CDCAT Fall Conference 2018 no Videos - county...the killing of multiple family members), and •attacks in a public place OFFICE ofCOURT ADMINISTRATION Domestic Violence and Mass Shootings

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OFFICE of COURT ADMINISTRATION

2018 CDCAT Fall Conference

Kimberly PiechowiakDomestic Violence Training Attorney

Office of Court Administration

A Matter of Life and Death: Protective Orders and

Misdemeanor Crimes of Domestic Violence

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Agenda Dynamics and Prevalence

Misdemeanor Crimes ofDomestic Violence

P.O Reporting(review)

Link between DV and Mass Shootings

Types of Protective Orders


Dynamicsand

Prevalence

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RELATIONSHIPSFC §§ 71.002,

71.0021

Bloodor marriage

child in common

Current/former dating partners

(including rivals)

Share(d)household

Domestic ViolenceSpouses

(current/former)


Others impacted:• 24 family members and friends killed• 4 family members and friends injured• 183 children lost a parent

HONORING TEXAS VICTIMS 2016146 women were killed by

a male intimate partner in 55 Texas counties.


“Why doesn’t she just leave?”

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1 in 4 women (24.3%) and 1 in 7 men (13.8%) aged 18 and older in the United States have been the victim of severe physical violence by an intimate partner in their lifetime.

National Domestic Violence Hotlinehttps://www.thehotline.org/resources/statistics/


Texas 2016 Family Violence Crimes

YEAR 2016 2015 % Change

Incidents 196,564 194,872 0.9%

Victims 214,815 214,815 1.7%

Offenders 208,764 205,154 1.8%


Casey Gwinn, J.D., President,National Family Justice Center Alliance

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"No relationship goes from happy, healthy, and functional to murder-suicide overnight. It never happens that way. There's always a patternof abuse."

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Pattern“Consistent and recurring characteristic or trait that helps in the identification of a phenomenon or problem, and serves as an indicator or model for predicting its future behavior.”

http://www.businessdictionary.com/definition/pattern.html



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Physical

PUSH

PUNCH

KILL

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Top Lethality Risk FactorsPrior Family Violence

72% of domestic violence homicides

Stalking 76% of female domestic violence homicide victims

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Other important lethality factors…

DomesticViolence

Homicides

THREATS14.9x

WEAPON20.2x

STRANGULATION9.9x

FORCED SEX7.6x

JEALOUSY9.2x

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Loss of consciousness can occur within 5-10 seconds. Death within minutes.

Only half of victims have visible injuries. Of these, only 15% could be photographed.

A word about strangulation…


Tools You Can Use•Lethality/Danger Assessmentshttps://www.dangerassessment.org/

•StrangulationThe Training Institute on Strangulation Preventionhttps://www.strangulationtraininginstitute.com/ https://www.strangulationtraininginstitute.com/resources/library/strangulation-information-graphic/


Link between DV and Mass Shootings

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“Mass Shooting” Definition:•Federal agencies collect data on “active shooters,” i.e., “one or more individuals actively engaged in killing or attempting to kill people in a populated area.”

•Another common definition (Congressional Research Service): • gunman•kills four or more people•selects victims randomly (ruling out gang killings or the killing of multiple family members), and

•attacks in a public place


Domestic Violence and Mass ShootingsUniversity of Texas Tower in Austin, Texas (Aug. 1, 1966)

Charles Whitman, a 25-year-old former Marine, murdered his mother and his wife before climbing the University of Texas Tower, ultimately killing 14 people and wounded 31 from the tower. He was killed by police.

http://www.npr.org/sections/thetwo-way/2016/06/12/481768384/a-list-of-the-deadliest-mass-shootings-in-u-s-history


Michigan‐(3/2/18) Central Michigan University student suspected of slaying parents

Italy, TX – (1/22/18) juvenile shot female high school student after recent break‐up

James Hodgkinson, opened fire on a congressional baseball practice in June, 2017 had been arrested in 2006 after hitting and choking his foster daughter.

Omar Mateen, who killed 49 people in the Pulse nightclub massacre in Orlando in 2016, had abused his ex‐wife.

Robert Dear, who killed three people and wounded nine others when he opened fire on a Planned Parenthood clinic in Colorado in 2015, had been accused of domestic violence by two of his ex‐wives.

Spencer James Hight‐(9/10/17), shot and killed his estranged wife along with 7 other people during a football viewing party in Plano, Texas.

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Domestic Violence and Mass Shootings• January, 2009 – July, 2015:

133 mass shooting identifiable through FBI data and media reports.

