Mental Health Cases and Protective Orders

Transcription

1 Mental Health Cases and Protective Orders Required Reporting for the National Instant Criminal Background Check System Kimberly A.F. Piechowiak & Amanda Stites College for New Clerks January 20, 2015

2 Texas, Our Texas 2

3 Texas, Our Texas 3

4 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 4

5 Alphabet soup CJIS Criminal Justice Information System Provided by the DPS to assist counties in managing Computerized Criminal History (CCH) information and Federal Firearms Reporting transactions. TCIC Texas Crime Information Center Provides access to law enforcement agencies throughout the state to data regarding the stolen status of property and the wanted, missing, sex offender, or protective order status of persons. NCIC National Crime Information Center III Interstate Identification Index National index of criminal histories NICS National Instant Criminal Background Check System Checks available records in NCIC, III, and the NICS Index to determine if prospective gun purchaser is eligible to receive or possess a gun. 5

6 Importance of NICS: Mental Health Cases NICS Improvement Amendments Act: Passed to address 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. 6

7 Importance of NICS: Protective Orders Protective orders that cannot be verified will often not be enforced. Safety Accountability 7

8 Mental Health Record Reporting

9 NICS Reporting Mental Health Cases HB 3352 passed by Texas Legislature in 2009 to comply with and implement the requirements of the federal NICS Improvement Amendments Act Reporting to DPS Required by and of Texas Government Code Federal Firearms Reporting through CJIS 9

10 NICS Reporting Mental Health Cases Historical Reporting Must report all cases from September 1, 1989 through August 31, 2009 Ongoing Reporting A case with a reportable order/judgment issued on or after September 1, 2009 must be reported within 30 days of the order/ judgment being issued If an appellate court reverses an order/judgment, the entry in CJIS must be cancelled within 30 days of the reversal 10

11 NICS Reporting Mental Health Cases Types of Cases to Report Commitments for temporary or extended inpatient mental health services Commitments of a person determined to have mental retardation for long term placement in a residential care facility Incapacitated adults for whom a court has appointed a guardian of the person and/or estate, based on determination that the person lacks the mental capacity to manage his/her affairs (including temporary guardianships) Acquittals in criminal cases for reasons of insanity or lack of mental responsibility Cases in which a person is found to be incompetent to stand trial NOTE: The signed order in these cases triggers the reporting requirement. 11

12 NICS Reporting Mental Health Cases Data to Report All records must contain the following information: Court ORI Case Number Case Type Court Date (Date of order/judgment) First Name Last Name Date of Birth Sex Race (Note: you may select Unknown ) The following fields are optional: State Identification No., Social Security No., Driver License No.

13 NICS Reporting Mental Health Cases Do NOT report these cases: Guardianships of minors Emergency mental health detentions, admissions or warrants Orders of protective custody Voluntary commitments Involuntary commitments for temporary or extended outpatient mental health services Applications for court ordered inpatient mental health services that are forwarded to another county to re file or to hear your original filing Court ordered inpatient chemical dependency or alcohol services 13

14 NICS Reporting Mental Health Cases Zero reporting If there is no reportable activity for a month, clerks must enter a zero activity report into CJIS for that month to be in compliance. Removing records from database Individuals who have lost the right to purchase a firearm (i.e., individuals entered into the CJIS/NICS database) can petition the court to restore their right to purchase a firearm. ( of Texas Health & Safety Code and of Estates Code) Signed order restoring the right to purchase a firearm is required to remove the record. Record Retention/Organization Recommended that all records related to cases entered for NICS reporting be retained permanently. Recommended to segregate the NICS mental health related records from other case records and maintain them in a location that is easy to access. 14

15 NICS Reporting Mental Health Cases Reporting Resources Office of Court Administration Texas NICS Mental Health Reporting Manual to oca/other reporting resources.aspx OCA contact for questions about reporting Amanda Stites, , Reporting Resources Texas Department of Public Safety CJIS NICS User Guide UserGuide.pdf DPS contact for CJIS, FBI Audit, Record Validation Holly Morris, , James McElroy, , 15

16 Protective Order Record Reporting

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19 Protective Order Record Reporting TX Family Code (a) (1) and (a) (2) Protective orders that are issued by the court must be forwarded by the clerk to law enforcement agency for jurisdiction in which the protected person resides. Chief of Police, if protected person resides within the municipality Sheriff, if protected person resides in the county and not in a municipality TX Family Code Law enforcement agency enters the order into TCIC

20 Types of Protective Orders day Magistrates Order of Emergency Protection TX CCP day Temporary Ex Parte Protective Order TX Family Code Ch. 83 Protective Orders TX Family Code Ch. 71, 81-82, 84-88, CCP 7A and CCP

21 Who participates? Victim Court Clerk District/County Clerk Officer? Judge Police/Sheriff Advocate? Attorney? Court Clerk District/County Clerk Data entry

22 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 22

23 Protective Order Data Entry Form 23

24 Big Picture Recommendations Mandatory, uniform forms Training of all participants Dynamics of family violence Types of protective orders Importance of information gathering Potential Legislative changes Deadline for clerks to send order to law enforcement Mandate entry of MOEPs Clarify which agency should enter order if victim s current address is unknown Statewide requirement to provide completed TCIC data entry form at time of application or request 24

25 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 Confidentiality: Check with your legal advisor about possible confidentiality concerns if a copy of the protective order data sheet is kept in the court s file.

26 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 (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. 26

27 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. Periodically compare the number of orders forwarded to law enforcement in your county with the number of orders DPS has in the system for your county. Report can be requested at TCICQC@dps.texas.gov. 27

28 Protective Order Reporting Resources Office of Court Administration violence resource program.aspx Kimberly A.F. Piechowiak Protective Order Resource Attorney (512) Department of Public Safety 28

29 NICS Reporting = HomicidePrevention Safety is everybody s business!