ICE agents concealing their faces: Can they really do that?

On Saturday, as locals opposed to the federal immigration raids clashed with law enforcement in Los Angeles County, President Donald Trump took to Truth Social to disparage the “Radical Left” protesters, and added that “from now on MASKS WILL NOT BE ALLOWED at protests.” He went even further on Sunday, calling for the immediate arrest of masked protesters. The irony is hard to overstate, given that the protests were driven, in part, by footage of masked Immigration and Customs Enforcement agents snatching people off the street.

In one notable incident last month, ICE agents raided a popular Italian restaurant in San Diego, arresting kitchen workers before the evening dinner rush. The execution of such a low-risk raid by agents in tactical gear wearing face coverings and toting assault rifles infuriated onlookers and stirred conflict. “No one’s got their names, no one’s got their faces showing!” one person reportedly yelled as a similar scene unfolded at a Mexican restaurant in Minneapolis the next day.

“Lower your mask!” someone else demanded.

The recent concerns over masking by immigration officers first took hold in March after a viral video showed six plainclothes agents arresting Tufts grad student Rümeysa Öztürk on a Boston area sidewalk. “We’re the police,” they said as they restrained her, their mouths and noses covered by cloth.

“You don’t look like it,” someone off camera said.

The concerns grew more dire in May, when masked officers arrested Newark Mayor Ras Baraka outside an immigration detention facility in New Jersey, and spread further as ICE agents with ski masks and other face coverings began popping up elsewhere—most notably in Blue states such as California, Colorado, Massachusetts, New York, and Washington. In Virginia, after ICE officers entered a courthouse in plain clothes and a balaclava to arrest two men, a prosecutor considered pressing charges against the officers, saying that onlookers might have thought they were kidnappers. “[A]rrests carried out in this manner could escalate into a violent confrontation, because the person being arrested or bystanders might resist what appears on its face to be an unlawful assault and abduction,” Albemarle County Commonwealth’s Attorney Jim Hingeley said.

There are instances—like a raid on a murderous cartel or a mafia stronghold—in which it might seem reasonable for police to hide their identities. But routine immigration arrests don’t appear to meet the public threshold for such behavior. “Don’t they need to identify themselves, give a name and badge number, something to that effect?” Felipe De La Hoz, a contributing editor at The New Republic, wrote of the queries he was hearing.

Likewise, Jenn Budd, a former Border Patrol agent turned immigrant rights activist, said her online followers were asking her, “How do we know it’s ICE?”

“If they are legitimate law enforcement agents carrying out a proper arrest under the law, why are they hiding their identities?” asked CNN law enforcement analyst John Miller, who has worked for the NYPD as a deputy commissioner and the FBI as an assistant director.

“At what point will we as a nation find ourselves with a secret police?” wrote Walter Olson, a fellow at the right-leaning libertarian Cato Institute.

What are officers suddenly so afraid of—or, as Philadelphia Inquirer columnist Will Bunch put it recently, “Why are ICE agents such cowardly wusses?”

Masking by immigration agents is actually not new. During Trump’s first term, New York advocacy groups documented instances of officers in black masks refusing to identify themselves during dawn raids on immigrants’ apartments, and plainclothes agents encircling a taxi with guns to arrest someone, never saying who they were. “Sometimes, people don’t want to be on TV or the internet,” an officer with Homeland Security Investigations told New Brunswick Today in 2017.

But lacking actual data, the experts I spoke with said, it’s unclear whether we’re seeing a true increase in masking by federal authorities over Trump’s first term, or merely an increase in attention paid to the issue.

One reason for the recent proliferation of news stories, according to Budd, the former Border Patrol agent, is that ICE now operates in public spaces more brazenly than it did in the past. Historically, most ICE arrests—which are for civil violations, not crimes—took place in detention settings such as local jails, in cooperation with police who may have picked up an undocumented immigrant for another offense. But lately, the agency seems hellbent on beating its chest out in the open. “They are [making arrests] very publicly when they don’t need to,” Budd says, “to let everybody else know: This is what’s coming for you.”

Although some of ICE’s recent tactics are unprecedented (like sending immigrants to a notorious prison in El Salvador without a hearing), others (like masking, and not using judicial warrants) are old hat, except now it’s more in your face, “in your schools and your churches,” Budd says.

It’s also happening on a larger scale. The Trump administration has recruited agents from the Drug Enforcement Administration (DEA), the Bureau of Prisons, the IRS, the Marshals Service, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives to bolster its deportation dragnet, in addition to local and state police via so-called 287(g) agreements. Back in January, at least two agencies assisting US immigration officials urged their personnel to be “camera ready,” as CNN put it, which basically meant ensuring that their uniforms were clearly identifiable. Last month, by contrast, the Florida Highway Patrol apparently instructed troopers not to wear name tags while participating in ICE operations, according to an email obtained by News 6, because “there has been a lot of activity and many recordings of us posted online when working with ICE.”

