RENO POLICE DEPARTMENT GENERAL ORDER

Transcription

1 RENO POLICE DEPARTMENT GENERAL ORDER This directive is for internal use only and does not enlarge this department's, governmental entity's and/or any of this department's employees' civil or criminal liability in any way. It is not to be construed as the creation of a particular standard of safety or care in an evidentiary sense, with respect to any complaint, demand for settlement, or any other form of grievance or litigation. Violations of this directive, if substantiated, can only form the basis for intra departmental administrative sanctions. Chief of Police: Michael Poehlman /s/ Approving Deputy Chief: General Order No: P Issued: November 17, 2005 General Order Title : DOMESTIC VIOLENCE/TPO/EPO Supersedes: 3/ , 3/ POLICY The Reno Police Department recognizes that domestic violence has serious consequences for involved families and necessitates prompt and thorough investigation. The Department will investigate all calls for service involving domestic violence, recognizing that an aggressive policy of arresting domestic violence assailants leads to a reduction in domestic violence crimes and domestic homicides. The Department has established procedures for the verification and enforcement of orders for protection against domestic violence. DEFINITIONS Domestic Violence NRS (2) says that an act of domestic violence means any of the following acts committed by a person against his/her spouse, former spouse, any other person to whom he/she is related by blood or marriage, a person with whom he/she is or was actually residing, a person with whom he/she has had or is having a dating relationship, a person with whom he/she has a child in common, the minor child of any of those persons or his/her minor child: A battery; An assault: Compelling the other by force or threat of force to perform an act from which they have the right to refrain or to refrain from an act which they have the right to perform; A sexual assault; A false imprisonment; Unlawful entry of the other s residence, or forcible entry against the other s will if there is a reasonable foreseeable risk of harm to the other from said entry; A knowing, purposeful, or reckless course of conduct intended to harass the other. Such conduct may include, but is not limited to: o Stalking o Arson o Trespassing Page 1 of 11

2 o Larceny o Destruction of private property o Carrying a concealed weapon without a permit. Dating Relationship Dating relationship means frequent intimate associations primarily characterized by the expectation of affection or sexual involvement. The term does not include a casual relationship or an ordinary association between persons in a business or social context (NRS (4)). Primary Physical Aggressor Primary Physical Aggressor is the person determined to be most significant in the violence rather than the first aggressor. In identifying the primary physical aggressor, an officer shall consider threats creating fear of physical injury, the history of domestic violence between the persons involved, whether either person acted in self defense, and the intent of the law to protect victims of domestic violence from continuing abuse. Temporary Protection Order (TPO) This is a temporary order for protection against domestic violence (NRS ). A temporary order may be granted with or without notice to the adverse party (NRS (3)). A temporary order expires within such time, not to exceed 30 days, as the court determines. If an application for an extended order is filed within the period of a temporary order, the temporary order remains in effect until the hearing on the extended order is held (NRS (1)). Extended Protection Order (EPO) This is an extended order for protection against domestic violence (NRS (1)). An extended order may only be granted after notice to the adverse party and a hearing on the application (NRS (3)). An extended order is valid for any length of time specified in the order, not to exceed one year (NRS (3)). Adverse Party This refers to the person(s) named in the temporary or extended order for protection who is prohibited or ordered by the court to refrain from certain activities. Full Faith and Credit 18 U.S.C requires that any protection order that is issued by a State or Tribal Court which has jurisdiction over the parties, and upon which reasonable notice and opportunity to be heard has been given to the adverse party, shall be accorded full faith and credit by the court of another State or Tribal Court and enforced as if it were the order of the enforcing State or Tribe. PROCEDURES Domestic Violence Arrest/Reporting Procedures Page 2 of 11

