The U.S. government filed a lawsuit against the city of Milwaukee Thursday, arguing the city has no authority to enforce its ordinance preventing law enforcement from wearing masks while interacting with the public. 

The lawsuit, filed against the city as well as its mayor, city attorney and police chief, argues that cities and states are unable to regulate federal government action. 

“For centuries, the Supreme Court has reaffirmed that States have no authority whatsoever to regulate the Federal Government,” the lawsuit states. “Despite that well-established principle, Milwaukee recently enacted an ordinance that purports to do exactly what constitutional law says it cannot: regulate how federal law enforcement officers carry out their official duties in that City.”

Initially enacted in April, the Milwaukee ordinance prohibits law enforcement officers performing their duties from covering their faces and requires that their names and the agency they work for be easily identifiable on their uniform. 

“The use of facial coverings and disguises by law enforcement officers significantly affects the public’s perception of law enforcement, officer-community interactions, and accountability,” the ordinance states. “Persons reasonably may experience fear or intimidation when approached by officers whose faces are obscured. Such reactions can heighten defensive behavior and unnecessarily escalate the tension inherent in many interactions between law enforcement officers and members of the public.”

Last week, City Attorney Evan Goyke wrote in a letter to U.S. prosecutors  that federal officers wouldn’t be exempted from the ordinance, prompting the lawsuit. 

“the City and the public have a right to know if masked, armed, and unidentified men seizing people on our streets are who they say they are,” Goyke wrote, objecting to the federal government’s insistence that immigration officers be allowed to conceal their identities “at their discretion.”

“Unfortunately, in the case of federal immigration officers, in particular, that unbounded discretion, coupled with guns and a lack of accountability, has had tragic consequences in cities across the country,” he wrote. Goyke disputed the federal government’s claim that the Supremacy Clause of the U.S. Constitution makes ordinances such as Milwaukee’s illegal, citing previous and ongoing litigation on the matter.

Federal immigration officers across the country have worn masks while carrying out  President Donald Trump’s crackdown on immigrants. Federal officials have argued the masks prevent officers from being doxxed. 

“State and local leaders cannot tell Federal officers how to do their job,” Associate Attorney General Stanley E. Woodward, Jr. said in a news release. “And they certainly cannot prohibit them from ensuring their own safety in safeguarding our communities and enforcing federal law. We will never tolerate the doxxing or harassment of federal officers, or any law like Milwaukee’s that enables violent behavior against law enforcement officers and their families.”

The lawsuit argues that federal officers should be able to make decisions about covering their faces on a case-by-case basis. 

“Denying federal agencies and officers discretion in these areas would chill federal law enforcement, threatening the safety of communities in Milwaukee,” the lawsuit states.

Brad Schimel, the former conservative Supreme Court candidate who is now an assistant U.S. attorney, said that the ordinance pits federal and local cops against each other. 

“Not only is this ordinance an affront to the Constitution, but it jeopardizes the safety of our courageous sworn law enforcement officers,” Schimel said. “Further, it puts local and federal law enforcement officers at odds with each other when they should be working together on the common goals to enforce the rule of law and keep our communities safe.”

Immigration and Customs Enforcement (ICE) has made its position clear. The agency refuses to require its agents to follow Milwaukee’s law banning masks. Since it is unable to come to this common sense conclusion itself, the remedy is for Milwaukee City Attorney Evan Goyke to sue. This is how we keep secret police at bay.

Goyke has taken the first step. In a July 17 letter to the U.S. Department of Justice, he defends the ICE out MKE ordinance, stating that masked law enforcement “increases the risk of dangerous interactions with the public, undermines accountability and police community relations, and stokes confusions, fear, and intimidation.”

Milwaukee prohibits ICE agents from wearing masks. The Department of Homeland Security staunchly refuses to follow this sensible rule despite a Milwaukee Police Department standard operating procedure that models this basement level of transparency. We need to know what ICE is doing. We need to know who you are. We need to see your faces.

DHS claims that it won’t follow Milwaukee’s ordinance because of the Supremacy Clause. Their claim asserts that municipalities cannot create rules that prevent employees from performing federal duties and, in most cases, the Supremacy Clause makes sense.

We wouldn’t want a city ordinance to keep the U.S. Census Bureau from collecting population data. We wouldn’t want municipalities to prevent the National Weather Service from studying tornados. At the same time, identifiable and transparent federal law enforcement is not at odds with the rule of law. 

Clarity and accountability is at the heart of our Fifth Amendment’s promise of due process. The Supremacy Clause does not supersede our Constitution’s protections. The clause itself is a component of our Constitution (Article VI, Clause 2) and no article or clause may violate the Bill of Rights. 

The Mask-Free MKE ordinance took time to create. Over and over again, our church members returned to the Common Council’s galley seats as the rule was amended, re-written and reviewed by our city attorney, Evan Goyke. Goyke’s job is to make sure that the proposed ordinance is constitutional and enforceable. Goyke’s verdict is that the people of Milwaukee can prohibit masked law enforcement.

