YES!! THIS “LOSS” IN THE CALIFORNIA MASK BAN FOR LAW ENFORCEMENT CASE IS ACTUALLY AWESOME
You may hear or read in the news that California suffered a loss in the administration’s challenge to the California “No Secret Police” and “No Vigilantes” laws that were passed in California in November. The No Secret Police law bans law enforcement from wearing face coverings, with a few delineated exceptions. The No Vigilantes law requires law enforcement personnel to wear clear identification (name or number), again with a few delineated exceptions.
Even though the laws were passed, California held off on putting them into effect because of the lawsuit.
First let’s cut to the chase: the reason the news is calling it a loss. The Court *did* issue a preliminary injunction against California implementing the No Secret Police law. That’s what the news is reporting as the loss, and we’ll get to that in a minute.
But first look at all this winning:
First, the Court ruled that the No Vigilantes law is fine. And in part that is because, second, the Court says:
“The Court first considers whether the challenged provisions are within the powers reserved to the states by the Tenth Amendment of the Constitution. Cf. United States v. City of Arcata, 629 F.3d 986, 992 (9th Cir. 2010) (challenged ordinance “regulating the federal govermnent’s military recruitment efforts is not a power reserved to the states.”). Here, unlike in Arcata, the challenged provisions, restricting law enforcement officers in California from wearing masks indiscriminately and requiring visible identification, are within the state’s police powers.”
Plain English: Remember how the 10th Amendment says that all powers not *expressly* granted to the Federal government are reserved to the states? This is the Court saying that yes, passing a mask ban and a requirement to wear identification *is* a proper exercise of the *state’s* police power.
Furthermore, “the Court finds that the United States has not met its burden to show that enforcement of the challenged provisions, which prohibit law enforcement officers in California from wearing masks and require law enforcement officers in California to have visible identification, would interfere with or take control of federal law enforcement operations. Although the challenged provisions dictate how a federal officer may carry out his law enforcement duties-prohibiting a facial covering and requiring the display of visible identification that includes their agency and either a name or badge number in
non-exempted circumstances – the Court finds them analogous to traffic laws that, in a similar sense, dictate how a federal officer may operate a vehicle on state roads but are nonetheless enforceable against federal officers, subject to immunities.”
In fact, the 30-page opinion and order (hot off today’s presses, and included for Notes from the Front members – you’ll notice that it hasn’t even yet been put into the orderly format of a published court opinion, it’s in ‘minutes’ form) is almost entirely the Court explaining how the administration has a very weak case and California a pretty strong one.
So what’s with the loss?
You see, there is a fatal flaw in the California mask law. In fact, it’s *such a stupid* flaw that California deserved to “lose” on it. The California law carved out one big exception in the masking law (which is why the masking law was no good, but the No Vigilante law stands): In what I can only imagine was the drafting of the law by an intern who got their law degree by drawing Squeaky from the back of a matchbook (remember those?), the California law *exempted* California state law enforcement from the “no masks” law. In other words, the law said that no law enforcement person operating within the state of California, whether Federal, city, or county, could cover their face; but hey, California state police and CHiP (remember them?), *you* get to cover your face.
Well, that created a legal hole so big that the administration could drive an unmarked SUV through it. “No fair!” cried the administration, “that *discriminates* against Federal law enforcement!”
And the Court agreed.
Even before the ink dries on this opinion, the No Secret Police law is being rewritten to cure that fatal flaw. Said California State Senator Scott Weiner “Based on communications with the Governor’s office, we removed state police from the bill. Now that the Court has made clear that state officers must be included, I am immediately introducing new legislation to include state officers. I will do everything in my power to expedite passage of this adjustment to the No Secret Police Act.”
Notes from the Front members: The 30-page opinion and order is in your inbox.
NOTE: To preserve original source documents before they can be tampered with, and to protect myself from claims of improper republication, and hey, the trolls, I make documents I find (and at times purchase out of my own pocket) privately available to Notes from the Front members. Often these are non-public documents, others may be public but I find the source originals for you and include explanations and insights based on my decades of law practice and as a law professor, with a side of snark. ;~)
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https://annepmitchell.substack.com/p/yes-this-loss-in-the-california-mask
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