The ruling by Senior U.S. District Judge John D. Bates in Washington came in response to a lawsuit from the NAACP Legal Defense and Education Fund, which sought an injunction against the Presidential Commission on Law Enforcement and the Administration of Justice for violating laws on how federal advisory committees must work. Bates did not issue an injunction yet, but asked both sides to file briefs on what should be included in an injunction, said he would order the commission to change its membership and comply with other aspects of the law, and that it could not issue a report until it had done so.
“Especially in 2020,” Bates wrote, “when racial justice and civil rights issues involving law enforcement have erupted across the nation, one may legitimately question whether it is sound policy to have a group with little diversity of experience examine, behind closed doors, the sensitive issues facing law enforcement and the criminal justice system in America today.”
The 18-member commission was composed entirely of local, state and federal law enforcement officials, with no one from the civil rights, criminal defense, social work, religious or academic fields. Members were sworn in on Jan. 22 and then heard months of testimony by teleconference from experts in a variety of police, prosecutorial and social fields. The commission also formed 15 working groups, with more than 100 members, to draft sections of the report focusing on topics such as “Reduction of Crime,” “Respect for Law Enforcement,” “Data and Reporting” and “Homeland Security.”
The Federal Advisory Committee Act requires that a committee’s membership be “fairly balanced in terms of the points of view represented and the functions to be performed,” so that its recommendations “will not be inappropriately influenced by the appointing authority.” The working groups were also largely tied to policing, with only five of the 112 members not from law enforcement. After the suit was filed, the speakers who testified before the commission were more diverse in professional backgrounds.
Police groups lobbied Congress for years to form a commission that would take a comprehensive look at improving American policing, as a similar panel did in the 1960s, to devise new ways to fight crime and use technology to improve policing. When various bills stalled in Congress, Trump signed an executive order last October creating the group, with the president acknowledging the assistance of the Fraternal Order of Police and the International Association of Chiefs of Police in launching the project.
The law also requires that advisory committee meetings be open to the public, with notice posted in the Federal Register, along with a charter for the committee. The commission did not post a charter or meeting notices in the register, but did send out news releases announcing the virtual meetings as well as posting transcripts and recordings of the meetings. Reporters and others could dial in and listen to the teleconferences. A meeting that Barr held in June with the commission, on the same day Trump signed an executive order on police reform, was not announced and the Justice Department declined to release a transcript or recording.
Trump’s order called for the commission to submit its report and recommendations to the attorney general, who was then required to send his final report to the president by Oct. 28. The Justice Department planned to release it at the International Association of Chiefs of Police convention in late October, according to an email in the court file. Now, the report and the commission’s months of work are in limbo.
Justice Department spokeswoman Kerri Kupec said the department, which provided staff and guidance to the commission, declined to comment.
Natasha Merle, one of the LDF lawyers who argued the case, said she didn’t think it was too late for the commission to comply with the law and incorporate new viewpoints. But to offer civil rights groups such as LDF a seat at the commission table, “and then put out the report as is, that is not a seat at the table,” Merle said. “We would say a seat at the table is allowing substantive comments, hearings and a new report. For there to be any real relief, to really get at the crux of the issue, you would have to incorporate these members’ viewpoints and put them into the report.”
The LDF sued Barr and the commission in April, seeking an injunction to declare it was not properly constituted and to stop the commission from submitting or publishing any report. The commission’s “intended goal is clear,” the LDF’s lawsuit argued: “recommendations that will give more power and protection to law enforcement, reinvigorate tough-on-crime measures, and cut down on the rights of citizens.”
Before the suit was filed, The Justice Department had provided a detailed outline on April 10 to members of the “Respect for Law Enforcement and the Rule of Law” working group for its chapter of the report, according to documents the LDF later obtained and filed in the case. The outline recommends that the Justice Department “should work to correct the myth of excessive use of force by law enforcement officers” and “should play a leading role in correcting the narrative regarding the number of individuals incarcerated in the United States.”