3 Officers will adhere to the arrest requirements set forth under NRS covering Domestic Violence, when arrest is required, when a report is required, and compilation of statistics. 1. Except as otherwise provided in subsection 2, whether or not a warrant has been issued, a peace officer shall, unless mitigating circumstances exist, arrest a person when the officer has probable cause to believe that the person to be arrested has, within the preceding 24 hours, committed a battery upon a spouse, former spouse, any other person to whom he/she is related by blood or marriage, a person with whom he/she is or was actually residing, a person with whom he/she has had or is having a dating relationship, a person with whom he/she has a child in common, or the minor child of any of those persons or his/her minor child. 2. If the peace officer has probable cause to believe that a battery, as described in subsection 1, was a mutual battery, he shall attempt to determine which person was the primary physical aggressor. If the peace officer determines that one of the persons who allegedly committed a battery was the primary physical aggressor involved in the incident, the peace officer is not required to arrest any other person believed to have committed a battery during the incident. In determining whether a person is a primary physical aggressor for the purposes of this subsection, the peace officer shall consider: Prior domestic violence involving either person; The relative severity of the injuries inflicted upon the persons involved; The potential for future injury; Whether one of the alleged batteries was committed in self defense; and Any other factor that may help the peace officer decide which person was the primary physical aggressor. 3. A peace officer shall not base his decision regarding whether to arrest a person pursuant to this section on his perception of the willingness of a victim or a witness to the incident to testify or otherwise participate in related judicial proceedings. 4. When a peace officer investigates such a battery, whether or not an arrest is made, the officer will prepare and submit a written report of the alleged battery to his/her supervisor or other person designated to receive reports regarding similar allegations. The report shall include, if applicable: The reasons for determining that one of the persons involved in a mutual battery was the primary physical aggressor; and Any mitigating circumstances which prevented the officer from making an arrest pursuant to subsection A copy of the report shall be forwarded to the central repository for Nevada records of criminal history. The central repository shall compile statistics from these reports and make the statistics available as a public record detailing the number of investigations and arrests made pursuant to this section and the nature of any mitigating circumstances which prevented an arrest. Domestic Violence Investigation Procedures Page 3 of 11

4 A domestic violence arrest does not require the officer to witness the offense and further does not require that the victim sign the complaint. If an officer has probable cause to believe a domestic battery has occurred, the officer will sign the complaint and affect the arrest. To ensure the victim is safe from threats and/or intimidation from their assailant, officers will investigate all domestic violence cases as though the victim will not be able to testify against their assailant. Officers will ensure every reasonable attempt is made to locate and arrest the assailant in a domestic violence offense within a 24 hour period. Proper information will be obtained to complete the Nevada Domestic Violence Supplement report. The proper information on the report will assist officers who may come in contact with the assailant at a later time to establish if there is probable cause for arrest as outlined in the law. In order to meet the requirements of the NRS and to complete a thorough investigation, the following steps will be taken: 1. The Domestic Violence Supplement report will be completed on every reported case of domestic violence and will be attached to the original report. 2. Witness statements will be obtained and all possible witnesses identified. Children on scene will be separated from the parties involved and interviewed by the reporting officers. All witnesses on scene will be interviewed by the reporting officer. All witness statements, including those from children, will be recorded via written statements or on audio or video tape. 3. Any excited utterance by the victim will be quoted as closely as possible in the officer s report. 4. Any audio recordings that contain excited utterances or information about the case will be submitted as evidence in the case. If the call for service to Dispatch was made by the victim or a witness, a request will be made for a copy of that recorded conversation to be included as evidence in the case. 5. Photos of injuries will be taken of both the victim and the assailant. Whenever possible, the pictures will be taken using a digital camera. Prior to booking the computer disk with digital photos or Spectra photos into evidence, the officer will print copies of the photographs and submit them along with written statements and the Domestic Violence Supplement Form. 6. All injuries will be noted on the Domestic Violence Supplement report, including a diagram of the location of injuries drawn on the figures shown on the report. 7. As much information as possible regarding the victim and assailant will be obtained, including place of employment, hours worked, and any information that the victim may have regarding the assailant s whereabouts. Page 4 of 11

