Documenting a Police Detention (2): The Long and Short of It

All history was a palimpsest, scraped clean and reinscribed exactly as often as necessary. In no case would it have been possible, once the deed was done, to prove that any falsification had taken place. –George Orwell, 1984

As readers of this blog know, on November 29, 2017, I was detained and interrogated for several hours by members of the Lodi Police Department and Bergen County Prosecutors Office on suspicion of being an “active shooter.” Though I was not formally charged with a crime, my detention was arguably tantamount to a full arrest: I was involuntarily transported from the original place of detention to a nearby police station, involuntarily held there for a few hours, and involuntarily questioned, despite repeated invocations of my Fifth Amendment right to remain silent. Eventually, I was released without further incident.

A few weeks ago, I sent Open Public Records Act requests to both agencies for documentation of my detention. The Lodi Police Department responded to my request with a 21 page document. The Bergen County Prosecutors Office responded with a one page letter. Both sets of documents are instructive, both for what they say and for what they omit. 

Since I’m going to be critical here, let me start by saying some nice things. For one thing, I’m grateful to live in a country that has a branch of law called “constitutional criminal procedure”; not all countries do. Though the procedures weren’t quite followed in my case, they weren’t violated as egregiously as they might have been. Arguably, we have the Constitution to thank for that: the Fourth Amendment constrained the police in one respect, the Fifth Amendment in another. Without such protections, I might as well have been a Palestinian living under Israeli rule. Luckily, I’m not.

Second, I’m grateful that the State of New Jersey has an Open Public Records Act. There’s something great about a law that demands transparency and accountability in law enforcement, even if, in some cases, it reveals a transparent desire to deceive the public in the name of law enforcement.

Third, despite my criticisms, I bear no animosity for anyone in law enforcement–including members of the Lodi Police Department (LPD), and Bergen County Prosecutors Office (BCPO). Contrary to popular belief, I am not “anti-cop.” I acknowledge that an anonymous tip of a threat to the public has to be investigated before it can safely be dismissed. And so, I fully acknowledge that in detaining me, the LPD and BCPO were only doing their jobs. I don’t even bear any animosity for the officers who loudly took the flyers on my office door to indicate an “anti-cop” stance of some kind. What I’d suggest is that they read the flyers more carefully: there’s no anti-cop stance there to be found.

My notorious office door, Felician University

I make no apologies, of course, for having taken the Fifth during my detention, inconvenient as that might have been for law enforcement. I’d like to think that the officers of the LPD and BCPO would themselves be able to admit that a person falsely accused of having threatening to commit mass murder against his students and colleagues is obliged to adopt a frankly adversarial relationship to his accusers. The more absurd-but-serious the accusation, the more obvious the need for the adoption of an adversarial posture: if someone gives credence to the accusation that you have the intention of killing dozens of people–an accusation based on a transparently half-assed understanding of things you’ve reportedly said–they’re not going to stop giving credence to that accusation simply because you deny the charge, however forthrightly.

If you deny a charge, you’re obliged to explain yourself. But if there’s nothing to explain, there’s nothing to say. And if there’s nothing to say, it makes no sense to start talking about it. Paradoxical as this may seem to some, you give more credence to an unwarranted charge by talking about it than by remaining silent. The attempt to deny an unwarranted charge easily comes off as an attempt to rationalize or evade something real. A resolution to remain silent may be frustrating to officers trying to figure things out–it’s also frustrating for the suspect, BTW–but it happens to be the only way to convince them, beyond a reasonable doubt, that their suspicions are groundless.

So it makes no sense to lecture such a person–as I was lectured throughout my detention–on the supposed “irrationality” of taking the Fifth under the circumstances. It makes even less sense if you refuse to make the charge by way of anything but insinuations, then expect full cooperation from the suspect from whom you’ve deliberately concealed your intentions. “Cooperate with us, no matter how cagey we’re being with you,” is not a maxim designed to elicit cooperation, not to mention the double entendre involved.

In other words, while law enforcement was undoubtedly doing its job in investigating the accusation, I was undoubtedly doing mine as a citizen-defendant: it was my job to “force” law enforcement to go back to my accuser, get their story straight about the veracity or plausibility of the accusation, and reach the inevitable conclusion that they’d been barking up the wrong tree by detaining me. Ultimately, the only way for the tree to convince the dog of this conclusion is to sit there, as trees tend to do, hoping that the dog will realize the error of his ways, as dogs eventually do. And so we’re led at last to a happy conclusion, each part of the system doing his job just as intended. Behold the majesty of the law.

