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SWAT teams immune to open disclosure? Teams claim exempt as 'private' business

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Are SWAT teams immune to certain forms of open disclosure and requests for informational records? According to one Massachusetts SWAT team, they are claiming to be exempt from an American Civil Liberties Association (ACLU) investigation because the special force is a “privatebusiness or corporation. Raw Story explains the controversy surrounding this statement and whether these elite personnel should be excused from such requests this Friday, June 27, 2014.

As part of its ongoing report on the rise of police militarization here in the U.S., the ACLU appealed for open records from Massachusetts state SWAT teams. However, the defensive forces claim to be immune; they responded by saying that are exempt from such queries as private corporations or businesses. A number of SWAT teams in the state are known to perform as high-ranking law enforcement councils (LECs). These LECs are in turn supported financially by various police departments in the area that are supervised by an executive board of experienced police officers or chiefs.

The press release continues by noting that these police departments pay membership fees and yearly dues to joint SWAT teams and LECs, both of which work together to utilize valuable resources like safety equipment and modern law authority technology, as well as finance evidence specialists and crime scene investigators. In recent years, some of the local councils in Massachusetts have also combined with 501(c)(3) organizations. As a result, these groups believe they now have the right to be called private businesses and are subsequently freed from requests for open records or related information.

It was Radley Balko of The Washington Post who recently offered an interesting take on the rights of SWAT teams being immune to such requests for disclosure. According to the writer:

“Let’s be clear,” he said. “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.”

It appears that this newfound sense of immunity isn’t sitting very well with officials from the American Civil Liberties Association. The Washington Post reveals in their additional look into the matter that approximately 75 percent of the roughly 350 police departments in the entire state of Massachusetts are part of these LECs. A direct challenge is thus posed; the law enforcement councils are established as private businesses or personally owned corporations, yet they are still technically supported by overall taxpayer funds.

“Police departments and regional SWAT teams are public institutions, working with public money, meant to protect and serve the public’s interest,” the ACLU announced as part of its investigation. “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.”

As part of their ongoing examination into the matter, the ACLU has filed a lawsuit against the Northeastern Massachusetts Law Enforcement Council (LEC). Having SWAT teams immune to such requests as privately operated entities is arbitrary, they argue, as the LEC still uses funds from taxpayers, state support, and governmental grants for various needs, including buying equipment.

“NEMLEC can’t have it both ways,” said ACLU attorney Jessie Rossman. “Either it is a public entity subject to public records laws, or what it is doing is illegal.”

Here is a statement from the official investigation report on SWAT development and police militarization:

"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 . . .

Due to the weakness of Massachusetts public records law and the culture of secrecy that has infected local police departments and Law Enforcement Councils, procuring empirical records from police departments and regional SWAT teams in Massachusetts about police militarization was universally difficult and, in most instances, impossible . . .

Hiding behind the argument that they are private corporations not subject to the public records laws, the LECs have refused to provide documents regarding their SWAT team policies and procedures. They have also failed to disclose anything about their operations, including how many raids they have executed or for what purpose . . .

The North Eastern Massachusetts Law Enforcement Council (NEMLEC) similarly operates a SWAT team, as well as a Computer Crime Unit, Motorcycle Unit, School Threat Assessment & Response System, and Regional Communications and Incident Management Assistance Team. Its SWAT team members are trained and equipped to “deal with active shooters, armed barricaded subjects, hostage takers and terrorists,” and they dress in military-style gear with the words “NEMLEC SWAT” emblazoned on their uniforms. Given this training, it is not surprising that the NEMLEC SWAT team has over the past decade led numerous operations that involved armored vehicles, flash-bang devices, and automatic weapons.”

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