Consider the current situation of Giovanni Sosa, a 20-year old with no criminal record. Gio came to the United States when he was 4 years old. Recently, he was snatched by masked ICE agents, leaving his wife Litzy without her husband and his 2 year old daughter without her father.

Gio has worked construction jobs since he was 14 and has never run afoul of law enforcement. Last week, while heading to the barber, his car was surrounded and blocked. His window was smashed and he was handcuffed and dragged to  detention. As he was shoved into a government car, Gio had the presence of mind to yell out his mother’s phone number. Had he not done so, he simply would not have returned home from the errands he was running. Who took him? Where was he? Was his detention legal? Was the use of force necessary?

Our Constitution protects us from having to ask these questions. The Fifth Amendment states that “no person” shall be deprived of life or liberty without protections against arbitrary government actions. Surely, masks cross this line.

DHS claims that it must allow its employees to wear masks for their safety. Lauren Bis, a DHS spokesperson, states, “Sanctuary politicians attempting to ban our federal law enforcement from wearing masks is … a flagrant attempt to endanger our officers.” 

The Trump administration’s immigration enforcers fear that without masks, their employees’ actions would instigate such a strong public outcry that they would be forced to hold officers accountable. They don’t want the public to identify officers responsible for using excessive force. How can DHS officials be opposed to basic transparency before the public it serves?

This is where City Attorney Evan Goyke can help. DHS has convinced itself that the Supremacy Clause supersedes the Constitution. Its insistence that secrecy and obfuscation is a means to serve the people is a slippery rationalization that leads to a secret police force. City Attorney Goyke should sue ICE and require the agency to comply with the law. It is for the good of the residents of Milwaukee, for ICE’s own agents, for MPD officers and for our democratic heritage. This moment of trial will turn our commitment to defend our rights into steel. Our’s is a nation without a secret police. Masks cross a line. At this pivotal hour, Milwaukee must lead.

In a strongly worded letter to federal prosecutors, Milwaukee City Attorney Evan Goyke rejected the U.S. Department of Justice demand that he provide assurances by Friday that neither he, the Milwaukee Police Department nor any other city entity would enforce an ordinance prohibiting law enforcement officers from wearing masks and concealing their identities.

“The only assurances I can offer you,” Goyke wrote in his July 17 letter to Assistant Attorney General Brett Shumate and First Assistant U.S. Attorney for the Eastern District of Wisconsin Brad Schimel, “are that [the ordinance] is a vital public safety measure, that I will not advise my clients to exempt federal law enforcement officers from enforcement of the Ordinance against them, and that my office will prosecute any validly issued citation for acts in violation of the Ordinance.”

Masked and unidentified law enforcement officers endanger public safety, Goyke wrote, by undermining accountability and police-community relations, stoking confusion, fear and intimidation and heightening the risk that “bad actors will harm others by impersonating officers” and also that “individuals might resist legitimate law enforcement actions where they otherwise would not due to the fear that they are facing an imposter.”

“You express great concern for the safety of federal law enforcement officers throughout your letter,” he added, “but not once do you express any similar concern for the safety of the public.” 

The ordinance, Goyke wrote, does not restrict the federal officers’ ability to perform their lawful duties while protecting the safety and welfare of residents and visitors of Milwaukee.

“the City and the public have a right to know if masked, armed, and unidentified men seizing people on our streets are who they say they are,” he wrote, objecting to the federal government’s insistence that immigration officers be allowed to conceal their identities “at their discretion.”

“Unfortunately, in the case of federal immigration officers, in particular, that unbounded discretion, coupled with guns and a lack of accountability, has had tragic consequences in cities across the country, most recently in Houston, Texas and Biddeford, Maine,” Goyke wrote, referring to recent fatal shootings by immigration officers in those cities. He also described “unnecessarily aggressive tactics” used by ICE officers in Milwaukee, including “boxing in cars, pointing guns and Tasers at people, breaking car windows, and pinning people on the ground.

“Many drove in unmarked vehicles and wore face coverings,” he added.

Goyke disputed the federal government’s claim that the Supremacy Clause of the U.S. Constitution makes ordinances such as Milwaukee’s illegal, citing a 1988 circuit court ruling that held “the Supremacy Clause was not intended to be a shield for ‘anything goes’ conduct by federal law enforcement officers,” as well as the 1920 federal court ruling that held “An employee of the United States does not secure a general immunity from state law while acting in the course of his employment.”

He acknowledged that the Ninth Circuit Court of Appeals recently issued an injunction pending appeal of California’s law enforcement identification requirement, but said he does not agree with that ruling, adding that no federal court has issued a final ruling on the matter.

The letter closes by stating “this office approved the Ordinance as legal and enforceable. Neither the preliminary court rulings in other jurisdictions nor your letter convince us to change that opinion.”