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Modesto, a city with a less-than-stellar track record of defending against civil rights lawsuits, could become a test case for its controversial ban on masks during protests.
Heated debates over face coverings and the right to wear them have flared up on the national to local levels. Should Palestine-Israel demonstrators be allowed to conceal their identity? What about masked ICE agents apprehending suspected immigrants on California streets? Or regular people protesting right here in Modesto?
After five people with face coverings were taken away in handcuffs at one of two June 14 rallies in Modesto, City Hall received official demands to reverse the mask ban from three civil rights organizations. The American Civil Liberties Union outright threatened to sue if leaders ignore demands; the First Amendment Coalition and the NAACP hinted at potential legal action.
Mask ordinance discriminates against brown and Black people, critics say
Modesto’s mask ban “suppresses civic engagement and disproportionately impacts marginalized groups — particularly youth and communities of color,” wrote Wendy Byrd, the local NAACP group president.
All five June 14 arrests came at the “ICE Out of Modesto” rally, which attracted a diverse crowd including many people of color. Meanwhile, critics have pointed out that no one was arrested the same day at the larger “No Kings” event whose speakers and attendees skewed more white, which they said indicates different policing approaches for the two groups.
The ACLU currently isn’t threatening other municipalities, the organization said. Mask bans like Modesto’s are rare in California. Citing a UCLA law professor, the Los Angeles Times identified Oakland and Lomita as other cities with similar policies. But there are no records of officers in those departments arresting people for wearing face coverings during peaceful demonstrations.
On a larger scale, 18 states have enacted mask bans over the years for wildly differing reasons, according to the International Center for Not-for-Profit Law. That organization is working to update its database to reflect recent legislation prompted by concerns about violence.
Mask bans might be relatively scarce because both state and federal law guarantee freedom of assembly and speech, both First Amendment rights that seem to favor face coverings. That must be balanced against basic needs for public safety, ban advocates say.
“It’s a wonderful example of balancing interests,” said Stephen Routh, a political science professor at California State University, Stanislaus in Turlock, down the road from Modesto. “There are good arguments on both sides. We really do need the highest court in the land to lay out guidelines of what’s acceptable and what’s not.”
How did Modesto find itself in the middle of this legal debate?
Origins of Modesto’s controversial mask ban came before COVID
Nobody envisioned people protesting the heavy handedness of the White House or immigration agents – or even COVID policy – when Modesto leaders adopted the local ban in 2019. At that time, officials were worried about things turning violent at planned public demonstrations touting Straight Pride – a dig at LGBTQ+ celebrations – and the nationalist militia they might attract.
Items that could be used as weapons or to conceal identity were outlawed. But nobody much noticed until June 14, when thousands of people showed up at two different rallies protesting federal policies. Six were arrested, five specifically for wearing masks.
Dozens of people incensed at the arrests have railed for several hours at subsequent meetings of the Modesto City Council and police review board. Many have demanded that charges be dropped, that an independent investigation be launched and that the mask ban be repealed.
Modesto City Council members have absorbed the verbal blows without comment. They have not yet scheduled the topic for a future agenda, preferring that it first be vetted by the city’s Community Police Review Board. Other recommendations are expected from a law firm specializing in First Amendment matters, hired by City Hall, City Manager Joe Lopez said.
Vice Mayor Nick Bavaro said in an interview, “I’m willing to listen to the arguments with an open mind. But the issue is always going to be public safety comes first.”
Modesto Councilmember Chris Ricci said, “I love the fact that the ACLU would communicate with us on this issue. They raise valid points; we don’t want ICE kidnapping people off our streets with no warrants. But I’ve been in protests with the Proud Boys in masks assaulting police officers. So I’m pleased with the city’s thoughtful approach in using the police review board to look at it from all angles.”
ICE arrests – in Modesto, too – driving recent national mask debate
More than two dozen elected officials on various boards and councils throughout Stanislaus County signed a letter frowning on recent ICE detentions in the Central Valley. Among them were Ricci, Modesto Councilmember Eric Alvarez, and County Supervisors Mani Grewal and Channce Condit.
“We recognize the anxiety and uncertainty that these enforcement actions have generated,” reads the letter, urging ICE to use discretion and respect for local leadership.
Stanislaus Superior Court leadership condemned a July 1 ICE raid at the courthouse in Modesto, when one person was detained.
