Gun Rights and Domestic Violence

Transcription

1 Gun Rights and Domestic Violence Judge Mike Denton Travis County Court, Texas Spring Judges Conference LOUISIANA JUDICIAL COLLEGE April 16-17, 2015 Lafayette Hilton & Towers Lafayette, Louisiana

2 4/2/2015 Let s Talk Firearms and Domestic Violence Lafayette, Louisiana April 17, 2015 By the Numbers 2012 State Rankings homicide rate among female victims 1. Alaska 2. South Carolina 3. Oklahoma 4. LOUISIANA 5. Mississippi 6. Nevada 7. Missouri 8. Arizona 9. Georgia 10. Tennessee 1

3 4/2/2015 Numbers Continued Firearms especially handguns were the weapons most commonly used to murder females in % of female victims were killed with a gun. The number of females shot and killed by their husband or intimate acquaintance was more than FOUR times higher than the total number by murdered by male strangers using all weapons combined. 69% of female firearm homicide victims were killed with handguns. When Men Murder Women Violence Policy Center Louisiana Numbers 2012 For homicides in which the weapon used could be identified, 71% of female victims were shot and killed with guns. Of these, 93% were killed with handguns. For homicides in which the circumstances could be identified, 61% were not related to the commission of any other felony. 2

4 4/2/2015 Firearms Homicide Assault Threats Control By the Numbers Having a gun in the home makes it three times more likely that a family member or intimate partner will murder someone in home. 3

5 4/2/2015 By the Numbers Having one or more guns in the home makes a woman 7.2 times more likely to be the victim of such a homicide. Select Federal Firearms Laws Federal Gun Control Act: 18 U.S.C. 922(g)(1) felony It is federal crime to possess firearms or ammunition after conviction, in any court, of a crime punishable by imprisonment for a term exceeding one year (felony) Penalty: up to 10 years in prison, up to $250, 000 fine or both 4

6 4/2/2015 Select Federal Firearms Laws Federal Gun Control Act: 18 U.S.C. 922(g)(8) Qualifying Protective Order It is a federal crime to possess firearms or ammunition if subject to a qualifying protection order Issued after hearing of which respondent had actual notice and opportunity to participate; and Finding that respondent poses a credible threat to the physical safety of the victim OR order prohibiting respondent from using any force that would cause injury to victim Penalty: up to 10 years in prison, up to $250,000 fine or both Select Federal Firearms Laws Federal Gun Control Act: 18 U.S.C. 922(g)(8) Qualifying Protection Order Provision not applicable to law enforcement or military in course of government employment Off Duty officer may not possess duty weapon Officer may not possess personal firearms It is also a federal offense for a person to assist another person in possessing a firearm if there is a valid protective order against that other person 5

7 4/2/2015 Select Federal Firearms Laws 18 U.S.C. 922(g)(9) Qualifying misdemeanor of DV It is a federal crime to possess firearms or ammunition after conviction of a qualifying misdemeanor of domestic violence Misdemeanor under state or federal law Element of use/attempted use of physical force or threat of deadly weapon Committed against current or former spouse, parent or guardian, current or former cohabitant as a spouse or by parent of child in common Date of conviction must precede firearm possession Due process requirements must have been met Select Federal Firearms Laws Federal Gun Control 18 U.S.C. 922(g)(9) Qualifying misdemeanor of DV Law enforcement officers subject to law Lifetime prohibition for all people Penalty: up to 10 years in prison 6

8 4/2/2015 A Few Considerations for Law Enforcement At the scene: voluntary surrender; ask defendant; ask victim; community property; search; search warrant When to accomplish surrender: right after MOEP; some time after MOEP; prior to plea/ issuance of order when possible; when notified (by victim, court, probation, prosecutor, others) mechanism for surrender (search warrant, probation officer purview, other) If not proactive, then what process: where (centralized evidence collection; at substations; private storage; other public storage) how just show up; provide notice; enter building; leave in the car; provide form; reference case/p.o.; forms (receipts; admonishments; notices) follow up after protective order expires Disposing of firearms: destruction tracking finality of conviction / end of protective order; notice; absorption into law enforcement arsenal; sales; forms; records; errors; limited liability Firearms and law enforcement A Few considerations for Courts and Judges Settings: protective orders; restraining orders; criminal cases (misdemeanors and felonies) divorce division of property What if other courts do not address the issue? What if other courts do not follow the law? Timing: Before plea / issuance of the p.o. / r. o.; within a reasonable time Where to surrender Forms: paper trail; court file; admonishments; proof for prosecution Self report / self incrimination Part of judgment Probation: a docket; check with victims; revocations Firearms in court proceedings 7

9 4/2/2015 In plea agreement: explicitly included; make sure in judgment; worthy of busting plea; As a condition in the protective order Proof prior to plea; proof after plea; process for checking; forms Timing of surrender Probation docket; statuses; motions to revoke; revocation; proof in advisory settings Misdemeanors and felonies Forms for prosecutor file; courts file Training for prosecutors on the law How to avoid constructive possession When will the guns be returned if at all Firearms and prosecutors Inquiry: on personal recognizance bonds intake; presentencing reports; on intake when sentenced; ramifications of admissions Available investigation techniques at any point: working with law enforcement (search warrants; other mechanisms) due process; self incrimination Specialized docket Flagging cases and following up regularly Victims: communication; identifying probationer s firearms (ramifications) safety concern for victim Safety concerns for probation workers Probation docket: statuses; motions to revoke; revocation; proof in advisory setting Misdemeanors and felonies Forms for prosecutor file; courts file Training for prosecutors on the law How to avoid constructive possession Firearms and probation 8

10 4/2/2015 Traditional Allies Family Violence Centers BIPPs Military Federal System Prosecutors Courts Law enforcement Probation Firearms and other parts of the coordinated community response QUESTIONS? CONCERNS? CRITICISMS 9

11 4/2/2015 Suggested Resources 1. Literature Review: Firearm Access and Firearm Deaths Barbara Hart 2. Enforcing Domestic Violence Firearm Prohibition OVW 3. Austin/Travis County Family Violence Task Force Recommended Policy and Protocol for Seizure, Surrender and Forfeiture of Prohibited Firearms 4. NCJFCJ Enhancing Judicial Skills in Domestic Violence Cases Mike Denton Travis County Court at Law #4 Austin, Texas office direct line 10

12 Travis County Court at Law Four Firearms 18 USC 922 (g) (8) Federal offense to possess,. a firearm or ammunition while subject to a qualifying order. 18 USC 922 (g) (9) Federal offense to possess, purchase, a firearm or ammunition after being convicted of a misdemeanor crime of domestic violence 18 USC 922 Federal offense to transfer a firearm to an individual convicted of a qualifying domestic violence misdemeanor or under a qualifying protective order. 18 USC 925 (a) (1) Official Use Exception Applies to Protective Order (g)(8) prohibitions only. Does NOT apply to Misdemeanor (g) (9) prohibition TX Penal Code (b) TX Penal Code (c) TX Penal Code (a) (3) TX Crim Proc Code 7B.06 (a)(d) Class A to possess a firearm for 5 years following release from confinement or community supervision for domestic violence misdemeanor. (UCW) Class A to possess a firearm while under a Protective Order Class A to possess a firearm while under a Sexual Assault Protective Order Trafficking Protective Order

13 Travis County Court Law 4 Procedures for Firearm/Ammunition Surrender 1. County Attorney will make inquiries of both Applicant and Respondent regarding possession of Firearms/Ammunition by the Respondent. County Attorney will notify the Court. 2. The Court will make an inquiry of each Respondent to verify information concerning Firearms/Ammunition. 3. If the Court is satisfied that the Respondent is not currently in possession of Firearm/Ammunition no further action is required except to give the Respondent the warnings concerning Firearms/Ammunition. 4. If the Court finds the Respondent possesses Firearms/Ammunition, the Court will make inquiries as to the disposition of the Firearms/Ammunition. If Firearms/Ammunition are ordered to be turned in the Sheriff s Office, the Respondent will be instructed as to the Procedure for Surrender of Firearms/Ammunition to TCSO. If the weapons are being turned over to a third person, the Recipient and Respondent will be instructed as to the Procedure for Surrender of Firearm/Ammunition to a Third Party. 5. The County Attorney will monitor the Respondents compliance with filing proof of surrender. In the event of non-compliance, the County Attorney will notify Court and, file contempt proceedings and the case will be set for hearing.

