cdcat fall conference 2018 no videos - county...the killing of multiple family members), and...
TRANSCRIPT
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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
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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)
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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.
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“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/
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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%
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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…
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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/
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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
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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
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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
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Types of Protective Orders
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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
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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
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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
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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)
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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)
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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)
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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
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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
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FINAL PROTECTIVE
ORDERS
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Available for:
•Sexual Assault/Abuse•Trafficking•Stalking•Family Violence
Tex. Fam. Code § 83.006; Tex. Code Crim. Proc. Art. 7A.03
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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
Tex. Fam. Code § 85.022; Tex. Code Crim. Proc. Art. 7A.05
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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
Tex. Fam. Code § 85.022; Tex. Code Crim. Proc. Art. 7A.05
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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
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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
Tex. Fam. Code § 85.026; Tex. Code Crim. Proc. Art. 7A.06
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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
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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)
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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.
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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
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“The child was found by police in a pool of his mother's blood in the hallway of Coles' apartment…”
Paula Coles’ babies
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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?
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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•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
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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
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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…)
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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
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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?
OFFICE of COURT ADMINISTRATION
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
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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
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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.
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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
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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
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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
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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!!!
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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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INFO
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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
eanor crim
e of domestic violence (M
CD
V) to apply. This
brochure explains what inform
ation is needed in different types of records so that those responsible for enforcing the law
and making firearm
s eligibility decisions w
ill be able to determine if the M
CD
V
prohibition applies to a particular misdem
eanor offense. H
OW
TH
E IN
FOR
MA
TIO
N IS U
SED
Information identifying an offense as an M
CD
V is used
by the FBI C
riminal Justice Inform
ation Services D
ivision’s National Instant C
riminal B
ackground C
heck System (N
ICS) Section, the B
ureau of Alcohol,
Tobacco, Firearms and Explosives (A
TF), and federal prosecutors. The A
TF uses the information in
investigations of persons prohibited from receiving or
possessing firearms under the G
un Control A
ct of 1968 (G
CA
), firearms licensing m
atters, and the adm
inistrative forfeiture of firearms by prohibited
persons. Federal prosecutors use the information in
the prosecution of prohibited persons possessing firearm
s and in civil and crim
inal firearm forfeitures under the
GC
A. A
uthorized agencies accessing the NIC
S use the inform
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
andgun Violence Prevention A
ct of 1993 allows three
business days to determine w
hether a proposed gun transfer is prohibited. If a definitive determ
ination is not m
ade within that tim
e frame, the FFL m
ay lawfully
transfer the firearm.
WH
AT
IS AN
MC
DV
? The G
CA
prohibits persons who have been convicted
of an MC
DV
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;
o A
person who is cohabiting w
ith or has cohabitated w
ith the victim as a
spouse, parent, or guardian; or o
A person w
ho was or is sim
ilarly situated to a spouse, parent, or guardian of the victim
.
TH
E U
NIV
ER
SE O
F MC
DV
OFFE
NSE
S The universe of offenses that could constitute M
CD
V
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
HE
CH
AL
LE
NG
E O
F MISD
EM
EA
NO
RS
WIT
H D
ISJUN
CT
IVE
EL
EM
EN
TS
Few M
CD
Vs are labeled as such. Inform
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.
-
U.S. D
epartment of Justice
WH
AT
CA
N Y
OU
DO
TO
ASSIST
IN
IDE
NT
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
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
Ethnicity: (circle one) Hispanic Non-Hispanic 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
Ethnicity: (circle one) Hispanic Non-Hispanic 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
Ethnicity: (circle one) Hispanic Non-Hispanic 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