Massachusetts SWAT Teams Claim They're Private Corporations To Get Out Of Transparency Requests

from the sell-swords dept

I’m no conspiracy theorist, generally speaking, but I have to admit the apparent systematic militarization of domestic police forces throughout the country scares the hell out of me. You’ve seen it, too. Officers, once clad in powder blue uniforms, are suddenly dressed in blues that are so dark they might as well be black. Small-town police forces are gobbling up military-style equipment for god-knows-why. Regulatory agencies are sending out armed forces to rescue wildlife. Whatever your politics, it’s pretty clear that there is some kind of imbalance on display here.

The good news, however, is that these are public servants we’re talking about here, so they’re subject to a certain degree of transparency and information requests from John Q Public. Right? Right!?! Wrong, at least according to SWAT teams in Massachusetts, which are bizarrely claiming protection from such requests due to Massachusetts SWAT teams now being part of a private corporation.

As part of the American Civil Liberties Union’s recent report on police militarization, the Massachusetts chapter of the organization sent open records requests to SWAT teams across that state. It received an interesting response. As it turns out, a number of SWAT teams in the Bay State are operated by what are called law enforcement councils, or LECs. These LECs are funded by several police agencies in a given geographic area and overseen by an executive board, which is usually made up of police chiefs from member police departments…Some of these LECs have also apparently incorporated as 501(c)(3) organizations. And it’s here that we run into problems. According to the ACLU, the LECs are claiming that the 501(c)(3) status means that they’re private corporations, not government agencies. And therefore, they say they’re immune from open records requests.

Yes sir, law enforcement just went private. It makes no sense, of course, because these LECs are in charge of oversight for local law enforcement agencies, LEC employee lists include all manner of public servants, and LEC SWAT teams are used to conduct raids on the citizenry. All of this is funded, by the way, with public money. Our money. That this money is funneled in from the public coffers of local police agencies doesn’t make a lick of difference. The argument is essentially that if an LEC uses our money to set up its own oversight authority and then slapps a 501(c)(3) label on it, it no longer has to respond to public records laws. And, per the ACLU, this ain’t some small-time problem we’re discussing here.

Approximately 240 of the 351 police departments in Massachusetts belong to an LEC. While set up as “corporations,” LECs are funded by local and federal taxpayer money, are composed exclusively of public police officers and sheriffs, and carry out traditional law enforcement functions through specialized units such as SWAT teams. Police departments and regional SWAT teams are public institutions, working with public money, meant to protect and serve the public’s interest. If these institutions do not maintain and make public comprehensive and comprehensible documents pertaining to their operations and tactics, the people cannot judge whether officials are acting appropriately or make needed policy changes when problems arise.

Which, of course, is the entire point. They’re hiding from public scrutiny behind the veil of incorporation, which may rank right up there among the most cynical things a government organization has ever done. It’s a move one might find in the corporate republic of some dystopian novel. I say that because it’s truly not as though the police departments in question are attempting to claim some kind of exemption within public records law. They’re just putting up a stone wall.

“You can’t have it both ways,” Jessie Rossman, a staff attorney for the Massachusetts ACLU, told me in a phone interview. “The same government authority that allows them to carry weapons, make arrests, and break down the doors of Massachusetts residents during dangerous raids also makes them a government agency that is subject to the open records law. “They didn’t even attempt to claim an exception,” Rossman says. “They’re simply asserting that they’re private corporations.”

Now, the ACLU is suing, claiming that these LECs have received both local and federal funding from government tax coffers, but others are suggesting this attempt to claim privatization is not without its pitfalls for those same law enforcement organizations. Pretending to be a private corporation to avoid freedom of information requests is one thing, but wouldn’t that also mean giving up other things as well?

The claim by the Massachusetts LECs in response to the ACLU’s demand under Freedom of Information laws is a cute attempt to twist corporate law with public authority law, but it is sheer, unadulterated nonsense. They can be one or the other. They cannot, by definition, be both.

The curious question is that if a cop claims to be exercising police authority on behalf of a private entity, does he lose qualified immunity for his actions, and subject himself to the same tort law as anyone else? It would seem so, not because he’s right about working for an LEC private corporation, but because he subjectively disavows the protections he would otherwise have if he functioned under the authority of the state. He stripped himself of immunity, as well as authority.