14 Date: Re: Case Number: Dear Petitioner: Please be advised that it is a crime for a Respondent under a Protective Order to possess a firearm or ammunition when the Order is in effect against him/her. Recently, the Court received a request from the Respondent in your case requesting the return of firearms and/or ammunition that he/she surrendered in this case. The Court has preliminary determined that the respondent may be entitled to the return of the firearm(s) and/or ammunition. You have the right to file an objection to the return of the firearm(s) or ammunition with the Court. Please state your objection in writing within fifteen (15) days from the date of this letter. Some legal basis why the firearms/ammunition should not be returned are: a. The firearm is not legally owned by the Respondent; b. The Respondent has been found guilty of a felony in Texas or any other state; c. The Respondent has been found guilty of a misdemeanor crime of domestic violence in Texas or any other state; d. There is an order of protection in effect against the Respondent in Texas or any other state; e. There is a pending forfeiture action against the Respondent in another court; f. The Respondent has been adjudicated mentally defective or committed to a mental institution; g. Respondent is not legally or lawfully in the United States; h. Respondent has been dishonorably discharged from the armed forces; i. Respondent has renounced United States citizenhip; j. Respondent is currently under indictment for a felony; k. There is some other legal impediment to the Respondent owning or possessing a firearm, including but not limited to those mentioned above; or l. Any other reason you think the Court should be aware of. Should you have any other questions, please do not hesitate to contact me. Sincerely, Petitioner Letter Assistant County Attorney

15 HOW TO GET YOUR FIREARM(S) AND AMMUNITION BACK IF YOUR PROTECTIVE ORDER IS NO LONGER IN EFFECT Upon expiration or dismissal of your injunction, you may request the return of your firearm(s) and ammunition by filing a motion or writing a letter to the court. 1. First, deliver the motion/letter to the Travis County Attorney s Office, Protective Order Division. They will check NCIC/TCIC. They will sign the letter and return to you after making the appropriate checks. 2. File the motion/letter with the Court requesting the return of your firearm(s) and/or ammunition. Specifically describe the property, including any serial number, you seek to have returned. Attach a copy of the receipt you received from the Sheriff s Office. Also attach to the motion or letter an affidavit signed by you, under penalty of perjury, attesting: a. The firearm is/are legally owned by you; b. You have not been found guilty of a felony in Texas or any other state; c. You have not been found guilty of a misdemeanor crime of domestic violence in Texas or any other state; d. There is no injunction or order of protection in effect against you in Texas or any other state; e. There is no forfeiture action pending against you in any court; f. You have never been adjudicated mentally defective or been committed to a mental institution; g. You are legally and lawfully in the United States; h. You have never been dishonorably discharged from the Armed Services; i. You have never renounced United States citizenship; j. You are not currently under indictment for any felony k. There is no legal impediment to you owning or possessing a firearm, including but not limited to those mentioned above. 3. The judge will review your motion/letter and determine if your firearm(s) and ammunition may be legally returned: a. If the judge preliminarily determines that your firearm(s) and ammunition may legally be returned, the petitioner in your case will be notified that you are seeking return of the firearms and ammunition. If there is no legal impediment to their return, the court will enter an order providing for the firearms and ammunition to be returned to you. b. If there is a legal impediment to the return of your firearms and ammunition, your motion/letter will be denied. You may thereafter request a hearing or appeal the denial of the motion. 4. To obtain return of the actual firearms, you must bring with you all the following to the Sheriff s department where you surrendered your property: a. A certified copy of the court order authorizing return b. The TCSO property receipt

16 c. Your proof of ownership (receipt or bill of sale) d. Valid photo identification 5. Based upon policies of the Sheriff s department, your firearm(s) and ammunition may be returned at separate times, for safety reasons. 6. Unless firearms and ammunition in the possession of law enforcement are reclaimed by the owner within six (6) months of the expiration or dismissal of the injunction, the firearm(s) and ammunition may be deemed forfeited to the state and no action for their recovery can thereafter be maintained. 7. You must re-apply to the State of Texas Department of Public Safety to reinstate any concealed weapons permits.

17 INFORMATION FOR RESPONDENTS REGARDING THE SURRENDER AND RETURN OF FIREARMS, AMMUNITION AND CONCEALED WEAPONS PERMIT A Protective Order has been entered and served, ordering you to surrender all firearms, ammunition and/or concealed weapons permits in your possession. You must by 4 p.m. today, surrender such items to the Travis County Sheriff s Office located at 5555 Airport Blvd., Austin, Texas 78757, obtain a receipt of surrender (property receipt), and file with the County Attorney s Office. OR; If a Protective Order has been entered and specifically allows, you may sell or transfer all firearms and ammunition in your possession to a third party not residing with you in the same household. (Provided that the third party is pre-approved by the Court.) To surrender firearms and ammunition: o Unload all firearms o Separate all firearms and ammunition o Lock all firearms in lock boxes or gun cases and place in trunk of car o Enter the Sheriff s Office without firearms and ammunition and present a copy of the Order of Surrender to Sheriff personnel o Advise police of quantity and location of firearms and ammunition being surrended o Follow procedure set forth by police personnel to complete surrender o If a Protective Order has been entered ordering you to surrender all firearms, ammunition and/or concealed weapons permits in your possession, you must file the receipt of surrender to TCSO (property receipt) or, Bill of Sale or Receipt of Transfer with the Travis County Attorney s Office at 314 West 11 th Street, Suite 300, Austin, Texas, or Fax , before 4 p.m. IT IS A FEDERAL CRIME FOR A RESPONDENT TO POSSESS A FIREARM OR AMMUNITION WHEN A PERMANENT INJUNCTION IS IN EFFECT AGAINST HIM/HER PURSUANT TO 18 U.S.C. β922(g)(8). IT IS A FEDERAL CRMINE FOR A PERSON CONVICTED OF A MISDEMEANOR CRIME OF DOMESTIC VIOLENCE TO POSSESS A FIREARM OR AMMUNITION, PURSUANT TO 18 U.S.C. β922(g)(9). THE PENALTY FOR VIOLATING THE SECTIONS MAY INCLUDE UP TO TEN (10) YEARS IMPRISONMENT AND/OR $250,000 FINE. IT IS A STATE OFFENSE TO POSSESS A FIREARM WHILE A PROTECTIVE ORDER IS IN EFFECT.

18 A Conversation about Firearms and Family Violence Creating a Local Policy for Surrender and Forfeiture of Firearms Judge Roberto Cañas, Jr., Dallas County Gretta Gardner, JD, Travis County Family Justice Conference San Antonio, TX January 29, 2015

19 Strengths in Protocols! Initiated by systems-based stakeholders! Private storage facility! CCR driven & organized! ATF guidance! Defense bar! National best practices! Understanding of the difference between gun culture & family violence offenders who should not have firearms.! Multiple options for surrender.! Notice to the victim for returns! Affidavit of non-surrender.! Specific to our community

20 Weaknesses in Protocols! Coordinating civil & criminal court practices! 3 rd party admonitions on the record! Legal authority for forfeiture! Capturing firearms at all points, e.g., MOEPs, Ex Parte, PO and criminal convictions.! Process/Time/Meetings! Out of State POs! No survivor voice! Rely on self-reporting! Disposition of firearms! Voluntary relinquishment! ATF challenges

21 Fundamentals for Establishing a Protocol! 3 rd Party transfer procedures.! Affidavit of non-surrender.! Storage! Written procedure for defendants clearly stating how to surrender firearms and ammunition.! Order to return firearms.! Victim notification of return of firearms.! Training on federal and state prohibitions.