Also in May, the federal government asked journalists at the San Francisco Standard to blur the faces of ICE agents in photographs taken after the agents arrested people at an immigration court—“out of a concern for the safety of our personnel.” (The paper declined.) “They know they are following orders that are violating the Constitution and their oath,” Budd says. “That’s why they mask.

Masks have been a familiar sight since the pandemic, so it’s easy to forget that wearing them in public technically has been illegal for decades in much of the United States—except on Halloween. In the 1940s and ‘50s, many states banned masks in reaction to the Ku Klux Klan, whose members shielded their faces to terrorize Black people. (The laws weren’t passed to protect victims, the ACLU notes, but rather because Southern politicians favored segregation and believed the Klan’s violence hurt their cause.)

New York state has an anti-mask law on the books since 1845, passed in response to anti-rent riots. It prohibits public gatherings of three or more people in disguise. But as writer Melissa Gira Grant pointed out for The New Republic, the law has been enforced selectively—often against activists and working-class people. Masquerades, once a popular form of entertainment among the rich, were allowed, for example, whereas a theater troupe demonstrating against the Vietnam War, anarchists sporting bandannas on May Day, and protesters with Guy Fawkes masks during Occupy Wall Street have been targeted.

In April, Trump officials asked Harvard to “implement a comprehensive mask ban” with a punishment “not less than suspension” for violators, suggesting that student protesters opposing Israel’s war on Gaza might defy rules without consequences if they were allowed to conceal their identities. (Columbia University capitulated to similar demands from the administration in March.) 

Historically, police in the United States have rarely masked on the job other than for certain undercover operations and SWAT raids—and during the pandemic. But there isn’t any federal law regulating the practice. “Citizens don’t have a constitutional right to know an officer’s identity, ” says Justin Nix, an associate professor at the University of Nebraska, Omaha, who studies police legitimacy.

Police dress codes are usually determined by local jurisdictions, notes Ian Adams, an assistant criminology professor at the University of South Carolina. Typically cops are required to wear their assigned uniforms, which seldom include masks, he says, but there’s room for variation. Chicago police officers may use a “protective balaclava” in riot control situations, provided they get approval from their boss and it’s “worn in such a manner that the face is not covered.” New York City police can wear a black balaclava during winter patrols as long as they’re also wearing their uniform hat and duty jacket, their face is fully showing, and the temperature outside is expected to fall below 32 degrees. On an online forum for police officers, one commenter wrote in 2009 that their department allowed helmets and protective eyewear that partially obscured their face during raids, but “we had an old school Sheriff once that said, ‘Only bad guys wear a mask to work.’”

Of course, many officers don’t wear traditional uniforms—they’re detectives, say, or they work for agencies like the FBI, or they are focused more on surveillance than public-facing patrols. ICE often lets agents work in plain clothes during field operations. Civilian windbreakers, bulletproof vests, khaki pants, or an ICE T-shirt are all common attire, according to Budd.

But federal law does require immigration officers to identify themselves when making an arrest. Specifically, they must state their affiliation with ICE or another federal law enforcement agency “as soon as it is practical and safe to do so,” and state their authority to detain the person, according to the regulation. In the video documenting the arrest of Öztürk, the Tufts student, you can hear her ask, “What’s going on?” One of the men confronting her on the sidewalk says, “Okay, we’re the police, relax.” Others made similar comments as they escorted her to a black SUV.

Regular police must follow similar rules, though identification can happen in different ways—including, for instance, a show of lights and sirens during a car chase. The ID requirement is, in part, for the officer’s safety: If people don’t realize it’s a cop approaching them (or chasing them or breaking into their home), they may assume it’s a criminal. “Courts have found time and again” that people who shot police who didn’t clearly identify themselves still had a right to self-defense, says Craig Futterman, who founded the Civil Rights and Police Accountability Project at the University of Chicago Law School.

Within the rules, police have discretion to decide what’s “practical and safe,” and saying “we’re police” probably satisfies the law, the experts I spoke with said. But Congress has recently tried to encourage officers to be more transparent. In 2020, amid the George Floyd protests in DC, the first Trump administration deployed unidentifiable law enforcement officers to the streets, as my colleague Dan Friedman reported at the time. Afterward, lawmakers passed a bill requiring officers to visibly display “the individual’s name or other individual identifier” and the branch or agency they worked for. But the new requirement only applies to protests or other “civil disturbances,” and includes an exception for officers who don’t normally wear uniforms, so it wouldn’t have made a difference for the recent immigration arrests.

Virginia Sens. Mark Warner and Tim Kaine nevertheless sent a letter to Homeland Security Secretary Kristi Noem and other officials in May expressing concern about the masked agents. “The failure..to promptly and clearly identify who they are and the authority under which they are acting has led witnesses…to justifiably question the law enforcement status, authority, and constitutionality of ICE officers and agents and their operations,” they wrote.