5 Domestic Violence Incidents Involving City Employees or Employees of Other Law Enforcement Agencies Officers dispatched to a domestic violence incident where a City of Reno employee or a known employee of another law enforcement agency is involved will notify a field supervisor. An incident report will be completed in all cases, regardless whether or not an arrest is made. A field supervisor will respond to every domestic violence incident involving a City of Reno employee or a known employee of another law enforcement agency. The supervisor is responsible for ensuring a thorough investigation is completed. In cases where a Department Employee is involved, the supervisor will notify the involved employee s Division Deputy Chief. If the person is an employee of another law enforcement agency, the supervisor will notify the highest ranking on duty employee of that agency. In cases where a sworn employee is arrested for domestic violence, the on scene supervisor will take the following actions: 1. Place the employee on administrative leave pending determination of duty status by the Chief of Police or his designee. 2. Review the incident report completed by on scene officers. In cases where probable cause exists but an arrest is not made within the twenty four hour period, the case shall be reviewed by the Family Crimes Unit supervisor and assigned for detective follow up. Application for an arrest warrant should be expedited where probable cause exists. If the original investigation is generated by an outside agency, the Family Crimes Unit supervisor will follow up with that agency to determine the progress of the investigation. Patrol Follow up Procedures Follow up efforts to locate the assailant within the 24 hour time frame may include the following: 1. A patrol supervisor will review any domestic violence report when an arrest was not made to ascertain if any follow up is possible to locate the assailant before the 24 hours expires. 2. If the assailant cannot be located during the shift of the original report, the report will be submitted to the Records Section and a copy will be placed in the Misdemeanor Complaint/Domestic Violence Unit office receptacle. 3. A supervisor from the following shift will review the domestic violence report copies in the Domestic Violence Unit office receptacle and review those cases for possible follow up of the assailant on their shift prior to the close of the 24 hour window. 4. Supervisors will review the report to determine where the assailant may be, such as at his/her place of employment, etc. 5. If there is a known location and the possibility of an arrest, the supervisor will assign an officer to conduct the follow up and attempt to make the arrest. A follow up report will be Page 5 of 11

6 completed indicating any action taken. 6. The Reno Police Department Victim Advocate is available to assist officers 24 hours a day. The Victim Advocate can provide assistance to victims in obtaining Emergency/After Hours Protection Orders, emergency transportation, and emergency shelter. Officers should utilize the advocate in the following situations: When the suspect is arrested and in custody and the victim wants to pursue an Emergency Order for Protection. When the suspect is not on scene and the victim is fearful that the suspect may return and wishes to be placed in a temporary shelter. Detective Follow up Procedures Upon receipt of the crime report and any follow up, the designated detective will attempt to affect an arrest if still within the 24 hour window. In the event the time has expired and probable cause still exists, the complaint will be submitted to the appropriate prosecuting office. If there are any juveniles involved in the case as victims or witnesses, the detective will forward a copy of the case to Washoe County Social Services. Procedures for Orders for Protection Orders for protection, temporary or extended, are granted by the court upon application when specific facts indicate that an act of domestic violence has occurred or the threat of domestic violence exists (NRS (1)). The court may require the applicant or the adverse party, or both, to appear before determining whether to grant an order (NRS (2)). However, a temporary order may be granted with or without notice to the adverse party (NRS (3)). Every temporary or extended order for protection must include a provision ordering any law enforcement officer to arrest an adverse party if the officer has probable cause to believe that the adverse party has violated any provision of the order (NRS (1)). If this language is not included in an order, the adverse party cannot be arrested under the order. The officer can arrest upon probable cause for other violations. Verification of the Order for Protection Upon arriving on scene, when someone claims violation of an order for protection, verification of an existing order for protection may be accomplished in the following ways: Contact the Records Section and ascertain that a copy of the order is on file with the department, and that the order has not expired; or Ask to see the applicant's copy of the order. Applicants receive a certified, "file stamped" copy of the order when it is signed by the judge and filed. The applicant is advised by the court clerk to present this copy to law enforcement should the need for enforcement of the order occur. Verification of Notice to Adverse Party Page 6 of 11

