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.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.
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.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: freedom of information, law enforcement councils, lecs, massachusetts, militarized police, swat teams, transparency
Companies: aclu
Reader Comments
Subscribe: RSS
View by: Time | Thread
Change that "would be the undoing" with "is the ongoing undoing" and you get an insightful vote from me. Actually I'm just doing that.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Not to make this more depressing, but...
Hasn't this already taken root in the form of the private prison industry?
[ link to this | view in chronology ]
Re: Not to make this more depressing, but...
[ link to this | view in chronology ]
Who is this privately funded mercenary army taking their orders from? I guess the answer is whoever has enough money to buy their services.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Combined with an educational system that produces conformist consumer-sheep many of whom who can't tell fantasy from reality while others have wet dreams about ruling the world? Bad combination.
[ link to this | view in chronology ]
Deal!
[ link to this | view in chronology ]
Re: Deal!
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.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
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.
[ link to this | view in chronology ]
Re: Re:
Unfortunately, this is a commercial operation so they cannot fly armed drones.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
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.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
You would get information about their equipment purchases, but any actions by the officers is simply "payroll".
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Let them be private corporations
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.
[ link to this | view in chronology ]
Re: Let them be private corporations
Why don't you see the courts buying this argument? All the police have to do is throw out catch phrases like "stopping terrorism", "for the good of the citizens", and "for the children", and the courts will approve it.
[ link to this | view in chronology ]
Re: Let them be private corporations
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'.
[ link to this | view in chronology ]
"gobbling up military-style equipment for god-knows-why. "
[ link to this | view in chronology ]
Citizen Obey!
They are private thugs with guns, I guess, since they're not "REAL" law enforcement.
[ link to this | view in chronology ]
Re: Citizen Obey!
[ link to this | view in chronology ]
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!!
[ link to this | view in chronology ]
Hitler is laughing
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
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).
[ link to this | view in chronology ]
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:
http://www.salon.com/2014/06/24/a_swat_team_blew_a_hole_in_my_2_year_old_son/
[ link to this | view in chronology ]
Re:
You clearly do not live in Boston.
[ link to this | view in chronology ]
Private Police Force
[ link to this | view in chronology ]
Corporations huh?
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.
[ link to this | view in chronology ]
Re: Corporations huh?
Exactly, we now have mercenaries 'policing' the American Public.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Then we get to watch the comedy as estoppel is applied when that SWAT team claims state actor immunity when they commit a wrongdoing.
[ link to this | view in chronology ]
501(c)(3) — Religious, Educational, Charitable, Scientific, Literary, Testing for Public Safety, to Foster National or International Amateur Sports Competition, or Prevention of Cruelty to Children or Animals Organizations
http://en.wikipedia.org/wiki/501%28c%29_organization
[ link to this | view in chronology ]
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...
[ link to this | view in chronology ]
NSA
Isn't that the same thing?
[ link to this | view in chronology ]
Only resonable response
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.
[ link to this | view in chronology ]
Ok, so they aren't cops then, right?
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%?
[ link to this | view in chronology ]
sadly, only the tip of the iceberg
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.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
FTFY
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Inspiration
Couldn't the people in government and law enforcement just watch Star Trek now & again? Why is dystopia so much cooler than replicators and dancing green alien babes?
[ link to this | view in chronology ]
Royal corporations
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...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Private Corporations
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
We the Company...
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."
[ link to this | view in chronology ]
If the US is going full on Shadowrun, then I want my dragons now.
It can't be far from them claiming extra-territoriality.
As an added bonus they can deputize themselves to cloth them in a veil of legality.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Sounds like a bumper sticker: "My 501(c)3 Can Outgun Your 501(c)3"
[ link to this | view in chronology ]