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David Webbert has prosecuted police misconduct cases for more than 30 years at Johnson & Webbert LLP. Carol Sipperly, a former career federal prosecutor residing in Falmouth, most recently served at the U.S. Department of Justice as acting deputy assistant attorney general for antitrust. They wrote this column on behalf of Maine Lawyers for the Rule of Law.
Across America, masked Immigration and Customs Enforcement officers and other federal agents are whisking away people who are doing nothing wrong and have no criminal record. These arrests are happening at churches, schools, workplaces and even at courthouses when law-abiding people voluntarily show up to comply with immigration laws. Alas, Maine has also seen this chilling tactic used on our streets.
When making these hyperaggressive and legally dubious seizures, ICE officers are often wearing masks while refusing to give their names or wear any identifying uniform or badge. And they often use force — breaking car windows or applying handcuffs — to grab people from their cars or their neighborhood and dump them into unmarked cars. ICE routinely takes its targets to undisclosed detention centers with no chance to contact family members or a lawyer for days.
The administration claims these extraordinarily secretive practices are needed to protect ICE officers from doxing and violence. But that rationale is contradicted by the evidence that most of these masked officers are not arresting members of organized gangs or terrorists and, despite administration claims to the contrary, there isn’t any evidence that ICE agents are facing any unusual threat.
Indeed, America has a long tradition of its law enforcement officials not wearing masks and instead wearing visible badges with their names (or numbers) and official uniforms when making arrests. This norm protects public safety both by making it harder for bad actors to impersonate the police and minimizing the risk that members of the public will unknowingly resist police officers because they are masked and unidentified. Unfortunately, these dangers have proven all too real in recent incidents.
In our opinion, ICE’s new “M.O.” of wearing masks and not identifying themselves violates basic due process. Members of a free society have a right to know whether persons attempting to arrest them (or others) are legitimate police officers and thus it violates due process to require us to run the risk of being injured, killed or prosecuted by our government because we do not comply with orders from masked and unidentified assailants.
Moreover, masking undermines the rule of law, which requires that all government officials — including the police — be identifiable so they can be held accountable for violations of law and subject to public scrutiny. The administration’s resort to this disquieting arrest technique is a thinly veiled effort to evade accountability in the face of widespread public outcry against ICE’s abuses of power and violations of due process rights.
And this new practice is consistent with a pattern of authoritarian tactics deployed to intimidate and cow those who would dare criticize or disagree with President Donald Trump. The administration likely has ICE’s officers wear masks to embolden them to use excessive force and to terrorize their arrestees and all of us. ICE’s insistence on wearing masks when arresting people who are almost always people of color hearkens back to the vile intimidation tactics of the KKK.
Given the blatant violations of immigration laws by the current administration, which it seeks to justify based on the alleged imperative of deporting all immigrants who the administration views as undesirable, it is especially important that the actions of ICE be readily subject to judicial review and remedies. Protecting an officer’s identity may be warranted in unusual circumstances, and we support allowing the use of masks when approved by a judicial officer in advance based on a particularized showing of just cause. But no legitimate justification exists for a general practice of concealing the identity of immigration officers, as they all should be subject to legal and public scrutiny.
Now that the administration has received funding for 10,000 new ICE agents, it is even more important that they not be allowed to imitate the fear tactics used by the police in tyrannical regimes. Thus, ICE’s masking practice must stop now, and we implore Maine’s members of Congress to support pending federal legislation to do just that, the No Secret Police Act and the VISIBLE Act.