• 76 cases (57%): The perpetrator shot a current or former spouse or intimate partner or other family member.

• 21 cases (16%): The shooter had a prior domestic violence charge.

https://everytownresearch.org/documents/2015/09/analysis-mass-shootings.pdf


Types of Protective Orders


Protective Order (PO)

Temporary Restraining Order (TRO)

Remember…

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Protective Order

Intent: Protect PEOPLEEnforcement: Criminal (arrest) and Civil (contempt)Type of Filing: Separate suit or as part of a family petitionWho Files: Member of family/ household/dating relationship, DFPS, attorney, pro se partyDuration: VariesCosts: No filing fees

Temporary RestrainingOrder

Intent: Protect PROPERTYEnforcement: Civil (contempt)Type of Filing: As part of a family petitionWho Files: Party to a family petition, attorney, pro se partyDuration: 14 daysCosts: Filing fees


Types of Protective Orders in Texas

Magistrate’s Orders for Emergency Protection

Tex. Code Crim. Pro. Art. 17.292

Temporary Ex Parte

Protective Orders

Tex. Fam. Code § 83

Final Protective Orders

Tex. Fam. Code §§ 71, 81-82, 84-88 Tex. Code Crim. Pro. Art. 6.09, 7A


Magistrate’s Order of Emergency Protection

For Suspect Cooling off period

For Victim Zone of safety

For Police Opportunity to protect

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Magistrate’s Order for Emergency Protection

• Most common type of protective order issued in Texas• Only available after an arrest for:

oFamily violenceoSexual assault (and some related offenses)oStalkingoTrafficking

• Mandatory only in FV offenses involving serious injury or deadly weapon

• Tied to places, not people• Relatively quick and easy process• Short duration: 31 to 91 days

Tex. Code Crim. Proc. Art. 17.292


Who Can Request an EPO?

An EPO can be requested by:• the victim of the criminal offense;• a guardian of the victim;• an attorney representing the state;• a peace officer; or• the court.

Tex. Code Crim. Proc. Art. 17.292(a)


How Can an EPO Help Survivors?

An EPO may prohibit an offender from:• Committing family violence, sexual

assault, stalking or stalking;• Threats and harassment;• Coming within a specific distance of

certain locations;• Possessing a firearm;• Communication in any manner with

victim(s) except through attorney or court appointed person if good cause is shown.

Tex. Code Crim. Proc. Art. 17.292(c)

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Confidential AddressMagistrate required to “specifically describe the prohibited locations and minimum distances.”UNLESS magistrate finds address should be omitted “for the safety of the person or persons protected by the order.”Prosecutor has to prove offender knew this was a prohibited location.

Evidence of offender leaving a note, yelling her name, hanging around for no reason, etc.

Tex. Code Crim. Pro. Art. 17.292(e)


Conflicting Orders There are times when an EPO conflicts with a pre-existing custody order. In these cases:•The LAST order issued controls (TEXPO exception).

•Does not stop visitation exchanges; exchanges just cannot be made at protected addresses.

Tex. Code of Crim. Pro. Art. 17.292(f)(2)


Temporary Ex Parte Protective Order

(TEXPO)

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Temporary Ex Parte Protective Order•Can be obtained without notice to offender•Add: notice requirement after issuance•Requires finding of CLEAR AND PRESENT DANGER of family violence, sexual assault, abuse, stalking, or trafficking

•Valid for 20 days & it may be extended •hearing no later than the 14th day* after the date the application is filed.

•Both civilly and criminally enforceableTex. Fam. Code § 83; Tex. Code Crim. Proc. Art. 7A.02


TEXPO “Kick Out” Order•Temporary Ex Parte Order can require offender to vacate the home.

•Application must include an affidavit that shows:

1. Applicant resided at the residence during the last 30 days,

2. Offender committed family violence in the last 30 days, AND

3. Clear and present danger.

Tex. Fam. Code § 83.006; Tex. Code Crim. Proc. Art. 7A.02


FINAL PROTECTIVE

ORDERS

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Available for:

•Sexual Assault/Abuse•Trafficking•Stalking•Family Violence



What Can a Protective Order Do?

