Thursday, June 26, 2014

Just when you think they can't top themselves

One of the most important distinctions in constitutional law is between state actors (people who work for the government) and non-state actors (people who don't).  As a general rule, constitutional rights only apply to things done by the government.  The government cannot lock you up or fine you for exercising your First Amendment right to free speech, but your employer may still be able to fire you for it, assuming your employer isn't the government.  That is also true of many statutory rights; the Freedom of Information Act allows me to get records from the Pentagon but it does not allow me access to records from IBM or General Motors.  Put another way, you've got far more rights against the government than you do against most private parties.

Which explains why several Massachusetts police departments decided to incorporate as a private corporation.  The ACLU filed a lawsuit against various Massachusetts police organizations to obtain records relating to their SWAT teams -- how those people dressed like ninjas and armed like Taliban fighters who kick in people's doors, shoot their pets, throw everyone to the ground, point guns at peoples' heads and threaten to shoot them if they move, are selected, trained, and what rules they operate under.  Given the incredible amount of deadly firepower with which such teams are entrusted, one might think that the citizenry is entitled to know what kind of training they have and what their rules and regulations consist of.

But guess what -- private corporations aren't bound by public records laws, and aren't required to provide any such information to the public.  Hence the strategy of having the police departments become private corporations.

I certainly hope the courts don't allow this shenanigan to stand, though these days my faith in the courts' willingness to rein in police abuses is not high.  Post-9/11, the courts seem increasingly willing to give the police whatever they want.  It's a fairly blatant show of contempt for the citizens in whose name the police operate, breathtaking even by law enforcement standards.

That aside, this raises a number of interesting questions.  Because while it is true that government actors have to respect individual rights that private actors don't, it is also true that government actors get to do things that private actors don't.  For example:

If a group of heavily armed employees of a private corporation are coming through my front door, I have the right to shoot them in self defense, assuming I have enough firepower of my own.  Does this mean that police executing search warrants are now fair game for homeowners with guns?

If an employee of a private corporation locked me in a cell overnight, telling me I am not free to leave, I would have an excellent lawsuit for false imprisonment and possibly even kidnapping.  Does this mean that a police officer making an arrest can now be sued for false imprisonment?

When someone files a lawsuit claiming that a government employee -- often a police officer -- has violated that someone's legal rights, state actors are entitled to something called "qualified immunity", which means that making a lawsuit against the police stick is really, really hard and only rarely succeeds.  Have Massachusetts police officers now lost qualified immunity if they get sued?

Assuming the Massachusetts courts don't nip this private corporation nonsense in the bud, I sense a series of very interesting lawsuits about to be filed.

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