Massachusetts SWAT teams claim they’re private corporations

http://www.washingtonpost.com/news/the-watch/wp/2014/06/26/massachusetts-swat-teams-claim-theyre-private-corporations-immune-from-open-records-laws/

by Shivetya • 12 years ago

263 122 12 years ago

washingtonpost.com

bjelkeman-again• 12 years ago

The developments in the US around surveillance, domestic use of force and the way the politicians allow this to happen reads more and more like the introduction chapter to a dystopian science fiction novel.

jacquesm• 12 years ago

By a spectacularly bad writer, after all, who would ever believe all this nonsense.

wmf• 12 years ago

Maybe we could get a more interesting future by electing science fiction writers. Stross-Doctorow vs. Gibson-Sterling would make for some fun campaigning.

onewaystreet• 12 years ago

The privatization of the police and military is right out of the pages of Snow Crash.

pekk• 12 years ago

If the question is who would believe ALL of it, the answer is: people who are very credulous, and people whose prejudices are catered to by these stories.

It is very easy to forget that just because some stories of a certain kind are true, not all of them are true.

unchocked• 12 years ago

It seems the government has gotten really good at using the complexity of law to provide inane justification for shocking activities.

esbranson6• 12 years ago

The government has gotten really good at making access to the law impracticable for anyone except those who have already read it (lawyers). The law is the most expensive set of books you will ever memorize yet never own and never read. See my other comment on why.

bmelton• 12 years ago

"It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow."

— Alexander Hamilton

sybhn• 12 years ago

One has to wonder if this is a repeat of history in the U.S. or if this has really no precedent. Either way, the future of this nation looks bleak.

ISL2• 12 years ago

If this is a repeat of history, then the future of the U.S. is bright.

x1798DE• 12 years ago

Don't forget to read Greg Lukanioff's Unlearning Liberty[1], a very detailed examination of basically the same forces at work in education and free speech. I read it not long after reading Anne Applebaum's Iron Curtain[2], and was really disturbed by the parallels between what's happening naturally in universities (basically because individual actors such as administrators have no personal disincentive against violating the rights of their students) and what the soviet union systematically did to the universities when they were establishing their foothold in the Eastern Bloc. There's a whole chapter on education in Applebaum's book, and it's essentially a perfect description of what's happening in US universities. It's deeply chilling, and the same thing is causing the militarization of the police - individual police are never held liable for wrong-door raids, for killing innocent civilians, for violating the rights of US citizens, so they have no incentive to try and stop it happening.

1. http://www.unlearningliberty.com/ 2. http://www.anneapplebaum.com/iron-curtain-the-crushing-of-ea...

personlurking• 12 years ago

Sorry if this is not exactly related but the words Unlearning Liberty made me think of The Anatomy of Slavespeak, a document on questioning words we use and hear all the time (like liberty). It's easily found by putting the title into a search site. In the least, it's an interesting exercise in how we give shared meaning to words we often don't think twice about using.

ryanobjc• 12 years ago

When you file with the IRS with a LLC, and you are the sole member, the IRS doesn't consider that a 'real' corporation, and you have to take that earnings on your 1040.

Likewise, just because these police organizations are using 501(c)3 to provide a corporate shield, a reasonable judge should say that the shield is unlawful.

I kind of get a feeling that national security will eventually be trotted out here.

k2enemy• 12 years ago

An LLC (limited liability company) is not a corporation. So no, it does not have the tax treatment of a corporation.

mpyne3• 12 years ago

I think the general principle still applies though. And even without the tax analogy, acting as an agent of the government does not get rid of the responsibilities of the government in the behavior of their contractor, which is why the government can't simply get around the Fourth Amendment by having a contractor (or allied intelligence agency) do the search for them.

nitrogen• 12 years ago

Last time I checked, an LLC could elect to be seen in various different ways by the IRS (e.g. corporation, disregarded entity, etc.). Unfortunately italicizing one of the words in the expansion of an initialism doesn't really tell us anything about its meaning.

joshuaheard• 12 years ago

The IRS may not consider an LLC a corporation for tax purposes, but this has nothing to do with whether a court will consider the LLC as an entity that provides its owners with liability protection. Courts do not give IRS classification any weight. Tax liability and liability for other corporate debts are not the same thing. (It is a common misperception, though.)

