Is it legal for a police to incorporate as a private 501(c)(3) organizations?



As part of the American Civil Liberties Union’s recent report on police militarization, they sent open records requests to SWAT teams across Massachusetts. They got an interesting response,

Some of these LECs [law enforcement councils] 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.

Is it legal for a police organization that performs police activities to incorporate as a private 501(c)(3) organizations? (If it isn't legal, is Lois Lerner and the IRS aware of this, and do they have any response or have they taken any action to prevent it?)


Posted 2014-07-09T15:23:31.567

Reputation: 13 508

In that they've done it and exists, isn't it apparently legal at this time? (To possibly be determined later by the courts?) – None – 2014-07-10T21:42:08.170



Yes, private police organizations can be legal.

There is actually no such thing as "the police". What there actually is, is a series of organizations given "police powers" within certain areas of responsibility. This Wikipedia page shows just how many different types there actually are: Federal police (including some entire departments like the TSA), State police, county sheriffs & police, and the most well-known: municipal police.

Police powers are informally defined as Order maintenance, Law Enforcement, and Service. Any given police organization will be focused on a different balance of these, but the key aspect is that they have the power, granted by the government, to enforce laws. (ref) Any group which has police powers, public or private, is a police force.

This report which was prepared for the Department of Justice in 1971 refers to all the above government-run police forces as "Public Police". The report continues on to define private security forces (who do not have police powers), and "Special Police" which are

a small fraction of the privately employed security personnel ... [who] are granted either full or limited public police powers by virtue of being deputized or commissioned by local police or state agencies. The police powers of these special forces generally may be exercised only while on duty at a specified geographic location, such as their employer's or client's property. (emphasis mine)

This link has some of the more recent legal issues involved with private police, and notes that

Some states, including Georgia and South Carolina, have deputized security guards with much of the same authority as regular police officers. Other states, such as Arizona, have expressly provided that security guards do not have the same authority as regular police officers.

To bring this back around to your question it is probably not legal for an existing government-run organization to decide to incorporate as a private company, but it is definitely legal (in some jurisdictions) for a private company to be designated as police force. This means they are not run by the government, not directly funded by the government (i.e. the company is paid a contracted amount, then runs itself from that, rather than salaries and such coming directly from the government), and probably do not have the off-duty powers that public police officers have.

As my opinion, and I am not a lawyer or even a well-versed layman, the private organizations are legitimately keeping their records private, but the government should have a clause in their contract with them which can compel the organization to reveal these documents, if not one for regular record hand-over. If it doesn't, that's a failure of good governance.


Posted 2014-07-09T15:23:31.567

Reputation: 21 023

It is unclear from your answer if the Mass. SWAT would qualify as a public or private police force. I know I didn't ask that directly, but that seems to be the heart of the issue. Can a SWAT team be a private organization to avoid freedom of information requests? – user1873 – 2014-07-09T22:30:05.243

SWAT is just a specialized police force. I would assume that the Massachusetts one is private, or there wouldn't be debate on this. Whether it's legal in Massachusetts to be a private police force would require research into their specific laws, and I wouldn't even know where to begin with that. – Bobson – 2014-07-10T12:33:58.760

1that's a failure of good governance. - there seems to be alot of that going around these days though. – SoylentGray – 2014-07-10T16:59:29.457

@Bobson More accurately, a SWAT team is a unit of a police force (or a group of officers from a variety of forces, for a multi-agency team) -- officers are not officers of the SWAT team, any more than they might be officers of a traffic division. – cpast – 2014-11-03T06:13:47.137

1Also, for private police: Railroads routinely have their own police forces, and a fair number of colleges have campus police who, while employed by the college, are sworn police officers. – cpast – 2014-11-03T06:16:42.373


There are a few separate issues wrapped up here:

1. Is it legal for a police organization to incorporate as a non-profit? The process of incorporation, which creates a corporate entity under state law, is not really objectionable in this situation. The barriers to incorporation in the US are nominal, amounting to little more than a small amount of paperwork and a filing fee. If Massachusetts state law allows it, then generally yes.

2. Is it allowable for a police organization to claim tax exemption? The claim for tax exemption is reasonable but without doing full-on research I'm not certain how well grounded. Off the top of my head, they could claim to "lessen the burdens of government" which is a clear charitable purpose for §501(c)(3) claims. There are a host of other charitable purposes they might claim they serve, including: "(i) lessen neighborhood tensions; (ii) to eliminate prejudice and discrimination; (iii) to defend human and civil rights secured by law; or (iv) to combat community deterioration and juvenile delinquency." They might also be appropriately tax exempt under §501(c)(4), typically a looser standard. I don't know the precedents on nominally private police agencies claiming to be §501(c)(3) exempt organizations, that's a new one by me.

3. Does a transparency regime or sunshine law apply to nominally private entities exercising some quasi-public functions? A sunshine law in the US is a state statute (except for FOIA, which is federal) and doesn't have to operate on national or constitutional principles. If the law has weak rules or slippery language, then that is a flaw but not one that necessarily provides recourse to the public at large. So if Massachusetts allows private foundations to run the police and doesn't provide for disclosure through its existing laws, then the general citizenry has no special right to claim them. This is a flaw in state law.

Note that §501(c)(3) organizations are generally required to make their Form 1023 application and their three most recent Form 990 annual returns available to the public for inspection. So for all of these agencies, they are required to disclose certain minimal things about their budget, employees, and operations. This will be less than the typical sunshine law would reach, where things like arrest reports, duty logs, public meetings, and policy documents might all be available to members of the public. You can typically start a search for this information on Guidestar.


Posted 2014-07-09T15:23:31.567

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