House Judiciary Committee reviews S.208 requiring officer identification, limiting masks; legal experts say federal preemption unlikely

The House Judiciary Committee on Feb. 17 examined S.208, a bill that would require law-enforcement officers operating in Vermont to display identifying information and generally prohibit masks or disguises while interacting in person with the public.

Sophie Zadatni of the Office of Legislative Counsel walked the committee through the bill’s text and related constitutional issues, telling the panel that the statute would add a chapter to Title 20 and ‘‘includes any officer of a federal law enforcement agency or any person acting on behalf of a federal law enforcement agency.’’ She warned that constitutional concerns arise when a state law reaches federal officers but said state police powers allow Vermont to regulate officers acting within state boundaries.

Zadatni summarized a recent U.S. district-court decision in California that evaluated similar measures. She noted the court found ‘‘there’s no federal law or regulation that requires federal law enforcement officers to wear facial coverings,’’ and that the federal government in that case did not pursue express, field, or conflict preemption arguments. The California court denied a preliminary injunction for one identification measure but held that a masking provision violated the constitutional discrimination test as written in that statute’s form.

Betts Professor of Law Jessica Bowman Posen of Columbia University told the committee she supports S.208. She said Vermont has a ‘‘very strong argument’’ against preemption because, as the committee was told, no federal statute or binding federal regulation presently governs masking by federal officers. Instead, she said, the dispositive issue will likely be intergovernmental-immunity analysis: whether the state law impermissibly ‘‘directly regulates’’ federal operations or discriminates against the United States.

Bowman Posen explained the legal distinction the courts use: rules that simply affect the mode in which federal employees carry out duties (for example, traffic regulations) are generally permissible, whereas rules that would control or nullify federal assignments would be impermissible. She argued S.208’s approach—applying uniformly to state, local and federal officers and regulating identification and mask use in limited circumstances—looks more like regulation of mode than direct control over federal operations.

Text and exceptions

Under the bill as discussed, officers would be required to display either their name or a unique radio or badge number and the agency name visibly on their person; the prohibition on masks applies to in-person interactions so it would not reach online undercover work. Exceptions listed in the draft include medical respirators (N95), protection during water rescue or exposure to smoke, protective measures related to biological or chemical hazards, undercover operations (for specified task-force and child-exploitation investigations), and exposure to extreme cold.

Committee members pressed the bill’s minus-10°F (including windchill) cold-weather trigger for the shelter exception—Zadatni said that threshold mirrors an emergency-shelter reimbursement trigger used by the state and that the timing and thresholds are subject to periodic adjustment. She also noted the Vermont Criminal Justice Council would be asked to adopt a statewide policy setting display standards; if S.208 became effective July 1, the council would have six months to publish guidance.

Penalties and enforcement

S.208, as discussed before the committee, imposes civil penalties rather than criminal sanctions: up to $1,000 for a first violation and $2,500 for second or subsequent violations. Zadatni contrasted that with California’s statutory scheme, which included criminal penalties and larger civil remedies in some provisions. Under the draft, the judicial bureau would be given jurisdiction to enforce the civil penalties listed in the bill.

Litigation risk and next steps

Both counsel and the scholar cautioned the committee that courts could reach varying outcomes. Zadatni emphasized the California decision provides one district-court analysis and is potentially appealable; Bowman Posen said other circuits might interpret the intergovernmental-immunity line differently, but she viewed Vermont’s even-handed drafting as a meaningful legal strength.

‘‘I do support the bill,’’ Bowman Posen told the committee, saying the measure addresses impersonation and public-safety concerns while remaining consistent with constitutional limits on state power over federal operations. The committee recessed for a short break and scheduled additional witnesses to testify on S.208 later in the hearing sequence.

Ending

The panel did not take a vote during the Feb. 17 session. Committee members asked for additional detail and witnesses on implementation, operational impacts for plainclothes officers, and the interaction with existing disciplinary processes; hearings will continue with additional testimony scheduled the following day.