Law enforcement councils in Massachusetts refused to release their records on SWAT team activity, saying that as nonprofits, they’re exempt from open records requests.
In response to being denied information about the activities of SWAT teams in Massachusetts, the American Civil Liberties Union Foundation of Massachusetts has filed a lawsuit against SWAT teams in the state, arguing that law enforcement agencies must be held accountable by the same group they were created to protect: the public.
The lawsuit was filed days after the release of “War Comes Home,” a national ACLU report revealing that police forces across the country increasingly treat American citizens like the U.S. military treats enemies of the state.
Many Americans were appalled by the findings of the ACLU’s report, which highlights the increased militarization of police departments throughout the United States since the war on drugs began in the 1970s. Although packed with startling data, the ACLU notes that the report is ultimately incomplete because “[d]ata collecting and reporting in the context of SWAT was at best sporadic and at worst virtually nonexistent.”
As some SWAT teams in states such as Massachusetts denied the ACLU’s requests for access to their public records by claiming private and nonprofit status, the ACLU struggled to obtain complete data on SWAT teams’ use of deadly force, training materials, incident reports, types of equipment used, the number of raids executed and for what purpose.
Specifically, the North Eastern Massachusetts Law Enforcement Council, a group of 58 police and sheriff’s departments in Middlesex and Essex counties, argued that their SWAT teams didn’t have to hand over records to the ACLU because they are part of a private law enforcement council, even though their operations are funded by several different police departments and are overseen by boards predominantly comprised of local police chiefs.
In addition to arguments that these private law enforcement groups don’t have to be as transparent as public law enforcement groups because police departments pay around $4,600 in annual membership fees to the group, some of these private law enforcement councils argued that because they are 501(c)(3) organizations — not government agencies — they are exempt from open records requests.
About 240 of the 351 police departments in the state of Massachusetts operate as part of a law enforcement council to pool resources to “deal with active shooters, armed barricaded subjects, hostage takers and terrorists,” which includes purchasing equipment such as military-style gear, armored vehicles, flash-bang devices and automatic weapons.
Although these groups are organized and operated in a manner similar to “corporations,” they are funded by local and federal taxpayer money and the officers tasked with carrying out traditional law enforcement functions are public police officers and sheriffs.
Laura Rótolo, a lawyer and advocate with the ACLU’s Massachusetts chapter, says that when the group filed the information request more than a year ago, the ACLU explained to these law enforcement councils that they did not qualify for the public records exemption status for several reasons, including the public funding aspect.
The ACLU was unsuccessful in getting its message across, however, and now the ACLU’s Massachusetts chapter is taking these law enforcement groups to court.
“These agencies are serving the public and need to be held accountable,” Rótolo, who is one of the attorney’s representing the ACLU in the lawsuit, told MintPress News.
The ACLU of Massachusetts filed a lawsuit against the North Eastern Massachusetts Law Enforcement Council in Suffolk County Superior Court on June 24. It has asked the court to rule that the law enforcement groups’ documents are public records and should be released to the public, especially since these SWAT teams raid public residences and NEMLEC also operates a number of field units — including a Computer Crime Unit, Motorcycle Unit, School Threat Assessment & Response System, and Regional Communications and Incident Management Assistance Team.
Rótolo says the ACLU has received “positive support from the public” for filing the lawsuit — even from “people who don’t always agree with the ACLU.”
“[This case] is really resonating with people not only in Massachusetts, but across the United States,” Rótolo said, explaining that it only seems logical that if an agency is granted the lawful ability to act as a law enforcement agency, then it should be considered a law enforcement agency.
“The public deserves to know about law enforcement operations that are taking place in their communities with their money and in their name,” said Carol Rose, the executive director of the ACLU of Massachusetts. “If police agencies hide behind a wall of secrecy, the public cannot judge for itself whether officials are acting appropriately or whether policy changes are needed.”
News of the law enforcement councils’ blatant refusal to disclose information has only added to the criticism of local law enforcement agencies in recent years, as advocates for police reform argue that police departments throughout the country have increasingly become militarized.
Police departments can be exempt under public records legislation in some states and deny requests to disclose information, such as internal personnel files or documents that would reveal the identities of witnesses or informants. For example, police agencies in Virginia and other states have interpreted the right to refuse to release documents to the public on the grounds that it would protect the identities of parties involved, among other considerations, as the legal right to turn down nearly every request.