“Federal immigration enforcement activities inside courthouses disrupt court operations, breach public trust, and compromise the Court’s constitutional role as a neutral venue for the peaceful resolution of disputes,” said Presiding Judge Sonny Sandhu in a statement. “These actions create a chilling effect, silencing victims, deterring witnesses, discouraging community members from seeking protection and deterring parties from participating in legal proceedings.”
Some have equated the June 14 arrests by Modesto police with recent ICE detentions – officers in riot gear hauling people away in unmarked cars.
Last year, after violent protests at a synagogue, Los Angeles Mayor Karen Bass said her city would research and consider a mask ban. The idea sounded similar to Modesto’s. But just after receiving a warning letter from the ACLU, Bass appeared to back down, The Times reported.
Other mask bans trace roots to long-ago racist KKK violence
Rationale behind mask bans in 18 states over the years has changed with the times. Decades ago, such bans gave law enforcement a tool against masked Ku Klux Klan marchers, including in South Carolina where its ban was used recently to justify the arrests of four people at a No Kings rally on the same day as Modesto’s.
More recently, irked by COVID constraints, some conservative states moved to outlaw masks that then-health officials under the Biden administration said were needed to keep people safe in public.
A 1923 statewide mask ban in California was reversed after authorities used it in 1978 to intimidate Iranian nationals protesting against the shah of Iran.
Today, two bills winding through the California Legislature would prohibit officers from wearing masks or otherwise concealing their identity. Whether such a state law could govern federal authorities such as ICE agents is in question.
Against this backdrop of state and national mask fervor is Modesto’s unique ban on face coverings. Regardless of what city leaders do about that, they could already be subject to civil rights litigation based solely on the June 14 arrests, Routh said, if those detained wish to challenge the arrests.
Stephen Allen, among the five arrested in June, said Modesto police officers grabbed him as he was taking pictures to document their unmarked cars, and was taken away in one. He said he hasn’t decided whether to pursue a lawsuit.
“I did nothing remotely to interfere with the cops,” Allen said in a phone interview. But he was wearing a face covering, according to authorities, which he has denied.
The arrestees are scheduled for arraignment on Aug. 13, said Patrick Kolasinski, a Modesto defense lawyer representing three of the five arrestees. “This is absolutely, categorically viewpoint-based policing, and that is not OK. That should stop,” Kolasinski said.
The office of City Attorney Jose Sanchez will handle the prosecutions of those arrested June 14 because civil municipal code violations, not criminal violations, are alleged. The exception – a single misdemeanor count alleging obstruction of a peace officer – was dropped, Stanislaus County District Attorney Jeff Laugero told The Modesto Focus.
Modesto Police Chief Brandon Gillespie has publicly defended his officers’ actions, saying that arresting those who wilfully disregarded warnings to comply with the law allowed others in the large crowds to peacefully exercise their rights to assembly and free speech.
Lawsuit against Modesto changed elections all over California
When it comes to fighting civil rights lawsuits, Modesto has little reason to be proud, given its track record over the last few decades.
The city and Stanislaus County spent millions of dollars defending against lawsuits filed in 2004 alleging that biased policies were harming predominantly Latino neighborhoods in south and west Modesto with substandard public amenities. Sidewalks and storm drains still remain spotty there despite county leaders spending millions more since on improvements.
More far-reaching was the 2004 lawsuit against Modesto that changed the composition of many councils and boards throughout all of California. Modesto fought that district elections case all the way to the U.S. Supreme Court and lost, costing taxpayers millions more when justices agreed that voters have a right to elect people who look and think more like they do.
Progressive attorneys used the Modesto case to nudge cities and school districts into compliance, and now more elected officials on all levels better reflect the ethnic and cultural diversity of their communities up and down the entire state.
In the current mask debate, Modesto leaders may be in search of a way to save face on their face-coverings ban – which both impinges on free speech while also protecting demonstrators from potential violence at the hands of masked agitators.
“You can see why it gets contentious at City Council meetings,” said Routh, the Stanislaus State professor. “These are great intellectual puzzles, but they’re painful debates for politicians and voters.”
Garth Stapley is the accountability reporter for The Modesto Focus, a project of the nonprofit Central Valley Journalism Collaborative.
This is a stupid story. Law enforcement officials, such as ICE, who have to cover their faces when enforcing the law as law breakers will attack them and their families is not the same as protesters, BLM, ANTIFA, etc., who are protesting in support of terrorists and law breaking criminals.