22 Organizing/Engaging Stakeholders! Unified philosophical approach! Chair/Leader to guide the process! Collaboration x 3.! Enhances victim, bystander, and officer safety. Everyone has something to gain.! Builds community trust.! Patience, Perseverance, humor.! Involve City Council and Commissioners Court! Involve the defense bar and family law bar.

23 Technical Assistance Texas Council on Family Violence Tracy Grinstead-Everly, JD Public Policy Manager x 3081 tgrinstead-everly@tcfv.org National Center on Protection Orders and Full Faith & Credit x 2 1

24 Contact Us: The Honorable Roberto Cañas, Jr.. Presiding Dallas County Criminal Court No Gretta Gardner, JD Family Violence Director Travis County Counseling & Education Services

25 Austin/Travis County Family Violence Task Force Recommended Policy & Protocol for the Seizure, Surrender & Forfeiture of Prohibited Firearms PART I PART II PART III PART IV PART V PART VI APPENDICES Purpose I. Policy Statement II. Definitions Ex Parte/Protection Orders I. Firearm Surrender for Ex Parte Orders II. Firearm Surrender & Forfeitures for Protective Orders III. Compliance Hearings IV. Seizure of Firearms for a Violation of a Protective Order Misdemeanants Convicted of Domestic Violence I. Firearm Surrender for EPOs II. Firearm Surrender for Condition of Release III. Seizure of Firearms Response to an Incident of Domestic Violence Storage & Return of Firearms and Ammunition Forfeiture Coordination with Federal Authorities Forms Page 1 of 38 December 5, 2014

26 PART I Purpose The purpose of this document is to provide a uniform policy and protocol for the following specific areas related to family violence cases with intimate partners that may be encountered by criminal justice stakeholders, most notably the courts, prosecution, and law enforcement: The seizure of firearms and ammunition from persons who are prohibited from possessing firearms due to (1) a protective order and/or (2) an arrest/conviction of a misdemeanor assault family violence on an intimate partner according to State law and/or Federal law; The transfer, storage, and return of surrendered and seized firearms; The destruction of forfeited firearms; and Collaboration with the Bureau of Alcohol, Tobacco, Firearms and Explosives. It is recommended that all partnering agencies review their current policies and procedures related to these topics and compare them with those included in this recommended policy. Where a current agency policy is inconsistent with the recommended policy or does not address an area that is covered by this policy, it is recommended that the agency consider adopting the relevant section(s) of the recommended policy, modifying the language where necessary in order to comply and maintain consistency with the Texas laws and statutes. A survey of domestic abusers enrolled in Massachusetts batterer intervention programs between 2002 and 2005 found that perpetrators who continued to possess firearms after they were prohibited from doing so by federal law were more likely to attempt homicide or threaten their partners with guns than domestic violence perpetrators who had relinquished their firearms. 1 Studies have also identified numerous instances of individuals killed by domestic abusers using firearms even after those abusers had become prohibited from possessing firearms. 2 It is the collective goal of our coordinated community response to prevent domestic violence homicides by lawfully removing firearms from abusers who are prohibited from possessing firearms to increase the safety of victims, law enforcement, and the community at large. I. Policy Statement Law enforcement shall endeavor to enforce all protective orders issued by the court of any State, Indian Tribe, and U.S. territory or possession in order to protect victims of domestic violence from further harm. Officers shall use all reasonable efforts to remove firearms from the possession and control of alleged perpetrators of domestic violence, consistent with the mandates and limitations of State and Federal law. Further, reasonable efforts shall be made to effect service of process of protective orders that are issued by the court of another State, Indian Tribe, 1 Emily F. Rothman et al., Gun Possession Among Massachusetts Batterer Intervention Program Enrollees. 30 Evaluation Review 283, 291 (2006) 2 See Center for American Progress, Preventing Domestic Abusers and Stalkers from Accessing Guns (May 9, 2013) at Michael Luo, In Some States, Gun Rights Trump Orders of Protection, The New York Times, March 17, 2013, at Page 2 of 38 December 5, 2014

27 or U.S. territory or possession, upon request of an agency of that State, Tribe, or territory/possession, the attorney or advocate of the victim/applicant, or the victim/applicant. Coordination with other jurisdictions can be critical to the protection of victims, and to the effective prosecution of Federal firearm crimes, or Federal domestic violence/stalking crimes. II. Definitions A. Consent Order: A protective order that is issued or approved by a court after the parties reach an agreement regarding the terms of the order. Such an order is sometimes referred to as an agreed order. B. Constructive Possession: When a person knowingly has the power and intention at a given time of exercising dominion and control over the object or over the area in which the object is located. C. Contraband: Property whose possession is unlawful. D. Criminal Court Orders: These include orders issued by a criminal court of another State, Indian Tribe, U.S. territory or possession, Puerto Rico, or the District of Columbia. These kinds of orders are often a component of the following: pretrial conditions; bail/bond conditions; no contact/stay away orders; probation conditions; and/or parole conditions. Prohibited acts contained in a criminal court order may include one or more of the following: violent or threatening acts against the victim, harassment of the victim, contact or communication with the victim, or physical proximity to the victim. E. Divorce Decrees: Protective orders to which this policy applies may be found in divorce decrees/judgments. F. Enforcing Jurisdiction: The state in which the enforcement of the protective order is requested. G. Final Protective Order: A protective order that was issued after notice and an opportunity to participate in a hearing were provided to the Respondent. H. Firearm: State Definition - See Penal Code Federal Definition Any weapon (including a starter gun), which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; or any destructive device. Under this definition, a firearm does not include an antique firearm. A destructive device means: 1. Any explosive, incendiary, or poison gas a. bomb, b. grenade, Page 3 of 38 December 5, 2014

28 c. rocket having a propellant charge of more than four ounces, d. missile having an explosive or incendiary charge of more than onequarter ounce, e. mine, or f. device similar to any of the devices described in the preceding clauses. 2. Any type of weapon (other than a shotgun or a shotgun shell which the Secretary of the Treasury finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of any explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; and 3. Any combination of parts whether designed or intended for use in converting any device into any destructive device may be readily assembled. The term destructive device shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordinance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of 4684(2), 4685, or 4686 of Title X or any other device which the Secretary of Treasury finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreation or cultural purposes. I. Full Faith and Credit (FFC): FFC refers to 2265 of the Violence Against Women Act (18 U.S.C. 2265). This section provides that any valid protective order issued in one state is to be treated by another state as if it were one of its own, and enforced in the same manner as an order issued in-state. The purpose of the FFC section is to enable a victim to travel safely without having to establish jurisdiction in each new location, and without having to secure a new order in each location. J. Issuing Jurisdiction: The State or Indian Tribe in which the court that issued the protective order is located. K. Military Protective Order: A protective order issued by a military commanding officer in any branch of the U.S. Armed Services that prohibits a member of the military from engaging in certain behaviors toward another person, or directs the military member to do certain things. In general, military protective orders are not enforceable by law enforcement and courts in civilian (i.e., State or Tribal) jurisdictions, unless there is an agreement between the military base and the civilian jurisdiction that such orders will be enforced by the law enforcement agency(ies) located in the civilian jurisdiction. L. Mutual Protective Order: A single Court Order containing provisions that require both parties (the Applicant and the Respondent) to do certain things or that prohibit certain behaviors. The issuing court intends for mutual orders to be enforceable against both parties, but a mutual order may not be enforceable in a jurisdiction other than the Page 4 of 38 December 5, 2014

