Pennsylvania Coalition Against Domestic Violence September

Pennsylvania Coalition Against Domestic Violence September 2013

The Jurist

A Newsletter for Pennsylvania Judges About Domestic Violence

Without the defendant’s date of birth, sex and/or race, a PFA order will not appear in the PSP Registry, CLEAN, or the NCIC. Page 2

The Pennsylvania Supreme Court recently approved three new rules of civil procedure for family law cases. These rules may change your local rules and/or procedures. • 1930.8: Self-Represented Party • 1901.8: Withdrawal, Modification, or

Discontinuance (PFA Orders)

Rule 1930.8 – Self-Represented Party Effective July 5, 2013

This rule requires all self-represented (pro se) parties in custody, divorce, support, protection from abuse, and paternity proceedings to file an Entry of Appearance form with the court. The Entry of Appearance form must declare that the party is self-represented and will proceed in the case without an attorney. Every self-represented party must give a copy of the Entry of Appearance form to the other party or that party’s attorney.

New Rules of Civil Procedure for Family Courts

Unrecorded PFA Orders Endanger Lives .... 2

Attachment A: Is It Necessary? .................. 7

New Webpage Designed for Courts ............ 9

In This Issue

The rule requires the Entry of Appearance form to also provide the following information:

An address where the party agrees to receive copies of court documents *Note: The party is not required to use a home address.

A phone number where the party can be reached

The name and address of any attorney who previously worked on the case

And, if any of the information changes, the self-represented party must update the court and other parties with the new information. Sample Pro Se Entry of Appearance form

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September 2013 Pennsylvania Coalition Against Domestic Violence

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Unrecorded PFA Orders Endanger Lives This article will explain the PFA entry

process, discuss the dangers of unrecorded orders and provide ways court personnel and law enforcement in your county can get and enter the required information.

As of July 18, 2013, all 67 counties in Pennsylvania use PFAD to create and file PFA orders and the PSP Protection From Abuse Summary Data sheet (PSP Data sheet). PFAD is an electronic statewide database that includes records of all PFA proceedings through a PSP data sheet. It complements the operation of the PSP Registry.

Between 500 and 800 valid and enforceable Protection From Abuse (PFA) orders are not recorded in the Pennsylvania State Police Protection Order Registry (PSP Registry) because the PFA form lacks a personal identifier or certain pieces of required personally identifying information. For purposes of this article, we refer to the defendant’s date of birth as a necessary identifier for entry into other databases.1 These unrecorded PFA orders create safety and enforcement issues for victims of domestic violence, their families and communities. A PFA order entered into the Protection From Abuse Database (PFAD) can be transferred to the PSP Registry only if all of the necessary information, particularly information to positively identify the defendant, is included.

Rule 1901.8: Withdrawal, Modification, or Discontinuance (PFA Orders)

This rule delineates the procedures for a plaintiff to end a Protection From Abuse (PFA) action, or for a defendant to modify an order, depending on the stage of the proceeding. • Discontinuance: If a PFA plaintiff is not granted a temporary order, or decides not to go

through with the ex parte hearing, she or he may file a Praecipe to Discontinue with the Prothonotary to stop the proceeding. The plaintiff can also make an oral motion to stop the proceeding at the temporary or final order hearing.

• Withdrawal: If a temporary order is granted, a PFA petitioner may discontinue the PFA proceeding by filing a petition with the court before the final order hearing or may make an oral motion to withdraw the petition at the final order hearing.

• Modification: After a final PFA order is entered, the order cannot be dismissed or vacated. However, either party may file a petition to modify the order so that it expires on an earlier date. The court holds a hearing on the petition, and the judge can use the hearing date as the PFA order’s new expiration date. The court uses the Amended Final Order Form in the PFA Database – PFAD – to input the new expiration date, and the order expires at the end of the day. The amended order must be transferred to the PSP on the same day (day of the hearing).

This sample Petition To Modify can be used for any kind of modification to the PFA order. Sample Petition To Modify

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The PSP data sheet is created by the information provided in the PFA order. The data sheet, rather than the actual PFA order, is transmitted to the PSP Registry. The data sheet provides the vital information included in the PFA order: plaintiff and defendant information and the protection order conditions that are necessary for enforcement. While the data sheet provides the essential PFA order information, it is a best practice for law enforcement officers to also check PFAD for any additional information on the order. Each county’s prothonotary uses PFAD to create the PFA order and the PSP data sheet and to transmit the data sheet to the PSP Protection Order Registry.2 If the defendant’s date of birth, sex and race are missing from the PSP data sheet it cannot be entered into the PSP Registry.3 The county prothonotary must file the completed PFA order in PFAD and transfer the PSP data sheet to the PSP Registry so that the order can be included in the Commonwealth Law Enforcement Assistance Network, known as CLEAN. If the PSP data sheet is not accepted by the PSP, the prothonotary will be notified of the reason why the PSP data sheet was rejected. CLEAN, operated by the PSP, is the network that sends criminal history record information from the PSP Central Repository to authorized criminal justice agencies statewide. CLEAN is also the Pennsylvania connection to the FBI's National Crime Information Center (NCIC). CLEAN contains the core information from the Commonwealth’s PSP Registry.