You can already hear the tortured back peddling that would be on display should such a situation arise, can’t you? But that’s just trying to get some fun out of what is clearly a claim by public institutions that cannot be allowed to stand. Allowing this move to be successful would only open the door to every other public institution that desired private oversight status to employ the same technique, the result of which would be public tax money propping up an officially private corporate government in which transparency is granted at that same corporate government’s pleasure and never otherwise. It’s the germination of an unholy mixture of corporatocracy and fascism and it would be the undoing of the very concept of the American government.

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Comments on “Massachusetts SWAT Teams Claim They're Private Corporations To Get Out Of Transparency Requests”

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Anonymous Coward says:

Privately funded law enforcement councils? America now has armies of privately funded mercenaries driving around in military vehicles, with fully automatic machine guns, policing our streets?

Who is this privately funded mercenary army taking their orders from? I guess the answer is whoever has enough money to buy their services.

rocko says:

does anyone else aside from me see the correlation between the militarization of the police force and the increasing violence and the detective shows that go along with them on tv?

We’ve already seen evidence of authorities making decisions because they watch this shit. Isn’t it possible it’s far more insidious than we realize.

The Brain: Garbage in, garbage out.

Anonymous Coward says:

Re: Deal!

“SWAT teams claiming private corp status can have it PROVIDED they are also treated as private citizens in all other matters.”

I think this theory of priovate corp was invented by policeman not a lawyer. Only a moron could come up with this S***t. This calim of being private will be used against them if the try immunity defense.

Beside, it all boils down to “who controls”, and they are back in square one with being public entity.

Nice try.

Anonymous Anonymous Coward says:

Re: Re:

Warrant, what are they for, we are not public servants. Meaning they can make the raid, shoot everyone and the dog, but cannot take any ‘evidence’ to court.

Why don’t they just send armed drones, all concerned about their own safety and all? Since being incorporated they don’t have to follow any rules…right? Even non-profits make money. More drones, less employees, smaller pension fund and lower health care bills, etc.

Anonymous Coward says:

Re: Re: Re: Re:

“Unfortunately, this is a commercial operation so they cannot fly armed drones.”

But they can drive armored cars, fire guns, knock down doors, ransack property and lock people up?

Ah – I know, we can probably still do a citizen’s arrest when they do bad stuff. I expect that will stop them.

ThatFatMan (profile) says:

Let them be private corporations

If that’s the game they want to play, so be it. But they have to go all the way. That means they aren’t protected any longer from being treated as the common criminals they so often are. They are welcome to bust down the door and be shot like any common criminal for breaking and entering. one or two homeowners against an armed mob sounds like a pretty reasonable self-defense claim. Wanna rummage through our belongings and collect evidence? Sounds like that’s just robbery to me. They don’t get to have it both ways. Hope they registered those assault weapons too and have the proper federal permits for automatic weapons.

All of that nonsense aside, this is obviously B.S. though. I seem to recall the Prisons recently tried to make the same argument since they’ve been privatized, and that being held to be an insufficient grounds to deny FOIA requests. I don’t see the courts buying it here either.

Quiet Lurcker says:

Re: Let them be private corporations

I don’t see the courts buying it here either.

It’s already happened. When the NFIB sued Kathleen Sibelius over Obamacare, the case went all the way the supreme court. The majority opinion was that, the individual mandate and its attendant penalty could be challenged under the anti-injuction act because it was not a tax. But the court would not strike the law down because the ‘penalty’ was written into the tax code, so therefore it was a tax, and the congress had a constitutional right to ‘lay and collect taxes’.

MondoGordo (profile) says:

"gobbling up military-style equipment for god-knows-why. "

here’s why … simple economics. Homeland security makes this “surplus” military hardware available for cheap. When a small town police force has the choice of spending $56K on a new SUV it’s tactical response team or $8K on a surplussed APC it’s kind of a no-brainer which one they’ll buy.

Anonymous Coward says:

‘there is some kind of imbalance on display here.’
imbalance my arse! this is the thin end of the wedge! it’s gradually getting worse and it wont be long before the Fascist type rules are firmly in place, people start to disappear without trace and nothing, i mean absolutely nothing will be able to be said, done, messaged, looked at, read or anything else without permission! think it’s crazy? 2 more years and it will be reality!!

