Could the local US governors/mayors, who reject federal agents on their streets, legally order their local police force to arrest all people, who are violence and don't wear any insignia?

Or would it be illegal for them to arrest the federal agents, even when they don't wear any insignia showing their role as federal agents?

  • Welcome to LSE and thanks for the nice question! Your question is simple to ask, but the answer is complicated. Let me know if you have any questions. – Just a guy Jul 30 at 15:34
  • @Justaguy The edited version of your answer covers the main points, thank you. I find it puzzling though, that the US allows unmarked officers. This allows for the establishment of secret police that can not be made accountable.. – TheoreticalMinimum Jul 31 at 8:15
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    I agree completely. Here two factors that make the lack a bit more understandable. First, Federal LEOs are usually deployed where their identity is obvious, such as in customs raids or at the border, so the lack of id wasn't an issue. Second, many (most?) police departments have policies requiring officers to identify themselves. When those policies work well, nobody will push for a law. boingboing.net/2015/02/25/think-you-have-the-right-to-de.html – Just a guy Jul 31 at 20:29

Revised for clarity in light of comments

  1. State and local police can arrest anyone who they have probable cause to believe is breaking state or local law.

  2. Like all LEOs, Federal LEOs can break some state and local laws while enforcing Federal law. When they grab someone off the street and hold them in a cell, they are detaining them, not kidnapping them, and so on. However, to avoid arrest, the Feds have to identify themselves. That's because state and local LEO who know they are dealing with Feds on federal business no longer have probable cause to believe a crime is being committed.

  3. State and local police can arrest Federal LEOs who they: a) have probable cause to believe are breaking state or local; and, b) have no reason to believe are Feds enforcing Federal law. In other words: Any Fed who refuses to identify herself to a local LEO can be arrested if there is probable cause.

  4. State and local police cannot, however, arrest Federal LEOs just because they are not wearing insignias. That is because: a) there are no federal statutes requiring federal LEOs to identify themselves; b) the Supremacy Clause says federal law takes precedence over state and local law that conflict with it; c) at least in Portland, the feds were not operating under any sort of formal agreement with Portland or Oregon officials that required them to have identification.

While it is hard to prove a negative, the question of whether Federal LEOs are required to identify themselves has been looked at recently by reputable sources. They all agree there is no such law. For example, the answer from Lawfare:

Broadly speaking, law enforcement officers do not have a legal duty to disclose either their identities or their agencies of affiliation, even if asked directly. Certain municipalities require police officers to identify themselves if asked, but there is currently no federal statute requiring officer disclosure of such information.

The article points out that the two main types of cases involving police identifying themselves really don't apply: police who are working undercover, notably in sting operations, and police searching and seizing property.

They go on to point out:

Separate from the question of federal law, several states have adopted laws and regulations requiring law enforcement to identify themselves. For example, under New York City’s Right to Know Act, a broad set of police reforms that went into effect in October 2018, officers must tell civilians at the start of some interactions “their name, rank, command, and shield number.”

(Also, many departments have policies that generally require officers to identify themselves, although with exceptions. You can see examples of the policies here.)

Again, these local laws do not apply to Feds because of the Supremacy Clause.

NOTE: As several of the news stories note, the lack of identification will make it very hard to hold Federal LEOs accountable for their actions. Accountability requires identity.

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    Wouldn't a federal "policeman" standing in New York need to follow NY law and identify themselves accordingly. – George White Jul 27 at 17:23
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    This strikes me as problematic. If federal agents do not identify themselves and their affiliation, under what rule should citizens obey their orders? In other words, if men walk up in mismatched, ambiguous uniforms and order a citizen to get into an unmarked van, isn't that citizen within his legal rights to refuse to comply, or even to defend him/herself with due force? – Ted Wrigley Jul 27 at 17:34
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    Whether the federal LEO is legally required to identify him/herself is a different question than whether the local police can detain the federal LEO if there is probably cause that a law is violated if they weren't an LEO, and their LEO status is not verified. – user102008 Jul 29 at 8:47
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    @user102008: That is not exactly true. Remember, US law has distinct 'color of authority' principles that allow law enforcement to be charged for executing criminal acts under the pretense that they are authorized to do so. Federal agents who act anonymously could certainly be charged with with assault and kidnapping under color of authority; the onus would be on them to prove to the DA or Court's satisfaction that their actions were legally justified. – Ted Wrigley Jul 30 at 17:09
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    @Justaguy: Officers/agents may not need to identify themselves personally, but they do need to identify their affiliation and thus their authorization to carry out enforcement action under the law. If they do not identify an affiliation, there is no reason to assume they have legal authority to carry out enforcement actions. Otherwise, the only reason to comply with these people is the fact that they have guns, and that is not consistent with the rule of law. – Ted Wrigley Jul 30 at 17:16

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