PFA order

PFAD

PSP registry CLEAN

NCIC

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CLEAN is an indispensible information tool for Pennsylvania criminal justice and law enforcement agencies. However, CLEAN can only be effective if relevant information is entered into the system. Without the defendant’s date of birth, sex and/or race, the PSP data sheet will not appear in the PSP Registry, housed in CLEAN, or the NCIC notifying law enforcement of the valid PFA order.

Unrecorded Orders Hamper Enforcement

Any PFA order signed by a judge and filed with a prothonotary is a valid and enforceable order.4 However, it is more difficult to enforce an order when law enforcement cannot verify its existence in the PSP Registry. When making an arrest for a violation of a PFA order, the police officer or sheriff may verify the existence of a PFA order by telephone, radio or other electronic communication with the appropriate police department, PSP Registry, protection order file or issuing authority.5 The PSP Registry is accessible at all times for the court, dispatchers and law enforcement to retrieve a valid PFA order.6

Pennsylvania PFA orders have full faith and credit and must be enforced nationwide. Law enforcement officers in other states rely on the NCIC to verify Pennsylvania PFA orders, and the NCIC (via CLEAN) relies on the PSP Registry.

An officer in another state may have difficulty enforcing a Pennsylvania PFA order if its existence can’t be verified in NCIC.

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Such enforcement issues may have deadly consequences for the domestic violence victims that the PFA orders are meant to protect. Inclusion of PFA orders in the PSP Registry is vital to provide swift, effective enforcement inside and outside of Pennsylvania.

Background Checks For Firearms Fail To Spot

Unrecorded Orders

Before anyone can purchase a firearm or firearm permit in Pennsylvania, the PSP must conduct a “background” check using the Pennsylvania Instant Check System (PICS). The PICS background check accesses both state and federal databases.7 If the purchaser is a PFA defendant or subject to another type of civil protection order, the PICS search of the PSP Registry via CLEAN and the NCIC should reveal any firearms prohibitions.8 If a PSP data sheet is not entered into these systems because the defendant’s identifying information is missing, a PFA defendant may be able to obtain a firearm despite the protection order.

A PFA defendant with a firearm can be lethal for a victim, family members, law enforcement officers, and community members.

Courts and Law Enforcement Must Collaborate to Gather

Information

It is critical to community and victim safety for the courts to enter defendant’s date of birth, race and sex into PFAD with the PFA order. When the PFA petitioner does not have this information at the time of filing, someone in the court system must be assigned to obtain it.

It is important to alert judges, court personnel, sheriffs and/or law enforcement officers when a defendant’s identifiers are missing from the petition or the order in PFAD.

The prothonotary or the court administrator receives a message in PFAD when a PSP data sheet is rejected. A rejected data sheet means that the PFA order was not recorded. If the county has unrecorded PFA orders/ PSP data sheets, the prothonotary and court administration should discuss possible solutions at the county’s next STOP team or domestic violence task force meeting.

Court personnel, STOP team and domestic violence task force members may find other options than the ones listed here that work for their county. However, the end result must be that the necessary information – the defendant’s date of birth, race and sex – are entered into PFAD so the PSP data sheet can be transferred to the PSP Registry and included in NCIC.

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Safer Victims

A PFA order can be a lifesaving measure for a victim of domestic violence. The PFA order contains provisions to protect and keep the victim safer. When the defendant violates the order, law enforcement should be able to immediately verify the existence of the order. This verification is difficult if the PSP data sheet is not in the PSP Registry.

Safer Neighborhoods

Unrecorded orders could delay enforcement and embolden a dangerous defendant by preventing accountability. Law enforcement officers could lack critical information about dangerous defendants. In addition, prohibited individuals could purchase and possess firearms because PICS couldn’t reveal state or federal prohibitions.

All members of the court system must work together to ensure that the necessary information is included in the PFA order and PSP data sheet to meet the requirements for entry into the PSP Registry. Otherwise, domestic violence victims may not receive the protection necessary to save lives.

For more information about developing a process to obtain defendant-identifying information in your county, please contact the PCADV Legal Department at 888-235-3425. ENDNOTES

1. Other identifiers such as the defendant’s Social Security number or driver’s license number may be used. The defendant’s date of birth is the most common identifier to use.

2. The PFA Act provides that the PSP “shall establish a Statewide registry of protection orders and shall maintain a complete and systematic record and index of all valid temporary and final court orders of protection, court-approved consent agreements and foreign protection orders.” 23 PA. C.S. § 6105(e)(1)(2)(3).

