SPECIAL COMMITTEE ON FAMILIES

MEETING

APRIL 11, 2000

 

MEMBERS:         Paul J. Noto (Chair), Lois Bronz, Amy Paulin

 

GUEST(S):          Ingrid Bent, CE's Office; Laurie Nikolski, Editorial

                              Board of Journal News; Robi Schlaff, CE's Office;

Alan D. Scheinkman, County Attorney; Stacey Dolgin-Kmetz, Law; Lou D'Aliso, Commissioner Public Safety;

Sgt. Thomas O'Connor, Public Safety

 

STAFF:                Sally Schecter

 

 

The meeting was called to order at 3:13 p.m.

 

Alan was asked to talk about Orders of Protection.  In cases involving Family Offenses, which can be heard in either the Family Court or the Criminal Court, the Court can issue a suspension of the firearms and licenses.  It depends on the circumstances as to whether or not the firearms are surrendered.

 

The first step is the Order of Protection.  The Federal law comes into play once there is an Order of Protection.  Under Federal Law, it restrains a person from stalking, harassing, threatening an intimate partner, a person or a child of that person, and if this is a credible threat, then it is a violation of Federal law if that person has or posses in commerce a firearm or ammunition.  The Federal law does not strictly apply when it is a temporary order of protection because there hasn't been a hearing and there hasn't been notice.  Secondly, even in a situation when there is a hearing or notice, the Court may or may not have the issue of weapons and firearms on its mind.  The complainant may not be aware that the person has firearms and may not be concerned about firearms.  Judge Cooney of Family Court asks the complainant if the respondent has access to firearms and the approach of Family Court is to require the license and the weapons be surrendered.  That may or may not be consistent, it's not a law, it's a judicial attitude that may vary from judge to judge and with respect to the criminal courts you are dealing with a whole lot more people then just 6 Family Court judges.  You are now talking about every town, village and city court judge in the County and their approach with respect to this issue. The judge is not subject to the Federal law.  The person who is subject to the Federal law is the weapons' holder.  If the judge doesn't ask and no one says anything, the mere fact that someone has firearms and is subject to an order of protection, triggers the application of Federal law.  It becomes a crime for that individual.  It is not a crime that the judge did not ask.  It's a crime that the respondent did not comply with the law.  When an Order of Protection is obtained, if the County Police are notified,  they will be able to run a check immediately to ascertain whether or not that individual has a pistol permit.  This way if the complainant doesn’t know or doesn’t report the firearms, there is a double check.  The County Police would then be in a position to notify the Court so the Order could be adjusted as necessary or they could notify the local police department responsible for enforcing the order. Respondents, when it is called to their attention, would rather surrender their weapons then be arrested for violation of a Federal offense.  In an instance where the Federal law doesn’t apply, and the order doesn’t provide for it, you have to go back to the court and ask them not to apply the order based on the discovery of these new facts.   The County can't tell an independent branch of government and an independent judicial officer what to do.  Even OCA is not in a position to do that, they can make suggestions.  What we can do is bring information to the Court’s attention.  Judge Nicoli has asked and ordered the Courts to fax all the Orders of Protection that they have issued to the County Police.  The County police will double check them, ascertain whether or not there is a requirement for surrender of either the license or the gun and assist the local police in enforcing that order.  If the order did not provide for the surrender of the license or the weapon, one of two things can be done.  If it is a situation that is subject to the Federal law, appropriate action can be taken without having to go back to the Court.  In the event that the Federal Law is inapplicable, then they courts going to be required to do.    The County can’t compel an independent branch of would have to go back and bring it to the Court’s attention and ask the Court if it would modify it’s order.  You can’t compel the Court to modify its order but we could seek to call it to their attention and urge them to do that.