However, that is not the issue here. The ACLU is arguing (rightly) that even though these entities are corporations, they are acting as agents of the government, and thus should be required to follow laws pertaining to government agencies.

DenisM• 12 years ago

Citation re IRS treatment of LLC? Afaik this s not true.

JackFr• 12 years ago

Seems foolish, on the part of the LEC's. IANAL, but I assume they that if they are non-governmental organizations, it dramatically changes their profile regarding lawsuits, that is no personal immunity, etc.

Anyone who is a lawyer know?

dragonwriter2• 12 years ago

IANAL, but I think I can address that somewhat. While the organization itself may not have governmental immunity as a private corporation -- which it probably doesn't, having incorporated as a 501(c)(3) -- the individual police officers are still government employees and still have the immunity they would have in that role.

ghayes• 12 years ago

So the answer is to fire them from their governmental role.

opendais• 12 years ago

It seems Massachusetts currently employs Omni Consumer Products tactics and a private police force. Wow.

Maybe I should work on founding the OCP today...

frostmatthew• 12 years ago

If they consider themselves private corporations wouldn't that mean their "employees" are breaking laws by a) using the weapons they have access to b) breaking into people's homes and c) arresting people...

Paul_Dessert• 12 years ago

That's what I was thinking too. How could an arrest hold up in court? This could go both ways.

justizin8• 12 years ago

it seems that they are employees of the particular law enforcement agencies, but the equipment and activities related to SWAT are managed within these corporations.

gohrt• 12 years ago

One expects that judges will sort this mess out. In the meantime, what is the governer's statement on this? The only acceptable response to a 5-minute inquiry is "Massachusetts Police Departments are hereby ordered to publish their LEC records or withdraw from LECs immediately"

betterunix• 12 years ago

"One expects that judges will sort this mess out"

Who expects that? Judges failed to stem the growth of militarized police forces for decades.

maxerickson• 12 years ago

I think things could be a lot worse if we didn't have judges involved.

The real cynical view is not that judges are feckless, it is that people in general don't care about things that don't much affect them.

fleitz2• 12 years ago

YES! This is brilliant, fuck the records requests, file conspiracy to murder charges.

justizin8• 12 years ago

I like the way you think, but too many judges are inclined to see things through the eyes of law enforcement.

A friend of mine had his feet put to the fire during sentencing by a federal judge over whether he thought it was 'funny' to bring a 'department of injustice' sign to a protest where he was later arrested for assaulting a marshall, who in fact kind of stumbled into him and then created a melee.

The judge seemed quite clearly to believe that he was a part of the 'department of justice', though the DoJ was the plaintiff in the case before him.

Even when you get a precedent set about the role and behavior of law enforcement, it's very difficult to get judges to apply it sanely.

"Well, you see, in this prior case the defendent had yellow shoes, so..."

That said, something has to be done.

fleitz2• 12 years ago

Yeah, you're supposed to take it seriously so no one finds out what a joke it really is.

Only a judge could see that building corporate headquarters is a public use, or that growing a plant in your basement is interstate commerce.

  "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
    "The question is," said Alice, "whether you can make words mean so many different things."
    "The question is," said Humpty Dumpty, "which is to be master—that's all."

hamiltonkibbe6• 12 years ago

Either the automatic weapons used by the SWAT teams belong to the police --in which case the SWAT teams are certainly government entities,-- or they belong to the 501(c)3, in which case we should lock everyone up for just as long as we would lock up a gangbanger who's killed multiple people and gets caught with a fully automatic weapon.

67726e• 12 years ago

I obviously do not know how these LECs are setup legally speaking, but it is possible to own and operate fully automatic weapons legally as a civilian or business. You can get a tax stamp from the ATF for a few hundred dollars. As an example, my local commercial gun range offers rentals for fully automatic assault rifles and submachine guns at their ranges.

