Federal immigration agents have smashed car windows, dragged people out of their cars, held individuals at gunpoint and conducted operations outside sensitive locations such as schools. In many instances, they’ve worn face coverings or masks that make it challenging to identify individual agents.
Now, Oregonians are poised to gain a significant tool to respond to those scenarios under House Bill 4138, which cleared the Oregon Legislature. Although the bill also contains several measures to boost the state’s sanctuary status, its main provisions require law enforcement agencies in the state to display a unique number or last name, badge and agency type if they are conducting operations in the state. They also must adopt public policies that generally prohibit the use of facial coverings.
The bill currently sits on Gov. Tina Kotek’s desk, though she has signaled she will sign it.
“Folks have worked hard to understand what we can do as a state and try to push in an area that, frankly, we didn’t think we’d have to deal with,” Kotek told reporters shortly after the legislative session ended Friday.
Legislative Democrats stressed that they took great pains to ensure the legal viability of the legislation, though they were weighing different approaches such as a bill to create a November 2026 ballot referendum to ban “secret police” or a measure to require identification on top of the masks federal agents have worn. But HB 4138 won out in the legislative process, with the bill’s author saying it responds to a moment which “calls for decisive action.”
“Fascism isn’t knocking at our doors anymore; it is knocking down our doors without warrants and we must respond accordingly,” said Rep. Farrah Chaichi, D-Beaverton, in a statement. “Our immigrant communities deserve to feel safe and secure, and I am proud that this bill is a step towards accountability and visibility for all Oregonians.”
While there is a significant possibility that the bill could face a lawsuit echoing a court case playing out against similar California laws, Oregon’s legislation is unique. It doesn’t create civil or criminal penalties for individual officers like legislation passed by California and Washington’s legislatures.
Instead, law enforcement agencies will have 180 days after the bill is signed into law to create a public policy on facial coverings that complies with the identification provisions. Oregonians, a law enforcement oversight body or a local government could file a written objection with any law enforcement agency operating in the state for a policy on facial coverings that fails to align with the legislation, which carves out exceptions for instances such as an undercover operation or medical necessity.
The agency would have 180 days to “correct any deficiencies” in its policy. The person or group who made that request could file a lawsuit seeking a court order against the agency in state court if it fails to “adequately address the objection.”
If an individual was suing a federal agency such as the U.S. Department of Homeland Security, legal experts say the federal government would likely try to move that case to federal court and potentially try to get the case dismissed. The U.S. Constitution’s supremacy clause, which allows federal laws to supersede conflicting state ones, would be at the center of those arguments.
Uncertainty on the streets and in the courts
Chaichi previously acknowledged in an interview with the Capital Chronicle that cases filed in state court could move to federal court.
While the legislation’s ability to regulate federal agents is tested, she said she hopes that people will at least be able to identify their local law enforcement. In her district, she has heard from people with different immigration statuses that they are not reporting assault, burglary and domestic violence cases to local authorities due to heightened mistrust.
“The whole situation is terrorizing, having people snatched off the streets, especially without due process,” she said. “But then having masked people do it, the uncertainty of not knowing who you can and can’t trust is another level of terrifying.”
Legal experts disagree over whether states have the ability to regulate federal agents wearing masks. Some say the issue could need to be clarified by the U.S Supreme Court.
U.S. District Judge Christina Snyder in early February halted California’s anti-masking law on the grounds that it singled out federal and local law enforcement and violated the supremacy clause, prompting lawmakers in that state to work on legislation broadening the law to include state law enforcement.
But she allowed a California law requiring all law enforcement agents to display uniform identification including an agency and name or badge number to stand. The 9th Circuit Court of Appeals has since paused that decision as it currently weighs whether to uphold the law upon appeal. During a March 3 hearing for oral arguments, a California lawyer was unable to produce an example of a case in which a court has upheld a state law that directly regulates the federal government’s authorized conduct.
And enacting a regulation affecting all types of law enforcement is not necessarily enough to guarantee a measure stands in federal court, according to Tung Yin, a professor of law at Portland’s Lewis & Clark Law School. He warned that the federal government could use comments by Oregon officials to prove the legislation targeted federal agents.
“California claimed its bill was not intended to single out federal law enforcement, and Oregon might argue the same,” Yin wrote in an email. “The timing of such laws being enacted when ICE has been heavily masking, etc. might give rise to an inference that federal agents were targeted as the subjects of this law. If there are statements by legislators or by the governor, I wonder if those could be used by the federal government as evidence that they were targeted.”
Officials with the Homeland Security Department did not immediately respond to a request for comment on Tuesday about the legislation. The Trump administration has justified the use of masks by arguing that its officers have been subject to a dramatic rise in doxing and threats, though it hasn’t publicly disclosed data corroborating that claim.
