Transcript Document

Protective Orders and TCIC
Reporting:
The Big Picture
Kimberly A.F. Piechowiak
Protective Order Resource Attorney
Texas Office of Court Administration
[email protected]
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When I say
“domestic violence…”
This is what many people think
about…
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What Is NICS?
• National Instant Criminal Background Check System
• The Brady Act passed by Congress in 1993 provided for
the development of National Instant Criminal
Background Check System (NICS)
• NICS is a computerized system established to provide
information on whether a prospective gun purchaser is
eligible to receive or possess gun
• Searches criminal, mental health, protective order, and other
records
• FBI makes follow-up requests (if needed) to police,
prosecutors, or courts for additional information
demonstrating whether or not the person is prohibited from
buying a gun
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• April 16, 2007 – shooting at Virginia Tech
• 32 people killed, 17 wounded
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Importance of NICS:
• NICS Improvement Amendments Act: 2009
• Addressed gap in information available to NICS
about prohibiting mental health adjudications
and commitments and other prohibiting factors
• Passed after shootings at Virginia Tech in 2007
• The Virginia Tech shooter was able to purchase
firearms from a licensed seller because
information about his prohibiting mental health
history was not available to the NICS.
• Therefore, the system was unable to deny the
transfer of the firearms used in the shootings.
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WHAT?
Alphabet soup…
• TCIC—Texas Crime Information Center
• Via Texas Law Enforcement Telecommunications System(TLETS)
• Provides responses within 12 seconds
• Links to NCIC so that Texas law enforcement officers know instantly
about stolen property, wanted persons, and protective orders
anywhere in the country
• NCIC—National Crime Information Center
• III—Interstate Identification Index; federal criminal history
database
• NICS—National Instant Criminal Background Check System;
checks available records in NCIC, III, and the NICS Index to
determine if prospective transferees are disqualified from
receiving firearms
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Review:
Types
of
Protective Orders
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Types of Protective Orders
31-91 day
Magistrates Order
of Emergency
Protection
• TX CCP 17.292
20 day Temporary
Ex Parte
Protective Order
• TX Family Code Ch.
83
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Protective Orders
FV, DV, SA,
SK, TK
• TX Family Code Ch.
71, 81-82, 84-88,
CCP 7A and CCP
6.09
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Criminal- Arrest required
•Magistrate’s Order of Emergency
Protection (i.e. EPO)
•family violence, sexual assault, stalking
•Issued before abuser is released on bond
•31 to 91 days
•Mandatory if deadly weapon or serious
bodily injury
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Civil- No arrest required
• Temporary Ex Parte Protective Order
• Immediate relief from Judge based upon
application
• Up to 20 days
• Hearing is set
• Permanent Protective Order
• Abuser is notified to appear
• Hearing or agreement
• Usually 2 years but can be longer if
• Serious bodily injury
• 2 prior protective orders violated by abuse
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After the order is issued, what next?
• Order shall be sent to either:
• Chief of police (if victim resides in municipality)
OR
• Sheriff (if victim resides outside municipality)
• The Magistrate shall order police to make good
faith effort to notify victim
• The Clerk shall send copy to the victim.
• If order prohibits person from going to school or
child care facility, the Magistrate shall send a copy
to that school or child care facility
(CCP art. 17.292(h)(i))
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More notifications…
• DPS - Copy of the order must be sent to
Department of Public Safety only if the order
suspends concealed handgun license
• Defendant- CCP 17.292(j)
• As of May 15, 2013, a magistrate or the
magistrate’s designee, shall serve defendant in
person, or electronically
• Magistrate shall make a separate record of
service in written or electronic form.
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Q: Why do we care about POs and TCIC?
A: Protective orders that cannot be
verified will often not be enforced.
Safety
Accountability
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Safety
 Victims:
 Unprotected and suffer further abuse
 Copy
of PO may be taken/destroyed by abuser
 May not have yet received a copy from issuing court
 Law
enforcement officers
 Community
Accountability
 Violations
go unpunished
 Increases opportunity for offender to retain
and/or procure firearms
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But do protective orders provide safety?