• Prohibit offender from committing certain acts• Require offender to perform certain acts• Any provisions that “the court determines are necessary or appropriate to prevent or reduce the likelihood” of family violence or future harm

• Both civilly and criminally enforceable



Criminally Enforceable Provisions

• Prohibit family violence/future harm • Prohibit threatening and harassing communication• Prohibit all communication, with “good cause”• Prohibit conduct likely to harass, annoy, alarm,

abuse, torment, or embarrass• Stay away from applicant and other protected parties• Stay away from residence and other addresses• Protect pets• Prohibit possession of firearms or ammunition,

unless the person is a peace officer


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Civilly Enforceable Provisions

Prohibit removing child from possessionAllow visitation with childrenProhibit transfer of propertyGrant exclusive possession of propertyRequire payment of child/spousal supportRequire attendance at batterer’s programSuspend license to carry a weapon

Tex. Fam. Code §§ 85.022, 85,026


Enforcing Protective Orders

• Civil enforcement: contempt • Criminal enforcement:

oGenerally a misdemeanor oHigher penalties for multiple violations or convictions

oCharges for violation and underlying assault• Conflicting orders: the most recent order prevails



Protective Order DifferencesFamily Violence PO

• Family/household/dating relationship• Requirement of likely future harm• Higher burden for lifetime PO

• Act constituting a felony, even if not charged

• Serious bodily injury• 2 or more previous POs

• Longer extension for confinement• 1 yr if confinement > 5 ears• 2 yrs if confinement < 5 years

• Outcry statement – child under 12

PO for Sexual Assault, Stalking or Trafficking

• No relationship requirement• No “likely to occur in future”

requirement*• Lifetime PO easier to obtain• 1 year extension regardless of

confinement of Respondent• Outcry statement – child under

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Tex. Code Crim. Proc. §§ 7A.051, 7A.052

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Full Faith And Credit

•POs from Texas are enforceable in other states

•POs issued in other states are enforceable in Texas

18 USC § 2265; Tex. Fam. Code § 88.003


Can a Victim Violate the PO?

NO! Per Tex. Pen. Code § 25.07(e)

“A peace officer investigating conduct that may constitute an offense under this section for a violation of an order may NOT arrest a person protected by that order for a violation of that order.”

Tex. Fam. Code §§ 81.007, 85.026; Tex. Code Crim. Pro. Arts. 5.06, 7A.03(b), 7A.06; Tex. Pen. Code § 25.07(e)


Firearms Possession: State lawMOEPS: Discretionary

Magistrate may forbid an accused from possessing a firearm unless the person is licensed peace officer in full time employment by state agency or political subdivision (CCP art. 17.292 (c)(4))Except: Mandatorysuspension of state handgun license (CCP art. 17.292(l))

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Protective order under FC. 85.026:Mandatory

"IT IS UNLAWFUL FOR ANY PERSON, OTHER THAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO A PROTECTIVE ORDER TO POSSESS A FIREARM OR AMMUNITION."

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Federal Firearms Possession ProhibitionQualifying protective order• Issued after notice and an opportunity for a hearing;• Prohibits harassing, stalking, or threatening the accused’s:

• intimate partner or the intimate partner’s child; AND• contains a finding the accused poses credible threat of

physical harm to protected persons, OR• prohibits use, attempted use, or threat of physical force

capable of inflicting bodily injury to the protected persons

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Firearms Possession Prohibition —Suggestions to courts

Prohibit possession of firearm under CCP Art. 17.292(c)(4)

AND

Warn the defendant orally and in writing that the federal firearms prohibition may apply during the term of the Magistrate’s Order.

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Protective Order

Reporting

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NICS 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

•According to the Government Accountability Office, of the 20,738 Texas protective orders in the National Crime Information Center Protection Order File in 2015, only 2,169 protective orders had a Brady indicator.


Sending the Order to Law Enforcement

The magistrate/clerk shall send a copy of the order to either

Chief of police (if victim resides in municipality), OR

Sheriff (if victim resides outside municipality)

When? By the end of the following business dayHow? May be sent electronicallyWhy?

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Protective orders that cannot be verified will often not be enforced.

AccountabilitySafety

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Late September, 2017

Paula Coles, Iraq war veteran


“The child was found by police in a pool of his mother's blood in the hallway of Coles' apartment…”

Paula Coles’ babies


Do protective orders provide safety?

For 50% of victims, the PO stopped the violence.

For the other half, violence was significantly reduced.

Weakness — enforcement, especially in rural areas•Law enforcement difficulties in determining predominant aggressor

•Fewer resources•Local politics

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Victim

Officer?

Advocate?

Attorney? District/County Clerk

Court Clerk

Judge

Court Clerk District/County Clerk

Police/Sheriff

Data entry

Who participates?


