The Private SWATs of Massachusetts

Every once in a while, someone gets what they believe to be a brilliant idea, and by adding two plus two, ends up with 37.  If you squint your eyes, sing “lalala” really loud and argue the point by stringing as many unrelated words together as possible, it begins to make sense.  Except it doesn’t. It’s wrong. Dead wrong.

Via Radley Balko, the Massachusetts ACLU’s effort to get information under the Freedom of Information Act about SWAT teams was rebuffed under a novel, if bizarre, rationale:

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.

Notably, a 501(c)(3) entity is a not-for-profit, which already makes the irony meter spin out of control given the utility of money and property seizures under state and federal forfeiture laws, but that’s just for laughs, though it might allow the victims of seizures to write-off their seizures as a charitable contribution.

But Section 501(c)(3) is merely a section of the Internal Revenue Code, for tax exempt status. It isn’t an entity at all.

The heart of this trick is that these Law Enforcement Councils, LECs, are multijurisdiction hybrid creatures, that function with personnel from other governmental entities, funded by those entities, and existing under the authority provided by the state and federal government to those entities.  Sometimes, the multijurisdiction entities are created by the legislature, enacting laws to authorize their existence and extend the law enforcement authority granted their home jurisdiction to a broader, extra-jurisdictional territory.  Other times, somebody just makes it up as they go along.

So somebody gets the bright idea to have the LEC file paperwork with the Secretary of State of Massachusetts registering a name, agent for service of process, shareholders and officers, and thus create a private corporation.  Cool story, bro. But then, there may well be an extant corporation, but it has nothing to do with the authority of the LEC to function under law.  Think of it as two, parallel, wholly unrelated things going on that have nothing to do with one another, even if the guys running them are such dumbasses that they think they do.

The authority of a law enforcement officer derives from law.  It establishes the authority to engage in law enforcement activities. To carry a weapon. To use that weapon, not to mention arrest a fellow human being who, without that authority, he would have no right to command.  But he does, and the law creates a crime for failure to obey a lawful command.  The law reposes a great deal of faith in these badged folks, whose authority comes from their position as officers of the jurisdiction of their employment.

A point often missed or ignored is that the authority of law enforcement officers is geographically based.  The Commonwealth of Massachusetts can create the authority it gives to police, but only so far as the jurisdiction of the state extends.  It can’t create cops with authority to pull over drivers in Oregon, for example.

Many of the multijurisdictional task force-type operations are of highly dubious authority. Each individual officer involved has the lawful authority to serve within the geographical jurisdiction he serves.  Some cross-designate officers, so that they putatively serve a home jurisdiction while simultaneously conferred authority to be a law enforcement officer of other jurisdictions as well. Whether the law makes provision to permit this isn’t always clear, and isn’t always correct.

That judges turn a blind eye to police jurisdictional authority because of the ubiquity of these hybrid multijurisdictional task forces doesn’t make them lawful. It just means the unlawfulness is ignored, or taken for granted. It’s often wrong, and operation without jurisdictional authority has become another dirty little secret of law enforcement that survives with the acquiescence of the courts.

But to claim that they serve a private corporation, exempt from all rules that apply to governmental entities, stretches the authority well beyond the breaking point. There is nothing that says a cop can’t work for a private corporation, but in the process of doing so, he ceases to be a cop.  Cops are cops by virtue of the authority conferred by the government. If they do not service their jurisdictional masters, they are no longer serving as cops, but private employees without any authority different than that the law confers on you or I.

This isn’t a great mystery, or rocket science.  There are laws that give rise to the existence of police, and to an individual’s authority to serve in that capacity. They are given enormous special protections in order to do so, under the theory that these protections are warranted because of the critical social utility of their function.  But should they contend that they are no longer serving in the capacity of a law enforcement officer, serving under a duly authorized governmental entity with jurisdictional authority and limitations, they’re just guys with guns.

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.

10 comments on “The Private SWATs of Massachusetts

  1. Peter H

    I am curious how they’d react if they were sued for liability on a wrong-door raid. Surely, they’d try to claim the protective cloaks of sovereign immunity and qualified immunity, cloaks for which a private corporation has no claim. I understand that their arguments in this proceeding probably wouldn’t estop those arguments in the liability suit, but it would be quite entertaining to see them squirm as their statements here are used against them there.

    1. SHG Post author

      I wouldn’t be so sure. Consider equitable estoppel in a tort claim against a private citizen, based not on the plaintiff’s contention, but the defendant’s own statement against pecuniary interest. It could happen.

  2. Nigel Declan

    I was tempted to call this idea too clever by half. Having read your last paragraph, Scott, not clever enough by half seems more charitable.

  3. UltravioletAdmin

    Is there some equivalent of an anti-pinkerton act for Massachusetts? I know at least one other jurisdiction that such a structure would be highly dubious because it gives law enforcement power to a private entity.

    1. SHG Post author

      If only there was some place, say the internet, and some means, say a search engine, for someone curious about such a thing to find an answer, rather than burden some other place, say the SJ comments, with such a question. If only.

  4. KheSanh_vet

    “… a cute attempt to twits corporate law with public authority law…”

    Twits; twist?


    What would Scalia say?

  5. Pingback: Massachusetts SWAT Teams Claim They’re Private Corporations To Get Out Of Transparency Requests | Technology

  6. George B

    Is this really a new invention?
    How does such differ from an old-time vigilante group?

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