That said, this LEC charade is sickening and they should be punished as severely as the law allows. Of course it's America and the police can and do get away with murder so that'll never happen.

http://en.m.wikipedia.org/wiki/Federal_Firearms_License

http://en.m.wikipedia.org/wiki/National_Firearms_Act

hamiltonkibbe6• 12 years ago

Not if that civilian/business has committed a felony...

gnu8• 12 years ago

Under that theory the 501(c)(3) org would only be able to procure and register NFA weapons that were registered before 1986, which would be very expensive and not practical. Only actual law enforcement agencies can register post-1986 weapons (or FFL holders that deal in such weapons).

tedks3• 12 years ago

You can't legally shoot at people. No non-profit, no matter how regulated by the ATF, can break down doors in the night, shoot your dog, flash-bang your infant, and ransack your house.

...right?

...I guess I don't know. Maybe the situation has gone that far.

No way of really knowing; America is a place fully without the rule of law at this point, and it's whatever the men with guns say goes.

rhizome• 12 years ago

Pretty sure this is just a delaying tactic, the LEC being set up for legal insulation more than anything. Law enforcement always gets the kid gloves.

esbranson6• 12 years ago

Its actually part of a larger problem.

The government regularly gives public property to private entities and claims they no longer have possession. Then they make a contract so they can have access. (Obviously, you don't get access without paying the price.) They do this with The Law (tm)(c) for example. California (the Office of Administrative Law) doesn't even have possession of the codified regulations they make (the California Code of Regulations). Which is why you have to be wealthy to have bulk access to California law (regulations are a form of secondary or delegated legislation) or otherwise have to agree to a license for the "free" (as in beer not as in freedom) Internet version where you give up your rights to your first unborn child etc. (Though the website is practically unusable for any layman who hasn't already read most of it. Of course to encourage you to buy the CD-ROM.)

Which of course leads to a breakdown in law and order.

parley• 12 years ago

Pardon a foreigner. I'd like to understand this.

Are you saying that there's law in California (i.e. something you can violate that the justice system has the authority to punish you over) that is not freely (as in freedom) available to any citizen (for whatever purpose, reading, distributing, etc)?

dllthomas• 12 years ago

It's not at all unique to CA, though as I understand it this is on its way out (thankfully).

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/08/07/s...

esbranson6• 12 years ago

As a practical matter, no, its not freely available. There is a reason why no one knows the law, and its not because no one tries, but because their efforts to know the law that binds them are actively thwarted by its publishers.

It is available online, but its unusable for the layman due to ridiculously bad design. You must agree to a contract to use it ("terms of use", "license") and promise never to repeat what you read. Purposely bad design in my opinion. Its 30,000 sections of regulations we're talking about here (there's a further 150,000 sections of California law, 50,000 sections of federal law, and 30,000 sections of federal regulations), and you only know it doesn't apply after you read it. Its javascript-based and uses session cookies, so if you take longer than 5 minutes to read a 30 page section with a bad layout that uses intensely complex verbiage, the next click will "close the book" in your face, and if you have no idea where you were, well, tough luck, there's always prison. If you try and open multiple windows, say, to read another section which is referred to, each window will interfere with each other. (Even trying will likely close the book in your face.) Each click is unbearably slow to load. (29,999 bottles of beer on the wall, 29,999 bottles of beer, take one down, can't pass it around, 30,001 bottles of beer on the wall.) There is no way to give a permalink to your grandma or on your blog, because there are no permalinks. Grandma will have to try and navigate the horrible website herself, and when she likely fails, well, tough luck, there's always prison.

It is available as bulk data on CD-ROM (in California) for a significant price, on the order of $3000 per edition. Did I mention it changes almost constantly? Obviously, no permalinks for your blog.

California is better than most in that the government was sued and forced to release the statutory law on the web.[1] Other states are not so lucky.

[1] http://maplight.org/pr_lawsuit

wiml• 12 years ago

As a matter of principle, in the US at least, laws to which you are bound are supposed to be freely-as-in-freedom available. That doesn't mean they invariably are, though; people find various ways to extract rent from the law.[1]

Usually the law as enacted by the legislature / ruled by the courts is free, but they might incorporate by reference some non-free rules developed and maintained by commercial entities. These are things like building codes, fire codes, and so on, which might cost thousands of dollars for a copy and not be redistributable. [2] The recentish example (2002) is Veeck vs. SBCCI[3].

