Gadfly rests: waiting official response to questions surrounding the marijuana arrest

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This post was written yesterday — Sunday, February 16 — and placed in the queue to be automatically published today at 10:00am.  Thus, it was written before Gadfly received the Lehigh Valley Ramblings post on this subject less than an hour ago and remains unchanged.

“The City Administration is well aware of the matter. It has been thoroughly reviewed internally. The matter is the subject of an ongoing non-criminal investigation. We caution you not to speculate as to the nature of the ongoing investigation. We caution you that it would be inappropriate to assume the truth of the allegations. We caution  you that it would be inappropriate to assume there is good cause for the allegations. The City Administration will have no further comment because the information and evidence are subject to confidentiality under Pennsylvania law. The Administration does not consider the matter appropriate to be reviewed  by the Public Safety Committee.”
Email to Gadfly from Mayor Donchez, February 11.

Gadflies are always outsiders. They can only try to make sense of what they can see. They are always cognizant of and respectful of their limited perspective. They are always open to other views, always ready to be slapped upside the head for wrong-headed thinking.

The Mayor says this serious matter has been “thoroughly reviewed internally” and is the subject of “an ongoing non-criminal investigation.”

Good.

We would guess that review asked the same questions, covered the same territory that Gadfly has here in the past several posts.

Gadfly wonders, however, if, given the nature of the issues and the people involved, whether an “internal” investigation is the only or best avenue for an objective look at what happened.

The dueling complaints again: considering the sources

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DiLuzio and Meixell to Greene 11 20 19
Englesson to Greene 11 29 19
Englesson to Donchez 12 20 19

We have been asking what we know and what we do not know as we attempt to evaluate this situation of dueling complaints about a serious matter of possible racial profiling by a police officer or what we might call abuse of power by a district judge.

Chief Dilusio’s complaint alleges that Judge Englesson accused one of his officers of being a racist. The Judge, in turn, cited the resistance of the arresting officer to the “constructive criticism” of his behavior during a traffic stop and the “spurious complaint” the Chief filed against him with the Northampton County Court.

We have talked about the search and the warrant. Let’s talk now about the complainants themselves.

The Chief:

  • The conversation between the Judge and the two officers was November 14, a Thursday. The statements by the two officers are dated November 15 — Friday. The Chief’s “complaint” letter to Northampton County is dated November 20 — the following Wednesday. The Chief had 3-4 working days to investigate the matter and to plan a course of action.
  • No evidence beyond the statements of the two police officers is presented in the November 20 letter.
  • The Chief’s defense of his officer and the record of his department is natural and honorable.
  • But one hopes that on some level the Chief at least minimally entertained the possibility that he may have one racially insensitive officer or an officer who was racially insensitive one time.
  • For instance, was there anything in the arresting officer’s past record that relates to racially insensitive behavior?
  • One wonders why, in the interest of fair and amicable conflict resolution, the Chief  lodged a complaint against the Judge with his superior rather than contacting the Judge first.
  • I guess you’d expect Gadfly, whose motto is “Good conversation builds community,” to feel that way!
  • Though the Chief had 3-4 working days to consider his response, that act of lodging a complaint without at least talking with the Judge seems intemperate. The Chief heard only one side of the November 14 conversation as far as we know.
  • Gadfly says “as far as we know” because he is confused by the Mayor’s email to him that he “should exercise caution in posting and thereby endorsing the truth of the allegations directed against the City by Judge Englesson, which prompted Chief Diluzio’s complaint to President Judge Koury [the head Northampton County judge].”
  • What allegation against the City did the Judge make that prompted the Chief’s November 20 letter?
  • There was a conversation, a private conversation, between the Judge and two City officers. Let’s suppose for the sake of argument that the Judge in front of a witness did undeniably allege the arresting officer was a racist. Would that be an allegation against the man or the city?
  • Gadfly sees no systemic charge against the police department or the City in the Judge’s private conversation that would explain the Chief making the first shot in this interchange and thereby, in effect, inevitably making the dispute ultimately public.
  • In fact, the momentum seems precisely the other way ’round — the Judge forced to respond to the Chief.
  • The Chief’s complaint against the Judge seems intemperate to me.

The Judge:

  • The Judge’s counter-complaint is rather exhaustive.
  • He explains that he made a conscious and calculated decision to have a private conversation with the officer to offer him constructive criticism about his job,
  • and to protect his constituents from maltreatment,
  • and to protect the City from Civil Rights lawsuits.
  • He explains his respect for police in general and for Bethlehem police in particular.
  • He explains his extensive background and law-enforcement-related experience.
  • He explains what he could have done if he wanted to accuse someone of racial profiling, and it wouldn’t be in private.
  • He explains how he understands that the officer might have felt intimidated by such an “uncomfortable conversation” with a judge.
  • The Judge’s vigorous response to the Chief’s complaint seems understandable and appropriate to me.

How are you seeing it? Gadfly has no desire to tell his followers how to think. The primary sources on which to base thinking are available to everybody. All courteously presented perspectives welcome.

to be continued . . .