29 jurisdiction in which the issuing court is located. Two separate orders of protection issued by one or more courts after the filing of separate petitions, motions, complaints, or other pleadings requesting a protective order are NOT considered to be mutual orders for purposes of this policy. M. Misdemeanor Crime of Domestic Violence: For the purposes of this policy, the definition contained in the Federal Gun Control Act is applied. An offense that: (1) Is a misdemeanor under Federal or Texas law; (2) Has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; (3) Was committed by a current or former spouse, parent or guardian of the victim, a person with whom the victim shares a child in common, a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. N. Magistrate s Order for Emergency Protection (MOEP or EPO): A protective order that is requested by a victim, law enforcement, and/or a judge (sua sponte) and served on the defendant at magistration. An EPO is mandatory when there is serious bodily injury or if the defendant uses a weapon. It is criminally enforceable for days depending on the crime. The legislative intent is to give the victim time and an additional safety mechanism to consider seeking a two-year protective order. O. No Contact Order: A provision within a protective order, or a free-standing order, that prohibits the Respondent and/or Defendant from making, or attempting to make, contact with the Applicant/Victim or other protected persons, including communication via telephone, , instant messaging, texts, social media, fax, verbal or written messages through third parties, U.S. mail and/or other delivery service; personal visits to the home or workplace of the Applicant/Victim, schools, daycare, or after-school care programs of the children of the Applicant/Victim, and/or any other places(s) from which the Respondent/Defendant is barred. P. Ownership: To legally own a firearm/ammunition. Q. Petitioner: The party who obtained a protective order against the Respondent, after filing a complaint, pleading, petition, or other document requesting that a court issue a protective order. R. Possession: To have access to and/or control of a firearm/ammunition. S. Protective Order: A legal order issued by a state court, which requires one person to stop harming another. The order can also place other restrictions on the abuser, such as ordering him/her to stay away or stop contacting another. There are three types of protective orders in Texas: family violence, stalking, and sexual assault. Page 5 of 38 December 5, 2014

30 T. Respondent: The person against whom the Applicant has filed a complaint, pleading, petition, or other document requesting that a court or other authority issue a protective order, and who is mandated, pursuant to the protective order, to perform certain behaviors (e.g., pay child support, comply with custody and visitation provisions, etc.). For purposes of this policy, the term Respondent does not refer to a person against whom a mutual order has been issued, where no complaint, pleading, petition or other document requesting a protective order has been filed by the opposing party, and where the judge has not made specific findings that the parties are both entitled to such an order. (See also the Mutual Protective Order definition). U. State: For purposes of this policy, this includes any state of the United States, as well as Guam, the District of Columbia, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. V. Stay-Away Order: A provision within a protective order, condition of release, or a freestanding order, that requires the Respondent and/or Defendant to maintain specified distance from the Applicant/Victim and/or other protected persons and/or any place where the protected parties may be present. W. Temporary Ex Parte Order: A protective order that was issued prior to notice being provided to the Respondent/Defendant, and prior to a hearing at which the Respondent/Defendant has an opportunity to participate in the proceeding and be heard. Page 6 of 38 December 5, 2014

31 PART II Ex Parte and Protective Orders I. Firearm Surrender for Ex Parte Orders TX Family Code (a) A. The court may order the Respondent to surrender prohibited firearms and ammunition IMMEDIATELY 3 upon service to: 1. A third party agent (friend/family) or 2. An approved private storage facility for the duration of the Ex Parte order or 3. The Travis County Sheriff s Office (Ruiz Building). B. The Ex Parte will include instructions for surrender for service. 1. The order shall include the following information: a. Name of the Applicant and protected persons; b. Name of the Respondent; c. Social Security Number, Date of Birth, or other numeric identifier for the Respondent; d. Address(es) and Phone Number(s) for the Respondent; e. The make and model of the firearm(s) that the Respondent has been ordered to surrender (if available); and 2. The Ex Parte will be accompanied by the following documents: a. Directions for Surrender to the Travis County Sheriff s Office (Appendix A) b. List of Approved Storage Facilities (Appendix B) c. Affidavit for Third Party Transfers (private storage and family/friend) (Appendix C). The third party transferee will be required to sign the affidavit and the Respondent will be required to fax/ the affidavit and receipt from the third party storage facility (Travis County Sheriff s Office or private storage facility) to the Clerk of the Court and the Protective Order Unit of the Travis County Attorney s Office within ONE 3 Deputy Constables will inform the respondent that if proof of surrender or an affidavit of non-surrender are not submitted in a timely fashion, a show cause hearing will be held at the protective order hearing. Page 7 of 38 December 5, 2014

32 BUSINESS DAY after receiving service of the Ex Parte Order. The Respondent will be required to bring the original affidavit and receipt to the protective order hearing d. Affidavit of Non-Surrender (Appendix D). If the Respondent does not own or possess a firearm or ammunition, he/she must submit an affidavit, under the penalty of perjury, stating such to the Protective Order Unit of the County Attorney s Office by fax/ within ONE BUSINESS DAY of receiving service of the Ex Parte. II. Firearm Surrender & Forfeiture for Protective Orders A. Upon issuance of a protective order (by consent or trial), the court may order the Respondent to continue the surrender of prohibited firearms and ammunition for the duration of the protective order by and through: 1. A third party agent (friend/family) or 2. An approved private storage facility 4 or 3. The Travis County Sheriff s Office (Ruiz Building). 5 B. The Order shall include the following information: 1. Name of the Applicant and protected parties; 2. Name of the Respondent; 3. Social Security Number, Date of Birth, or other numeric identifier for the Respondent; 4. Address(es) and Phone Number(s) for the Respondent; 5. The make and model of the firearm(s) the Respondent has been ordered to be relinquished (if available); and 6. The anticipated date and time when the firearm(s) and ammunition may be returned. a. If the Protective Order has an expiration date, i.e., two years, the Order will explain the firearm(s) and ammunition may not be released until an 4 Fees for storage of such firearms shall be the responsibility of the Respondent. Non-payment of such fees shall result in the forfeiture and/or destruction of the stored firearm(s) according to the contractual relationship with the private storage facility. 5 The Travis County Sheriff s Office cannot and will not store firearms and ammunition for lifetime protective orders. Page 8 of 38 December 5, 2014

33 Order of Release (Appendix F) from the Court is issued to the third party on or about the anticipated date. b. If the Protective Order is a lifetime order, the Order will provide instructions for the Respondent to sell or transfer the firearms and ammunition according to law. C. If the Respondent does not own or possess a firearm or ammunition, he/she must declare under oath and on the record under the penalties of perjury that he/she does not own or possess a firearm or ammunition subject to surrender in addition to submitting the Affidavit of Non-Surrender. The Respondent must acknowledge on the record that he/she is prohibited from owning or possessing firearms and/or ammunition while the protective order is valid. III. Compliance Hearings A. The court may sua sponte set a compliance hearing or upon a motion of a party. B. Upon notice of a compliance hearing, the Protective Order Unit of the Travis County Attorney s Office will conduct a background check on the Respondent and any third party transferee in possession of the Respondent s firearms and ammunition. C. The compliance hearing will admonish and advise the Respondent that: 1). He/she is not to be in possession of any firearms and ammunition; 2). Any transfers of possession of the prohibited firearms and ammunition must be reported to the Travis County Attorney s Office by immediately or the Respondent will be found in violation of the Protective Order. IV. Seizure of Firearm(s) for a Violation of a Protective Order A. Determination of Existence of Current Protective Order. 1. Interview of Victim. The responding officers shall determine whether there is a current protective order in effect by interviewing the alleged victim. 2. Verification of Protective Order. If the alleged victim states that he/she is protected by a current protective order, the officer shall verify the existence of the protective order by examining a paper copy of the protective order. If a paper copy is not available, the officer shall verify the existence and terms of the order through electronic means, by conducting a search/requesting a search of the TCIC/NCIC Protective Order File. If a copy is not immediately available through paper or electronic means, the officer should use all reasonable efforts to determine the existence of the order, including attempting to contact the court that issued the order or a law enforcement agency in the jurisdiction in which the order was issued, drawing upon the personal knowledge of the officer, or relying upon Page 9 of 38 December 5, 2014

