A LAW ENFORCEMENT OFFICER’S GUIDE TO ENFORCING ORDERS OF PROTECTION NATIONWIDE
WHAT IS FULL FAITH AND CREDIT?
In 1994, Congress enacted the full faith and credit provisions of the Violence Against Women (VAWA) {18 U.S.C.§ 2265-66}. The federal law directs jurisdictions to give full faith and credit to valid orders of protection issued by other jurisdictions. This includes all 50 states, Indian tribal lands, the District of Columbia, the US Virgin Islands, Puerto Rico, American Samoa, the Northern Mariana Islands, and Guam. The full faith and credit provisions were amended in October 2000.
Simply stated, full faith and credit requires that:
Valid orders of protection must be enforced to protect victims
wherever a violation of an order occurs, regardless of where the order
was issued.
What does this mean for the victims?
Abused persons who are granted court orders of protection can call
upon law enforcement to protect them and to take all appropriate
action against abusers nationwide.
What does this mean for abusers?
The abuser is bound by the terms and conditions of the order of
protection and may be arrested and charged with violating the order
and committing other substantive crimes wherever the abuser violates a
valid order. It does not make any difference where the order was
granted. The abuser must be arrested for a violation of an order of
protection if the law of the jurisdiction where the violation occurred
requires an arrest.
What does this mean for law enforcement?
If an order of protection is valid in the issuing jurisdiction, it
must be enforced in every other jurisdiction, it must be enforced in
every other jurisdiction whether or not it is registered. Some
jurisdictions grant orders:
- To victims who might not be eligible for orders in the enforcing jurisdiction
- For periods of time longer than authorized in the enforcing jurisdiction
- Containing directives against abusers that might not be available in the enforcing jurisdiction
A responding officer must enforce the terms and conditions of a valid
order as written, including custody provisions and firearm
prohibitions. Officers are not required to know the laws of an
issuing jurisdiction in order to enforce orders of protection.
Officers in the enforcing jurisdiction must comply with all laws,
policies and procedures of their own jurisdiction concerning violation
of orders of protection, such as mandatory arrest and victim
notification, if applicable.
WHY IS FULL FAITH AND CREDIT IMPORTANT?
When victims of domestic violence leave, they and their children are
at an increased risk of violence. Abusers who cross jurisdictions in
pursuit of victims may be engaged in stalking, which is a significant risk indicator of life-threatening violence.
Liability for Failure to Enforce Orders of Protection
The mandate to give full faith and credit to orders of protection
nationwide confronts law enforcement with new challenges, including
the possibility of liability for failure to enforce orders of
protection from other jurisdictions. Many jurisdictions have laws
that provide officers with statutory immunity from civil liability when
an officer takes reasonable action to protect a victim in a domestic
violence case.
Failure to enforce an order of protection because it was issued in
another jurisdiction may leave officers and departments vulnerable to
liability.
Reducing the Risk of Liability:
- Understand the laws of your jurisdiction related to liability
- Respond in a timely fashion
- Investigate thoroughly
- Follow arrest laws of enforcing jurisdiction
- Enforce custody provisions
- Offer assistance and referral to victim
- Complete detailed incident reports
- Charge appropriately
- Follow-up for victim protection
- Train all law enforcement personnel
- Supervise carefully to ensure victim safety
- Confiscate proscribed weapons
Full Faith and Credit for Orders for Protection
Issuing jurisdiction determines:
- Whether an order of protection should be issued
- Who is to be protected
- Terms and conditions of the order
- Duration of the order
Enforcing jurisdiction determines:
- How the order is enforced
- Arrest authority of responding officer
- Detention and notification procedures
- Crimes charged for violation of an order
WHAT IS AN ORDER OF PROTECTION?
Under VAWA, a protection order is defined as:
Any injunction or other order issued for the purpose of preventing
violent or threatening acts or harassment against, or contact or
communication with, or physical proximity to, another person.
The Federal full faith and credit provision of VAWA applies to both
criminal and civil orders of protection. Orders may differ in form,
content, length, layout, and names (i.e., stay away, restraining,
criminal, and emergency or temporary protection orders, or
injunctions.)
In some jurisdictions, a certification form is affixed to the order
of protection verifying that it is a valid order of the court.
However, under federal law, a certification form is not required for
the order of protection to be enforced. Nor is there any requirement
that the order or the signature of the issuing authority be original
or that there being a raised seal or stamp of the court on the
document. Additionally, federal law prohibits jurisdictions from
making victims register or file their orders of protection with
police, the courts, or a state/national registry before the order can
be enforced.