 

Alan was asked if legislation is needed to report Orders of Protection to the County Police.  Alan responded that Judge Nicholi is very capable of administering his court system and the clerks and the judges will comply.  Orders of Protection are heavily regulated by the state, and pistol permits that are heavily regulated by the state have to be looked at very carefully.  The County government could not adopt legislation that would tell the court system what to do.  That would have to come from the judiciary or the State Legislature.  You can’t loose sight that there are Orders of Protection that expire or are not pursued for a variety of reasons.  There are interim orders and by the time the case comes into court, the proceeding is dropped.  Also after a hearing, the order only lasts for a year.  In aggravating circumstances, it may last for 3 years.  This new program will trigger the application of the long-standing process of revocation of pistol permits in the County.  When the County police receives notice of an issue and they believe it warrants intervention and the revocation of the license, they will forward that information to the County Attorney who will bring the proceeding to court.  One of the other things we will have the benefit of doing is by having Orders of Protection, we will close that loophole so even in the instance when an Order expires, they would have the ability to seek a revocation.  If the local court issued an order of protection, is it filed in the local village at the clerk’s office .  There is a state registry of certain Orders of Protection.  Court orders are kept by the Courts.  One issue that this will help resolve is what comes up in a background check.  Background checks should have the information if an Order of Protection is outstanding against somebody.  If an individual applies for a pistol license, a check would ascertain that there is an Order of Protection.  One of the issues is where do they check and when does the information get into the system. By alerting the County Police that there is an Order of Protection, it will enable them to have the information.  Alan said they were also concerned that the following situation could arise.  Judge says surrender your weapon, doesn’t say permit.  Person can go to gun dealer and obtain more weapons but when the dealer contacts the County police, they will have information and will be able to stop that.   There are two databases that hold Order of Protection.  Both are limited to family offenses only.  Non-family offenses are recorded in the database if they come through the domestic violence court.  Criminal Court orders of non-family offenses are not part of any database.  Alan was asked why a database could not be started so when a background check is done on new pistol permits, renewals are run through this additional database.  Alan feels creating another database would create confusion as to whether this is a family offense or not a family offense.  What is important is to have the individual’s name and the fact that there is an Order outstanding.  There will be a database of all orders of protection issued in the County that will be with the pistol permit unit of the County police.   Amy questioned the procedure when a gun permit is issued - there is an FBI check but not a NYSPIN check and the NYSPIN check would contain the Orders of Protection.  The Brady Act went into effect in November 1998 and requires a criminal history check on all applicants for pistol permits.  Prior to that date the standardized form was to ask if they were a party to an Order of Protection or a petitioner to one or any type of court.  They would have it notarized and under penalty say if they did.  Since the Brady act took effect, their fingerprint cards are sent to the FBI and New York State and the FBI does an extensive search which includes Order of Protection to the state registry.  The FBI does criminal history checks.  Then the County police will get back a printout telling them if it’s permissible to go ahead with the permit or to stop any action due to criminal activity or Orders of Protection.  At that point the County Police ask the individual to produce the Orders of Protection that they had against them.  It might be an expired order.  But they still have to present a copy of it so the police can ascertain whether it is still in effect.  If a person is fingerprinted as a pistol permit applicant, and he subsequently get the pistol permit, if he is arrested somewhere else, that check will come back to us.  Under the Family Court Act, there is provision for mandatory and permissive suspension of licenses.  The problem is that the Family Court does not issue the license, They are issued by the County Court through a program that is administered through the County Clerk.  And the Courts are talking to the County Clerk to build a common database.  There are two different processes. One is a process that happens in the Family Court and in the Criminal Court when there is an order of protection sought based on a family offense then there is the separate process about going back to the County Court judge who issued the license.  That is a different form of revocation.  The judges have gotten a lot more prone to dealing with licenses and guns on the family offense side and that sort of process.  There hasn’t been that much experience on the revocation side in which we bring formal revocation proceedings.  Starting in 1998 there haven’t been that many cases under which revocation was sought based on domestic violence.

 

Paul thanked Alan Scheinkman, Commissioner D'Aliso and Sgt. O'Connor.

 

Our next meeting will be on April 25 at 3 p.m. with the administrators of the hospitals.

 

Minutes approved by Lois Bronz, seconded by Paul Noto.

 

Adjourned 3:57 p.m.

 

? for hospital administrators