On April 30 2020, the NAACP Legal Defense and Educational Fund, Inc. (LDF) filed a lawsuit against Attorney General William Barr, the United States Department of Justice, the Presidential Commission on Law Enforcement and the Administration of Justice (“Commission”), and the chair and vice chair of this Commission. Our suit challenges the creation of the Commission – an initiative that was first announced in October 2019 through a presidential executive order, and implemented in January 2020 by Attorney General Barr. LDF’s complaint demonstrates that the Commission has failed to comply with nearly any requirement of the Federal Advisory Committee Act (FACA), a law that helps ensure that federal advisory committees are publicly accountable.
The order creating the Commission, and the appointments made by Attorney General Barr to the Commission, make clear that the Commission is designed to reach a preordained conclusion: to support President Trump’s and Attorney General Barr’s unfounded claims that there is lack of respect for law enforcement across the United States due to recent efforts to reform the criminal justice system. The Commission’s membership is comprised almost exclusively of law enforcement officials and its related executive order directs the Commission to study, among other matters, “refusals by State and local prosecutors to enforce laws or prosecute categories of crimes” and “the need to promote public respect for the law and law enforcement.”
“It has been abundantly clear since its inception that the Presidential Commission on Law Enforcement and the Administration of Justice 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,” said Sherrilyn Ifill, LDF’s President and Director-Counsel. “The Commission’s imbalanced composition of predominately law enforcement officials, without any representation from community and civil rights activists, sends a clear message that this Commission is not designed to investigate and provide guidance on the myriad and important issues that surround policing in this country, but is instead designed to advance a pre-ordained agenda. Issues involving law enforcement reform, and law enforcement-community relations, are complex. Any committee that studies those issues and makes recommendations to the federal government must include participation from key stakeholders representing both law enforcement interests as well as community organizations and civil rights groups.”
“By adopting the Federal Advisory Committee Act (FACA), Congress established critical safeguards to ensure that federal advisory committees are fairly balanced and publicly accountable, said Natasha Merle, Senior Counsel at LDF. “The Presidential Commission on Law Enforcement and the Administration of Justice is unabashedly failing to adhere to almost all of FACA’s requirements, violating the law and thwarting this imperative public accountability mechanism. Because this Commission is not lawfully constituted, it should not be allowed to continue engaging in official business, including conducting hearings. And Attorney General Barr should not be allowed to rely on any reports or recommendations the Commission may issue.”
Specifically, LDF’s suit argues that the Commission has violated FACA in the following ways: it has failed to guarantee that the Commission’s membership is fairly balanced and without undue influence; failed to file an advisory committee charter, which is required before the Commission holds any hearings; failed to appoint oversight officers; failed to give timely public notice of Commission hearings so that the public may attend; and failed to make all Commission-related documentation available to the public.
Read the full complaint here.
On October 1st 2020, the United States District Court for the District of Columbia ruled that the Presidential Commission on Law Enforcement and the Administration of Justice (Commission) has violated multiple requirements of the Federal Advisory Committee Act (FACA), a statute designed to ensure that federal advisory committees are accountable to Congress and the American public. Under the court’s ruling, all further Commission operations must immediately be halted until the Commission is brought into compliance with the law.
In April, the NAACP Legal Defense and Educational Fund, Inc. (LDF) filed suit, arguing that this skewed composition violates FACA, which requires that federal advisory committees include a fair balance of viewpoints. The suit also contended that the Commission violated FACA’s requirements concerning public access by refusing to provide advance notice of its meetings and failing to make Commission documents available to the public.
In an opinion granting summary judgment to LDF on all its claims, the court ordered that “Commission proceedings be halted — and no work product released — until the requirements of FACA are satisfied.” In doing so, the court recognized the concrete harms LDF, as well as members of the public, suffer from the Commission’s secrecy and bias. “Especially in 2020, 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 court wrote.
“Today’s decision establishing that the Presidential Commission on Law Enforcement and the Administration of Justice violated multiple provisions of the Federal Advisory Committee Act constitutes an important step in the right direction,” said Sherrilyn Ifill, LDF’s President and Director-Counsel. “The country has been demanding accountability for police misconduct and violence, and clamoring for a reimagined notion of public safety for many months following the police killings of George Floyd, Breonna Taylor, and countless other Black people. Any federal committee designed to make recommendations about law enforcement must include representation from people and communities impacted by police violence, civil rights organizations, the criminal defense bar, and other stakeholders.”
“The Federal Advisory Committee Act was created to ensure that federal advisory committees are held publicly accountable for their actions. The Commission’s disregard of nearly all of FACA’s requirements was an egregious violation of federal law, and we are pleased that the court recognized this,” said Natasha Merle, Senior Counsel at LDF. “Amid a national policing crisis, we need to focus more attention than ever on reshaping how this country approaches public safety. This requires meaningful engagement with the public, and with all interested stakeholders. Today’s ruling ensures that the government will not be able to evade the law to pursue a skewed agenda.”