Basic Elements of a Valid Order of Protection
Any court order of protection should be presumed valid if all of the following are found:
- The order gives the names of the parties
- The order contains the date the order was issued, which is prior to the date when enforcement is sought
- If the order has an expiration date, the date of expiration in the order has not occurred
- The order contains the name of the issuing court
- The order signed by or on behalf of a judicial officer
- The order specifies terms and conditions against the abuser
Verifying the Terms and Conditions of an Order of Protection
Verification is not required under Federal law and may be necessary
only if the order does not appear valid on its face. In some cases,
the enforcing jurisdiction’s law may require verification if the protected party cannot furnish a copy of the order.
Verification can be accomplished by any one of the following methods:
- Confirm the elements of an order in NCIC Protection Order File
- Review the elements of an order in state or local registries of protection orders in the issuing jurisdiction
- Confirm the elements by communication with the issuing court
- Review the elements of an order if previously filed with designated authorities in the enforcing jurisdiction
- Draw upon personal knowledge of the offer or information obtained through an interview
Determining the Terms and Conditions of an Order of Protection
After providing for victim and Officer safety, it is essential that
the officer read the order in its entirety. An order may state
something one paragraph and specify exceptions in another. For
example, an order may state that the abuser is to have “no contact”
with a victim in one paragraph and then, in another, state that
contact may occur to arrange for visitation with the children. In this
case, if the abuser contacted the victim for any reason other than to
arrange for visitation, the order was violated.
Evaluating the Enforceability of an Order of Protection
An order of protection issued in another jurisdiction is enforceable when:
- The order appears to be valid
- There is probable cause to believe that a violation of the order occurred in the enforcing jurisdiction
Ex Parte Orders
Ex parte Orders are emergency or temporary orders issued prior to
providing the respondent with notice or a hearing. Ex parte orders
are entitled to full faith and credit if the respondent has notice of
the order and will have an opportunity to be heard in court within the
time required by state or tribal law, and in any event within a
reasonable time after the order is issued, sufficient to protect the
respondent’s due process rights. This is true even if the respondent
has not yet had an opportunity to be heard in court.
Where enforcement requirements have not been met, the officer in the
enforcing jurisdiction may not be able to arrest specifically for a
violation of the order. However, other potentially chargeable
offenses may have occurred, such as trespassing. The officer should
make a warrantless arrest or seek an arrest warrant related to the
criminal conduct based on the enforcing jurisdiction’s law.
Mutual Orders of Protection
Sometimes an order of protection will contain a “no contact”
provision against both parties or it will direct both parties not to
abuse each other. The full faith and credit section of VAWA requires
special safeguards for inter-jurisdictional enforcement of this type
of order. Basically it states that an order should be enforced
against the respondent (person against whom the order was issued) and
not the petitioner unless the respondent filed a written pleading and
the issuing court made a specific finding that each party was entitled
to such an order. If such findings were made, the order may be
enforced against both parties.
WHAT ENFORCEMNT ACTION SHOULD BE TAKEN?
Immediate Action
- Ensure the safety of all involved
- Seek medical attention, if necessary
- Safeguard the victim from further abuse
- Secure and protect the crime scene
- Seek voluntary surrender of firearms for safekeeping purposes
- Seize firearms subject to state, territorial, local, or tribal prohibitions
- Enforce custody provisions in accordance with jurisdictional law and the language of the order
- Identify whether an order of protection has been violated
- Evaluate the validity and enforceability of the order
- Arrest for violation of the order where required by the enforcing jurisdiction
- Arrest for any other criminal offenses
- Seek an arrest warrant, when required, related to the criminal conduct if the abuser is not at the scene
- Attempt to locate and arrest the abuser
Firearms
Federal law prohibits an abuser subject to a qualifying* order of
protection form possessing firearms and ammunition. 18 U.S.C. §
922(g)(8). When an officer determines that a valid order of
protection has been issued against an abuser, the officer should
enforce the prohibition. Seizing weapons subject to this prohibition,
if allowed under state law, is essential to victim and community
safety. Officers also should be knowledgeable about their own
jurisdiction’s law authorizing or precluding possession or transfer of
weapons to third parties by a person subject to an order of protection.
*The issue of “qualifying” orders of protection is a standard
necessary under federal law to enforce federal firearms provisions;
however, it is not required for according full faith and credit. For
further details, see 18 U.S.C. § 922 (g)(8).