But the ACLU argues that the NEMLEC’s refusal to disclose the information because it is a private corporation — and not to protect the identities of witnesses or informants — puts the issue in Massachusetts in a league of its own.
John Whitehead is the president of The Rutherford Institute and author of “A Government of Wolves: The Emerging American Police State.” He pointed out that while corporate police are not as pressured to uphold the Constitution as public agencies, any law enforcement organization that receives state money should be following the laws set forth by the Constitution. If not, Whitehead says, it’s as if police departments just handed out guns and armor to people and told them to go shoot at other people.
“If they are wearing a badge that says ‘State of Massachusetts’ or any other state,” even in the case of a corporate police force, Rutherford said, those law enforcement officials should be subject to the laws set forth by the Constitution. An “extremely dangerous” culture will emerge if they’re not, he warned.
Radley Balko, author of “Rise of the Warrior Cop: The Militarization of America’s Police Forces,” agreed.
“Let’s be clear,” Balko, who also blogs about criminal justice, the drug war and civil liberties for the Washington Post, noted. “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.”
Weak public disclosure laws
Rótolo says it wasn’t as difficult for other ACLU affiliates to obtain records for the police militarization report, so the lawsuit filed in Massachusetts is currently the first — and only — one of its kind.
The issue in Massachusetts is partly due to the state’s public records law being among the weakest in the country. Rótolo says the ACLU is working with state legislators to change this and create a culture of openness and transparency, but the state’s public records law makes it very difficult for organizations like the ACLU, and even the media, to obtain public records.
For example, the 10-day period for agencies to turn over records is not enforced, and police often charge large amounts of money — such as $1 per page — for copies of public records, even if the documents are shared in an electronic format.
Despite the flaws in the public records law, Rótolo says the law’s weak language is clear that entities like NEMLEC are public entities and subject to public records law, which is why the group filed the lawsuit.
“This is a lawsuit about public accountability,” she said. “We believe the public records law is clear that entities that work for the public” must be transparent.
“NEMLEC can’t have it both ways,” added Jessie Rossman, ACLU of Massachusetts staff attorney. “Either it is a public entity subject to public records laws, or what it is doing is illegal.”
“Private individuals can’t own automatic weapons, or even get product information about armored vehicles,” Rossman continued. “NEMLEC operates with all of the privileges of a law enforcement agency, and like a law enforcement agency, it should be accountable to the public.”
Rossman and Rótolo’s explanations align with the ACLU’s argument that the public cannot determine if these police departments and regional SWAT teams are acting appropriately or if there is a need for a policy change if these publicly-funded groups fail to disclose anything about their operations — operations suspected to be largely comprised of drug raids, as the ACLU report found that searching a home for drugs was the most common reason a SWAT team was called.
Need for public oversight
A lack of accountability is particularly concerning in Massachusetts, since, as the ACLU points out, the state has had its fair share of problems with SWAT teams acting appropriately. In 1988, for example, Boston Detective Sherman Griffiths was killed during a drug raid that went awry. It was later discovered that the raid occurred because police officers involved had fabricated information in order to further their investigation.
Rev. Accelyne Williams died of a heart attack in 1994, when a SWAT team violently entered and raided his home looking for drugs. The SWAT team, it turned out, was at the wrong home. This is an alarmingly common mistake that can be deadly, especially when a no-knock warrant is involved.
And in 2011 a SWAT team was preparing to raid a home in Framingham, Massachusetts, around midnight when they encountered the subject of the warrant — Eurie Stamps’ 20-year-old stepson — outside of the home. Although the SWAT team had the man they had come to apprehend, they decided to raid the home anyway. When they came across 68-year-old Stamps, they instructed him to lie on the floor, which he did. As one officer made his way to Stamps to check him for weapons he tripped and fell, setting off his weapon. Stamps was shot in the chest and killed.
In addition to the ACLU’s concerns regarding NEMLEC’s refusal to disclose information, the group said that the few documents they did receive regarding SWAT team activity in the state highlighted that not all law enforcement agencies are keeping adequate records of their activities.
For example, there wasn’t a standardized form for SWAT teams to use to document the reasons and justifications for using a SWAT team in a particular situation. There also appeared to be a lack of a statewide use-of-force policy or justification for when force should be used.
The ACLU also argues that the lack of standards, reporting and transparency is concerning because it poses a serious threat to public safety and democracy.
“The increasing tendency of police to adopt military tactics against civilian residents has not led to better public safety outcomes. Rather, this approach evokes the warning that when all you have is a hammer, everything looks like a nail.”