Anonymous Coward says:

Re: Re:

There is some old English Common Law which gives landowners the right to appoint constables to operate on their own land (they had to be approved by a JP, but were private employees and operated only in the landowner’s interests).[1] Local councils could appoint their own constables with authority on public lands (depending on whether public streets etc are state or local property), and they might be able to include in the terms of permits, planning permission, etc. a clause granting powers to their constables.

Also, technically speaking, can’t anyone be given a warrant to make an arrest, conduct a search etc.? Their evidence would obviously be potentially tainted, unless they were properly trained in evidence handling, but the only practical limitation on private cops would be entering private property without either a warrant or permission.

[1] The law still exists, but I don’t think it is used by anyone other than the few train operating companies who don’t contract out policing to the BTP (which is a nationally-owned and -operated private police force).

kenichi tanaka (profile) says:

This country has turned into a fascist state. We’re no longer a country that respects each others freedoms and everytime someone talks about restricting law enforcement, those agencies find ways to either get around laws or just ignore them completely.

We even have a president who spouts national security under the guise of terrorism when its a common fact that we haven’t been attacked by terrorists since September 11th, 2001. And the reason we were attacked was because Democrats struck a deal with The Taliban, who turned around and decided to attack us. Then, Obama (a Democrat) decided to strike a new bargain with The Taliban.

Democrats, instead of aligning themselves with Americans who live in the United States, continue to support rebels in other countries who work at overthrowing legitimate governments and in aligning themselves with terror groups.

We also have FBI, Police Departments and SWAT teams who spend more time killing and assassinating Americans that they try to cover up their inept behavior.

The most recent example of this inept behavior, happened just a few days ago:

Internet Zen Master (profile) says:

Corporations huh?

So these LECs are supposed to be like Blackwater or Xe (or whatever it’s calling itself these days) kind of ‘corporations’, otherwise known as mercenaries? Oh that’s just bloody wonderful.

Yeah, I don’t see MA’s SWAT Teams coming out of this on top. Claiming to be a private corporation just to get out of transparency requests doesn’t seem to have many benefits besides getting out of transparency requests.

Anonymous Coward says:

If these SWAT teams are truly private companies… wouldn’t it be a violation of various laws for employees of these companies to have fully automatic weaponry, flashbangs, and for them to be breaking into people’s homes?

Or are they trying to have their cake and eat it too?

They get to have all the rights conferred only to public police officers while taking on none of the responsibilities they as public servants are supposed to have…

Travis says:

Only resonable response

Any judge that this case is brought before should have all heads of LECs brought in. He should then place in front of them two court orders and give them a couple hours to decide which the judge signs.

1 – An order to compel response per applicable FOI laws.
2 – An arrest warrant for all members/employees of LECs for (minimum) Conspiracy to commit: breaking and entering, possession of illegal weapons, assault with a deadly weapon, unlawful restraint, kidnapping, possession of controlled substances, attempted manslaughter, and manslaughter.

Failure to choose means the second order is signed. Failure to comply with the first means the second order is signed.

Either these groups fall under FOI laws or they were acting as a civilian entity and should be charged with all crimes they have committed.

RD says:

Ok, so they aren't cops then, right?

So, these guys busting into your home or property aren’t cops then, right? I mean, THE POLICE is a very specific, and duly authorized branch of State Government. They aren’t allowed to “sub lease” out these services. A Cop can kill with legal impunity, under certain circumstances. A private security force can NOT. A Cop has the authority granted by the State and the consent of the governed to uphold the law (ha! no really…), keep the peace, and make arrests. A private security force DOES NOT have the force of law (unless, say, you are on THEIR property, like a retail store, and even then, there are some pretty strict limits on how much they can do to detain you.)

Show up at my door and dont yell “POLICE!” or “FBI!” before storming in, you are getting a lead enema. Show up at my door and yell “POLICE!” before storming in and NOT be the actual police, you are getting a fat lawsuit right up your cakehole (assuming I survive at all.)

And if it IS legal (or they make it legal) then guess what? I have JUST declared myself and my friends a “corporate police force.” Deputize us. Why not? Why should it only be for the rich and powerful and the 1%?

zip says:

sadly, only the tip of the iceberg

The seemingly-novel concept of a taxpayer-funded “non-governmental” private corporation has reached epidemic scale. While few people might object to the work of those like the National Center for Missing and Exploited Children, there are others whose work is highly controversial. NGOs such as the National Endowment for “Democracy” were the chief instigators of the recent Ukrainian “Revolution” (technically an illegal coup d’etat against a democratically-elected president) and the resulting civil war that predictably followed. It’s exactly the sort of nation-wrecking that has traditionally been the purview of the CIA — which, like the N.E.D., is never accountable to the American taxpayers that fund them.