HELPFUL INTERVENTIONS
Referral Actions
- Address transportation and housing needs of victim by making appropriate referrals to community services
- Refer victim to the appropriate court or victim advocacy
agency to obtain assistance in enforcing the economic provisions of an
order, such as child support enforcement
Safety Strategies
- Notify victim of legal rights within enforcing jurisdiction
- Assess lethality
- Conduct safety planning with the victim
- When a child has been abducted in violation of an order of
protection, seek return of the child and when necessary seek an
Unlawful Flight to Avoid Prosecution (UFAP) Warrant (see page 12)
- Provide telephone numbers for local shelters and hotlines
- Follow up with law enforcement and victim advocacy programs
Assessing Lethality
Factors to consider in determining serious injury/lethality potential:
- Threats of homicide/suicide
- History of domestic violence and violent criminal conduct
- Separation of parties
- Stalking, including cross-jurisdictional travel to threaten or harass
- Depression or their mental illness
- Obsessive attachment to victim
- Drug or alcohol involvement
- Possession or access to weapons
- Abuse of pets
- Destruction of victim’s property
- Access to victim and victim’s family and other supporters
Please Note: These factors, which are not listed in any particular
order of importance, can be helpful in many cases, but are not
guaranteed predicators of future violence.
“Providing the victim with referral information at the scene of a
domestic incident can be the most important action an officer can take
to stop domestic violence.”
Bill Berger, IACP
President
SUMMARY OF FEDERAL CRIMES OF DOMESTIC VIOLENCE
Officers must be familiar with Federal laws that pertain to domestic
violence in order to assess whether Federal crimes have been committed.
For the following Federal crimes, the law defines State to include: a
state of the United States, the District of Columbia, a commonwealth,
territory, or possession of the United States.
Interstate Travel to Commit Domestic Violence-18 U.S.C.§2261
It is a Federal crime for a person to travel in interstate or foreign commerce, or leave or enter Indian country with the intent to kill,
injure, harass, or intimidate a spouse or intimate partner when in the
course of or as a result of such travel, the person commits or
attempts to commit a violent crime against that spouse or intimate
partner. The person must intend to commit domestic violence at the
time of travel. The broad definition of spouse or intimate partner
includes a spouse or former spouse of the abuser, a person who shares
a child in common with the abuser, a person who any other person
similarly situated to a spouse who is protected by the domestic or
family violence laws of the state or tribal jurisdiction in which the
injury occurred or where the victim resides.
It is also a Federal crime to cause spouse or intimate partner to
travel in interstate or foreign commerce, or leave or enter Indian
country, by force, coercion, duress, or fraud, if in the course of, as
a result of, or to facilitate such conduct or travel, the person
commits or attempts to commit a crime of violence against the spouse
or intimate partner.
Interstate Stalking-18 U.S.C. §2261A
It is a Federal crime to travel in interstate or foreign commerce or
within the special maritime and territorial jurisdiction of the United States, or leave or enter Indian country, with the intent to kill,
injure, harass, or intimidate any person if, in the course of or as a
result of such travel, the offender places that person in reasonable
fear of the death of, or serious bodily injury to, that person, a
member of that person’s immediate family, or that person’s spouse or
intimate partner. The terms immediate family and spouse or intimate
partner are broad and include a spouse or former spouse of the
stalking target, a person who share a child in common with the staking
target, a person who cohabits or has cohabited as a spouse with the
stalking target, any other person similarly situated to a spouse who is
protected by the domestic or family violence laws of the state or
tribal jurisdiction in which the injury occurred or the victim
resides, and a parent, child, sibling, and all household members
related to the stalking target by blood or marriage.
It is also a Federal crime to use the mail or any facility of
interstate or foreign commerce (including telephones, fax machines,
and the Internet) to engage in a course of conduct that places a
person in reasonable fear of the death of, or serious bodily injury
to, that person, a member of that person’s immediate family, or that
person’s spouse or intimate partner. The offender must commit theses
acts with the intent either to kill or injure a person in another
state or tribal jurisdiction or within the special maritime and
territorial jurisdiction of the United States or to place a person in
another state or tribal jurisdiction or within the special maritime
and territorial jurisdiction of the United States in reasonable fear
of the death of, or serous bodily injury to, that person, a member of
that person’s immediate family, or that person’s spouse or intimate
partner. A course of conduct is defined as a pattern composed of two
or more acts evidencing a continuity of purpose.
