Refuse to reveal
policies and procedures – assert immunity from open-records laws
(Washington Post) – 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. In 2012, for example, the Tewksbury Police Department paid
about $4,600 in annual membership dues to the North Eastern
Massachusetts Law Enforcement Council, or NEMLEC. (See page 36 of linked PDF.)
That LEC has about 50 member agencies. In addition to operating a regional
SWAT team, the LECs also facilitate technology and information sharing and
oversee other specialized units, such as crime scene investigators and computer
crime specialists.
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.
From the ACLU of Massachusetts’s
report on police militarization in that state:
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 . .
.
Police departments and regional SWAT teams are
public institutions, working with public money, meant to protect and serve the
public’s interest. 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 . . .
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 . . .
METROLEC, one of the largest of the law
enforcement councils covering the metropolitan Boston area, operates a range of
specialized resources, including a Canine Unit, Computer Crimes Unit, Crisis
Negotiation Team, Mobile Operations Motorcycle Unit, and Regional Response
Team, in addition to its SWAT force. The organization maintains its own BearCat
armored vehicle, as well as a $700,000 state of the art command and control
post. In 2012, METROLEC reportedly used its BearCat 26 times, mostly for
drug busts, and applied to the Federal Aviation Administration to obtain a
drone license.
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.
(Note: In addition to the LEC SWAT teams, the
ACLU notes that at least 25 other Massachusetts cities and towns have their own
SWAT-like units, along with the state police and the Massachusetts Bay Transit
Authority.)
Massachusetts also has a long history of
accountability and excessive force problems with SWAT teams. A few examples:
- In 1988, Boston Det. Sherman Griffiths was killed in a botched drug raid later revealed to have been conducted based on information from an informant a subsequent investigation revealed that the police had simply made up.
- Six years later, the Rev. Accelyne Williams died of a heart attack during a mistaken drug raid on his home. The Boston Globe found that three of the officers involved in that raid had been accused in a 1989 civil rights suit of using fictional informants to obtain warrants for drug raids. In testimony for that suit, one witness testified that after realizing they’d just raided the wrong home, a Boston police officer shrugged, apologized and said, “This happens all the time.” The city settled with the plaintiffs.
- In 1996, the Fitchburg SWAT team was already facing a lawsuit for harassing a group of loiterers when it burned down an apartment complex during a botched drug raid. The SWAT team subsequently faced a number of other allegations of recklessness and misconduct.
- In January 2011, a SWAT team raided the Framingham, Mass., home of 68-year-old Eurie Stamps at around midnight on a drug warrant. Oddly, it had already arrested the subject of the warrant — Stamps’s 20-year-old stepson — outside the house. But because he lived in Stamps’s home, the team went ahead with the raid anyway. When the team encountered Stamps, it instructed him to lie on the floor. He complied. According to the police account, as one officer then moved toward Stamps to check for weapons, he lost his balance and fell. As he fell, his weapon discharged, sending a bullet directly into Stamps’s chest, killing him.
“You can’t have it both ways,” Jessie Rossman,
a staff attorney for the Massachusetts ACLU, told me in a phone interview. “The
same government authority that allows them to carry weapons, make
arrests, and break down the doors of Massachusetts residents during dangerous
raids also makes them a government agency that is subject to the open records
law.”
In some states, police agencies can claim
exemptions from open records legislation for certain types of requests, such as
for internal personnel files, or investigation documents that could reveal the
identities of witnesses or informants. In some parts of the country, like the
Virginia suburbs of Washington, police agencies have broadly interpreted open
records laws to allow them to turn down just about every request. But
this claim in Massachusetts is on a whole different scale.
“They didn’t even attempt to claim an
exception,” Rossman says. “They’re simply asserting that they’re
private corporations.”
The ACLU is now suing NEMLEC. It’s
worth noting that in addition to receiving taxpayer funding from its 51 member
police agencies, NEMLEC has also received significant federal funding over the
years, particularly from the Byrne Grant program. In fact, just last
April, NEMLEC made a series of drug busts across the state in an investigation
funded at least in part with Byrne Grants. (NEMLEC seems to be involved in
a lot of drug raids.) In 2010, NEMLEC received an $800,000 Byrne
Grant earmarked by then-Sen. John F. Kerry.
Interestingly, in 2009, NEMLEC had
to pay out $200,000 “to settle allegations that it made false claims
related to the use of Justice Department grant funds” — specifically, funds
obtained through the Byrne Grant program. That sounds like an agency that could
use a little oversight.
The argument that the LECs in Massachusetts
are private corporations and therefore immune to the state open records law was
made by Jack Collins, the general counsel for the Massachusetts Chiefs of
Police Association. I have contacted his office to request an interview but
haven’t yet heard back.
Source: http://www.teaparty.org/mass-swat-teams-claim-theyre-private-corporations-45632/ from Washington Post.
http://www.washingtonpost.com/news/
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