SB 352 would amend §§ 9.1-102 and 18.2-422 and add § 19.2-83.6:1 to the Code of Virginia, prohibiting state and federal law enforcement officers from wearing facial coverings while performing official duties. Enumerated exceptions exist for disease protection, SWAT operations, inclement weather, and certain other circumstances. Violation is punishable as a Class 1 misdemeanor—up to 12 months incarceration and a $2,500 fine—and subjects the officer to disciplinary action including decertification. The bill also directs DCJS to develop a model policy. It passed the Senate 21–18. The VACP and VACLEA support the policy objective of officer identification and transparency. Our concern is narrow and specific: the Class 1 misdemeanor penalty. The Criminal Penalty Collapses Qualified Immunity. Under 42 U.S.C. § 1983, officers are entitled to qualified immunity unless their conduct violates "clearly established" statutory or constitutional rights. *See Harlow v. Fitzgerald*, 457 U.S. 800, 818 (1982). By criminalizing a facial-covering violation, SB 352 creates a statutory predicate that plaintiffs' attorneys will argue constitutes a *per se* violation of "clearly established law." Any officer charged with—or merely accused of—a violation during an encounter faces near-automatic denial of qualified immunity in subsequent civil litigation, regardless of the reasonableness of the officer's conduct under the totality of the circumstances. This is not theoretical. Federal circuits have increasingly treated statutory violations as evidence of clearly established law. Consider an officer who inadvertently wears a neck gaiter pulled above the chin during a rapidly evolving incident, or who deploys a face shield against chemical agents outside the narrow SWAT exception. That officer faces both criminal prosecution and the functional elimination of qualified immunity in any related civil suit. The DCJS Model Policy Is Sufficient. The bill already directs DCJS to develop a model policy—an approach the VACP and VACLEA endorse. Combined with existing disciplinary mechanisms including termination and decertification under Va. Code § 15.2-1707, this administrative framework provides adequate enforcement. A model policy can be updated as operational conditions evolve; a criminal statute is rigid and cannot account for the full range of tactical situations officers encounter. Requested Amendment. Strike the Class 1 misdemeanor penalty; retain the DCJS model policy requirement and existing administrative disciplinary authority. This achieves the transparency objective while avoiding the serious collateral consequences to qualified immunity and officer liability.

Please see attached PDF for CWS and the Refugee Advocacy Lab's joint written statement.

As a alarmed citizen, I urge the committee to advance SB352 and SB351 to help rein in the increasingly extreme and unlawful activities of CBP and ICE.

The Justice and Witness Action Network of the United Church of Christ-VA supports the passage of SB352. As people of faith, we recognize the worth and dignity of all persons. We are deeply concerned about the increasingly lawless behavior exhibited by officers of the Department of Homeland Security, including Immigration & Customs Enforcement and Border Patrol agents, as they hide behind masks that conceal their identity. These actions are part of a broader pattern of unchecked violence and disregard for the dignity of life. Trust and public safety are essential pillars of a secure community, and when government law enforcement agents conceal their faces and act without identification, it jeopardizes both of those pillars. Anonymous policing erodes trust, invites abuse, and threatens the safety of everyone involved. Law enforcement agents who are acting within the law have no need to hide their identities, and this bill protects responsible officers and the public. Transparency and accountability in law enforcement is critical for public trust. This legislation will strengthen the community's confidence in law enforcement and protect officers and community members from those who would disguise themselves to cause harm. We ask you to vote yes on SB352.