34 credible statements made by the alleged victim and/or the Respondent during the interview process. a. Paper Copy of Protective Order Determination of Facial Authenticity. If a paper copy of the order is available to the officer, no other means of verification shall be undertaken, provided the following can be determined:! The order is still in effect (as evidenced by the fact that the order is either a non-expiring order/lifetime order, the expiration date has not yet passed, or the order contains the date on which the order was issued, which is prior to the date when enforcement is sought);! The names of the parties are contained in the order, and they are the same as the names of the parties involved in the domestic violence incident;! The order contains the name of the issuing court or other authority that issued that order;! It is evident the order was issued by a judicial officer or other appropriate authority. The authentication of the order will vary among jurisdictions, but may include, for example, a stamp, signature, or seal; and! The order specifies terms and conditions against the Respondent. b. No Service or Notice Determination. Unless the order is a temporary ex parte protective order, the officer shall not endeavor to determine if the final order was served on the Respondent. Notice is an issue that may be raised by the Respondent in a court enforcement proceeding. B. Firearm Prohibition Pursuant to Protective Order - TX Fam. Code (b)(6) Once the officer has determined there is a current protective order in effect, the officer shall determine whether the Respondent is prohibited from possessing a firearm for the duration of the protective order. 1. If the protective order was issued in TX, either (a) or (b) may apply. If the protective order was issued in a jurisdiction other than Texas only (b) may apply. a. TX Fam. Code (b)(6) prohibits possession of some or all firearms for the duration of the protective order. 6 6 Tex. Family Code (d) states that the court shall or may suspend a license to carry a concealed handgun issued under , Government Code, that is held by a person found to have committed family violence. Page 10 of 38 December 5, 2014

35 b. The protective order includes relief /conditions/provisions that prohibit possession of all or certain firearms for the duration of the protective order. 2. If, upon responding to the scene, the responding officer learns there is a protective order currently in effect that was issued either by a court of Texas, or the court of another State/Tribe, that prohibits possession or control of a firearm, the officer shall seize any firearm prohibited by the protective order if it is: a. in a vehicle driven by the alleged perpetrator when he/she is apprehended, and the firearm(s) is seized pursuant to a valid stop and frisk search; b. in plain view at the scene of the incident; c. found pursuant to a consent search at the scene of the incident; d. found pursuant to a custodial search; and/or e. found pursuant to an inventory search of a vehicle, upon arrest of the alleged perpetrator. 3. The responding officer shall note the firearm(s) seizure in the report, and whether the protective order is a final order (the order was issued after a hearing at which the Respondent either appeared or had an opportunity to appear). C. Federal Firearm Prohibition Due to Existence of a Protective Order Federal Law If the protective order appears to meet the requirements of the Federal definition of protective order (an order protecting an intimate partner and/or child of a Respondent), and a firearm is found, the responding officer shall seize the firearm as contraband. The responding officer or supervising officer shall immediately contact the Protective Order Unit of the Travis County Attorney s Office and the local field office for the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF). The seized firearm(s) shall be immediately turned over to the BATF, or as soon as possible. A copy of the report shall be immediately forwarded to the Protective Order Unit of the Travis County Attorney s Office and the local field office for the BATF, and shall clearly indicate the suspected violation of 18 U.S.C. 922(g)(8). Page 11 of 38 December 5, 2014

36 PART III Firearm Surrender for Misdemeanants Convicted of Domestic Violence I. Surrender for Magistrate Orders of Emergency Protection (aka MOEPs or EPOs) II. II. Surrender for Conditions of Release Seizure of Firearms - Response to an Incident of Domestic Violence. A. Firearm Used or Threatened to Be Used During Incident. Upon arrival at the scene of an alleged incident of domestic violence, the responding officer(s) shall seize any firearm allegedly used or threatened to be used in the incident, if in plain view or found pursuant to a consent or custodial search, or a search incident to arrest, where authorized by Texas law to do so. B. Firearm Seizure Where There Is No Current Protection Order, and Firearm Was Not Used or Threatened to Be Used. When a firearm is determined to be present, either because the firearm is in plain view, or was located pursuant to a consent or custodial search, or a search incident to arrest, the firearm shall be confiscated from the alleged perpetrator if it is determined that control and/or possession of the firearm is one of the following: 1. A violation of the State license to carry or possession laws and/or regulations. 2. Otherwise prohibited by State law. 3. Prohibited by Federal law [where Texas law allows such a seizure, or as contraband] a. If there is probable cause to believe that the alleged perpetrator is prohibited from possessing a firearm under Federal law, either because there is probable cause to believe that the alleged perpetrator was convicted of a qualifying misdemeanor that prohibits firearm possession pursuant to 18 U.S.C. 922(g)(9) or other provision of the Federal Gun Control Act, or the officer has reason to believe that the alleged perpetrator is otherwise prohibited under Federal law from possessing a firearm, the responding officer shall follow the procedures outlined below. b. Misdemeanor Crime of Domestic Violence. If it is determined through a criminal records search that the alleged perpetrator has been previously convicted of a misdemeanor crime of domestic violence, the firearm shall be seized as contraband. The responding officer/supervising officer shall immediately contact the county/district attorney s office, and the local field office for the BATF. A copy of the report of the incident shall be Page 12 of 38 December 5, 2014

37 immediately forwarded to all such parties and shall clearly indicate the suspected violation of 18 U.S.C. 922(g)(9) or other provision of the Gun Control Act. 7 7 Texas prohibits firearm possession by domestic violence misdemeanants for five years following release from confinement or community supervision. Tex. Fam. Code Ann et seq.; Tex. Penal Code Ann , 46.04(b) Page 13 of 38 December 5, 2014

38 PART IV Storage & Return of Firearms and Ammunition I. Storage by Law Enforcement The storage of firearms seized pursuant to condition specified in a protective order shall be handled in the same manner in which contraband and/or evidence is handled by the agency. Documentation shall include: A. Inventory B. Photographed for condition C. Trace the weapon for stolen. If the weapon is reported stolen, the weapon is forfeited. II. Return of Firearms to Owners A. A person who has one or more firearm(s) and ammunition, in the custody of a law enforcement agency/third party transferee/private storage facility, that were relinquished or seized because the person: 1. Is/was subject to a protective order that contained one or more remedies, provisions, or conditions that prohibited the person from possessing a firearm or ammunition for the duration of the protective order; 2. Violated State law prohibiting the possession of a firearm while subject to a protective order. 3. Is/was subject to a protective order that met the requirements of 18 U.S.C 922(g)(8), making the person one who is prohibited from possessing a firearm or ammunition under Federal law; 4. Used or threatened to use a firearm during an incident of domestic violence; or 5. Otherwise unlawfully possessed a firearm. and who desires to regain possession of the firearm(s) must submit a written request for the return of the firearm(s) and ammunition and must submit a written request to the issuing Court asking for the release and return of the firearm(s) and ammunition and describing each firearm in detail. B. Upon receipt of a written request for the return of one or more firearms, the Court - by and through the Protective Order Unit of the Travis County Attorney s Office - shall conduct a background check using NCIC/TCIC, and any other relevant Page 14 of 38 December 5, 2014