Was cuffing on the basis of the warrant warranted?

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DiLuzio and Meixell to Greene 11 20 19
Englesson to Greene 11 29 19
Englesson to Donchez 12 20 19

Are you with me? Speak up if not, my good followers. The primary sources are always close by for reference. Good conversation on a serious matter is what we are after.

What do we know, and what do we not know as we attempt to evaluate this situation of dueling complaints about a serious matter regarding racial profiling by a police officer or what we might call abuse of power by a district judge?

We talked about the search. Let’s focus on the warrant now.

The warrant:

  • Were the name and date of birth of the driver, presumably from the driver’s license, the same as the name and date of birth on the warrant for a deported felon? That’s not clear. The verb that the Chief uses is “linked.” The driver’s name was “linked” to the warrant, he says. What does “linked” mean? Does that mean it was an exact match or a close match or a weak match or a possible match? It’s not clear. In any event, no mention is made of whether the date of birth is linked or matched with the warrant. The officer’s statement seems to indicate an exact match with the name: “his name also came back with a warrant as a deported felon.” Again, no mention of the date of birth.
  • To the contrary, the driver indicates (through the Judge recounting his conversation with the driver) that the name on the warrant was a “similar name” which occasioned a “conversation” between the officer and the driver “regarding this issue.”
  • We need to see the driver’s license and the warrant side by side for clarification.
  • In addition, the warrant indicated that the subject of the warrant had an identifying tattoo. The officer investigated. Under clothing. Did he need permission/consent to do that? In any event, the driver had no tattoo.
  • It would appear there is a situation here where there is doubt — the lack of a tattoo being strong doubt — that the driver was the subject of the warrant. But it is affirmed that department policy requires absolute confirmation, which probably means fingerprinting at headquarters. Is that true — given the circumstances, would it be department policy to bring the driver in? If it is, would it also be policy to put him in cuffs? Does that mean he was arrested? Was there indication that the man would run? Was he being treated guilty till proven innocent? Could he have been asked to come to headquarters of his own volition to clear matters up? (A naive question from the Gadfly?)
  • But maybe he was put in cuffs because of the marijuana violation. Gadfly doesn’t know. Needs to be clarified.
  • Another question here, though, brings us back to the importance of ascertaining when the search of the car occurred. The driver’s account (again, coming through the Judge) is that he’s unsure when the search occurred. If the search happened after the doubt about the applicability of the warrant, then we have a really troubling occurrence. What triggered the search, and when did it happen?
  • Uncertainty about the link or match between name and the date of birth on the felon warrant and driver’s license, no identifying tattoo on the driver per the warrant  — seems fair to say that the applicability of the warrant to the driver was problematic, and thus one wonders if cuffs, which would be an assumption of guilt or a demeaning lack of trust in the driver’s integrity, were necessary.

to be continued . . .

The search: what triggered the search, and when did it happen?

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DiLuzio and Meixell to Greene 11 20 19
Englesson to Greene 11 29 19
Englesson to Donchez 12 20 19

So let’s talk about this incident.

What do we know, and what do we not know as we attempt to evaluate this situation of dueling complaints about a serious matter regarding racial profiling by a police officer or what we might call abuse of power by a district judge?

We’ll take it in small chunks. Think along with the Gadfly. And let him know your thoughts as we go. As always, contrary opinion invited.

Witnesses:

  • We don’t know if there are any “corroborators.” The arresting officer seems to have been alone at the traffic stop (the officer who made the second statement seems to have only been at the conversation with the Judge). Both officers say that the Judge “raised his voice” during their conversation, which the Judge denies. We don’t know if any of the Judge’s staff could weigh in on this point of contention.

The search:

  • We need a clear time line of the traffic stop events. For instance, when did the information about the warrant arrive, before the search of the car or after? The stop was for a traffic violation, which, on the face of it, would not seem to trigger a search of the car. The officer would write a ticket, and the driver would be on his way. It might not even necessitate the driver getting out of the car, which happened here at some point. What triggered the search, and when did it happen?
  • The officer described the search as a “consent search.” What exactly does that mean? The Judge indicates that a reason is normally given for such a consent search. The officer did not give one on his Affidavit of Probable Cause. Should he have? What was the probable cause for the search? We don’t know. In any event, the driver (through his conversation with the Judge) says he was not asked for nor did he give consent.
  • If the search happened after knowledge of the warrant out for a deported felon, would consent to search the car be necessary? Would that warrant constitute probable cause to search the car? Again, the question is what triggered the search, and when did it happen?
  • The wording of the arrested officer’s statement suggests that the arrest for marijuana came before the knowledge of the warrant (“was arrested for possession . . . his name also came back for a warrant”). The statement of the second officer more clearly indicates the marijuana arrest came first: “the male was in custody because of a drug arrest. While in Custody a deported felon warrant came back to the male’s name.” The Chief’s letter also seems to indicate that the man was “in custody” (synonymous for formally arrested?) for the marijuana violation when the warrant info arrived. The timing needs to be clarified. But we are brought back yet again to what triggered the car search, and when did it happen?
  • It appears that the marijuana arrest came first, came before knowledge of the warrant, and thus the legality of the car search is of paramount importance.
  • And that legality seems problematic because of the uncertainty about the officer’s motivation and the driver’s consent.