[1] https://blogs.law.harvard.edu/infolaw/2008/04/16/can-states-...

[2] http://simplesupports.wordpress.com/2013/05/08/building-code...

[3] http://en.wikisource.org/wiki/Veeck_v._Southern_Building_Cod...

Zigurd• 12 years ago

This is why cops and prosecutors should be bonded. Bonding would track and price individuals' risk. It would pay for settlements up front, and not rape the taxpayer for cops' misdeeds, and it would enable liability to function as it should.

justizin8• 12 years ago

that is interesting, i will say that the reason i haven't sued the city of oakland over my treatment at the hands of their police is that paying out more settlements per year than SF and LA combined has not done anything to change their course, and surely hurts the local education budget.

jqm• 12 years ago

That's a great idea.

Far too many bad actors blend back into the group and repeat their misdeeds over and over again.

pdonis• 12 years ago

If they're private corporations, shouldn't they be open to competition from other private corporations? I.e., shouldn't any organization that wants to be able to incorporate as a 501(c)(3) and have the same law enforcement privileges they do?

If their answer to that is "well, we have this special contract from the government...", then they are agents of the government and can't hide behind the "private corporation" shield for activities they undertake as such agents. Certainly that's how it works for Federal government contractors: if the GAO audits a Federal program, the contractors who implement it can't hide their records from the auditors with the excuse "oh, we're private corporations".

justizin8• 12 years ago

I think this is more like if you and your software engineering buddies incorporate some kind of organization to own your kayaks, and then someone asks for the log of the kayaks' usage, and you're like:

"we may have paid for those kayaks, but we gave them to this other organization that is basically us, but it is not the organization that owes you transparency, so fuck off."

bsder• 12 years ago

If they're private corporations, they don't have governmental exemptions and everybody should get prosecuted accordingly.

That will stop this cold.

deciplex• 12 years ago

You're operating under the assumption that there are rules in place here that are the same for everyone, and that everyone has to follow the rules.

The sooner Americans stop fooling themselves into believing that nonsense, the sooner they can start to fix their broken country. Until then (and it will probably be a long time), try to avoid cops, because they can shoot you for free.

tedks3• 12 years ago

It's hilarious this is being downvoted.

It reminds me of a time one of my liberal co-workers tried to mock libertarians by saying "But laws are for the weak, right?" I don't think they realized how utterly true they were.

zipwitch• 12 years ago

Kill them. Kill them with fire. While we still can. If we still can.

charonn0• 12 years ago

If they're private organizations, then they have no lawful authority to use force.

daniel-levin• 12 years ago

The Massachusetts police have privatised part of their operations. And the 'general counsel for the Massachusetts Chiefs of Police Association' has said that they're immune to information requests because they're private corporations. The article positions the purpose of the privatisation as secrecy. This seems like a very Bad Thing, so it's not surprising that the ACLU have stepped in.

But I'm going to play devil's advocate, because I want to know the truth:

I wonder if there are other, possibly more important reasons for forming these private corporations. Maybe the existing police system doesn't function optimally, and provisioning resources (such as trained officers with appropriate equipment for drug busts) is a process that's too slow, or inadequate. Maybe this is a way of detouring the bureaucracy and systemic bullshit that encumbers civil servants whose job is ultimately to keep people safe.

The article says that Tewksbury, MA paid $4600 for membership to NEMLEC. That town has a population of around 28 000. It doesn't make sense for a small town like that to have a police force with a dedicated SWAT team, computer crimes unit and schools incident response team. It also doesn't make sense for a larger jurisdiction to serve the smaller community when it [the smaller community] needs it, and get nothing in return. It seems as though it's a way for police departments to share resources. I'd imagine that if a small town's police department found themselves unable to deal with a time-critical scenario, like a shooter in a school, they'd call in backup pretty damned quickly. Perhaps the quality of response a small town could get through NEMLEC would be better than going through traditional police channels?

To me it seems like the primary purpose of forming these private NPCs is not secrecy. As the article says, government police agencies already do that - "police agencies have broadly interpreted open records laws to allow them to turn down just about every request."

