Judge Strikes Down ICE Mask Ban, Upholds Ban On 287(g) Agreements

ALBANY, NY — A court scrap between the federal government and New York State ended in something of a stalemate Monday, as Gov. Kathy Hochul’s ban on 287(g) agreements was upheld while her ban on mask-wearing by ICE agents was hit with a preliminary injunction.

In Judge Mae D’Agostino’s court, the federal government claimed that the pair of state actions created “an unlawful obstacle to the Federal Government in accomplishing its objectives,” and that it discriminated against the federal government. The discrimination, the government argued, stemmed from the fact that contracts between other law enforcement agencies and New York agencies had not been banned or voided under Hochul’s act.

On the mask ban, D’Agostino ruled in the federal government’s favor, saying that federal agents do not need to comply with a state’s police regulations when carrying out their duties.

“It seems beyond debate that restricting law enforcement officers from wearing masks and requiring visible identification to protect the safety and welfare of the general public is well within New York's police powers,” D’Agostino wrote. “Nevertheless, whether the Face Covering and Identity Acts are a valid exercise of New York's police powers is beside the point. The Supreme Court has clearly held that ‘[t]he United States may perform its functions without conforming to the police regulations of a state.’”

“In sum, matters of federal law enforcement, including immigration enforcement, are within the powers of the Federal Government,” D’Agostino added. “As these powers were not left to the States, [New York State’s] arguments, which primarily sound in the Tenth Amendment, are unpersuasive at this juncture.”

On the Termination Act — the ban on section 287(g) agreements set to take place Aug. 25 — D’Agostino ruled differently.

The Termination Act would prohibit a laundry list of state and local law enforcement agencies from entering, "any agreement pursuant to section 287(g) of the Immigration and Nationality Act.” Section 287(g) agreements, like the one Nassau County entered into with ICE, allow a federal agency to deputize and cross-train local law enforcement officials to carry out part of that agency’s duty; in this case, the detention of people believed to be in the country illegally.

Nassau County’s 287(g) agreement has been the subject of court challenges for over a year. Hochul announced her intent to ban the agreements in New York State in her budget earlier this year.

In her ruling, D’Agostino cited district rulings from New Jersey and said that the federal government had failed to prove that New York was discriminating against it by enacting the ban on 287(g) agreements.

According to the judge, the feds failed to present a comparable agency that had been treated differently from the federal government under the 287(g) ban. Additionally, D’Agostino noted that Hochul’s ban on 287(g) agreements doesn’t bar federal agencies from deputizing local law enforcement for non-immigration duties.

"The State's refusal to cooperate in the immigration context—a possibility contemplated by the relevant federal statutes—does not constitute discrimination against the federal government."

In comments made after the ruling came down, Hochul and New York Attorney General Letitia James said the ban on 287(g) agreements “will keep [New York’s] communities safe.”

“As we have said from the start, New York’s ban on 287(g) agreements is legal and will keep our communities safe. Local law enforcement should be focused on local matters, and New York taxpayers should not have to foot the bill for any collaboration with ICE,” the state officials said. “While the court enjoined enforcement of New York’s mask ban, we stand firm in our belief that masked agents do not make New York safer and our offices are reviewing all legal options at this time.”