“Big Picture” Obstacles Identified:•Texas’ decentralized court and law enforcement systems

•254 counties•458 District Courts•510 County-level Courts•817 Justice Courts•2,636 law enforcement agencies

• Incomplete or missing TCIC data entry sheets•Protective order and data sheet have conflicting information•Unaware of other participants’ roles in the process•Lack of regular communication

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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

•Statewide requirement to provide completed TCIC data entry form at time of application or request

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• Written, detailed protocol• Prioritize protective order processing• Back-up personnel• Distribute the protective order data entry form to the applicant/requestor when application is filed

• Confirm data sheet information in court• Revise internal procedures to reduce number of participants involved


Best Practices for Clerks•To expedite the process, send electronic copy or fax of PO to reporting agency whenever possible.

• According to the NCIC Operating Manual, “each record in the POF must be supported by a protection order (electronic or hard copy).”

• Certified copies are also accepted per CCP Art. 5.05 (d) •Compare PO to data sheet to ensure information matches.• IMPROVE COMMUNICATION among agencies.

•Local agency meetings•Share contact lists•Meet for breakfast!•Find out the full process for your jurisdiction, not just what it is in your agency.

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Check that law enforcement is receiving all the protective orders:Create and complete a checklist or cover sheet to send with the protective order data sheet and the protective order that informs the receiving law enforcement agency (and yourself!) that both items have been forwarded.Keep a copy of everything including the data sheet in the court’s file.Require confirmation (by an actual human) of receipt by the agency.Have a staff member be trained and certified for TLETS access to run cases to check if PO is in the system.

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Recent Legislative Changes2015: SB 737 •Deadline for clerks to send order to law enforcement – end of following business day

•Deadline for law enforcement to enter the order – 3 days

•Mandate entry of MOEPs•Determination of which agency should enter order based on victim’s current or last known address


New 2017 legislation on Confidentiality

•AG’s confidentiality program extended to victims of sexual assault or abuse, and stalking.

•Victims can opt out of websites that would contain addresses, such as county appraisals, and voting rolls.

•Created communication privilege between victims and family violence program staff (usually shelters, etc…)


2017: Confidentiality requirement for court clerks• SB 1242/Family Code 82.011 • On request by an applicant, the court may protect the

applicant's mailing address. The court can require that the court clerk:

• strike through the applicants mailing address from public records of the court, and

• maintain a confidential record of the information for use only by the court, or a law enforcement agency for purposes of entering the information required by Section 411.042 (B) (6), Government Code, into the statewide law enforcement information system maintained by the Department of Public Safety.

• Effective September 1, 2017

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Misdemeanor Crimes of

Domestic Violence



Misdemeanor Crimes of Domestic Violence (MCDV)

Title 18, United States Code (U.S.C.), Section 922(g)(9) – Gun Control Act of 1968 (GCA) prohibits persons who have been convicted of an MCDV from receiving or possessing a firearm.

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What can WE do to improve NICS reporting of misdemeanor crimes of

domestic violence?


Identifying offenses that qualify as MCDV•Misdemeanor conviction•Use or attempted use of force, or the threatened use of a deadly weapon;

•Defendant’s relationship to victim was•current or former spouse, parent, or guardian•shares a child in common;•cohabiting with or has cohabitated with the victim as a spouse, parent, or guardian;

•person who was or is similarly situated to a spouse, parent, or guardian of the victim.


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Problem: MCDV not labeled or identified in court records

Recommendations: Court records should include information that demonstrates:1. Exact charge and applicable statute;2. The use or attempted use of physical force or

threatened use of a deadly weapon; and 3. Relationship between defendant and the victim


Which court records?

•The charging document•Any plea agreement or plea colloquy•Any other final court records of the proceedings, such as:

•judgments of conviction•sentencing orders


Which Texas misdemeanors qualify?

•ASSAULT - Penal Code 22.01(a)(1) (bodily injury)

•ASSAULT - Penal Code 22.01(a)(3) (offensive contact)

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BUT Penal Code § 22.01(a(3) Assault-contact“intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative”

United States v. Castleman, 134 S. Ct. 1405 (2014): Domestic violence can include acts such as pushing, grabbing, and shoving, and that federal law intended to cover all domestic violence crimes whether or not “strong and violent” force was involved.

Result: “Offensive touching” is enough to subject a convicted domestic abuser to the federal gun ban.


OFFICE of COURT ADMINISTRATION 75

OCA’s Domestic Violence Resource Program

http://www.txcourts.gov/dvrp/domestic-violence-resource-program.aspx

•Texas Family Violence Benchbook•Protective Order and TCIC Reporting Webinars•More information to be added soon!