3. Temporary PFA orders without the necessary information will be accepted into the PSP Protection Order

State & Federal Firearms Law Webinar for Judges

Pre-recorded Webinar – click here to listen at your convenience

Federal Gun Control Act, federal and state gun prohibitions, exemptions for law enforcement and military personnel, reporting and notification requirements and PFA Act firearms relinquishment

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The plaintiff can list items that: the defendant used or threatened to use

against the plaintiff or the minor children the plaintiff believes the defendant owns or

possesses the plaintiff is asking the court to order the

defendant to relinquish

This list gives the court the information necessary to determine what firearms, other weapons and ammunition to order the defendant to relinquish.

Why isn’t the firearms list part of the petition or form?

The PFA Act requires that there be a list of the items that the court is ordering the defendant to relinquish.2 But, the Act prohibits the public from having access to such a list, and PFA orders are public records. Thus, a separate Attachment A allows the prothonotary to more easily redact the list from public access while at the same time permitting the court and law enforcement agencies to enforce the order.3

PFA order checkbox for “all firearms, other weapons and

ammunition” When warranted, the court may check a box on the PFA form to order a defendant to relinquish “all firearms, other weapons and ammunition owned or possessed by the defendant.”4 This catch-all provision relieves the plaintiff from having to know each and every firearm, other weapon and ammunition the defendant owns or possesses.

Attachment A for temporary and final PFA orders - signed by the judge and filed in the PFA database - is crucial for the safety of the victim, law enforcement, and the community. Attachment A makes firearms and weapons provisions of the order specific, enforceable, and visible.

The 2005 amendments to the PFA Act authorize courts to order a defendant to relinquish any and all firearms whether or not they were used or threatened to be used against the plaintiff.1 Also, the court may order a defendant to relinquish other weapons and ammunition that were used or threatened to be used in an act of abuse. As part of a temporary or final order, Attachment A lists and describes exactly what firearms, other weapons and ammunition the defendant must relinquish as part of the order of the court. It also helps the sheriff and law enforcement to enforce the PFA order. If the defendant fails to relinquish listed items, the defendant shall be arrested for violating the order.1 It is important for court personnel or the judge to ensure that Attachment A, either as part of a petition or because the judge has ordered relinquishment, is made part of the PFA file.

PFA Petition - Which Weapons are listed on Attachment A?

On Attachment A to the PFA petition, the petitioner provides an inventory of the firearms, other weapons and ammunition that the defendant has.

Attachment A: Is It Necessary?

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Is the checkbox valid without Attachment A?

Even without a list of weapons in Attachment A, sheriffs or law enforcement officers must enforce the “all firearms, other weapons and ammunition” provision when the checkbox on the PFA form is marked. However, without Attachment A, sheriffs and law enforcement officers may overlook the checkbox or believe the order was entered incorrectly and may not take any firearms, other weapons or ammunition. To ensure that all the intended firearms, other weapons or ammunition are taken from the defendant, it is important for court personnel and judges to make sure to include a signed Attachment A with temporary and final PFA orders.

Attachment A. Is It Necessary? ENDNOTES 1. 23 Pa. C.S. § 6108(a)(7). See also, Pa. R.C.P.

1905(e), Explanatory Comment – 2006 paragraph 5.

2. 23 Pa. C.S. § 6113(a). 3. 23 Pa. C.S. § 6108(a)(7)(ii). 4. Pa. R.C.P. 1905 Explanatory Comment—2006, 23

Pa. C.S. § 6108(a)(7)(v). 5. 23 Pa. C.S. § 6107(b)(3)(i)(ii).

An Easy Way to Copy Attachment A Court personnel must create an Attachment A for each document (petition and order). Attachment A to the petition is not enforceable by law enforcement, it simply identifies to the court any firearms, ammunition and other weapons that were used or threatened to be used against the plaintiff or minor children, that the defendant owns or possesses and that the plaintiff is requesting the defendant to relinquish. In the Protection From Abuse Database (PFAD), Attachment A can be found under “civil forms” in the folder labeled “Attachment A.” This folder contains all of the Attachment A options for the case. Once the clerk or prothonotary creates Attachment A for the petition in PFAD, it is simple for subsequent court personnel to transfer the same firearms information to Attachment A of the temporary and final orders. From the temporary and final order screens, the court personnel clicks a button labeled “Copy Weapons” on the temporary and final order screen to transfer the petition’s Attachment A information. Attachment A to the temporary and final order is enforceable after being signed by the judge and filed with the prothonotary. Attachment A must be created and filed to accompany each document – temporary and final order – when the court orders a defendant to relinquish firearms, ammunition and other weapons.

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This project was supported by subgrant No. 22104 awarded by PCCD, the state administering office for the STOP Formula Grant Program. The opinions, findings, conclusions, and recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the views of PCCD or the U.S. Department of Justice, Office on Violence Against Women.

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Pennsylvania Coalition Against Domestic Violence September