On September 11, 2025, David
E. Mastagni, a partner at Mastagni Holstedt and counsel for the Peace Officers Research Association of California (PORAC), testified before the California
Senate Public Safety Committee in opposition to Senate Bill 627. Jonathan
Feldman, lobbyist for the California Police Chiefs Association, testified
alongside him. Despite opposition highlighting the bill’s dangers, Governor
Gavin Newsom signed S.B. 627 into law on September 20, 2025.
S.B. 627, authored primarily
by Senator Scott Wiener, prohibits local and federal law enforcement officers
from concealing their faces with certain coverings during the performance of
their duties. The bill defines prohibited facial coverings broadly to include
any opaque mask, garment, helmet, headgear, or other item that obscures facial
identity, such as balaclavas, tactical masks, or ski masks. Violations
constitute infractions or misdemeanors, with additional civil penalties for
tortious conduct committed while masked.
Senator Wiener described the
bill as the No Secret Police Act, targeting what he called secret police
tactics, particularly by federal Immigration and Customs Enforcement (ICE)
agents. He argued that routine masking fosters mistrust, instills fear, and emboldens
officers to violate civil rights with impunity.
In his testimony, Mastagni
explained how the bill endangers officer safety and operational effectiveness.
Masking serves critical purposes, such as protecting identities during
sensitive operations. The prohibition on helmets outside motorcycle use contradicts
standard training and safety protocols. The bill also imposes burdens on local
agencies by requiring them to develop compliant policies by July 2026 amid
California’s ongoing staffing shortages, which could worsen recruitment and
retention challenges.
S.B. 627 Likely Violates
the Supremacy Clause
Mastagni addressed the bills
application to federal officers, citing Supreme Court precedent under the
Supremacy Clause, including Cunningham v. Neagle (1890), which protects federal
agents from state criminal prosecution when acting within their official
duties. In Arizona v. United States (2012), the Court invalidated state laws
intruding on federal immigration enforcement. States cannot second guess
federal policies, such as ICE directives authorizing masks for officer
protection. The bill creates conflict preemption, as officers cannot comply
with both state and federal rules without compromising safety or mission
effectiveness.
Senator Wiener and supporters
of S.B. 627 often refer to an op-ed by Erwin Chemerinsky, dean and professor of
law at the UC Berkeley School of Law, to support the bill’s constitutionality.
This argument fails. Professor Chemerinsky contends that S.B. 627 can regulate
federal agents’ mask wearing because it is a law of general applicability that
applies to all law enforcement officers rather than specifically targeting
federal operations. He compares this to federal agents’ compliance with everyday
state laws like traffic rules. Although S.B. 627 appears facially neutral, its
practical effect substantially interferes with federal law enforcement
operations in ways that traffic laws do not. Federal immigration enforcement
involves unique considerations, including officer safety from targeted
retaliation and protection of sensitive investigations that local law
enforcement typically does not face. This creates an undue burden on federal
operations that triggers intergovernmental immunity principles, protecting federal
activities from state interference even when laws appear neutral on their face.
Chemerinsky further asserts
that requiring officers not to wear masks does not constitute a significant
burden on federal activities and does not impede federal agents’ performance of
their duties. This overlooks the fundamental differences between local policing
and federal immigration enforcement. Federal agents frequently operate in
sensitive contexts where identity protection is critical for both officer
safety and operational success. Even if only 10 percent of operations require
face coverings, that represents thousands of high risk federal operations
annually where agent safety would be compromised.
Courts typically defer to
federal determinations that prohibitions on face coverings create substantial
burdens on operations by compromising officer safety, operational security, and
effectiveness. The legislation seeks to second guess policy determinations that
federal agents, particularly in immigration enforcement, face unique threats
from targeted retaliation against them and their families through doxing and
harassment. The inability to protect their identities would significantly
impair their ability to conduct sensitive operations, gather intelligence, and
work undercover. These burdens are concrete operational impediments that
directly interfere with federal law enforcement functions.
Chemerinsky cites Ninth
Circuit precedent that states can prosecute federal agents criminally if their
actions are objectively unreasonable, suggesting this provides a pathway for
enforcement of S.B. 627 against non compliant federal officers. He primarily
relies on the vacated Ninth Circuit decision in Idaho v. Horiuchi, 253 F.3d 359
(Ninth Cir. 2001), vacated at 266 F.3d 979 (Ninth Cir. 2001). The Ninth
Circuit’s objectively unreasonable standard applies to federal agents who exceed
their authority or violate constitutional rights, not to agents following
lawful federal protocols. Wearing masks during legitimate operations is
standard procedure for many federal agencies based on assessed security risks
and operational needs. Criminalizing conduct that follows established federal
guidelines would allow state law to dictate federal operational procedures,
creating an impermissible state veto over federal law enforcement methods. This
directly conflicts with Supremacy Clause principles that protect federal operations
from state interference.