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Kimberly PiechowiakTexas Office of Court Administration

205 W. 14th Street, Suite 600Austin, Texas 78701-1614

(512) [email protected]

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DVTA CONTACT INFORMATION


Texas Court Remote Interpreter Service Purpose

• Facilitate Spanish interpreting to courts with limited access to licensed court interpreters

• To support constitutional right to due process


Texas Court Remote Interpreter Service

Scope• For ALL case types• For short, non-contested and

non-evidentiary hearings lasting 30 minutes or less

Delivery• Using the court’s existing

technology• Telephone interpreting• Video remote interpreting

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For more information:

Texas Court Remote Interpreter Service (TCRIS)PO Box 12066, Austin, Texas 78711-2066Phone: (512) 463-5656; Fax: (512) 666-3633Email: [email protected]/tcris


RESOURCES: Victim SafetyConsider having handout or brochure for victims with info such as…• Local prosecutor’s offices• Hotlines:

family violence, sexual assault, stalkingNational Domestic Violence Hotline (800) 799-SAFE (7233)

• Local family violence shelters• Local legal aid offices• Other advocacy groups

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REMEMBER:

Do nothing and you may as well lend a hand.

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Kimberly A.F. PiechowiakTexas Office of Court AdministrationProtective Order Resource Attorney

(512) [email protected]

Thank you!!!

physic

al VIOLENCE sexual

POWER AND CONTROL WHEELPOWER AND CONTROL WHEEL

POWERAND

CONTROL

COERCION AND THREATS:Making and/or carry-ing out threats to do something to hurt her. Threatening to leave her, commit suicide, or report her to welfare. Making her drop charges. Making her do illegal things.

INTIMIDATION:Making her afraid by using looks, actions, and gestures. Smashing things. Destroying her property. Abusing pets. Displaying weapons.

MALE PRIVILEGE:Treating her like a servant: making all the big decisions, acting like the “master of the castle,” being the one to define men’s and women’s roles.

ECONOMIC ABUSE:Preventing her from getting or keeping a job. Making her ask for money. Giving her an allowance. Taking her money. Not letting her know about or have access to family income.

USING CHILDREN:Making her feel guilty about the children. Using the children to relay messages. Using visitation to harass her. Threatening to take the children away.

MINIMIZING, DENYING, AND BLAMING:Making light of the abuse and not taking her concerns about it seriously. Saying the abuse didn’t happen. Shifting responsibility for abusive behavior. Saying she caused it.

ISOLATION:Controlling what she does, who she sees and talks to, what she reads, and where she goes. Limiting her outside involvement. Using jealousy to justify actions.

EMOTIONAL ABUSE: Putting her down. Making her feel bad about herself. Calling her names. Making her think she’s crazy. Playing mind games. Humiliating her. Making her feel guilty.

Produced and distributed by: 4612 Shoal Creek Blvd. • Austin, Texas 78756512.407.9020 (phone and fax) • www.ncdsv.org

physical VIOLENCE s

exual

Physical and sexual assaults, or threats to commit them, are the most apparent forms of domestic violence and are usually the actions that allow others to become aware of the problem. However, regular use of other abusive behaviors by the batterer, when reinforced by one or more acts of physical violence, make up a larger system of abuse. Although physical as-saults may occur only once or occasionally, they instill threat of future violent attacks and allow the abuser to take control of the woman’s life and circumstances.

The Power & Control diagram is a particularly helpful tool in understanding the overall pattern of abusive and violent be-haviors, which are used by a batterer to establish and maintain control over his partner. Very often, one or more violent incidents are accompanied by an array of these other types of abuse. They are less easily identified, yet firmly establish a pat-tern of intimidation and control in the relationship.

Developed by:Domestic Abuse Intervention Project202 East Superior StreetDuluth, MN 55802218.722.4134

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This brochure is intended for those involved with the

investigation and prosecution of domestic violence

offenses, including law enforcem

ent agencies, prosecutors, court officers, probation officers,attorneys, and advocates for victim

s of domestic

violence. A m

isdemeanor conviction m

ust meet several

criteria for the federal prohibition against firearm

possession by persons convicted of a misdem

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brochure explains what inform

ation is needed in different types of records so that those responsible for enforcing the law

