Monday, May 12, 2014

Dear District Attorney

Position Statement: Police officers have no obligation to ignore and disregard threats made by arrestees that are a prosecutable "influence" under  CRS 18-8-306 merely because of the defendant's emotional state.

One of the most common means by which arrestees attempt to change a police officer's mind about an arrest is to threaten to cause the officer to lose his or her job.

It is obvious that a police officer has a financial interest in keeping his or her career. It is also true that job protections for police officers are slender. A police officer has a pecuniary interest in his credibility and reputation, as evidenced by successful tort actions on grounds of slander. Internal investigations, regardless of their outcome, based on citizen complaints result in greater scrutiny, lower evaluation scores, reduced opportunity for promotion, and lower credibility in court testimony. Therefore, spurious and groundless complaints have a very real and deleterious effect on a police officer's career. It is to this interest, and to the greater sense of the community which the officer represents, that the prohibition defined in CRS 18-8-306 is made.

CRS 18-8-306 does not intend to prohibit the Constitutionally protected speech of criticism, mere rudeness, or emotion-laden personal insults. However, given the great value of a police officer's reputation and a police officer's responsibility to the public, there is a point at which the "thick skin" of an officer is no longer a defense to an arrestee's conduct. An officer's bruised ego from an arrestee's disrespect is no longer the issue when a defendant crosses the line to articulated threats that are severe enough, in the mind of the defendant, to be uttered with the expectation that a police officer would give thought to altering his or her enforcement decision in order to avoid the consequences of the outcome of the threat.

Members of the public, including members of the criminal justice system, often toss off police officer's complaints of ill treatment by saying that it is just part of the job. In a survey this author conducted, the results of which have been presented in several national forums, the lack of prosecution in cases where police officers are victims is a rampant weakness in the criminal justice system with serious effects on officer conduct, retention, and morale.

Anecdotally, police officers believe that conduct of offenders that would get them severely punished if the victim were a member of the prosecution staff or a member of the judiciary, are given little attention if the victim is a police officer. A fair rule of thumb then, might be whether a defendant's conduct would be regarded as criminal if directed toward a judge or prosecutor.

People v. Janousek, 871 P.2nd 1189 (1994) is a leading case on the statute. In Janousek, a judge received a letter from defendant Janousek that stated, in its relevant part: "You must pay up now or face a much pricier levy, as I'll tolerate your crap no longer. One way or another, I'll GUARANTEE that you pay. You could make it VERY expensive for yourself, if you insist. In fact you might give up everything, just as you would have me do, all for the perversion you cooked up in your mind. . . .We know you're a CROOK. You DAMNED BA*D! How many other innocents have you screwed: Bet you lost count years ago! Does a dork like you think he can get away with MURDER? You might just end up your own victim!. . . Of course, I'll make sure you pay for all of the torment you've caused. I wouldn't want you to do it again. . . .Next time you abuse someone, if there is a next time, consider that not everyone has the same tolerance for abuse. When you get around to [**4]  screwing someone it just may be his survival instinct to pummel you back. Shaming someone can cause violent results; just ask any psychiatrist. Pointblank, you must lie in the grave you dig. You should never pervert reality in order to drive someone crazy; they may end up sharing it with you in a way you never intended. Remember, everything you say can and will be used against you. Everything you do can and will be used against you. Better look over your shoulder. Look at all the damage you've done."

The challenge in the case was that the language of the statute was so overbroad that it impinged upon Constitutionally protected free speech. The final ruling was that "The forceful language of Janousek's letter goes beyond a mere expression of criticism and does not lie within the area of protected speech. Therefore, Janousek has no constitutionally protected right to make threats of violence to a public servant."

Testimony at trial from Judge Allen, the recipient of the the Janousek letter, included these statements: "It made me wonder whether it was worth the [**15]  continued aggravation to be looking for the remaining $ 55 fine. In analyzing it further, though, I realized that the integrity of the justice system means that you can't be bending to threats of this nature.
On a personal level, it made me do some serious, serious consideration as to whether I want to continue being a judge." Janousek maintains to "that his purpose in writing this letter was merely to criticize Judge Allen's ruling", but as to the defendant's intent, the court took note: "The tone and language of the letter evince a threatening manner. The language suggests conduct that is squarely within the statute's proscriptions and is not protected by the First Amendment."

