The Washington PostDemocracy Dies in Darkness

NAACP Legal Defense Fund sues national policing commission

Commission on Law Enforcement created by attorney general is not balanced, violates public access laws, LDF says

President Trump signs an executive order to create the Commission on Law Enforcement and the Administration of Justice at the IACP convention in Chicago in October, to be overseen by Attorney General William P. Barr, far right. (Scott Olson/Getty Images)

When Attorney General William P. Barr put together a long-awaited national commission to study policing in America in January, all 18 commissioners were members of law enforcement, with no members from the defense bar, civil rights organizations or academia. The commission then announced 15 working groups, but those, too, were made up of nearly all police officials or prosecutors.

When the commission began holding hearings, it did not formally announce them and did not allow the public to attend or participate. So the NAACP Legal Defense and Educational Fund, known as the LDF, is asking a federal judge to halt the commission’s work. In a lawsuit against Barr, the Justice Department and the commission, the LDF argues the panel has violated a law setting out how federal advisory commissions must be composed and function. Barr has indicated he does not think that law applies to the policing group.

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“It has been abundantly clear since its inception,” said Sherrilyn Ifill, the LDF’s president, that the policing commission “was created to perpetuate the false notion that law enforcement is under attack, which Attorney General Barr and President Trump have frequently espoused as a justification for undermining measures to promote police accountability.”

The Justice Department declined to comment on the suit, which will be heard in federal court in Washington by Senior U.S. District Judge John D. Bates, a President George W. Bush appointee. The LDF is seeking a permanent injunction to prevent the commission from meeting or issuing any reports.

A presidential commission launched by President Lyndon B. Johnson in 1965 helped lead to such innovations as the 911 emergency number and improved police training. Police groups have pushed for a similar group, and President Barack Obama’s Task Force on 21st Century Policing in 2015 recommended a “national crime and justice task force.” Both the Johnson and Obama commissions included police and civilian members.

But two bills in Congress authorizing a new policing commission, with bipartisan support and backing from numerous civil rights groups, stalled, so the International Association of Chiefs of Police urged President Trump to enact one by executive order. Trump did so at the IACP convention in October, setting out a year for the Commission on Law Enforcement and the Administration of Justice to present him with a report and recommendations. He tasked Barr with determining the composition and procedures of the new commission.

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Barr announced and swore in the panel members in January. The chairman of the commission is Phil Keith, a former Knoxville, Tenn., police chief and director of the Community Oriented Policing Services in the Justice Department. The other 17 commissioners are either federal or local law enforcement members or prosecutors. A number of civil rights and defense groups said they were not consulted before the commission was announced.

The commission then announced 15 working groups that, in addition to focuses on technology and crime reduction, have themes such as “Respect for Law Enforcement” and “Police Officer Health.” Of the 112 people on these 15 working groups, only five are not from law enforcement — three elected officials, one federal tribal official and one public defender.

Terry Cunningham, deputy executive director of the IACP, said in December he hoped the commission would be diverse. “We want to make sure we have people that are not in lockstep with law enforcement,” Cunningham said. “That gives the commission the credibility that it needs to create a living, breathing document.” He said Thursday that he stood by that statement, that “to get the best solutions, we need to hear from folks that don’t always agree with us,” but the IACP was not involved in selecting members of the commission.

After the commission’s first meeting following its swearing-in at the Justice Department in January, it met publicly at an IACP meeting in Miami in February. Subsequent meetings have been held by teleconference due to the coronavirus pandemic. The hearings are announced by news release to the news media, who are invited to listen in, but with no other public notices or availability. Experts from various subject areas have read short statements to the commissioners, who sometimes ask questions of the speakers. The audio and transcripts of 14 such meetings have been posted to the commission’s website, though not the February meeting.

The Federal Advisory Committee Act (FACA), first passed in 1972, governs “any committee, board, commission … established or utilized by the President in the interest of obtaining advice or recommendations for the President.” The act requires that all such meetings shall be open to the public and that notices of each meeting shall be published in the Federal Register, which the commission has not done.

The FACA also requires that interested persons be permitted to “file statements with any advisory committee,” and the commission has allowed members of the public to file written statements. But after the pandemic hit, the policing commission moved up the deadline for submission of public comments, from May 31 to April 30. “The Commission has operated in a way that has largely shut the public out from meaningful participation,” the LDF argued.

The federal committee act also requires such commissions “to be fairly balanced in terms of the points of view represented” so that they “will not be inappropriately influenced by the appointing authority or by any special interest.” The LDF lawsuit repeatedly invokes this part of the law to criticize the makeup of the policing commission, noting there are no criminologists, no public health or mental health or recovery practitioners, no civil rights or community leaders, and no labor, business or religious group representatives.

“The intended goal is clear,” the LDF wrote, “recommendations that will give more power and protection to law enforcement, reinvigorate tough-on-crime measures, and cut down on the rights of citizens.”

The suit cites the FACA violations as reasons for Judge Bates to enjoin the commission from meeting or acting. But in the last sentence of a seven-page memo implementing the commission, Barr wrote that the commission “is not intended to be subject to … the Federal Advisory Committee Act.”

Natasha C. Merle, senior counsel for the LDF, responded: “Just because Attorney General Barr wills it doesn’t make it so. There are very clear guidelines of when a commission is subject to FACA and when it isn’t. They are violating pretty much every provision of FACA.” She noted that the government has 60 days to respond to the complaint and said she hopes that Bates would move the case quickly after that.

Although Barr has tasked the commission with improving police-community relations, “you don’t fix relationships unless both sides are at the table,” said Miriam Krinsky, executive director of Fair and Just Prosecution. The commission is “lacking in accountability and transparency,” she added. “If you’re going to study the relationship between law enforcement and the community, your process has to have integrity, because integrity is essential to building trust.”

Jim Pasco, executive director of the Fraternal Order of Police, which was also integral in the creation of the commission, declined to discuss its lack of civilian members because his organization was not involved in selecting the members. He said the commission was “a unique opportunity to develop a blueprint for improving the way in which we do our jobs” and “to improve relationships and cooperation with the community, which would be to everyone’s advantage.”