39 databases in order to determine whether the person is prohibited from possessing a firearm. 8 C. If the person is prohibited from possessing a firearm for any reason, whether pursuant to local, State, or Federal law or policy, the firearm(s) shall NOT be released and returned. The Court shall provide in writing to the person the reason for the denial of the firearm return request. 1. The person may re-submit the request for return of the firearm(s) after 180 days, if the stated reason for the denial is due to a circumstance that may change (e.g., expiration of a protection order). 2. If the return of the firearm(s) was denied due to a circumstance that is not likely to change within 180 days (i.e., the person was convicted of a misdemeanor crime of domestic violence), the person may not re-apply after 180 days. 3. Only one repeat request for return of the firearm(s) may be submitted (i.e., two requests is the maximum number of requests that may be made for return of the firearm(s)). A repeat request will be accepted up to 365 days after an initial denial of the return request. D. Upon approval of a request to return stored firearms and/or ammunition, the Protective Order Unit of the Travis County Attorney s Office will provide notice to the victim that the firearm will be returned to the Respondent. (Appendix G). E. The issuing court will provide an Order of Release Form to the law enforcement agency/third party/private storage facility. (Appendix H) F. The issuing court will impose a sale or transfer of the prohibited firearms/ammunition in the event there is a lifetime protective order issued. (Appendix E). 8 The Texas Advocacy Project, Texas RioGrande Legal Aid and private attorneys will be required to use all reasonable means to determine whether the person is prohibited from possessing a firearm. Page 15 of 38 December 5, 2014

40 PART V Forfeiture I. Destruction of Firearms/Ammunition In the event prohibited firearms and ammunition are forfeited to the Travis County Sheriff s Office by order of the court, the Sheriff s Office may destroy the forfeited firearm(s) and ammunition according to their policy and procedures. Notice will be provided to the Court, the Travis County Attorney s Office Protective Order Unit and Counsel of Record for the Respondent when the firearm(s) and/or ammunition are destroyed. II. Sale of Firearms/Ammunition In the event the prohibited firearm(s) and ammunition are sold by the Respondent to be in compliance with the protective order, the Respondent shall have ONE BUSINESS DAY to sell the prohibited firearm(s) and ammunition to a licensed gun dealer and furnish receipt of that sale to the Clerk of the Court and the Travis County Attorney s Office Protective Order Unit by or fax within ONE BUSINESS DAY from the final protective order hearing. Page 16 of 38 December 5, 2014

41 PART VI Coordination with Federal Authorities I. Upon identifying a case in which it is suspected that there has been a violation of Federal firearm laws or the Federal domestic violence/stalking laws: A. The responding officer shall immediately notify his/her supervising officer of the suspected violation of Federal law, particularly if the case involves: 1. Narcotics; 2. Trafficking of firearms; and/or 3. A cache of weapons. B. The supervising officer shall, upon receiving notification from the responding officer, immediately contact the following agencies an notify the appropriate persons of the suspected violation(s) of Federal law: 1. Chief of the Family Violence Unit, Travis County Attorney s Office and/or Chief of the Family Violence Unit, Travis County District Attorney s Office. 2. The local field office for the Federal BATF (for suspected firearm violations) or the Federal Bureau of Investigations (for suspected violations of the Federal domestic violence/stalking laws). C. A copy of the incident report shall be immediately forwarded to all of the above agencies. Any contraband seized that was in the possession of the alleged perpetrator shall be immediately turned over to the appropriate Federal authorities. Page 17 of 38 December 5, 2014

42 APPENDIX A Directions for Surrender Travis County Sheriff s Office Page 18 of 38 December 5, 2014

43 Instructions to Turn in Firearm(s) and Ammunition Pursuant to a court order, you have been ordered to turn in any firearm(s) to the Travis County Sheriff s Office (TCSO). Follow these instructions: 1. Contact the Travis County Sheriff s Office Clerk for the Surrender of Firearms at , Monday Friday, 8 a.m. 4:30 p.m. Inform the Clerk that the Court has ordered you to turn in your firearms to the TCSO and you must arrange a time to do this as soon as possible. Have your TCSO case number available this number is printed on the court order. The Clerk can set the appointment. However, if available you will be forwarded to a Crime Lab Technician to set the appointment. 2. If the Crime Lab Technician is not available on the day and time of your appointment, a Detective will be contacted to meet with you for your firearms surrender. 3. You must have a copy of the court order with you to give TCSO when you turn in your firearm(s). 4. The surrender will take place at 5555 Airport Boulevard, Austin, Texas. When you arrive, contact TCSO and keep your unloaded firearm(s) locked inside your vehicle (trunk if possible). Upon contacting TCSO personnel, provide them with a copy of the order and inform them that your firearm(s) are inside the vehicle. TCSO will advise you on what to do for the removal of the firearm(s). 5. You must obtain a receipt from the TCSO to provide proof to the court that you have turned in your firearm(s). You must then provide this receipt to the court. YOU ARE RESPONSIBLE FOR COMPLYING WITH THE CONDITIONS OF THE COURT ORDER IN A TIMELY MANNER IN ACCORDANCE WITH THE COURT ORDER. Page 19 of 38 December 5, 2014

44 APPENDIX B List of Approved Private Storage Facilities Page 20 of 38 December 5, 2014

45 Gaston & Sheehan 1420 Hwy 685 Plfugerville, TX (512) (512) (Fax) Monday Friday 8:30 a.m. -5 p.m. Page 21 of 38 December 5, 2014

46 APPENDIX C Third Party Transfer Affidavit Page 22 of 38 December 5, 2014

47 Cause No.: Applicant In the Court v. of Respondent Travis County, Texas Affidavit of Receipt of Third-Party Transfer BEFORE ME, the undersigned authority personally appeared who (Name of Affiant) after being duly sworn, deposed, and says: residing at, (Name of Affiant) whose date of birth is hereby agrees to receive by sale and/or transfer from Defendant/Respondent the following described firearms and/or ammunition (set forth make, model & serial number):. I do not reside with the Defendant/Respondent in the same residence. My relationship to the Defendant/Respondent is. I agree not to return, loan, or sell the firearms and/or ammunition evidenced by this receipt to the Respondent/Defendant under any circumstances, without a court order allowing the same. I understand that violation of this oath may result in contempt of court charges against me. I also affirm that I am not prohibited from owning firearms under either State or Federal laws. Signature Print Name SWORN TO AND SUBSCRIBED before me this day of 20. Personally known/identification Notary Public, State of Texas My Commission Expires: Page 23 of 38 December 5, 2014

48 Page 24 of 38 December 5, 2014

49 ADMONITION for Third Party Transfer [Respondent/Defendant] is prohibited from possessing and/or receiving firearms under federal law [can insert specific Gun Control Act provision, 18 U.S.C. 922(g) 1-9 or (n)]. For example: (g)(8) a person subject to a court order that was issued after a hearing in which the person participated, which order restrains the person from harassing, stalking, or threatening and intimate partner or partner s child, and which order includes a finding that the person is a credible threat to such partner or partner s child, or by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner s child; (g)(9) a person who has been convicted of a misdemeanor crime of domestic violence. [Respondent/Defendant] wishes to transfer his/her firearms (see list below) to you. Firearm Make Model Caliber Serial Number Do you live at the same residence as [Respondent/Defendant]? Do you understand and acknowledge that you may not return the firearms described above, or any other firearm to Respondent/Defendant, or to any other person living in the residence of the Respondent/Defendant? Do you understand and acknowledge that firearms may not be loaned to, rented or borrowed by Defendant/Respondent? Do you also understand that actual or constructive possession and/or receipt of a firearm by the Respondent/Defendant, is punishable by a term of imprisonment of 5 to 10 years, and by a fine of not more that $250,000.00? Do you also understand and acknowledge that knowingly providing a firearm or ammunition to the Respondent/Defendant may subject you to federal prosecution? Knowingly transferring a firearm or ammunition to anyone who is prohibited under federal law from possessing a firearm is punishable by a fine, a term of imprisonment of up to 10 years, or both. Page 25 of 38 December 5, 2014

50 APPENDIX D Affidavit of Non-Surrender Page 26 of 38 December 5, 2014

51 Cause No.: Applicant In the Court v. of Respondent Travis County, Texas Proof of Compliance with Firearm Surrender Order Affidavit of Non-Surrender I understand the court has ordered me to surrender any and all firearms and ammunition that I own or have in my possession, control, or custody. I have not surrendered any weapons pursuant to that order because I do not own any firearms/ammunition nor do I have any in my possession, control, or custody. Under penalty of perjury under the laws of the State of Texas, I certify that the above statement is true and correct. I understand that I can be charged with the felony crime of Aggravated Perjury under Texas Penal Code if this affidavit contains a material misstatement. Defendant Date Notary Public, State of Texas My Commission Expires: Page 27 of 38 December 5, 2014