When asked if Legislative
Counsel had time to review S.B. 627 to determine if it would hold up in court,
Senator Wiener dodged the question. U.S. Attorney Martin Estrada for the
Central District of California stated that federal agents will not alter their
practices, calling the law unconstitutional and preempted by federal authority.
Local officers may face the impossible task of enforcing S.B. 627 against
federal personnel, risking liability for false arrest if courts invalidate the
statute.
Threat to Immunities Local
Officers Need to Perform Their Duties
At the Public Safety
Committee hearing, Senator Wiener and his supporters misrepresented that
officers who make good faith mistakes about the application of one of the
exemptions would be shielded from the bill’s criminal penalties, including loss
of immunity. Mastagni pointed out that the bill creates a general intent crime,
not a specific intent crime, such that willful and knowing refer only to the
intentional decision to cover an officer’s face, not to an intentional violation
of the statute. Mistake of law, such as erroneously believing conduct fits a
legal exemption, is generally not a defense, as it does not negate the intent
to commit the underlying act. Under Penal Code section 7, willfully implies
simply to a purpose or willingness to commit the act without requiring any intent
to violate law, to injure another, or to acquire any advantage. Similarly,
knowingly means only a knowledge that the facts exist which bring the act or
omission within the provisions of this code and does not require any knowledge
of the unlawfulness of such act or omission.
Ironically, the immunities
that officers will lose are the very immunities that protect officers when they
make a good faith mistake, such as on the validity of an arrest warrant, or act
reasonably but mistakenly. Without these protections, officers cannot or will
not do their jobs, and the public will suffer as the police staffing crisis
exacerbates.
The importance of immunity
protections cannot be overstated. The California Legislature has enacted
numerous civil immunities and privileges, which courts have carefully
interpreted and applied for decades. These protections apply only to officers
acting in good faith and are forfeited if officers break the law. The
Legislature has repeatedly refused to roll back these provisions, recognizing
the danger of undermining basic protections for officers. S.B. 627 eliminates
all existing immunities and privileges if an officer wears a mask, garment,
helmet, headgear, or other item that conceals the face, except in narrow and
poorly defined instances. The late addition of language stripping local peace
officers of immunity is the single most troubling aspect of S.B. 627. Officers
operate under carefully balanced immunities, including Civil Code section
43.55, Penal Code sections 836 and 847, and Government Code section 821.6,
which shield them from personal lawsuits when they act in good faith and within
the scope of duty. S.B. 627 overrides those protections solely because a face
covering is involved, regardless of intent. These immunities are sacred to the
public safety profession and enable officers to make arrests, execute search
warrants, exercise reasonable discretion, and participate in prosecutions
without fear of retaliatory suits.
A violation requires only
general intent, intentionally wearing a covering, which exposes officers to
lawsuits for assault, battery, false imprisonment, or malicious prosecution,
with statutory damages of at least 10,000 dollars even absent actual harm. The
bill’s notwithstanding any other law language overrides key protections,
including indemnification under Government Code section 825. Officers lose good
faith defenses for arrests, probable cause reliance, or discretionary decisions
if masked, even if they reasonably believed an exemption applied. This strict
liability standard, combined with incentives for litigation, undermines
essential immunities that safeguard public safety.
The bill’s exemptions are too
narrow and vague to adequately protect local officers, who do not enforce
immigration laws. State officers are exempt from the bill’s provisions. The
severability clause ensures that if the law cannot apply to federal officers,
its restrictions will still bind local California law enforcement. This means
the Trump administration will likely have an easy win in court, invalidating
application of the law to federal officers through preemption challenges. The
severability clause in the bill leaves local officers bearing the full brunt of
the criminal penalties and loss of immunities.
Conclusion
Now that Governor Newsom has
signed S.B. 627, it is the law of the land. Unfortunately, local California
officers will likely be ordered to arrest federal officers for violating the
statute, even though it is likely unconstitutional. Such actions may create
liability for obstruction and false arrest. Ultimately, local governments and
taxpayers will bear the liability of this ill-advised, reactionary, and rushed
legislation.
Next steps include potential
federal litigation to challenge the bill’s constitutionality and legislative
amendments to address these flaws. Public safety unions should engage with the
Legislature and stakeholders to advocate for reforms that protect officers
without compromising accountability.
Watch David E. Mastagni’s full
testimony here.