7 If the order is valid, verify that the adverse party has been notified that the order exists. Averse party notification occurs: If the party was in court when the judge entered the order; or If a peace officer served the adverse party with the notarized Notice of Service (usually by WCSO); or If it can be confirmed that a peace officer has verbally advised the adverse party that the order exists and has verbally advised the adverse party of the conditions set forth in the order. Contacting Records Section In order for field personnel to verify that the adverse party has been notified that the order exists, the Records Section will be contacted by the officer by phone. The following information should be obtained: The fact that a copy of the Notice of Service is on file with the Records Section; or The fact that WCSO advised the Records Section by telephone that the adverse party was served with the Notice of Service (but the copy of this form has not been delivered to the Records Section); or The fact that there is a notation on the Records Section Order for Protection Log that the adverse party has been verbally notified by an employee that the order exists; or The fact that the Records Section has received a return of service complying with Nevada Rules of Civil Procedure. Verbal Notification to Adverse Party If a law enforcement officer cannot verify that the adverse party was served with a copy of the order, the officer shall: Inform the adverse party of the specific terms and conditions of the order; and Inform the adverse party that he now has notice of the provisions of the order and that a violation of the order will result in his arrest; and Inform the adverse party of the location of the court that issued the original order and the hours during which the adverse party may obtain a copy of the order. If available, obtain a spare copy of the TPO/EPO from the applicant to give to the adverse party. Fill out and give a copy of the Notice of Service Form with terms written out to the adverse party. Information concerning the terms and conditions of the order, the date and time notice was provided to the adverse party and the name and identifying number of the officer who gave the verbal notice must be provided in writing to the applicant and noted in the records of the law enforcement agency and the court (NRS (3)). The Record of Verbal Notification form will be completed and the original (white) copy forwarded to the issuing court by the Records Section. The canary copy will be submitted to the Records Page 7 of 11

8 Section (with the crime report if one is prepared) and the pink copy will be given to the applicant by the on scene officer. After Hours TPOs N.R.S (6) mandates counties with populations of 47,000 or more have a system in place for issuing after hour TPOs. In order to obtain an after hours TPO there must be an ARREST for Domestic Battery. The officer will then: Give the victim the after hours TPO phone number (775) (This number is on the back of the VINE form.) Contact the RPD Victim Advocate if further assistance is needed. The victim does not receive a hard copy of the emergency order and a hearing will be set within seven (7) days to obtain an extended order. If you call the after hours TPO number on weekends, between hours, or on weeknights, between hours, the on call advocate will contact the victim and obtain pertinent information for the application of the TPO. The advocate will re contact the victim and advise them as to whether the judge has issued or denied the TPO. After 2130 hours on any night, the advocate will take the victim s information and contact her in the morning after speaking with the judge. Arrest/Reporting Procedures A violation of a temporary or extended order is a misdemeanor under NRS (1). The arrest and reporting procedures for a violation are generally similar to other misdemeanor crime procedures except that defendants will be charged with violation of RMC (a), It shall be unlawful for any person to violate a domestic violence temporary or extended restraining order issued pursuant to NRS ". Arrest Required Peace officers must make arrests for a violation of orders for protection against domestic violence if the officer can confirm the TPO was served, and if the officer has probable cause that the suspect intentionally violated the order. The officer can make an arrest without the victim signing the complaint. The officer will sign the complaint using R.M.C (a). Reporting Requirements Verbal Notification Only If it is verified that the adverse party has not been advised of the conditions of the order, officers will relate the conditions in the order. If the adverse party complies with the order (leaves the area), the only paperwork required is the Verbal Notification form. If the adverse party refuses to leave after notification, an arrest must be made. Violation No Arrest Made If a violation of the order is witnessed by the applicant or the officer and the adverse party was aware of the conditions of the order, but has left the area, a crime report will be completed. The conditions in the order that were violated will be delineated in the Page 8 of 11