Carsey Institute, University of New Hampshire, 2011
http://www.carseyinstitute.unh.edu/publications/IB-Logan-CivilProtective-Order.pdf
• For 50% of victims, the PO stopped the violence.
• For the other half, violence was significantly reduced.
• Weakness— enforcement, especially in rural areas
• Fewer resources
• Local politics
• Law enforcement difficulties in determining
predominant aggressor
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"No relationship goes from happy,
healthy, and functional to murdersuicide overnight. It never happens
that way. There's always a pattern
of abuse."
— Casey Gwinn, J.D., President of the
National Family Justice Center Alliance
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Ultimate Goal:
Domestic
Violence
Homicide
Prevention
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Domestic Violence
• “a pattern of behavior in any relationship
that is used to gain or maintain power and
control over an intimate partner.”
- National Domestic Violence Hotline
www.thehotline.org 1(800) 799-SAFE
• Includes actions or threats of actions that are
• Physical
• Sexual
• Emotional
• Economic
• Psychological
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Source: National Center for Domestic and Sexual Violence
www.ncdsv.org
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VERBAL/EMOTIONAL
HUMILIATION
YELLING
NAME-CALLING
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PHYSICAL
KILL
PUNCH
PUSH
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SEXUAL
FORCED
SEX
Unwanted
touching
Objectification
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LETHALITY: Top risk factors that
increase a DV victim’s risk of homicide:
PRIOR FAMILY VIOLENCE — 72% of
DV homicides
STALKING — 76% of female DV
homicide victims*
https://www.ncjrs.gov/pdffiles1/nij/grants/2
09731.pdf
* https://www.victimsofcrime.org/src
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Other important lethality factors…
THREATS
14.9x
JEALOUS
Y
9.2x
FORCED SEX
7.6x
Domestic
Violence
Homicides
WEAPON
20.2x
STRANGULATION
9.9x
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Domestic Violence: Texas Stats
• 32% of ALL Texans have experienced DV (2011)
• 38% of females
• 27% of males
• 119 women killed by intimate partners (2013), along with
17 bystanders
• 185,453 DV incidents (DPS, 2013)
• 97% of them were assaults
• “Simple” Assault: 74.3%
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Types of
Injuries
Bodily Injury –
Pain, cuts,
bruises, black
eyes...
Serious bodily injury – “creates a substantial risk of death, or
that causes death, serious permanent disfigurement, or
protracted loss of or impairment of the function of any bodily
member or organ”
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On the subject of injuries…
Remember…
Experienced batterers know how to
hit without leaving immediate OR
subsequent visible injuries
Striking in the “swimsuit” area
Striking in the scalp area
What looks minor at first can change
over the next few days
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What looks like this today …
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Can look
like this
tomorrow
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What starts out looking like a
minor grabbing today…
Might look like this tomorrow…
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Which is why…
“We must make misdemeanors
matter. We must realize that true
success is not prosecuting a
murderer, it is preventing the
murder.”
Source: Casey Gwinn, “Making Misdemeanors
Matter”, 3 Homefront (1998).
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Police notification
•Reported by victim 15.1%
•Reported by third party 8.0%
•Unreported 76.9%
•Among reasons for not reporting:
• Too minor 29.0%
• Embarrassment 6.1%
• Fear of reprisal 5.0%
• Police could not do anything 4.8%
• Would not be believed 2.7%
Source: The Reporting of Domestic Violence and Sexual Assault by
Nonstrangers to the Police (funded by the USDOJ)
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Justice System Barriers
Criminal
Few victims report.
Complicated statutes
do not reflect reality of
FV.
Fewer arrests.
Fewer reports sent to
prosecutors.
Fewer charges filed.
Fact finders do not
understand the
dynamics and do not
convict on cases
presented.
Civil
Victims do not trust system.
Victims fear disbelief.
Victims lack objective
evidence or do not present
well in court.
Protective orders denied or
batterers get custody or
unsupervised visits.
Victims respond in ways to
best protect themselves and
their children.
Victims lack legal protection
or are punished for not
following court orders.
Victims are not safe and offenders are not
held accountable
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Why do we care about POs and TCIC?
•
•
Federal funding may be reduced
NICS (National Instant Criminal Background
Check System) Act Record Improvement
Program (NARIP) requires states to report all
Brady disqualifiers (from purchasing or
receiving a firearm) to the federal criminal
databases.