52 APPENDIX E Order for Forfeiture/Sale of Firearms and/or Ammunition Page 28 of 38 December 5, 2014

53 Cause No.: Applicant In the Court v. of Respondent Travis County, Texas ORDER FOR FORFEITURE OF FIREARM(S) AND AMMUNITION THIS CAUSE having been heard by the undersigned judge, and the court having considered the records and files herein, hereby ORDERS, ADJUDGES and DECREES: Pursuant to TX Fam. Code (b)(6), the court finds the firearms listed below were in the possession or under the control of the Respondent and he/she is hereby prohibited from owning and/or possessing such firearms/ammunition due to the imposition of a Final Protective Order for the lifetime of the Respondent. The court hereby orders forfeiture of the firearms listed below: Firearm Make Model Caliber Serial Number The Respondent has one (1) business day to sell or transfer said firearms/ammunition. Respondent shall furnish the court with a receipt of sale or transfer by, 20 or shall be found in contempt. DONE AND ORDERED in Austin, Travis County, Texas this day of, 20. Judge Page 29 of 38 December 5, 2014

54 CLERK S CERTIFICATE OF SERVICE I hereby certify that a certified copy of this Order was delivered to: [ ] Applicant,, by [ ] hand [ ] mail [ ] certified mail at AM/PM [ ] Applicant s Counsel, by [ ] hand [ ] mail [ ] certified mail at AM/PM [ ] Respondent,, by [ ] hand [ ] mail [ ] certified mail at AM/PM [ ] Respondent s Counsel,, by [ ] hand [ ] mail [ ] certified mail at AM/PM Dana DeBeauvoir Travis County Clerk Deputy Clerk Page 30 of 38 December 5, 2014

55 APPENDIX F Order Releasing Firearms and/or Ammunition to Third Party Page 31 of 38 December 5, 2014

56 Cause No.: Applicant In the Court v. of Respondent Travis County, Texas Order Releasing Firearms and/or Ammunition to Third Party THIS CAUSE having been heard and the Court being fully advised in the premises, it is hereby: ORDERED AND ADJUDGED: Whereas the Respondent was subject to a protective order for a period of years and could not fully possess firearms and/or ammunitions; and, Whereas retains custody of the following firearms and/or ammunition seized from or surrendered by the Respondent: Firearm Make/Ammo Model Caliber Serial Number WHEREFORE, it is hereby ORDERED AND ADJUDGED: That the (third party) or the Travis County Sheriff s Office shall release the firearms and/or ammunition identified above to the Respondent: upon presentation of this Order and valid identification. DONE AND ORDERED in Austin, Travis County, Texas this day of, 20. Judge Page 32 of 38 December 5, 2014

57 CLERK S CERTIFICATE OF SERVICE I hereby certify that a certified copy of this Order was delivered to: [ ] Applicant,, by [ ] hand [ ] mail [ ] certified mail at AM/PM [ ] Applicant s Counsel, by [ ] hand [ ] mail [ ] certified mail at AM/PM [ ] Respondent,, by [ ] hand [ ] mail [ ] certified mail at AM/PM [ ] Respondent s Counsel,, by [ ] hand [ ] mail [ ] certified mail at AM/PM Dana DeBeauvoir Travis County Clerk Deputy Clerk Page 33 of 38 December 5, 2014

58 APPENDIX G Notice to Applicant Page 34 of 38 December 5, 2014

59 Date: RE: Case Number Dear Applicant: Please be advised that is a crime for a Respondent subject to a protective order to possess a firearm or ammunition. Recently, the Court received a request from the Respondent in your case requesting the return of firearms and/or ammunition that he/she surrendered at the beginning of the case. The Court has preliminary determined that the respondent is entitled to the return of the firearm(s) and/or ammunition. You have the right to file an objection to the return of the firearm(s) or ammunition with the Court. Please state your objection in writing within ten (10) days from the dates of this letter. Some legal reasons why the firearms/ammunition should not be returned are: 1. the firearm is not legally owned by the Respondent; 2. the Respondent has been found guilty of a felony in Texas or any other state; 3. the Respondent has been found guilty of a misdemeanor crime of domestic violence in Texas or any other state; 4. there is a protective order in effect against the Respondent in Texas or another state; 5. there is a pending forfeiture action against the Respondent in another court; 6. the Respondent has been adjudicated mentally defective or committed to a mental institution; and 7. there is some other legal impediment to the Respondent owning or possessing a firearm, including but not limited to those mentioned above. 8. Any other reason you think the Court should be aware of. Should you have any other questions, please do not hesitate to contact me. Sincerely, Protective Order Unit of TCAO Cc: Respondent Page 35 of 38 December 5, 2014

60 APPENDIX H Order for Return of Firearm(s) and Ammunition Page 36 of 38 December 5, 2014

61 Cause No.: Applicant In the Court v. of Respondent Travis County, Texas ORDER FOR RETURN OF FIREARM(S) AND AMMUNITION THIS CAUSE having been heard pursuant to the Respondent s Motion for Return of Firearm(s) and Ammunition in the above styled cause, and the court having reviewed all pertinent documents, finds as follows: The respondent was ordered to surrender all firearms and ammunition in his/her possession pursuant to a valid Ex Parte (temporary) or Final Protective Order. The Firearm(s) and ammunition surrendered are as follows: Firearm Make Model Caliber Serial Number The respondent surrendered said firearm(s) and ammunition to: a. (family/friend) OR b. (private storage facility) The affidavit from the third party transferee and receipt from the private storage facility (if applicable) was filed with the Clerk s Office. The receipt number (if applicable) is. The firearm(s) is/are legally owned by the Respondent. The Respondent has not been found guilty of a felony in Texas or any other state. The Respondent has not been found guilty of a misdemeanor crime of domestic violence. There is no injunction/protective order in effect against the Respondent in Texas or in any other state. Page 37 of 38 December 5, 2014

62 There is no forfeiture action pending against the Respondent in another court. The Respondent s affidavit attests to the fact that he/she has never been adjudicated mentally defective or been committed to a mental institution and that there is no other legal impediment to the Respondent owning or possessing a firearm, including, but not limited to those mentioned above. Based upon the foregoing findings, it is hereby ORDERED and ADJUDGED that the Respondent s Motion for Return of Firearm(s) and Ammunition is GRANTED and the third party transferee which has retained said firearm(s) and ammunition is to return the above described firearm(s) and ammunition to the Respondent forthwith, upon presentation of a certified copy of this order, the storage receipt, proof of ownership, and valid identification of the Respondent. Based upon the policies of the private storage facility, the firearm(s) and ammunition may be returned separately, at different times, for safety reasons. DONE AND ORDERED at Austin, Travis County, Texas this day of, 20. Judge Copies furnished to: Applicant Applicant s Counsel Respondent Respondent s Counsel Page 38 of 38 December 5, 2014