Anyway, here, without further ado, is the documentation of my detention from the Lodi Police Department in the form of a 21 page PDF.  Certain bits of identifying information were redacted in the original version of the document to protect the privacy of some of the parties involved. I’ve redacted the document a bit more, for reasons explained below.

Some observations on the report:

The report is written from the perspective of an officer who was called to the Felician University campus in order to investigate an anonymous tip concerning the threat of a mass shooting by one Irfan Khawaja. The officer reports the entire incident as it unfolded on campus, from the original call to the interrogation of students on campus, but pointedly omitting the attempted interrogation of Khawaja himself. For most of the duration of the narrative, the suspect, Khawaja, was being held at the police station. Mention is made of Khawaja’s abortive interrogation on campus, but no mention is made of Khawaja after he was taken from campus, except for the assertion that he was eventually released from the police station, and driven back to campus.  The lesson here would appear to be that what happens in Lodi Police Station stays in Lodi Police Station. In any case, don’t expect it to show up in an incident report written by a Lodi police officer.

More to the point, the report is written so as to disguise the violations of procedure that took place in the police station, and to blur the distinction between the detention’s being a mere detention and a full arrest. No one reading this material would know that I had invoked a Fifth Amendment right that was repeatedly ignored while attempts were made to interrogate me at the police station.  Detectives Anzilotti and Guzman, the protagonists of my version of the story, are nowhere mentioned in the LPD documentation, and Chief Quatrone is mentioned just once, in passing, as having been advised of the incident (p. 14).* As far as the documentation is concerned, none of the three had anything to do with the case, despite the fact that Quatrone was in charge of the detention, Anzilotti was in charge of the interrogation, and Guzman said some incredibly silly things along the way.

Thus, despite the repetitiveness and length of the document, its narrative is radically incomplete, leaving even a mildly inquisitive reader with an unresolved sense of mystery regarding the facts of Case 2017-026215. Having been accused of “threats,” on what conceivable basis was the suspect ever released? What happened to him while he was detained? What did he say or not say that tended to exculpate or incriminate him? Was he ever in any sense a threat? If so, is there any sense in which he remains one? A reader could be forgiven for regarding the suspect was the least important part of the “incident” reported here.

Despite Chief Quatrone’s having loudly lectured me about the specifically legal basis for my being brought to the police station–“I know the law because I teach it!”–the report adduces no legal basis for having detained me. I don’t mean to imply that incident reports typically do adduce a legal basis for police actions; my point is simply that none is in fact adduced. In other words, if you were expecting legalities from law enforcement, you’re looking in the wrong place.

Given the preceding, the report is equally vague about those aspects of my detention that would tend to raise legal red flags regarding the LPD’s adherence to procedure. Was Khawaja merely detained, or was he arrested? The question is neither asked nor answered; indeed, given the material presented in the report, there is no clear way of getting a clear answer. The report makes no effort to distinguish between between voluntary and involuntary action on my part, or between requests and orders on the part of the police and detectives. Involuntary actions are described as though they were voluntary. Orders are described as though they were requests. Unequivocal orders are simply omitted.

Reading the report, you’d get the (false) impression that I had consented to just about every part of the investigation/detention/interrogation, when in fact I either refused cooperation or acted involuntarily under orders I regarded myself as legally obligated to obey. Moral of the story: not only should the reader not expect a legal justification from an incident report as to why a detained suspect was held, he should expect no account of such legal niceties as “arrest” versus “detention,” or “consenting” versus “involuntary” action. Such distinctions are not part of the ontology of a police report.

I don’t mean to be snarky in noting this, but though the law requires redactions to protect the privacy of those involved, the redactions made in this report are both incomplete and clumsy to the point of being frankly embarrassing. The original version of the report gave out the make, model, and color of my car as well as its Vehicle Identification Number. I’ve redacted that information in the version reproduced here. The report also identified the complainant as a female in my 11:25 M/W class, and incompletely redacted the name of one of the students questioned as “A. Wilson.” The first doesn’t quite identify the person in question, but the second does. I find that legally questionable under the terms of NJSA 47: 1A-6. Again, I don’t mean to be snarky, but the report is often ungrammatical and ill-written to the point of interfering with the author’s intended meaning. And it contains some factual mistakes. Just saying.

I hope that the preceding serves to demystify the genre known as the “Police Incident Report.” Those unfamiliar with such reports seem to put great credence in them, as though the fact that something finds its way into a “police report” entailed that it was authoritatively true simply by being there. Not really. An incident report is a very partial, incomplete, fragmentary summary, in very bad prose, of one cop’s account of what he thinks happened at a “call for service”–and “partial” in both senses of the term. It’s not a legal brief. It’s not a synoptic, comprehensive, or authoritative narrative of events. It doesn’t claim to be fair. It doesn’t claim to be complete. And it certainly can’t claim to be readable. If journalism is the first draft of history, an incident report is a first draft toward a partisan quasi-journalistic accounting of a legally significant incident. Overarching lesson: don’t expect too much of one.