So, if it is actually easy for police agencies to turn down requests in the first place, why go to all the effort to form, finance, and manage a 3200 member [1] corporation?

[1] http://www.nemlec.com/who.htm

edit: clarified a sentence by adding 'through NEMLEC'

groby_b• 12 years ago

That's why, in a sane world, there'd be a state-level organization that does the things that are too big for small towns, not a private corporation. The excuse is that the state authorities are too backed up - essentially, that they're underfunded. How transferring tax money to a private LEC helps with that is not entirely clear to me.

The most important question here is, who exactly authorizes the use of force by NEMLEC? This, as is, allows undisclosed use of force whenever the powers that be (I believe police chiefs) feel like it, without the need for disclosure.

This is essentially an unregulated regional army. Paid for with taxes, but not actually beholden to the tax payer.

Why would somebody form that? That depends on how paranoid you want to think.

jmccree2• 12 years ago

You do realize that all the officers that are on the LEC SWAT team are employed by local police agencies, none work for NEMLEC. Mutual aid emergency services teams comprised of members of multiple agencies are common all over the country. "Northwest Regional SWAT" just sounds less scary than NEMLEC. All the individual police agencies that are members of nemlec would still fall under whatever open records laws apply in that state. You can see which dept chiefs lead which units here: http://nemlec.com/units.htm

stormbrew• 12 years ago

I don't think the article positions secrecy as the primary, let alone sole, purpose of this effort at all. It is clearly, as you say, to get around all sorts of 'inconvenient' things in government bureaucracy.

The thing is that a lot of that bureaucracy is there explicitly to slow down and provide scrutiny over one of the most vulnerable to corruption parts of government. The people who enforce the law, without supervision, can easily become the law, and that's extremely dangerous for civil society.

DerpDerpDerp• 12 years ago

The military and government in general makes extensive use of contractors for specialized tasks, but manages to audit and limit their behaviors to the degree that they're performing work on behalf of the government, recognizing that contracting out government work doesn't make it not government work.

How are these any different?

Even if they are contractors for specialized policing (something I find dubious, but am not sure is actually a bad idea), why wouldn't they still be subject to regulation as government employees while performing government work?

joe_the_user2• 12 years ago

The Massachusetts police have privatised part of their operations.

I don't think the term "privatize" reflects the situation as described in the article or as described in the organization's website. According to all the descriptions, everyone involved in the organization is a public employee acting in their official capacity. This makes all of it's activities the activities of the government.

Maybe, this consortium was originally formed to save some money. Police and fire departments band together in a variety of forms. But contrary to your line of reasoning, this is neither a justification for secrecy nor is that a reason not to be interested in this situation. What is important and disturbing is that this isn't privatization as such but rather this is a public entity relabeling activities as private and claiming immunity to public scrutiny on that basis (not that overt privatization doesn't have it's own problems).

Disturbing as the present efforts to evade scrutiny are, we should take note that this sort of deceptive relabeling of government activities can potentially open the door to local government evading any and all regulations that the courts and state laws might place on them (though hopefully this stuff will fall apart "in the light of day").

trhway• 12 years ago

private prisons, private torturers and army (without any limits by any law) in foreign lands, now private army inside the country...

I'd think that FOIA wasn't the main law they were setup to dodge, it is just a side benefit. My bet would be about some finance related limits/laws.

r0h1n• 12 years ago

We already knew America's police was getting militarized at a rapid rate. Now they're getting corporatized too. Its prisons are already corporatized. The full circle is almost there.

Living in a developing country like India, I'm sometimes half-thankful that our police is inept, woefully ill-equipped with weapons and government-controlled.

DrewRWx2• 12 years ago

The decentralized abuse of the free market is far more terrifying than an omnipresent government power.

Also, while the school to prison pipeline is a dire issue in parts of the country, private prisons are still a fraction of total US prisons.

nateabele2• 12 years ago

Please explain how potential harm from entities you voluntarily engage with is in any way comparable to the harm of a single entity that can ruin or end your life on a whim regardless.

ChuckFrank• 12 years ago

Drew, can you give me some examples, how is the decentralized abuse worse than omnipresent government/corporate power?