Last month John J. Choi, the prosecutor in Ramsey County, Minn., where St. Paul is located, resigned from a working group of the commission, saying the commission “had no intention of engaging in a thoughtful and open analysis” of the American justice system, “but was intent on providing cover for a predetermined agenda that ignores the lessons of the past.” A Justice Department spokeswoman noted that when Choi resigned, his working group had already submitted its report.
Justice Department lawyers argued that the commission doesn’t fall under the federal committee law, known as FACA. Instead, it is exempted under another law, the Unfunded Mandates Reform Act, or UMRA, which does not require diverse membership or public notice if a committee’s meetings “are held exclusively between Federal officials and elected officers … or their designated employees with authority to act on their behalf.”
Judge Bates, who has served on a number of committees dealing with legal procedures and is chair of the federal judiciary’s Advisory Committee on Civil Rules, seemed skeptical of this exemption in oral arguments on Sept. 17. First, he asked if there were any commission members “who have backgrounds in civil rights organizations … criminal defense … community organizations … that are not police organizations?” Justice Department attorney Bradley P. Humphreys said he did not have the members’ résumés but it was “certainly possible they have that experience.”
Bates then noted that nonmembers have testified in the commission’s hearings, though the exemption to FACA cited by Humphreys says the meetings will be held “exclusively between” the commission members. “It’s the commission that’s driving the ship,” Humphreys said. “The explicit purpose is to make recommendations to the president.”
“Just because that’s its purpose,” Bates responded, “doesn’t mean it’s outside FACA. FACA exists to have some specific requirements, unless some exemption applies. The exemption in UMRA is pretty specific.”
Bates, an appointee of President George W. Bush, ruled Thursday that FACA did apply to the commission, and the UMRA exemption did not. “Indeed, the Court is hard pressed to think of a starker example of non-compliance with FACA’s fair balance requirement,” Bates wrote, “than a commission charged with examining broad issues of policing in today’s America that is composed entirely of past and present law enforcement officials.”
Bates acknowledged that the commission is in its end stages, required to produce its report by Oct. 28 and disband within 90 days. He instructed both sides to file briefs by next week on possible injunctive relief “requiring the Attorney General and the Department of Justice to ensure the Commission has a fairly balanced membership.” He also ordered the commission to file a charter and designate a federal officer as required by FACA, and “refrain from publishing any report produced by the commission until the requirements of FACA are satisfied.”
Miriam Krinsky, executive director of Fair and Just Prosecution, a national group of elected prosecutors working toward criminal justice reform, said that, “The skewed makeup of the Commission and its working groups — and its secretive and closed process — underscores the bias and predetermined agenda inherent in the establishment of this group. … Sadly, at a time when trust in law enforcement is at an all-time low, this Commission represents nothing more than a sham proceeding designed to further a political agenda.”
The commission’s members are:
Chairman: Phil Keith, director of the Office of Community Oriented Policing Services. Vice Chairman: Katharine Sullivan, principal deputy assistant attorney general of the Office of Justice Programs. Commissioners: David Bowdich, deputy director, FBI; James Clemmons, sheriff of Richmond County, N.C.; D. Christopher Evans, chief of operations, DEA; Frederick Frazier, Dallas police officer; Robert Gualtieri, sheriff of Pinellas County, Fla.; Gina Hawkins, police chief in Fayetteville, N.C.; Regina Lombardo, acting director of ATF; Erica MacDonald, U.S. attorney for Minnesota; Ashley Moody, Florida attorney general; Nancy Parr, commonwealth’s attorney in Chesapeake, Va.; Craig Price, secretary of the South Dakota Department of Public Safety; Gordon Ramsay, chief of police in Wichita; David Rausch, director of the Tennessee Bureau of Investigation; John Samaniego, sheriff of Shelby County, Ala.; James Smallwood, Nashville police sergeant; Donald Washington, director of the U.S. Marshals Service.
Matt Zapotosky contributed to this report.