There’s a separate lesson here about the relationship between police work and classroom education. I’ve encountered both cops and intellectuals who claim that there’s no important connection between police work and what’s taught in a classroom: police work, I often hear, is about “street smarts,” not “book smarts.” A college degree, I’ve sometimes been told, adds nothing to the skill-set of a competent patrol officer. I mean, does a cop really need to read Shakespeare in order to enforce the law?

Maybe not, but I’d like to think that cops can read and write in their native language at a higher level than the writing exhibited in this police report. Granted, a police report is neither a love sonnet nor an epic poem, and need not be written for sensibilities attuned to the reading of Wordsworth or Proust. But a police report should, like all government documents, be written in serviceable English of a kind that would at least get you a “B” in  English 101. As prose, the Lodi PD report operates pretty consistently at the C- level.

It’s worth remembering that law enforcement is about law, and that the enforcement of the law requires semantic precision–which, in turn, requires a certain degree of precision in one’s thinking and writing. You can’t enforce the law if you can’t read it with full comprehension, apply it accurately to cases, or write about it with an above-average degree of precision. Readers can judge how much of that is happening here. They may also want to ponder whether what is taught about writing in the Police Academy really suffices to meet the needs of “the real world.”

That said, at least something is happening within the Lodi PD’s incident report, which is more than can be said of “the documentation” sent by the Bergen County Prosecutors Office. Here it is, in its one page glory.. The relevant sentence reads: “This office possesses no records responsive to your request.”

Disappointing, no? After having

  • seriously suspected me of threatening mass murder,
  • detained and interrogated me,
  • repeatedly ignored my invocation of my Fifth Amendment rights,
  • asked me to sign consent forms to search my car and premises,
  • demanded the surrender of my personal possessions,
  • locked me involuntarily in an interrogation room, and–ridiculously enough…
  • hobnobbed with me a week later at a Felician University event,

the Bergen County Prosecutors Office has no written recollection of having dealt with me at all. And this despite the LPD’s explicit reference to the role of the BCPO in Case #2017-026215. As far as BCPO is concerned, nothing was documented, so nothing ever happened. This is to take “What happens in the police station stays in the police station” to a problematic extreme.

I don’t precisely know what semantic games BCPO is playing here. Maybe they really didn’t create any records of my detention, or maybe they have records of the detention, but none “responsive” (on their conception of “responsive”) to the exact wording of my request, on some tricky hair-splitting construal of the wording of my request.

I’ve had enough dealings with cops, lawyers, judges, and professors of law to know that whatever their professed devotion to “justice,” they’re not above playing such pointless and unworthy games if they can get away with it. I merely note that, whatever the legalities involved, there is something unworthy and deceptive about this “response.” It’s patently obvious what I’m requesting of the BCPO in the way of documentation. It’s also patently obvious that there ought to be some documentation in their files of an hours-long detention and interrogation. And it’s obvious that the law entitles me to a look at that documentation. So there is a distinct WTF quality to this letter.

But I doubt that the cops and lawyers who populate BCPO would have any sympathy for the WTFs they induce in ordinary people like me. What sounds like common sense to ordinary people lacks application here. The only “common sense” in an interrogation room is the desire to pin something on the suspect, and to justify the time and expense spent in dealing with him. That’s why, when push comes to shove, a cop or prosecutor will demand, in the name of common sense, that you waive your legal rights, while insisting in the next breath that your common sense objections to what they’re doing lack authority in the black-letter text of the law. You can’t expect them to be nice, to be fair, or to apply the Golden Rule. In other words, the rule by which they operate is: give us the benefit of the doubt, but don’t expect it in return.

There are, I know, people who have trouble believing that law enforcement would play petty games of this kind with something as important as the documentation of a criminal case–a matter the Lodi Chief of Police described to me as one of utmost gravity, and that the BCPO Chief of Detectives wanted to resolve “like gentlemen” in a break room in the back of the police station. But it doesn’t pay to be naive about such things. Believe it not, cops will go so far as to lie about official matters: I wouldn’t make something like that up. The lesson here is that the procedures to adopt with cops in circumstances of this nature are identical to the procedures you’d adopt when dealing with a con artist. The difference is that con artistry is illegal–except when employed by a cop in the effectuation of his official duties.