Interstate Violation of an Order of Protection-18 U.S.C. § 2262
It is a Federal crime to travel in interstate or foreign commerce, or
leave or enter Indian Country, with the Intent to engage in conduct
that violates the portion of a protection order that prohibits or
provides protection against violence, threats, or harassment against,
contact or communication with, or physical proximity to, another
person, or that would violate such a portion of a protection order in
the jurisdiction in which the order was issued. The person must
intend to violate the order at the time of travel and must
subsequently engage in a violation of such portion of the order.
It is also a Federal crime to cause another person to travel in
interstate or foreign commerce, or leave or enter Indian country, by
force, coercion, duress, or fraud, if in the course of, as a result
of, or to facilitate such conduct or travel the offender engages in
conduct that violates the portion of a protection order that prohibits
or provides protection against violence, threats, or harassment
against, contact or communication with, or physical proximity to,
another person, or that would violate such a portion of a protection
order in the jurisdiction in which the order was issued.
Unlawful Flight to Avoid Prosecution (UFAP) Warrant
‘UFAP’ stands for ‘Unlawful Flight to Avoid Prosecution,’ a Federal
crime under 18 U.S.C. 1073. In the Parental Kidnapping Prevention Act
of 1980. Congress made clear its intent that these provisions apply
to cases involving parental kidnapping. When state and local law
enforcement official desire Federal assistance in locating parents who
illegally fled their jurisdiction with a child, they would first
secure a state or local warrant for the individual’s arrest, and then
request that the FBI obtain a UFAP warrant and assist in the location
and return of the individual. The state or local prosecutor may have
to bear the cost of extradition if the state charge is extraditable.
If a state or local felony warrant cannot be used, the 18 U.S.C. 1204
is an alternative procedure to follow.
QUESTIONS FREQUENTLY ASKED ABOUT FULL FAITH AND CREDIT
What types of orders are accorded full faith and credit under federal law?
- Both criminal and civil orders regardless of what the order is titled
- Orders issued by courts with personal jurisdiction over the parties and subject matter jurisdiction over the case
- The law may encompass ex parte, Tribal, and consent orders
What if the victim does not have a copy of the order of protection?
- Seek to verify the existence of an order
- Verify victim’s claim of an order of protection through abuser’s statement that an order of protection exists
- Confirm through abuser’s statement that an order of protection exists
- Determine whether there is probable cause to believe that the abuser has committed a criminal offense
- Arrest abuser if appropriate under enforcing jurisdiction’s law and notify issuing authority of arrest
- Refer victim to appropriate court or advocacy agency
What if the abuser claims no notice or service of the order of protection?
- Verify the existence of an order
- Give notice to abuser of terms of the order of protection and provide abuser with a copy
- Explain consequences of future violations to the abuser
- Notify issuing authority that the abuser received notice and/or a copy of the order of protection
- Notify issuing authority of arrest, if applicable
“As law enforcement officers, you play a critical role in ensuring
that protection orders are enforced and that victims who cross
jurisdictional lines---whether to go to work, visit friends and
relatives, or seek safe haven---are safe.”
Diane M. Stuart
Director
Office on Violence Against Women
What if the abuser has violated the order of protection and then fled the scene?
- Determine if abuser’s actions warrant arrest
- Follow departmental procedure for dealing with a criminal suspect who has fled the scene
- Conduct safety planning and refer victim to appropriate court or advocacy agency
What if the order of protection gives relief not authorized in officer’s jurisdiction?
- Enforce terms and conditions of the order of protection as written
- Enforce for duration specified in the order of protection
- Enforce on behalf of victim(s) named in the order of protection
TECHNICAL ASSISTANCE ON FULL FAITH AND CREDIT IMPLEMENTATION
Technical assistance is available to law enforcement and victims of
domestic violence to answer specific questions and to facilitate
effective enforcement.
Assistance to Victims of Domestic Violence
National Domestic Violence Hotline
(800) 799-SAFE (7233)
TTY (800) 787-3224
(24 hours/day, for referral to state and local programs)
Technical Assistance on Full Faith and Credit:
International Association of Chief of Police
(800) The-IACP
National Center on Full Faith and Credit
(800) 256-5883
Battered Women’s Justice Project
(800) 903-0111, ext. 2
Expertise on Tribal Legal Issues:
Sacred Circle (877) 733-7623
Mending the Sacred Hoop (888) 305-1650
American Indian Law Center (505) 277-5462
Northern Plains Tribal Judicial Institute (701) 777-6176
Expertise on Child Custody:
National Center on Full Faith and Credit (800) 256-5883
National Council of Juvenile and Family Court Judges (755) 784-6012 |
