Massachusetts SWAT teams don’t need to respond to public records requests

Police LineWhat does a SWAT team have in common with the Girl Scouts of America? It depends on whether they’re located in Massachusetts and the ACLU tries to get records out of them.

On June 24, the ACLU published the results of a year-long study into militarization and American police forces. To do so, it analyzed records of 800 separate SWAT deployments that occurred during 2011-2012 amongst 20 different federal, state, and local law enforcement agencies.

The results of this study are sobering, but things get even odder when you consider how Massachusetts SWAT teams responded to the information requests that the ACLU lodged during its investigation. Basically, they didn’t.

SWAT Teams: The New Non-Profit Paradigm

Massachusetts SWAT teams didn’t respond to the ACLU’s information requests because, apparently, they’re not government agencies at all. Instead, communities across the Bay State often pool their resources to create common regional SWAT forces. These funds are administered by law enforcement councils, or LECs. LECs collect membership fees from each community that uses such SWAT forces, then the LECs oversee how these resources are managed.

In Massachusetts, LECs are big business. By the ACLU’s estimate, 240 out of 351 police departments in Massachusetts are LEC members. The North Eastern Massachusetts Law Enforcement Council alone contains almost 50 municipalities.

What’s the problem with small communities pooling resources to maintain a common rapid response team? It depends on whether you mind that your SWAT team is technically a private 501(c)(3) non-profit corporation with automatic weapons. For tax purposes most LECs are in fact non-profit corporations, and that causes problems for anybody who wants public records about local law enforcement.

Law Enforcement in Limbo

The ACLU discovered this problem when it attempted to scratch beneath the surface of Massachusetts’ already weak public disclosure laws. According to the LECs, they don’t have to divulge anything about their SWAT operations because they aren’t government agencies. They are private non-profit organizations, administering pooled funds, and that puts them outside the bounds of public records law. In the most technical sense, they may be right.

To drive home the perversity of this argument, however, it is worth recapping what LECs do. First, they administer the public funds of municipal police departments. Second, they use these funds to pay and equip law enforcement officers who serve in SWAT teams. Third, these SWAT team members have the authority to arrest you. When necessary, they have the authority to kill you.

While Massachusetts SWAT teams have this authority, Massachusetts residents do not have the right to ask how they’re using it. As the ACLU inadvertently discovered, these militarized police units are using the cover of 501(c)(3) non-profit corporation status to shield themselves from public records requests. Equally troubling is the fact that based on what the ACLU could uncover about Massachusetts SWAT operations, the Bay State is rife with potential abuses of police power. But residents aren’t allowed to ask how bad these abuses are.