I hesitated a bit in quoting Orwell at the top of this post. It sounds melodramatic, I know. Ultimately, my detention was an inconsequential matter. I was accused and suspected, but wasn’t charged. I was questioned against my will, but wasn’t physically mistreated. I was held involuntarily, but not for very long. And once released, the only further contact I had with law enforcement was the contact I myself solicited. It may seem disproportionate or even ungracious to make such a big deal about such a routine case, and one with so anti-climactic an ending. And perhaps, in the light of the Parkland shooting, it shows an inversion of moral priorities on my part to fixate so critically on a false accusation that was over-investigated when the alternative, as we’ve seen, is so much worse–the true accusation that is insufficiently investigated.

Perhaps. But it’s disquieting to think that my case is the routine case. If it is, its routine nature should prompt some questions, some but not all of them aimed at law enforcement: Should we accept as routine a situation in which unstable people with obvious axes to grind bring life to a halt by making wild accusations–accusations so wild and embarrassing that law enforcement feels the need to fudge its reporting, for fear of exposing its violations of procedure to public scrutiny, or just plain looking silly? Could it be that we’ve so overburdened law enforcement with our hysteria–our insatiable appetite for draconian responses to non-existent danger–that they’ve caught our virus, and feel the need to bend or break the principles of criminal procedure to satisfy consumer demand? Could it be that the two sorts of case–over-investigation and under-investigation–are somehow connected to each other, and explainable by a common cause? If my case is the norm, how frequently do deviations from the norm take place, and how would we know? Probably not by reading incident reports.

The essential feature of an Orwellian regime is not so much that such a regime has totalitarian powers, and has whittled its citizens rights down to the vanishing point. The essential feature of such a regime is its attitude toward the past. Does it regard past events as really having taken place, and put a premium on recording them in an accurate way? Or does it treat the past as  a child would treat a toy, to be played with and dropped at whim–or worse still, to be actively molded at whim for purposes that supersede the requirements of accuracy? If you live in a legal system dedicated to the latter proposition, you live in a somewhat Orwellian society. And in this respect, I’m inclined to think we do.

It doesn’t change things–in some ways, it makes things worse–that those who enforce our laws are Orwellian about trivial matters. Those who are Orwellian about trivial things find it easy to be Orwellian about greater things–if they can get away with it. The essential feature of a non-Orwellian regime is the freedom to act on the imperative to call out Orwellianism. The widespread failure to act on that freedom marks the slide into a fully Orwellian society. A ubiquitous failure means that you’re there. Right now, we stand between the two, with no guarantees as to our final destination. Nothing prevents a descent into all-out Orwellianism. But us.

*Correction: In the original version of this post, I had incorrectly stated that Quatrone was not mentioned at all. Apparently, Quatrone retired from the Lodi Police Department in late February.

3 thoughts on “Documenting a Police Detention (2): The Long and Short of It

  1. Three cases that put police detentions, interrogations, and documentation in interesting perspective.

    (1) An article on Noor Salman’s acquittal for aiding/abetting a terrorist act.

    Relevant passage:

    In her supposed confession, Ms. Salman told F.B.I. agents that she and Mr. Mateen had scouted Pulse as a target for the June 12, 2016, attack, yet investigators apparently knew just days later that there was no evidence to corroborate that. That false statement in her confession called into question the rest of what she told law enforcement over more than 11 hours of questioning without a lawyer present. The F.B.I. made no audio or video recordings of the interview. The jury foreman told The Sentinel that he wished a recording had been available.

    Every sentence in that passage is worth savoring. Moral of the story: do not spend 11 hours talking to the police about a criminal charge without a lawyer present. In fact, do not spend 1 second doing it.

    (2) An article that explains why that sought-for police documentation might be missing:

    On Thursday, New York State’s highest court told the New York Police Department that it was free to use the phrase [“can neither confirm nor deny”] in response to inquiries from citizens who want access to their police files to learn if they have been the subject of surveillance.

    The ruling, by the state Court of Appeals, carves out a new exemption in the state’s Freedom of Information Law, which has been understood to require local agencies to at least acknowledge the existence of records, even if they were not required to release them.

    But the ruling for the first time allows the New York Police Department to avoid even answering whether such files exist, said Christopher T. Dunn, a New York Civil Liberties Union lawyer who filed a brief in the case. “That’s the ultimate act of secrecy,” Mr. Dunn said.

    I guess I’ll soon find out whether the same thing applies in New Jersey to documentation of a detention for making terrorist threats.

    (3) And a vivid account of an arrest/detention gone wrong.

    I can neither confirm nor deny the truth of Finkelstein’s description. I can only confirm that if there’s any truth in it, things are pretty fucked up in Nassau County.


  2. Pingback: Nightcap | Notes On Liberty

  3. Pingback: Footnotes on Today’s Lecture | Khawaja's Phil 250 Blog

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