But back on topic, a key point that seems to be getting neglected here is that cops are cops 24 hours a day, not just when they are “on the clock” — regardless of where they are or what they’re doing — making them the ideal for-hire security guards whenever “off-duty” (which in reality never occurs). This legal quirk has been abused by many employers engaged in controversial practices, from factories putting down strikes, to the Church of Scientology “protecting” itself from the picketers that they claim are terrorists-in-disguise. Because like most people, “off-duty” cops will tend to see things from their employer’s point of view, and do whatever it takes to make their employers happy — and to keep getting their paychecks.

Coyne Tibbets (profile) says:

Royal corporations

This is turning into a real bugaboo these days, with these “royal corporations” using whichever strategy seems to promise the greatest freedom.

Here where I live it is the Central Florida Expressway authority. Sue them for the equivalent of FOIA requests and they argue they are a private corporation, therefore exempt from the state’s Sunshine laws. Sue them because you think a “corporation” shouldn’t be able to issue tickets for arrest for tollgate running, and they argue they are a government agency with enforcement authority.

Whichever serves them best at the moment…

Rekrul says:

If the SWAT teams are private corporations, I assume that means that they are subject to the same ban on assault weapons as any other non-government employee? Can people in MA make a citizen’s arrest if they see a SWAT team member carrying an assault rifle? And if the rifles are fully automatic, wouldn’t that make them illegal under federal law?

Michael says:

Even taking into account the fact that courts rarely sanction litigants for frivolous arguments (even when they should), I have to think this one would make the cut. The fact that it’s such an overt middle finger to the very idea of government accountability takes it from “Billy Madison” territory to “lucky if you’re not found in contempt just for suggesting it” territory.

GEMont (profile) says:

We the Company...

“It’s the germination of an unholy mixture of corporatocracy and fascism and it would be the undoing of the very concept of the American government.”

First of all, Fascism is a business model that masquerades as a popular form of government, therefor fascism and corporatocracy are one and the same thing.

The name NAZI was a short form of the Government type known as National Socialism – which is obviously NOT what NAZIISM actually stands for at all. National Socialism was the Mask Hitler used to make people think his business plan was a form of government.

Naziism/Corporatism/Corporatocracy is a form of population control and exploitation based on deception and misinformation , and always needs to hide behind a popular government form to do its thing because the only people desirous of such a business model running the country are the extremely wealthy, not the public who outnumber them a million to one.

Secondly,”… would be the undoing of the very concept of American Government”?!?!?!?!?!

You honestly still think that the Concept of American Government is not simply whatever the people who control the American Government decide it is at any given moment?

Please, list for yourself, the aspects of today’s American Government that still match the Old Concepts of American Government, to which you are apparently referring.

If you said “the Vote” and stopped there, you have it right.

Nothing remains of the Old Concept of American Government.

Even the Hollywood White-Hat Good-Guy image has been discarded in favor of the “Toughest MoFo on the Block” image.

The Old Concept of American Government has been replaced with this new Concept of American Government where the Government disallows ALL of the basic rights through force of law, that the Old Concept Promoted through force of law.

The Old Concept of the American Government was based upon a civilian-oriented understanding of the Constitution and Bill of Rights – that is, it was citizens who had rights and protections, not corporations, and government existed at the behest of the people, not as an autonomous power unto itself that answers to noone.

The New Concept of American Government is based firmly upon secret reverse interpretation of the old laws and a slew of new laws that specifically allow business the right to ignore the Old Concept’s understanding of citizens rights and protections, in the pursuit of profits, which they then share with politicians legally via lobbying and political “donations”.

The New American Government works tirelessly to insure the rights and protections of its corporate friends, entirely at the expense of the American Public and relentlessly stifles any dissent that those citizens might make in protest in order to maintain the facade of normalcy, so as not to upset business as usual.

The Police are arming themselves for war because the police are the first line of defense between the government (and its wealthy friends), and the general rabble who are now seen as the enemy and who the government, on behalf of corporate America, has secretly declared war upon.

To continue to make believe that things have not gone that far yet, is to support and promote “the undoing of the very concept of the American government.”

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