• Those disqualifiers include:
• Felony convictions
• Misdemeanor convictions of domestic
violence
• Mental health commitments
• Protective orders
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Why do we care about POs and
TCIC?
Funding continued…
•If in compliance, the state may be eligible
to receive a waiver of the 10% match
requirement for certain federal grants.
•If not in compliance, the state’s Byrne
justice assistance grants, which fund
criminal justice projects at the state and
local levels, may be reduced. In 2013, the
Office of the Governor received over $21
million from Byrne grant funds.
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Why do we care about POs and
TCIC?
•Research
•Inaccurate information in state and
national databases
•Inability to identify areas of need
•Cannot properly allocate resources
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Texas OCA Protective Order Record
Improvement Project
Funding: DOJ Bureau of Justice Statistics
Purpose: Increase reporting of protective orders to NICS
by reviewing and analyzing the PO reporting process,
from the application/request stage to entry into TCIC.
• Meet with law enforcement, judicial, and court clerk
training organizations
• Conduct case studies in eight rural, suburban, and
urban jurisdictions
• Statewide survey
• Create NICS Protective Order Improvement Task
Force to develop recommendations
• Develop training to improve reporting rates
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How many participants in this
process?
•Information?
•Paperwork/documentation?
•Both?
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MOEPs
Victim
Court
Clerk
Officer
Judge
Police
Advocate?
Court
Clerk
Data entry
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District/County
Clerk?
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Protective Orders
Victim
Court Clerk
Officer?
Judge
Advocate?
District/County Clerk
Police/Sheriff
Court Clerk
Data entry
Attorney?
District/County
Clerk
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“Big Picture” Obstacles Identified:
• Texas’ decentralized court and law enforcement systems *
• 254 counties
• 458 District Courts
• 510 County-level Courts
• 817 Justice Courts
• 926 Municipal Courts with 1,288 judges
• 2,636 law enforcement agencies
• Incomplete or missing TCIC data entry sheets
• Unaware of other participants’ roles in the process
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Other common problems …
• Lack of regular communication
• Lack of standard forms and orders
• No confirmation procedure that the order was
received by law enforcement
• Lack of personnel to assist victim/petitioner with
application
• Insufficient police investigation, documentation,
and enforcement
• Typographical errors during data entry
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Law Enforcement:
Top challenges identified:
• Missing forms, incomplete data, or conflicting information
• Private attorneys sometimes fail to send order
• Confusion regarding out of state orders (validates? modifies?)
• Delayed receipt of POs from clerk’s office by mail
• Lack of timely notification when PO is extended/modified
• Who enters the order if cannot determine address of applicant
Top recommendations:
• Training on Brady indicator for data entry personnel
• Deadline for clerks to forward to entering agency
• Require new TCIC data sheet to be completed and forwarded
to entering agency upon renewal of protective order
• Require TCIC form accompany order at time of filing
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Big Picture Recommendations
• Mandatory, uniform forms
• Training of all participants
• Dynamics of family violence
• Types of protective orders
• Importance of information gathering
• Legislative changes
• Deadline for clerks to send order to law enforcement
• Shorten deadline for law enforcement to enter
• Mandate entry of MOEPs
• Clarify which agency should enter order if victim’s
current address is unknown
• Revise internal procedures to reduce number of
participants involved
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Big Picture Recommendations
• Use available forms
• TMCEC form book
• Magistrate’s Order (with definitions)
• Clerk’s Letter regarding Magistrate’s Order
• Motion to Modify the Magistrate’s Order
• Order Modifying Magistrate’s Order
• TCIC Data Entry form
• Find out the full process for your jurisdiction, not
just what it is in your agency.
• Talk to other participants/agencies involved in the
process.
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Remember:
Protective
Orders
…are a critical piece of the domestic violence
homicide prevention puzzle.
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Kimberly A.F. Piechowiak
Texas Office of Court Administration
Protective Order Resource Attorney
(512) 936-6390
[email protected]
http://www.txcourts.gov/dvrp/domesticviolence-resource-program.aspx
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Go SPURS Go!!!
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