9 report and a written statement from the applicant attached to the report. A copy of the order will be included with the report if available. The report will be submitted to the City Attorney s office for warrant consideration. Municipal Court No Contact Orders Procedures 1. A No Contact Order is an order issued by the Municipal Court Judge as a condition of a suspended sentence which prohibits a defendant from contacting a victim or family member of the victim in any manner. This will include contact in person, through agents, by telephone or mail or any other written communication, at any time or at any place. It can also contain a prohibition against going onto or within one hundred yards of locations specified by the court in the order. The defendant will have signed the order and thereby acknowledged that a violation could result in revocation of the suspended sentence. 2. Authority for enforcement of No Contact Orders is found in RMC (b), which makes it unlawful for any person to fail, refuse or neglect to comply with the terms of any order, judgment or other process issued by the municipal judge. 3. There is no provision for the filing of No Contact Orders in the Records Section. The victim should have a copy of any such order. 4. If a victim alleges a violation of a No Contact Order, the officer may take a report for violation of RMC (b), which should then be forwarded to the City Attorney s office, or refer the victim to the City Attorney s Office, which will handle notification to the court. 5. Officers should not arrest for a violation of a No Contact Order unless there are other charges resulting from the contact, e.g., assault, battery, etc. Protection Orders and Firearms Procedures 1. Possession of a firearm can be actual or constructive. Actual possession is physical possession ; i.e., in one s hand. Constructive possession is the ability to access and control. Therefore, if an individual is the subject of an order of protection that prohibits possession of firearms and he/she has firearms in his/her house, he/she has violated the Court s order. Factually, there may be situations where in the house doesn t constitute constructive possession. The determining factor will be whether the individual can gain access and exercise some control over the firearm. 2. Possession of a firearm while the subject of an order of protection is a violation of federal law. 18 U.S.C. 922 (g)(8) prohibits an individual who is the subject of a court issued restraining order from possession of firearms or ammunition. The law requires that the order contain certain language. This law is enforced by the Federal Bureau of Alcohol, Tobacco and Firearms. 3. Local judges have the authority to prohibit the possession of firearms in both Temporary and Extended Orders of Protection, in addition to the other restrictions generally contained in such orders. However, the firearms prohibition is NOT automatic. The Court must Page 9 of 11

10 specifically address the issue in the body of its order ; i.e., You must not possess firearms while this order is in effect or similar wording. 4. There is some confusion about the wording at the top of the second page in the Extended Order of Protection and what appears to be a prohibition against the possession of firearms. In actuality, that provision is a warning about the federa l law and is intended to provide notice of the possibility of a federal prosecution for violation of 18 U.S.C. 99 (g)(8). It is NOT a Court ordered prohibition and is NOT an arrestable offense for State and local law enforcement. 5. If an officer encounters an individual who is the subject of an order for protection (restraining order), and who has possession of one or more firearms and was in attendance at the notice of hearing, the officer must notify the A.T.F. using the Reno Police Department Firearms Notification form. 6. If an officer encounters an individual who is the subject of a TPO/EPO which specifically prohibits the possession of firearms and the subject has possession of one or more firearms, and the officer can confirm the TPO was served, the officer can make an arrest for a violation of the order. Page 10 of 11

11 RPD FIREARMS NOTIFICATION FORM FAX Number TO: FROM: ATF DATE: RPD CASE NO: PROTECTIVE ORDER NO: (if applicable) This is to notify you that officers of the Reno Police Department have had contact with the following person who was in possession of firearms, either actual or constructive and we believe the individual may be prohibited from possessing firearms under 18 U.S. C. 922, et seq. We are making you aware of this so that you can take whatever action you deem appropriate. NAME: ADDRESS: CIRCUMSTANCES OF ENCOUNTER: Page 11 of 11