D.C. Police Rebuff the Legislative Auditor, Refuse Again to Release Report on Police Action At Inaugural Protests

The Metropolitan Police Department (MPD) and the D.C. Council’s auditor are stalemated in a battle of wills over release of a report on police use of special equipment, especially at 12th and L Streets and Franklin Square Park, N.W., during the January 20, 2017, Inauguration protests. Critics charge such “riot gear” is used more to terrify the public than protect officers and keep the peace.

The Auditor reported last week (July 3) that it had recommended in April that police provide a public report required by law when riot gear is used, but Chief Peter Newsham  has declined, arguing the law doesn’t apply.  

The requirement has been law since 2005 when the D.C. Council’s Judiciary Committee (chaired then by Kathy Patterson, now the D.C. Auditor) wrote, and the Council passed, the First Amendment Rights and Police Standards Act.  Police action during the early Bush years had included many tactics questioned by experts and public witnesses in Council hearings including over-use of riot gear and pepper spray, mass arrests without warnings, confinement of large groups in harsh conditions, undercover surveillance of protesters’ planning, and more.

Among many new requirements, the law directed that “[o]fficers in riot gear shall be deployed consistent with the District policy on First Amendment assemblies and only where there is a danger of violence. Following any deployment of officers in riot gear, the commander at the scene shall make a written report to the Chief of Police within 48 hours and that report shall be available to the public on request.”

Five months ago, a local nonprofit, citing the requirement for a report on “any deployment,” asked for the relevant report on the January 20 use of riot gear. MPD declined, with the confusing claim that police were “not aware of any riot gear or tactics employed at any First Amendment Assembly on January 20.”

A request under the D.C. Freedom of Information Act fared no better.  MPD declined to provide any records about the Inauguration Day actions, citing exemptions for law enforcement investigative records. 

After reviewing this exchange and concluding that MPD was violating the 2005 law, in April Patterson issued a “management alert,” recommending that MPD release “forthwith” the relevant report. 

The chief declined, restating in a June 13 letter the police view originally conveyed to the nonprofit, that use of riot gear was unrelated to the demonstrations. Rather, when police encountered  “unrelenting riotous violence” in certain areas, officers needed special gear “in response to and only at the scene of the riotous behavior.”

The Auditor’s final report included the prior exchange of letters, but got the last word.  The report said the Council’s intent is clear, “that any MPD use of riot gear be fully and promptly explained to the public,” and that “the Department has not explained how and why it views this straightforward requirement as not applicable to the events of January 20, 2017.”  To underscore its interpretation of the law as not allowing the fine distinction in the chief’s responses, the Auditor’s report spells it out: “Riot gear deployed; publicly-available report required.”

Interpreting the law now shifts to the court. The nonprofit, Partnership for Civil Justice Fund, has a pending lawsuit in Superior Court challenging the MPD denials.

The D.C. Council set aside funds in the 2018 budget for further review of the police action on January 20, to be done by the Office of Police Complaints. Trials will be held through 2018 for the more than 200 indicted on serious criminal charges stemming from that day.

The Auditor’s report is available here, and includes the Management Letter (April 14), the MPD response (June 13), the MPD comments on the Auditor’s draft report (June 28), and the Auditor’s response to the comments.

The lawsuit on the subject is Partnership for Civil Justice Fund. v. District of Columbia, Case No. 2017 CA  1931, pending before Judge John M. Campbell. The court has set a briefing schedule and the parties are to return to court at 10:30 a.m., January 26, 2018, in Courtroom 519.  A previous blog post on the case is on the D.C. Open Government Coalition website, with a link to the complaint that initiated the case.