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ICS) Section, the B

ureau of Alcohol,

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investigations of persons prohibited from receiving or

possessing firearms under the G

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CA

), firearms licensing m

atters, and the adm

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persons. Federal prosecutors use the information in

the prosecution of prohibited persons possessing firearm

s and in civil and crim

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GC

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ation when m

aking eligibility determinations for

persons seeking to acquire a firearm from

a Federal Firearm

s Licensee (FFL). A N

ICS check includes a

check of automated databases and, in cases w

here additional inform

ation is needed, follow-up requests to

agencies, such as the police, prosecutors, or the courts that m

ay have relevant information. The B

rady H

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business days to determine w

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MC

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of an MC

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from receiving or possessing a firearm

. Title 18, U

nited States Code (U

.S.C.), Section

922(g)(9), see also 18 U.S.C

. § 925(a)(1), defines an M

CD

V as “an offense” that:

Is a misdem

eanor under federal, state or triballaw

;

Has as an elem

ent the use or attempted use of

physical force, or the threatened use of a deadly w

eapon; and

At the tim

e the offense was com

mitted, the

defendant was:

o A

current or former spouse, parent,

or guardian of the victim;

o A

person with w

hom the victim

shares a child in com

mon;

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person who is cohabiting w

ith or has cohabitated w

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spouse, parent, or guardian; or o

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CD

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includes all misdem

eanor offenses that contain either the use of physical force, the attem

pted use of physical force, or the threatened use of a deadly w

eapon so long as the offense is com

mitted against a person w

ith w

hom the defendant had a qualifying relationship. A

s a result, offenses that could constitute M

CD

V often

encompass such offenses as generic assault and

disorderly conduct. M

any misdem

eanor offenses that could qualify as an M

CD

V have disjunctive elem

ents, such that a conviction m

ay be obtained under the applicable provision either w

ith or without the use or attem

pted use of physical force or the threatened use of a deadly w

eapon. For example, a state generic assault statute

may provide that a person com

mits an assault either by

using physical force against another person or by verbally threatening another person.

Assum

ing the qualifying relationship is present, a conviction under the first elem

ent of the statute w

ould satisfy the MC

DV

definition, while a

conviction under the second element of the statute

would not. R

eference 18 U.S.C

. § 21(a)(33)(A)(ii),

Title 27, Code of Federal R

egulations, Sections 478.11, 478.32. T

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Few M

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ation must

therefore be readily available in automated records

or in the records of the convicting court to enable A

TF investigators, federal prosecutors, and the N

ICS users to determ

ine whether a m

isdemeanor

qualifies as an MC

DV

. This information is

particularly important since an FFL m

ay transfer the firearm

after three business days if a final determ

ination is not received. For example, if a

misdem

eanor conviction under a provision that can only be violated by the use or attem

pted use of physical force or the threatened use of a deadly w

eapon is identified, the firearm transfer can only

be denied after establishing the qualifying relationship, w

ithout further research into the conviction. If, how

ever, a misdem

eanor conviction under a provision w

ith disjunctive elements is

identified, where only som

e of those elements

require the use or attempted use of physical force or

the threatened use of a deadly weapon, but the

particular element of conviction is not identified in

the automated record, the transaction is delayed for

further research. Once it is established that the

qualifying relationship is present, which is typically

made by reference to the police report, then

information is pursued on w

hether the defendant w

as convicted under the part of the statute requiring the use or attem

pted use of physical force or threatened use of a deadly w

eapon.

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epartment of Justice

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IFYIN

G A

N O

FFEN

SE T

HA

T

QU

AL

IFIES A

S AN

MC

DV

?

To help the ATF, federal prosecutors, and the

NIC

S users determine w

hether an offense qualifies as an M

CD

V, those involved in the prosecution of

domestic violence cases should ensure that

information dem

onstrating the use or attempted use

of physical force or threatened use of a deadly w

eapon is reflected in:

The charging document

Any plea agreem

ent or plea colloquyA

ny other final court records of theproceedings, such as:

ojudgm

ents of convictiono

sentencing orders

When statutes are disjunctive, it is critical that the

conviction documents list the exact disjunctive of

the charge or conviction. Doing so w

ill allow the

NIC

S users to quickly determine w

hether the M

CD

V prohibitor does or does not apply to the defendant’s conviction.

When statutes express the disjunctive by the use of

“or,” rather than through separate subsections (e.g., a disorderly conduct statute that lists a series of behaviors, such as violence, indecency, boisterousness, or being unreasonably loud) or w

hen a statute includes multiple clauses in the

same subpart, the use of force, attem

pted use of force, or threatened use of a deadly w

eapon underlying a conviction under that statute should be described in the charging papers and the record of conviction.

