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] OFFICE of COURT ADMINISTRATION 1 OFFICE of COURT ADMINISTRATION 2 OFFICE of COURT ADMINISTRATION OFFICE of COURT ADMINISTRATION OFFICE of COURT ADMINISTRATION When I say “domestic violence…” This is what many people think about… OFFICE of COURT ADMINISTRATION 6 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 OFFICE of COURT ADMINISTRATION 7 • April 16, 2007 – shooting at Virginia Tech • 32 people killed, 17 wounded OFFICE of COURT ADMINISTRATION 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. OFFICE of COURT ADMINISTRATION 9 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 OFFICE of COURT ADMINISTRATION 10 Review: Types of Protective Orders OFFICE of COURT ADMINISTRATION 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 OFFICE of COURT ADMINISTRATION Protective Orders FV, DV, SA, SK, TK • TX Family Code Ch. 71, 81-82, 84-88, CCP 7A and CCP 6.09 12 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 OFFICE of COURT ADMINISTRATION 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 OFFICE of COURT ADMINISTRATION 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)) OFFICE of COURT ADMINISTRATION 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. OFFICE of COURT ADMINISTRATION Q: Why do we care about POs and TCIC? A: Protective orders that cannot be verified will often not be enforced. Safety Accountability OFFICE of COURT ADMINISTRATION 17 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 OFFICE of COURT ADMINISTRATION 18 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 OFFICE of COURT ADMINISTRATION 19 "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 OFFICE of COURT ADMINISTRATION 20 Ultimate Goal: Domestic Violence Homicide Prevention OFFICE of COURT ADMINISTRATION 21 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 OFFICE of COURT ADMINISTRATION 22 Source: National Center for Domestic and Sexual Violence www.ncdsv.org OFFICE of COURT ADMINISTRATION 23 VERBAL/EMOTIONAL HUMILIATION YELLING NAME-CALLING OFFICE of COURT ADMINISTRATION 24 PHYSICAL KILL PUNCH PUSH OFFICE of COURT ADMINISTRATION 25 SEXUAL FORCED SEX Unwanted touching Objectification OFFICE of COURT ADMINISTRATION 26 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 OFFICE of COURT ADMINISTRATION 27 Other important lethality factors… THREATS 14.9x JEALOUS Y 9.2x FORCED SEX 7.6x Domestic Violence Homicides WEAPON 20.2x STRANGULATION 9.9x OFFICE of COURT ADMINISTRATION 28 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% OFFICE of COURT ADMINISTRATION 29 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” OFFICE of COURT ADMINISTRATION 30 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 OFFICE of COURT ADMINISTRATION 31 What looks like this today … OFFICE of COURT ADMINISTRATION 32 Can look like this tomorrow OFFICE of COURT ADMINISTRATION 33 What starts out looking like a minor grabbing today… Might look like this tomorrow… OFFICE of COURT ADMINISTRATION 34 OFFICE of COURT ADMINISTRATION 35 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). OFFICE of COURT ADMINISTRATION 36 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) OFFICE of COURT ADMINISTRATION 37 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 OFFICE of COURT ADMINISTRATION 38 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 OFFICE of COURT ADMINISTRATION 39 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. OFFICE of COURT ADMINISTRATION 40 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 OFFICE of COURT ADMINISTRATION 41 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 OFFICE of COURT ADMINISTRATION 42 OFFICE of COURT ADMINISTRATION 43 How many participants in this process? •Information? •Paperwork/documentation? •Both? OFFICE of COURT ADMINISTRATION 44 MOEPs Victim Court Clerk Officer Judge Police Advocate? Court Clerk Data entry OFFICE of COURT ADMINISTRATION District/County Clerk? 45 Protective Orders Victim Court Clerk Officer? Judge Advocate? District/County Clerk Police/Sheriff Court Clerk Data entry Attorney? District/County Clerk OFFICE of COURT ADMINISTRATION “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 OFFICE of COURT ADMINISTRATION 47 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 OFFICE of COURT ADMINISTRATION 48 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 OFFICE of COURT ADMINISTRATION 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 OFFICE of COURT ADMINISTRATION 50 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. OFFICE of COURT ADMINISTRATION Remember: Protective Orders …are a critical piece of the domestic violence homicide prevention puzzle. OFFICE of COURT ADMINISTRATION 52 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 OFFICE of COURT ADMINISTRATION 53 Go SPURS Go!!! OFFICE of COURT ADMINISTRATION 54 OFFICE of COURT ADMINISTRATION 55