Aren't the both bad? One for the lack of agreed upon standards , regulations and criminal, civil consequences, and the other for manipulating the playing field in favor of the few, and the power, removing from the the expectations of standards, regulations and criminal, civil consequences.

Unfair, unjust markets are terrible either way. Or am I mistake about one vs the other?

yummyfajitas• 12 years ago

Living in a developing country like India, I'm sometimes half-thankful that our police is inept...

Isn't it great to be a man?

[edit: I realize this flippant remark probably makes little sense for those who don't live in India. Ineffective policing is a very serious problem here, primarily for women. If I stay out late with a girl, it's almost automatic that I will escort her home regardless of the inconvenience to me. Black women often wear a keffiyeh at night to avoid racially motivated attacks. Physical security is a significant electoral issue.]

Ntrails• 12 years ago

If anyone is unaware of the state of violence against women in India I can only assume they don't read a newspaper. There have been several front page stories in the last year or so.

I think you make an important (if biting) point for putting the parent in some context.

alina24• 12 years ago

"If I stay out late with a girl, it's almost automatic that I will escort her home regardless of the inconvenience to me."

That works for those holding on to even the lowermost rungs of the middle class. Below that the condition of women, oppressed by caste and class(not direct but still a strong co-relation), their plight is hellish to even think of.

rtpg• 12 years ago

Its prisons are already corporatized

If you're talking about private prisons only something like 2% of inmates are in private prisons.

ANTSANTS2• 12 years ago

Even "public" prisons devour tax dollars to pay prison staff (who are unionized in some states with lobbies that fight for stricter laws and law enforcement and thus more prisoners to guard...), construction workers, suppliers of food, surveillance equipment, and so on. "For profit" prisons are just the logical conclusion of a rotten industry.

Calcite• 12 years ago

Washington Post has a very bad mobile experience. How am I supposed to read this? http://imgur.com/DyePAYJ

andywood• 12 years ago

Don't let reporters mystify you with all these things people "claim" and say. It's just one PR department relaying a message from another PR dept.

It's all the US. It's all the current system. Yes, the constitution has been drastically weakened by money interests. Yes.

I went to Austin, TX a couple weeks back to be my Brother's best man. I didn't realize he was marrying a cop's daughter in a rural area outside the city limits, because all he told me about the guy was he's a skydiver. I fly paragliders, so I figured we had a lot in common.

There's a really good reason all the souveneirs in the area say "Austin City Limits"! It's because if you're a beta male, you really shouldn't stray too far outside into the Red State. You really, really shouldn't.

Within an hour of getting to the house, I got in a minor verbal spat with my own sister. My ridiculous mother decided to call the police department to ingratiate herself with my brother's new family. Well, I'm 150 lbs (but still pretty tough) and a 270 lb gorilla showed up to learn me some manners about how to act when in Rome.

He practiced some Krav Maga on me, probably something he just learned and was aching to demonstrate. He twisted my carpal tunnels around, bend my injured knees around a bit, damaged nerves in my left hip and left wrist. Stood on my scoliosis, stretched a tendon in my left shoulder....

And then the police department itself put me in a hospital! I could have walked it off in a couple hours, but the cops run this hospital. They have the doctors and orderlies continue to be very abusive so as to keep you in shock for days (5 for me) and then they try to have a doctor threaten you with institutionalization because you had a delusion about police persecution!

That's their system, and apparently the Red Staters really truly like it that way. Keeps the outsiders and Mexicans out! Or so these fools think. They think they can keep the Mexicans out! They'll be in for quite the shock themselves when they find out Rupert Murdoch has been lying.

And that it's them that have to learn spanish after all. Glad I speak it, that's for sure.

afandian2• 12 years ago

What's Rupert Murdoch been saying in the US?

anaptdemise3• 12 years ago

Rupert Murdoch -> News Corp. -> Fox News "RNC mouthpiece"

/sarcasm?

[clarification] Is /sarcasm on on either misunderstanding replier as such or my "RNC mouthpiece"?

Fuxy• 12 years ago

So wait private corporation are allowed to have SWAT teams now?

That sounds safe...

Massachusetts SWAT teams claim they’re private corporations

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