It is also very beneficial, whenever possible, to

have the relationship between the defendant and

the victim docum

ented in the charging papers and the court’s record of conviction w

hen a subject has been convicted of a m

isdemeanor offense

involving domestic violence. Inform

ation in non-court docum

ents, such as police reports and case files, can also be relied upon to establish the existence of the qualifying relationship.

The information in court and non-court docum

ents should record the existence of a spousal, parental, or guardian relationship or w

hen the offender and victim have a child

in comm

on. Sufficient information should be included to

indicate when the persons cohabitate as, or are sim

ilarly situated to, one of these relationships. Sim

ply indicating that the persons are boyfriend/girlfriend does not establish the relationship necessary for the M

CD

V prohibitor to

apply.

GU

IDA

NC

E FR

OM

AT

F ON

MC

DV

ISSUE

S

The ATF has the prim

ary responsibility for enforcing the G

CA

prohibitions on possession of firearms. Further

information about M

CD

Vs can be found at the A

TF Web

site, , and questions can be directed to your

local ATF O

ffice by calling 1-800-800-3855 or to the ATF

Firearms Program

s Division at 1-202-648-7090.

INC

LU

DIN

G M

CD

V IN

FOR

MA

TIO

N IN

TH

E

AU

TO

MA

TE

D D

AT

AB

ASE

S USE

D B

Y T

HE

NIC

S

Finally, in addition to ensuring that necessary information

about domestic violence offenses is included in the records

of the convicting court, investigators, prosecutors, court personnel, and victim

s’ advocates should work w

ith the agencies responsible for updating that inform

ation in the autom

ated databases within their state and at the FB

I, so that the inform

ation is available to NIC

S through its autom

ated check. This will allow

an imm

ediate determ

ination of whether or not the M

CD

V prohibitor

applies, lessening the likelihood that (1) a gun will be

transferred to a prohibited person because of delays in getting the inform

ation from the court or (2) a law

ful transaction w

ill be delayed because of the need to do additional research on the offense. The FB

I can help identify the responsible agencies and relevant databases.

NIC

S INFO

RM

AT

ION

C

ustomer Service: 1-877-FB

I-NIC

S (324-6427) Facsim

ile: 1-888-550-6427 N

ICS W

eb site: ww

w.fbi.gov/nics

NIC

S E-mail A

ddress: NIC

[email protected]

Information N

eeded to E

nforce the Firearm

Prohibition

Misdem

eanor C

rimes of

Dom

estic V

iolence (M

CD

V)

September 2016

Family Violence Resources Center for Court Innovation http://www.courtinnovation.org/topic/domestic-violence

Battered Women’s Justice Project http://www.bwjp.org/index.html

Texas Advocacy Project https://www.texasadvocacyproject.org/

Office of Court Administration Domestic Violence Resource Program http://www.txcourts.gov/dvrp/

Alliance for HOPE International http://www.allianceforhope.com/

Aequitas http://www.aequitasresource.org/

Danger Assessment https://www.dangerassessment.org/

National Center on Domestic and Sexual Violence http://www.ncdsv.org/

National Domestic Violence Hotline http://www.thehotline.org/

Texas Council on Family Violence http://tcfv.org/

Texas Association Against Sexual Assaulthttp://taasa.org/

Office of Court Administration Texas Court Remote Interpreter Service http://www.txcourts.gov/tcris/

Texas RioGrande Legal Aid http://www.trla.org

Office on Violence Against Women https://www.justice.gov/ovw

National Council of Juvenile and Family Court Judges http://www.ncjfcj.org

Training Institute on Strangulation Preventionhttps://www.strangulationtraininginstitute.com/https://www.strangulationtraininginstitute.com/resources/library/strangulation-information-graphic/

Rev. 07-24-17

TCIC Protective Order Data Entry Form To be completed by the Criminal Justice/Law Enforcement Official and released to authorized agencies only.

ORI: Choose One: Protective Order Emergency Protective Order

OCA:

Protective Order Number: Court Identifier:

Issue Date: Date of Expiration: Date Signed: Date Rescinded:

ALL fields should be completed to ensure timely entry into TCIC. Missing pertinent information will delay entry and will require the entering agency to contact the court to provide the necessary information.

