See Something, Swat Someone

Robert Anzilotti is, as far as I can tell, a good man and an honorable cop. Not that I claim to know him that well: I’ve only met him three times in recent memory. Once was when I visited the Bergen County Prosecutor’s Office at the invitation of his boss, Gurbir Grewal. A second time was when he came to visit Felician University with that same boss. And a third time was when he interrogated me in the back room of the Lodi Police Station on suspicion of planning to engage in mass murder. That time, if memory serves, he locked me in a room and left me there for a couple of hours before he let me out, something that hadn’t happened to me since I was about eight years old.

I have no objections to anything he says in this tweet just below, but I do think that it’s time that #BCPONJ and others in law enforcement address the problem of false accusation based on unreasonable suspicion, a problem created in part by their over-zealous promotion of simpleminded slogans like “see something, say something.”

The entire “see something, say something” campaign is an engraved invitation to mass confabulation or worse. It asks people to make spot judgments of suspicion without giving them any indication of how such judgments are to be made, how they’re not to be made, and without demanding a sense of responsibility about making them. In criminal procedure, a reasonable suspicion stop requires an individualized, articulable suspicion that the person being stopped has committed or is committing a specific, identifiable offense. “See something, say something” requires no individualization, no articulation, and no offense, just a free-floating suspicion of “something” that could literally be anything, but that leads somehow to a 911 call.

And reasonable suspicion is itself a low bar. How much lower than reasonable suspicion can the bar be set before we descend into all-out paranoia? The contrary of reasonable suspicion is, after all, unreasonable or at least non-reasonable suspicion. Is law enforcement really educating stakeholders when it tells them reach for the phone on that basis? There’s an important distinction to be drawn between an active shooter and the conjurings of an over-active imagination, a distinction not captured or even broached by anything Anzilotti says in this video, or generally by the way law enforcement likes to talk about these things when it’s in “outreach” or “community policing” mode.

The issue, let me stress, is not narrowly racial, but broadly evidential. In other words, the problem is not simply that people have racial biases–though there’s no shortage of those–but that they have biases. They’re just wrong about a lot of things, up to and including where they just parked their car, where they put their keys, what the date is, what color shirt they wore yesterday, what happened in the accident they just saw, or what counts as genuinely suspicious behavior. It shouldn’t be all that controversial to demand that people making accusations grasp the stakes involved and try to get things right. But I guess it is controversial, because no one in law enforcement–at least no one I ever deal with–seems to want candidly to talk about it.* And judging by its Twitter feed, that includes #BCPONJ.

What stakes do I mean? You might think that I mean things like the inconvenience of being arrested on a false charge, or the reputational loss of being falsely accused of a crime. Or the loss of trust and sense of proportion engendered by paranoia and hysteria over low probability events. And of course, I do.

All that paramilitary hardware in #BCPONJ’s video is sitting around Bergen County and elsewhere begging to be used (sometimes sitting in rather improbable places, like the Lodi PD, and funded by rather unsavory sources, like asset forfeiture). It all looks really cool, kind of like a movie, when you watch it being rolled out in a video to dramatic music. It’s a little different when you’re the one in custody, facing a nonsensical or malicious accusation made by some hysterical or bigoted complainant who’s managed to get all of that machinery pointed at you, then managed to hide behind the veil of anonymity as a bunch of LEOs cajole you into discussing a charge no one has actually made.

Of course, false arrest is a downside, but a trivial one compared with the worst case scenario–swatting and killing innocent people from malice or mistake. If active shootings are themselves high-stakes, low probability events, why the concern with them but not with these?

I don’t claim to know how to handle active shooters, and I’m the last person in the world to minimize the dangers they present. Robert Anzilotti & Co. have a certain expertise in shooters that a mere philosophy professor can’t claim to have. But educators have a certain expertise in lying, delusional, and hysterical students and parents that cops can’t claim to have, and that school and college administrators, alas, often find it expedient to pretend not to have. Administrators aside, there’s a potentially useful division of labor here, at least if we make the effort to listen to each other. But we tend not to.

Just a reminder: the “public” to be “kept safe” includes people falsely accused of crimes they haven’t committed. We live in a country whose president won office by exploiting a widely believed set of false accusations, the 9/11 celebration rumors, and has kept it by exploiting that same malicious credulity for as long as he can. So false accusation is not some trivial or fringe subject that we can safely ignore. Maybe #BCPONJ should tweet on that some day. Just a thought.

*This is really a separate subject, but still relevant:  defendants in municipal courts regularly stipulate as to probable cause in cases where it’s highly disputable that reasonable suspicion, much less probable cause, ever existed; given the realities of plea bargaining, these stipulations conceal the fact that prosecutors rarely if ever demonstrate the existence of reasonable suspicion (or much else) in traffic cases, and often just get a free pass on demonstrating them when such cases go to trial. Meanwhile, defense attorneys are so entrenched in the plea system that they’ll swallow just about any stipulation, as long as it makes the client happy, however ephemerally or delusionally. And I’ve heard judges just say out loud that they’d prefer to avoid having to do trials–because what rational judge would ever want to try cases if he could just cut his caseload by pile-driving through an afternoon’s worth of pleas?

The unsurprising result is that a system undisciplined by a genuinely adversarial process gets away with whatever the most powerful party wants. Since the most powerful party is the State, and the municipal judiciary is only nominally distinct from the executive, at the municipal level at least (the level I know best) the entire system is rigged in favor of the prosecution. The moral of the story perhaps is that law enforcement doesn’t hold “stakeholders” to bona fide evidential standards because it doesn’t always practice those standards itself.

(Note: This is going to be my last post for awhile. I’m going to be taking a hiatus for a bit from the blog, leaving things in the capable hands of my co-bloggers. I only request that you stay out of trouble, all of you. Or I’ll arrest you and lock you in a small room.)

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