The Janousek case:
A) examined the elements of the crime of attempting to influence a public servant as (1) an attempt to influence a public servant (2) by means of deceit or by threat of violence or economic reprisal (3) with the intent to alter or affect the public servant's decision [**14]  or action;
B) took into account the "tone" of the communication and:
C) accepted testimony of the subjective response of the threatened public servant, Judge Allen, in considering the offense.

I urge prosecutors to give due regard to the seriousness of an arrestee's threats to a police officer's employment and reputation, as well as to threats of violence or offers of  bribes toward officers, in charging defendants with violation of CRS 18-8-306 .

Dear Diary

The value of a  personal written debrief (PWD) is well established in research. PWDs reinforce positive learning opportunities, reduce stress, and can improve performance of physical and mental tasks. The key to these benefits is the way the brain receives, processes, and stores information. To be most effective, PWD requires 15-30 minutes of focus with minimal distractions. This usually means that doing PWD on duty is less than optimal, but possible.
The basic tools, other than time, are a notebook and good pen. Yes, PWD is writing stuff down. In education it's called reflection, in therapy it's called journaling, and to teenagers with a denim covered book inked with doodles and containing tear-stained secrets it's called a diary. I'm painting it Spec Ops camo and putting it in a black nylon tactical combat holster so cops won't worry that reflecting on their day is too "touchy-feely".
PWD works because it helps wire the brain by creating and establishing a memory file that will be used in future decision making. We know that bad experiences and traumatic experiences are imbedded more deeply than good experiences. The brain is much more invested in avoiding extinction than it is in making you feel happy.
What that means to you is that if you do something good or have a good experience, the brain notices it less than a bad or threatening experience.  A bad experience is more likely to be forever recorded (even if inaccurately) for use in future decision making. Think of the old management rule that it takes a bundle of positive affirmations to overcome one morale-killing criticism. PWD helps cement those positive attributes of your encounters and, most importantly, can help you correct any errors or less than stellar performance on a given call. If you've screwed up, using reflection to replay and repair the scenario in your head can help minimize hesitation or avoidance in the next encounter and create new habits and responses.
How does PWD change behavior? A study showed that performance of a group of non-piano players that practiced a piece on a keyboard, and a group that practiced only mentally by visualizing practicing on a keyboard, had similar performance outcomes! In other words, mental rehearsal has real value.  
Another reason that recalling and replaying an event is helpful for memory is that the act of writing uses the sense of touch, watching the words flow onto paper uses the sense of sight, and both ignite a replay of the event in your mind's eye. Multiple sensory engagement plus intentionality means increased retention. Asking yourself what you learned today might get the same response that your kids give when you ask that question at the end of the day: "nothin!". It takes intentional reflection to sift the value out of your day's experiences.
Another value of PWD is gaining emotional control over the events of the day. There are many days when the last thing you want to do is to think about your shift. You want to just relax and forget it. Perhaps on an awareness level you can do that, but there is often a part of your brain still churning things over and creating tension and anxiety at a sub-awareness level. Writing things out provides a way to process and contain those events, resolving them to some degree so that you can get them "off your mind" by getting them on the page.
Finally, because much of our routine daily activity is on autopilot, we assume that we're operating optimally if we have a normal day. The opportunity for self-improvement in our job performance, relationships, eating habits, fitness routines and other areas of life comes from a self-awareness that can only come from intentional reflection.
We like to talk about the warrior spirit and a survival mindset. On a shallow level, many interpret that kind of character as one in which we must ignore and deny our imperfections and pretend to be tough.  A more honest and mature definition is a confidence that comes from mental fitness and self-awareness. PWD is a great work out for top performers.  Just don't tell anybody you're keeping a diary. They will snoop.