Rhode Island never needed an anti-masking law for law enforcement. Until now.

I never imagined that one day we would see a group of federal law enforcement agents in America demand the right to hide behind masks and unmarked vehicles while carrying out routine enforcement activities. As U.S. District Judge Joseph Goodwin, District of West Virginia, recently wrote: 

“Across the interior of the United States, agents of the federal government – masked, anonymous, armed with military weapons, operating from unmarked vehicles, acting without warrants of any kind- are seizing persons for civil immigration enforcement and imprisoning them without any semblance of due process….”

Routine masking is inconsistent with best law enforcement practices and it makes us all less safe. 

I say this from experience. I was a federal prosecutor in Rhode Island for 10 years and in New York City for five years before that. I worked closely with officials from virtually all federal, state and local law enforcement agencies to investigate and prosecute serious crimes, including organized crime, gang violence and drug trafficking. After 15 years as a federal prosecutor, the Department of Justice sent me to the U.S. Embassy in Beijing to work with Chinese lawyers, law professionals and others who pursued legal reforms in China to promote the rule of law there.  

What we are seeing today in Rhode Island and around the country is one federal agency, the Immigration and Customs Enforcement Agency (ICE) conducting routine civil immigration enforcement, while heavily armed and poorly trained, hiding behind masks to avoid being identified and held accountable for their conduct.  

In January, in Providence, ICE agents, heavily armed and masked, chased two young men they mistakenly believed were undocumented immigrants, into a courthouse, terrorizing those present. A bystander, a lawyer in the courthouse, feared for his life.

 “I was afraid I was going to get shot,” lawyer Stephen Dennis told reporters after the incident. 

After ICE agents killed two American citizens in Minneapolis, one could hardly blame ordinary people reacting in fear when seeing heavily armed people in masks.

This is not how American law enforcement officers and police behave. Even in China, with all of its own issues, police do not routinely wear masks.

Accountability and transparency of law enforcement activities are hallmarks of a democratic society under the rule of law as required by the Due Process clause of the Constitution. In criminal cases, every police officer who carries out an arrest or investigation is subject to intense scrutiny: first by a prosecutor building a case for trial, and then by a defense lawyer in open court before a neutral judge. As part of that process, prosecutors are required to discover and disclose all information bearing on the credibility and potential illegality of the officer’s conduct, including any past allegations of misconduct.  

ICE agents are not and cannot be held accountable in the ordinary course of their work. They are not required to bring their cases before prosecutors or charge individuals in court. Because their enforcement is “civil,” they detain individuals in preparation for deportation and are never required to go to court where their conduct would be reviewed. 

The fact that they are wearing masks while carrying out routine civil, as opposed to criminal, enforcement, is even more alarming. If DEA agents don’t wear masks while arresting drug dealers and gang members, why do ICE agents claim the right to wear masks when arresting immigrants at their jobs, bringing their kids to school or attending church? Could it be that masking serves some purpose other than officer safety?

There has never been an “anti-masking” law in Rhode Island because until ICE started routinely wearing masks, there was never a need for such a law. 

Two Pawtucket Democrats have proposed legislation in the Rhode Island General Assembly to address this gap in the law. The Rhode Island Community Protection Act (H7211)/(S2608) would make it a legal requirement for all law enforcement agents, including ICE officers, to be open and transparent with the public and to refrain from wearing masks during routine enforcement activities. The House version of the bill is sponsored by Rep. Leonela Felix and the Senate version is sponsored by Sen. Meghan Kallman. The judiciary committees in both chambers recommended the legislation be held for further study.

As citizens in a democratic society, we are not powerless to address wrongful conduct and misguided policies. At a minimum, we should require that all law enforcement officials conduct routine enforcement activities openly and unmasked. State and local law enforcement officers already identify themselves when dealing with the public and the use of masks for routine law enforcement has never been a practice in Rhode Island.  

I believe that is by design. To be effective, police need the trust and cooperation of the public.