Respondent Name: Sex: Male Female

Race: (circle one): Indian Asian Black White Unknown

Ethnicity: (circle one) Hispanic Non-Hispanic Unknown

Place of Birth:

Citizenship: Date of Birth: Height: Weight:

Skin: (circle one): Albino Black Dark Dk Brown Fair Light Lt Brown Medium Med Brown Olive Ruddy Sallow Yellow Eye Color: (circle one): Black Blue Brown Gray Green Hazel Maroon Pink Multi-Colored Unknown Hair Color: (circle one) Black Blond Brown Gray Red White Sandy Bald Blue Green Orange Pink Purple Unknown Scars, Marks and/or Tattoos: (please describe in detail) AKA’s: Caution and Medical Conditions: (circle all that apply) 00 – Armed and Dangerous 05—Violent Tendencies 10—Martial Arts Expert 15—Explosive Expertise 40-Int’l Flight 20—Known to Abuse Drugs 25—Escape Risk 30—Sexually Violent Predator 50—Heart Condition Risk 55—Alcoholic 60—Allergies 65—Epilepsy 70—Suicidal 80—Medication Required 85—Hemophiliac 90—Diabetic 01--Other Protection Order Conditions (PCO): (circle all that apply) 01 Respondent is restrained from assaulting, threatening, abusing, harassing, following, interfering with or stalking the protected person and/or child

of the protected person 02 Respondent may not threaten a member of the protected person’s family/household 03 The protected person is granted exclusive possession of the residence/household 04 Respondent is required to stay away from the residence, property, school or place of employment of the protected person or other family or

household member 05 Respondent is restrained from making any communication with the protected person including, but not limited to, personal, written, or phone

contact, or their employers, employees or fellow workers, or others whom the communication would be likely to cause annoyance or alarm 06 Respondent is awarded temporary custody of the children named 07 Respondent is prohibited from possessing and/or purchasing a firearm or other weapon 08 See miscellaneous field for comments regarding terms and conditions of the protection order (add all prohibitions ordered not already assigned a

code, e.g. pets, utilities, mutually owned property, distance, bond conditions, visitation details and/or other special prohibitions). 09 The protected person is awarded temporary exclusive custody of the child(ren) named Brady Record Indicator (BRD): SVC:(circle one) served/not served/unknown N—Respondent is NOT disqualified Y—Respondent is disqualified U—Unknown SVD: Relationship To Protected Person: (Not the additional PPNS)

Please include the following numeric identifiers, if available: Driver License:

DL State: DL Expiration:

Texas ID: Misc ID: Social Security:

Respondent Address: City:

County: State: Zip:

Rev. 07-24-17

Protective Order Data Entry Form – Page 2 Respondent Name:

Respondent Vehicle Data: License Plate:

LP State: LP Year: LP Type:

Vehicle ID:

Year: Color:

Make:

Model: Style:

Protected Person Data Protected Person Name: Sex:

Male Female Race: (circle one): Indian Asian Black White Unknown


Date of Birth: Social Security:

Protected Person Address: City:

County: State: Zip:

Protected Person Employer Data Protected Person Employer Name:

Address:

City:

State: Zip:

Protected Person Employer Name:

Address:

City:

State: Zip:

Protected Child Data (Use additional pages if necessary) Protected Child Name: Sex:

Male Female Race: (circle one): Indian Asian Black White Unknown


Date of Birth: School/Child Care Name and Address:

Home Address:

City: State: Zip:

Protected Child Name: Sex: Male Female

Race: (circle one): Indian Asian Black White Unknown


Date of Birth: School/Child Care Name and Address:

Home Address:

City: State: Zip:

To be completed by Criminal Justice/Law Enforcement Official: SID:

FBI #: FPC: MNU:

Notes: Use of Pseudonyms; Code of Criminal Procedures: Art. 57B.02. (Confidentiality of files and records) Extension of PO if Respondent is confined or Imprisoned; Family Code: Sec. 85.025 (Duration of Protective Order) PCO-07-Posession of a firearm; Family Code: Sec. 85.0222 (Requirements of order applying to person who committed family violence). SB 1242-Chapter 82-FC sect 82.011-3(b)-2(b) the court shall order the clerk to maintain a confidential record of the information for use only by: (A) the court; or (B) a law enforcement agency for purposes of entering the information required by Section 411.042 (b) (6), Govt. Code into the statewide law enforcement information system maintained by the Department of Public Safety. (Eff. 9/1/17)

CDCAT Fall Conference 2018 slide handout.pdfPages from TJCTC Magistrates Aug 2018 Handout packet (002).pdfProtectiveOrderDataEntryForm2017.pdfTCIC Protective Order Data Entry Form

CDCAT Fall Conference 2018 no Videos - county...the killing of multiple family members), and •attacks in a public place OFFICE ofCOURT ADMINISTRATION Domestic Violence and Mass Shootings

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