OFFICE of COURT ADMINISTRATION Protective Orders and TCIC Reporting: The Big Picture Kimberly A.F. Piechowiak Protective Order Resource Attorney Texas.

OFFICE of COURT ADMINISTRATION

Protective Orders and TCIC Reporting:

The Big Picture

Kimberly A.F. PiechowiakProtective Order Resource AttorneyTexas Office of Court Administration

[email protected]

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OFFICE of COURT ADMINISTRATION2





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


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


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.

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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


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


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))


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.


Q: Why do we care about POs and TCIC?

AccountabilitySafety

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

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SafetyVictims:

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

AccountabilityViolations 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, 2011http://www.carseyinstitute.unh.edu/publications/IB-Logan-Civil-Protective-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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— Casey Gwinn, J.D., President of the 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 pattern of abuse."


Ultimate Goal:

Domestic ViolenceHomicidePrevention

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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

NAME-CALLING

YELLING

HUMILIATION

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PHYSICAL

PUSH

PUNCH

KILL

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SEXUAL

Objectification

Unwanted

touching

FORCED

SEX

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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/209731.pdf

* https://www.victimsofcrime.org/src

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Other important lethality factors…

Domestic

Violence

Homicides

THREATS

14.9x

WEAPON

20.2x

STRANGULATION

9.9xFORCED SEX

7.6x

JEALOUSY

9.2x

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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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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”

Bodily Injury – Pain, cuts,

bruises, black eyes...

Types of Injuries

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On the subject of injuries…

Remember…Experienced batterers know how to hit without leaving immediate OR subsequent visible injuriesStriking in the “swimsuit” areaStriking in the scalp areaWhat looks minor at first can change over the next few days

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What looks like this today …


Can look like this tomorrow


What starts out looking like a minor grabbing today…

Might look like this tomorrow…34



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) 37


Justice System BarriersCriminal

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.

CivilVictims 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.

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Victims are not safe and offenders are not held accountable


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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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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•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 StatisticsPurpose: 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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Victim

Officer

Advocate?Court Clerk

Judge

Court Clerk

District/County Clerk?

Police

Data entry

MOEPs

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Victim

Officer?

Advocate?

Attorney? District/County Clerk

Court Clerk

Judge

Court Clerk District/County Clerk

Police/Sheriff

Data entry

Protective Orders


“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


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


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 applicantTop 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


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


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.


Remember:

…are a critical piece of the domestic violence homicide prevention puzzle.

Protective Orders


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

(512) [email protected]

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

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OFFICE of COURT ADMINISTRATION 54

Go SPURS Go!!!

OFFICE of COURT ADMINISTRATION 55

OFFICE of COURT ADMINISTRATION Protective Orders and TCIC Reporting: The Big Picture Kimberly A.F. Piechowiak Protective Order Resource Attorney Texas.

Documents

wounded slide

protective orders fv

nics index

information available

serious bodily injury

additional information

gun searches criminal

computerized system