Massachusetts SWAT Teams Claim They're Private Corporations, Immune To Oversight 534
New submitter thermowax sends a report on how Massachusetts SWAT teams are dodging open records requests by claiming to be corporations. From the article:
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. Let's be clear. These agencies oversee police activities. They employ cops who carry guns, wear badges, collect paychecks provided by taxpayers and have the power to detain, arrest, injure and kill. They operate SWAT teams, which conduct raids on private residences. And yet they say that because they've incorporated, they're immune to Massachusetts open records laws. The state's residents aren't permitted to know how often the SWAT teams are used, what they're used for, what sort of training they get or who they're primarily used against.
Re:Libertarian nirvana (Score:5, Informative)
They might be right (Score:5, Informative)
I work for local government (in a different state). A number of cities and counties around the state have banded together to manage custom software projects, etc, using a legal device known as a "Joint Powers Agreement".
The JPA creates a legal entity, much the same way that a contract creates a trust. This entity is essentially a delegation of authority from the various local government entities that constitute it, so it has some strange properties. For example, it has bank accounts, employs staff, rents an office, etc, but does not file tax returns.
It also, as far as our lawyers can tell, is exempt from all data practices laws. This isn't the end run you might seem to think. If a data request comes in to the entity, the staff there tells them to contact the relevant member entity. The requestor can then ask me (for example), and I am obligated to collect the data from my systems, and from the organization.
Basically, the legal reasoning is that the entity doesn't own anything, it merely possesses things on the behalf of the member entities. This is also why it doesn't file tax returns.
I don't know the legal situation in Massachusetts, but these are principles that derive from western jurisprudence in general, rather than from the laws of my state, so I suspect it is pretty similar. No idea where the 501(c)(3) thing comes in. I suspect that is more about being able to accept donations than anything else.
Personally, I think the citizens of that state should ask their legislature to pass a law to require such entities to respond to information requests, if that entity is involved in police operations. It is in the public interest to be able to request data from a consolidated entity of this nature, rather than having to deal with each individual member entity.
Re:No sovereign immunity (Score:5, Informative)
harge 'em with breaking and entering, assault and battery, and conspiracy to do those things. Guys, are you sure you're not with the government?
Massachusetts has a pretty strong Castle doctrine [mass.gov]
I'm not saying you should shoot Police officers, lawfully executing a warrant. I'm just pointing out that these guys don't seem to want to be considered Police officers.
Re:No sovereign immunity (Score:3, Informative)
Even with the acronyms spelled out you'd need the background to know WTF he's talking about. Ownership of fully automatic firearms in the US is heavily regulated, and basically impossible for the average joe if you are talking about a firearm manufactured after 1986.
NFA - National Firearms Act, regulates ownership of automatic weapons. http://en.wikipedia.org/wiki/National_Firearms_Act
LEO - Law Enforcement Officer.
FFL - Federal Firearms License. Ties in with the NFA in this case, since you'd need to have the right type to have an automatic weapon manufactured after 1986 if you aren't in law enforcement. http://en.wikipedia.org/wiki/Federal_Firearms_License
SOT - Special Occupational Taxpayers - Ties in with the FFL. http://en.wikipedia.org/wiki/Special_Occupational_Taxpayers
Corporations are not created under 501(c)(3) (Score:4, Informative)
Here are a few of the most poignant reasons why this argument fails:
First and foremost 501(c)(3) is an IRS regulation that means a corporation does not have to pay income tax. 501(c)(3) is NOT a method by which a corporation maybe formed.
Second, states not the federal government create the rules for creating a corporation.
Third, there are many different types of corporations, one of those types is a municipal corporation. Just because you have something called a corporation does not mean it is private. Municipal corporations are subject to FOIA
Fourth, corporations can register with the IRS as 501(c)(3) non-profits, but to use it as a tool to hide information would be incredibly stupid because 501(c)(3) status means you must release more information about your internal workings than a normal private corporation would need to disclose.
Either the ACLU is whining because they don't have the sharpest knife in the drawer dealing with these FOIA requests, or this is a calculated move to drum up donations.
Re: Libertarian nirvana (Score:2, Informative)
First, libertarians generally consider common military defense a proper function of government, so that's nonsense.
But your second error is that you're confusing "socializing" (government-mandated participation) with a voluntary "commune" (participation is individual choice).
Re:Repeat after me... (Score:2, Informative)
I guess the corporation thing could work both ways.
Since they in fact are not police but employees of a corporation how do they still have their "policing" powers?
I thought (maybe i am wrong) but "police" powers are granted only to members of a police board?
Security guards have some authority for example, but not others.
Re:Repeat after me... (Score:5, Informative)
That's absolutely not true, and is in fact totally backwards. The "National Guard" is under control of the State Governor, except when federalized, and as such is completely constitutional.
Re:Repeat after me... (Score:3, Informative)
You are off base, it is spelled out in the Posse Comitatus law:
The Act, as modified in 1981, refers to the Armed Forces of the United States. It does not apply to the National Guard under state authority from acting in a law enforcement capacity within its home state or in an adjacent state if invited by that state's governor. The United States Coast Guard, which operates under the Department of Homeland Security, is also not covered by the Posse Comitatus Act, primarily because the Coast Guard has both a maritime law enforcement mission and a federal regulatory agency mission.