63 The Safe Place For victims of domestic violence, there's no safer city than Austin. by Dave Mann Published on Friday, March 7, 2008, at 12:00 CST She didn t see where the gunshots came from, but Estrella Rochelli knew the shooter. The Dallas police had freed her husband from jail, though she had begged them not to release him. Now he had come to kill her. The bullets punctured her car as it idled at a traffic light. She was on her way home after an evening shift waitressing at El Chico restaurant. He must have been waiting-her husband of eight years, the father of her three daughters. She sped through the light. Her car stalled a few blocks later, and Rochelli had to bolt on foot. He ran after her, firing his gun. She zigzagged back and forth across the street. Bullets whizzed past. He emptied and reloaded three times. Eventually a bullet sliced into her back. Another shot ripped through her left side under her ribs, and yet she kept running. Rochelli saw a minivan stop in the street and it backed up toward her. She stumbled to it on wobbly legs. A young couple flung open the door and dragged her inside. They drove to a convenience store and called for an ambulance. Shot four times, Rochelli bled profusely. Lying in the store, she overheard someone say she was going to die. Remarkably, from that moment in 1996, Rochelli s fortunes began to improve. She survived the four gunshot wounds. Still, her husband had managed to elude Dallas authorities, and she needed a place to hide. After the hospital released Rochelli, a police officer told her about a shelter for abused women in Austin. Here, finally-after years of abuse that went ignored by law enforcement-was a turn of good fortune. For victims like Rochelli, there may be no safer city in the nation. Austin has earned a national reputation for treating and preventing domestic violence. Key to the area s success is collaboration among the city s disparate players: victims advocates, emergency shelters, law enforcement, judges, prosecutors, and nonprofit legal-aid groups. In most other cities,

64 these groups are turf-conscious mini-fiefdoms. In Austin, they meet monthly as a domestic violence task force. What has emerged are innovative solutions for handling abuse: The Austin Police Department and Travis County Sheriff s Office established their own domestic violence units. Travis County prosecutors formed specialized divisions for aiding and protecting victims of abuse. Austin set up one of the first district courts in Texas designated to handle only domestic violence cases and protective orders. And victims advocates teamed to create one of the largest and best-funded abuse shelters in the nation-safeplace. These innovations likely have saved many lives, including Estrella Rochelli s. Domestic violence cases are exceedingly complex to prosecute. Beneath the violence is a mix of manipulation and distrust, jealousy and insecurity. Abusers often blame their victims. And the victims-wrestling with helplessness and misplaced love-sometimes refuse to press charges. Some will recant their own statements to police or even lie in court to protect their abusers. Handling these cases requires cops, prosecutors, and judges who understand such subtleties, who recognize the dynamics of power and control that underlie the violence, and who will work not only cooperatively with each other, but also with counselors and victims advocates. In 1989, Austin Police Chief Jim Everett convened the Austin-Travis County Family Violence Task Force. It has met monthly ever since. The task force now has 19 member organizations in and out of government. It serves as a common space where law enforcement, judges, prosecutors, legal-aid attorneys, and victims groups can lace their efforts together. A series of progressive law enforcement leaders including Everett, a number of leaders in the Travis County Sheriff s Office, and Constable Bruce Elfant, have devoted time and resources to the effort. The result is the kind of

65 cooperation that few cities in the nation have achieved. (The Austin police recently even set up a specialized unit within the domestic violence division to handle the most horrific cases-a unit that police leadership credits with reducing Austin homicides related to domestic violence from nine in 2005 to four in 2006 to two last year.) The task force has been the wellspring for the city s other innovative approaches: creating counseling programs for batterers, pushing to ensure that defendants criminal histories get to judges before bond is set, and stressing the use of civil protective orders for victims. In 1997, the task force helped marshal federal money to set up a one-stop office where victims could access many of the services they would need without driving all over town as their cases stalled in the bureaucracy. It was a place where officers from the domestic violence units of the Austin police, the county sheriff s office, prosecutors, counselors from SafePlace, and civil attorneys could all work under one roof. They called it the Family Violence Protection Team. The effort has proved wildly successful, though it s not as coordinated as it once was. Last year, the Austin police tried to move the office to a more remote location. Some refused to follow, and the protection team, while still useful, is now scattered. It s nothing like it was, says Jim Sylvester, a longtime member of the task force and the sheriff s department. It s unbelievable how the landscape has changed in just one year. It s not as cohesive. Sylvester wants to establish a Family Justice Center in Austin, modeled on a path-breaking effort in San Diego, that would mesh services for domestic violence, rape, and child abuse under one roof. It would house the relevant parts of the criminal justice system, medical staff, counselors, victims advocates, and private attorneys. The idea has met with resistance, and funding is uncertain. We have a lot of people come from around the country and try to duplicate or emulate what we re doing, Sylvester says. But we re trying to take it to the next level and get that family justice center going. Gail Rice, director of community advocacy at SafePlace and a longtime member of the task force, points to another unique effort in Austin. The city allows legal-aid attorneys to visit the jail to sift through arrest reports and pick out cases that need extra attention. They then contact the victims to ask if they need an emergency protective order, which bars alleged abusers from any contact for up to 90 days. The process leads to hundreds of emergency protective orders a year in Austin.

66 Perhaps nothing sets Austin apart like Judge Mike Denton s County Court at Law No. 4-the domestic violence court, one of the first of its kind in Texas. On a recent Friday morning, Denton s chambers in downtown Austin were a nexus of activity. The foot traffic resembled an in-person flowchart of domestic violence cases: an assistant district attorney, a prosecutor from the county attorney s office who handles only protective orders, counselors from SafePlace who use a room at the courthouse to support victims when they testify, a sheriff s deputy assigned to the court, and finally Mack Martinez, chief of the domestic violence unit for the county attorney. Denton waved Martinez in to answer a reporter s questions. As a prosecutor, Martinez said, his biggest challenge is overcoming the reluctance of victims. They re in denial about the fact they are victims of family violence, he said. They make excuses, they rationalize. That s perfectly natural. Yesterday, this was the person they trusted most in the world. Last night, that person beats them. This morning, it s difficult for them to make the shift. Having a judge who understands these tendencies makes a huge difference. Denton, a former prosecutor, has worked with abuse cases for years. Visitors from cities around the country have come to observe Denton s court, and he frequently speaks at conferences and training sessions on domestic violence for judges. As Rice, of SafePlace, puts it, When a judge has the experience in seeing the effects of coercion and fear tactics on the victim and how that leads the victim to recant, the judge s experience puts all that in context. It helps them understand why victims do some of the counterintuitive things they do. About midmorning, a defense attorney popped into Denton s office. He wanted to obtain nondisclosure for his client. This allows the client to wipe clean his record of alleged abuse after completing a deferred-adjudication program. The crime was no big deal, the attorney says: It was only a hickey. Denton eyed the documents. Here were two men deciding whether a male abuser

67 deserved leniency. In another judge s chambers, the no-big-deal argument might have worked. Not here. Denton knows the law. Nondisclosure isn t permitted in domestic violence cases. Penalties increase dramatically for repeat offenders, so wiping away offenses is counterproductive. Denton s court handles misdemeanor assaults up to third-degree felony cases. He dispenses numerous protective orders, which can be a valuable tool in aiding victims. In 2007, 636 orders were issued in the city. But protective orders are meaningless pieces of paper unless police and judges enforce them. Denton gives a well-rehearsed protective order speech to accused abusers that everyone in his court has heard many times. He explains to every alleged offender that the abuser must stay two football fields from the victim or face jail. And the victim can t undo it. If you were arrested at her house tonight, and your defense was that she invited you over- Let s talk it over -that would not be a defense, he says. It s repetitive, but Denton says the speech greatly increases the effectiveness of protective orders. The court has been almost too successful. Denton s docket is stuffed with nearly 3,000 cases, more than he can handle. What Austin needs, he says, is another domestic violence court. Rochelli is a small woman with tightly curled black hair cropped above her shoulders. She came to the United States from El Salvador at 16 and met her future husband while waitressing at a restaurant in New York. Her marriage was eight years of increasingly severe beatings: kicks, chokes, alcoholic rages, and insults. When she had summoned the courage to ask for help, few came to her aid. Police in New York never seemed to care. Once, an emergency dispatcher-claiming not to understand Rochelli s accented English-hung up on her. Another night, she called 911 and left the phone line open while he beat her, hoping someone would hear and send help. No one came. Rochelli eventually escaped New York for Dallas, where her sisters live. Her husband tracked her there, and a new cycle of abuse began. Once again the authorities offered little aid.