At a hearing earlier that month, Rep. Julie Johnson (D-Texas) asked Noem what she was doing to ensure that ICE agents are not masked when they approach someone. “I just put myself in the situation of that woman from Tufts,” Johnson said.

“ICE agents always identify themselves to individuals that they’re encountering,” Noem replied. “If they’re wearing something over their faces, it’s oftentimes because that agent has been involved in undercover operations or needs to be able to continue the investigative work that they do on a day-to-day basis.”

Homeland Security’s media team has proffered other explanations: “When our heroic law enforcement officers conduct operations, they clearly identify themselves as police while wearing masks to protect themselves from being targeted by known and suspected terrorist sympathizers,” a spokesperson told CNN. (Variations on the quote have swapped “terrorist sympathizers” for “known and suspected gang members, murders [sic] and rapists.”)

After the San Diego restaurant raid, ICE acting director Todd Lyons said some officers have received death threats and been harassed online. “I’m sorry if people are offended by them wearing masks,” he told reporters, “but I’m not going to let my officers and agents go out there and put their lives on the line, their family on the line, because people don’t like what immigration enforcement is.”

Though ICE agents probably have little to fear from “terrorist sympathizers,” they do have lots of people angry with them, and doxxing has been an issue. In 2020, amid the protests sparked by George Floyd’s murder, the Associated Press reported that the personal information of many police officers—including home addresses, phone numbers, and email addresses—had been leaked on social media. Earlier this year, activists posted flyers in a Southern California neighborhood with the names, headshots, and phone numbers of ICE agents working in the area. Last week, Sen. Marsha Blackburn (R-TN) introduced a bill that would punish people who doxx federal law enforcers with up to five years in prison.

“There are a lot of social media postings out there, a lot of crazy people that are waiting to have their fuses lit,” said Jerry Robinette, formerly a special agent in charge of ICE’s Homeland Security Investigations in San Antonio, Texas, who says he understands why officers are masking. In April, a Texas man was arrested after threatening to shoot ICE agents in his neighborhood.

“I’ve actually seen social media posts about how they should be killed,” Budd told me. “With how gun crazy this country is, I would take it seriously as well.” Still, she added, “agents don’t have to be doing these high-profile arrests like this in the middle of the street. The way they are doing it is causing this.”  

But if public safety is the biggest concern, she and other critics say, then masking might make it worse. In addition to cops potentially being mistaken for criminals, authorities in multiple states arrested people allegedly impersonating ICE agents for devious purposes. In South Carolina, a man posing as an immigration officer detained a group of Latino men in their vehicle and took away their keys; he was later charged with kidnapping, impersonating an officer, petty larceny, and assault and battery. In Philadelphia, three people allegedly tried to enter a Temple University residence hall wearing shirts that said, “Police” and “ICE.”

“Are you aware,” Rep. Johnson asked Noem, “that your materials, ICE agents’ jackets and the sort, are available on Etsy for $20? Anybody can do that, throw a mask on, and run around and terrorizing people of color without any regard…because your agency does not have proper protocols to make sure their agents are clearly identified and marked when they are executing their jobs.”

Etsy aside, anonymous law enforcement agents are a problem because they are more difficult to hold accountable for misconduct, says Lauren Bonds, executive director of the nonprofit National Police Accountability Project. “Even if you’re not suing, if you just want to file a complaint, an officer being in plainclothes makes it really hard to know whether they’re with the sheriff or an ICE agent,” she says.

Radley Balko, the former Washington Post reporter who wrote Rise of the Warrior Cop, recalled a situation in which DEA officers raided the home of two innocent women, whose subsequent lawsuit was dismissed because they were unable to figure out the officers’ identities. “Wearing a mask isn’t undercover work, it’s trying to hide who you are so you can’t be identified, so you can’t be held to account for what you do,” says Futterman.

Arrests like Öztürk’s have led some observers—from the Cato Institute to Boston Mayor Michelle Wu—to question whether ICE is becoming like a secret police force. “[T]his idea that we are going to allow some kind of paramilitary force to bloom that is not in any way…accountable to the Constitution of the United States? We’ve got another thing coming,” Rep. Alexandria Ocasio-Cortez (D-NY) posted on social media.

Whatever you call them, it’s clear that masked officers are stoking widespread fear. “The students I’m talking to are looking out the window, wondering if every car with tinted windows is filled with ICE agents coming to snatch and disappear them,” Eric Lee, a member of the American Immigration Lawyers Association who is representing immigrant students, told CNN.

“Frankly, when people want to terrorize people, they wear masks,” Budd told me, thinking back to the laws passed against the KKK decades ago. ICE is “doing it with purpose,” she added. “The chaos is what they want.”