The charge:

  • The marijuana is several times referred to as a “small amount.” We have a recent ordinance that permits the officer to treat possession of a small amount of marijuana as a summary offense along the order of a traffic violation. Why did the officer not choose that option? (Maybe he did — Gadfly is not clear on this point from the available documents.)

to be continued . . .

Dueling complaints over the marijuana arrest

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Fellow local blogger Bernie O’Hare of the longer-standing and no doubt much more widely read Lehigh Valley Ramblings and I do not cover the same beat and rarely are posting on the same subjects. But this time we have. Click here for Bernie’s post yesterday.

This is the fourth post on an issue between the Bethlehem Police, specifically Chief Mark DiLusio and an unnamed officer, and District Judge Nicholas Englesson over the handling of a traffic stop of an Hispanic male that resulted in a marijuana charge and a subsequent November 14, 2019, conversation about the stop between the Judge and the arresting officer.

In yesterday’s post Gadfly published a letter from the Judge to the Mayor dated December 20. Just shy of two months ago. Gadfly doesn’t know what, if anything, has transpired since. The Council and the Mayor met in Executive Session before the last City Council meeting on a “personnel matter.” Could the meeting have been about this issue? Don’t know. Personnel matters are legitimately private. We would all want that if we were involved in such an issue.

But Gadfly is surprised that, as far as he knows, there has been nothing about this issue in our local news. Nothing. Did Gadfly receive these documents he posted the last three days “over the transom,” as it were, because the local news had decided to not cover the issue? Don’t know.

Should we not be talking about this?

Race. Racial profiling. Racism. Discrimination.

Not trivial matters.

Should we not be talking about this?

Bethlehem’s Hispanic population numbers about 30%.

Not a trivial number, though numbers shouldn’t “count” in moral matters.

Should we not be talking about this?

We have dueling formal complaints. If we believe the Judge, we may have a racially insensitive police officer in a city with a substantial Hispanic population. If we believe the police officer, we may have — Gadfly begs your pardon — a chief executive abusing his power and office.

We need to be talking about this, don’t we? (But Gadfly is always ready to accept a slap upside the head.)

Go back to that email Gadfly got from the Mayor, posted Wednesday:

“The City Administration is well aware of the matter. It has been thoroughly reviewed internally. The matter is the subject of an ongoing non-criminal investigation. We caution you not to speculate as to the nature of the ongoing investigation. We caution you that it would be inappropriate to assume the truth of the allegations. We caution you that it would be inappropriate to assume there is good cause for the allegations. The City Administration will have no further comment because the information and evidence are subject to confidentiality under Pennsylvania law. ”

It feels like a paragraph fashioned by a lawyer. Could be wrong. It feels like a message to shut up. Could be wrong. Tripled cautions. It feels like a gag order. Could be wrong. Caution = warning. It feels like a signal of personal danger ahead. Could be wrong.

But we really need to talk about this, don’t we? Even as an abstract Criminal Justice course exercise of how to handle racially charged situations.

to be continued . . .

The Judge files a complaint with the Mayor against the Chief of Police and the arresting officer in the marijuana matter

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This is the third post on an issue between the Bethlehem Police and a District Judge over the handling of a traffic stop of an Hispanic male that resulted in a marijuana charge and a subsequent November 14, 2019, conversation about it between the Judge and the arresting officer.

On November 20, the Bethlehem Police Department “lodged a complaint” with the Northampton County Court alleging that during that conversation the Judge accused the arresting officer of being a racist.

On November 29, the Judge described the events that led him to make a conscious choice to have a conversation with the arresting officer, but he denied accusing the officer of being a racist.

There follows a period of about three weeks during which we have no knowledge of what further, if anything, happens in regard to this issue.

Then, on December 20, the Judge makes a “formal complaint” to Mayor Donchez against Chief DiLuzio and the arresting officer. The Judge asks the Mayor to put a copy of the following letter “in their personnel files.”

Englesson to Donchez 12 20 19

The Judge cited the resistance of the arresting officer to the “constructive criticism” of his behavior during the incident and the “spurious complaint” filed by the Chief.

The Judge puts the City “on notice that the behavior of this officer, and the chief of police, is in danger of exposing the city to civil unrest among the Latino population, lack of cooperation with the police in their efforts to investigate crimes and protect the community, and, potentially, a civil rights lawsuit.”

The Judge references “yet another incident in which an Hispanic individual claimed to be harassed by the police [he does not claim that it was the same officer],” complained to the Chief about it, and never heard back from the Chief.

Serious matter.

Have you been reading and reflecting?

Are you ready to trade some thoughts on what we know?