Barely Legally

Confessions of a Moot Court Bailiff

Corporate Officers

People create corporations to encourage investment by shielding their personal assets from the business venture. Ordinarily, when you go into business (with a couple of partners, for example), if your business racks up $300,000 in debt, the business is liable for the $300,000, but so is each partner. With a corporation, debtors can only collect the assets of the corporation; so if you, Mister Partner, only invested $100,000, that’s all your debtors get from you. Limiting your risk like makes you more likely to invest; at least, that’s the idea.

Here’s a fun fact: government agencies create corporations, too. As they’re not investing or trading any stock, you have to wonder what exactly the purpose is. Sometimes, they’re created because a state constitution regulates borrowing by agencies. But corporations aren’t agencies – they’re people! – so the government, through agencies, can just keep borrowing money. That’s lousy, but that’s not what this post is about.

Via the Washington Post, the American Civil Liberties Union’s new report on police SWAT teams is a little eyebrow-raising. What they’ve found is almost as interesting as what they can’t find. Take Massachusetts:

Approximately 240 of the 351 police departments in Massachusetts belong to a [Law Enforcement Corporation]. 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 …

Well, okay. I guess grenade launchers and bayonets aren’t cheap. Police are probably just pooling their resources, which doesn’t seem too b-

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 …

Oh, I’ve heard this one in my day job. “The law says only agencies have to comply with this law, and we’re technically a corporation whose sole shareholder just happens to be a government agency.” Or “we don’t have to comply with that law because the Commissioner isn’t appointed by the Governor, he’s elected by a board that the Governor appoints.”

It’s good to know these agencies and departments are keeping their lawyers busy. Coming up with loopholes for public records requests is a more constructive use of agency time than just responding to those requests, I’m sure. Not that they’re measuring that either way; it’s all moot.

What’s most frustrating is that these guys claim the privileges of all the laws they like: I imagine that the SWAT officers feel like they can kick down the door of suspects’ houses when they have a warrant. If they shot someone, they would probably claim the legal protection of self-defense laws which are more deferential to police than civilians.

If this is the case, I don’t see how you can ignore with a straight face the most basic transparency measures we’ve got: Freedom of Information laws. It’s not like we’re harnessing individual police officers to sledges and having them drag us around town because “mah tax dollars pay yer salary!” This is pretty basic stuff, like “I would like a copy of a public record in your possession.”

Look, I’m not throwing stones at Massachusetts unless ESPN is re-airing Super Bowl XLVI. New York is certainly no stranger to egregious abuse of the corporate form. But the fact that this stuff is near-universal shouldn’t exonerate anyone so much as frustrate everyone. It’s hard enough to get transparency laws passed; it shouldn’t be another battle just to get them enforced.

Update: a year later, the American Civil Liberties Union and the biggest law enforcement corporation in Massachusetts have settled their lawsuit. The corporation now agrees that its files are subject to freedom of information laws.