including having to enforce it on agents of the armed forces.

“The last thing you want is two people with guns in their waistbands getting into a fight,” said Marshall McClain, regional director of the Peace Officers Research Assn. of California, among the richest and most powerful government groups.

Lawmakers’ objections constitute changes sought by the governor’s law office just days before the September 5 amendment deadline, according to a source involved in those negotiations.

Gov. Gavin Newsom speaks during a news conference in Los Angeles in 2024.

(Eric Thayer/Associated Press)

The most controversial question from Newsom’s team was the exemption of all types of police from “warrant-related duties and arrests” – the kind of enforcement that Alex Pretti was filming when masked CBP agents tackled him to the ground and shot him to death in Minneapolis last month.

The governor’s office also called for the release of all officers involved in “crowd control, intervention, and control” — the job that ICE agent Jonathan Ross did when he fatally shot Renee Good less than three weeks earlier.

“We were working to ensure the safety and efficiency of government officials, not ICE,” said Diana Crofts-Pelayo, Newsom’s senior deputy director of communications.

However, the Deputy Solicitor of California, Gen. Mica Moore told the 9th Circuit on Tuesday that the federal ID law. only we are working on officers involved in “acts of arrest or detention or … crowd control” — activities he identified as essential to your mission.

Instead of swallowing bad words or risking Newsom’s veto, Wiener opposed the state police — a move constitutional experts have advised would leave the law with at least some chance of survival.

The governor’s legal team quickly agreed, leaving Bell and the attorney general’s office scrambling to secure the release.

Boosters argue that even if it’s fatally flawed, California’s law advanced such a statewide ban at a crucial time last September.

“Politics has changed a lot,” said Hector Villagra, vice president of policy advocacy for MALDEF, one of the sponsors of the mask ban. “[Today] people realize that this is not normal in a democracy like ours.”