Policy Guidance
for Domestic Violence
Probation Officer
Domestic Violence
A Procedural Package
For use by Probation
In a Coordinated Criminal Justice
Response to Domestic Violence
July 2010
This project was supported Grant No. 97-WE-VX-0128 awarded by the Violence Against Women Office,
Office of Justice Programs, U.S. Department of Justice. Points of view in this document are those of the author
and do not necessarily represent the official policies of the U. S. Department of Justice.
Acknowledgements
The New York State Office of Probation and Correctional Alternatives gratefully
acknowledges the significant contributions of probation professionals across New York State
and our grant partners in the development of this document:
NYS Office for the Prevention of Domestic Violence
New York State Coalition Against Domestic Violence
This document is based primarily on the Domestic Violence by Police Officers Model Policy
originally developed by the International Association of Chiefs of Police (IACP) in 2001 and
further enhanced for implementation in New York State by the NYS Office for the
Prevention of Domestic Violence, Officer-Involved Domestic Violence Model Policy
Workgroup. The guidelines in this document are also informed by the important work of the
American Probation and Parole Association (APPA) in their Position Statement and Model
Policy on Employee-Involved Domestic Violence.
TABLE OF CONTENTS
SECTION 1.0 INTRODUCTION AND PURPOSE ....................................................................1
A. Introduction ........................................................................................................................ 1
B. Purpose of the Policy ......................................................................................................... 1
SECTION 2.0 POLICY STATEMENT .......................................................................................3
A. Basic Principles of the Policy ............................................................................................ 3
B. Holding Probation Officer Offenders Accountable ........................................................... 3
SECTION 3.0 ARMED OFFICER RECORDS REVIEW ..........................................................5
A. Initial and Ongoing Records Review of Current Officers ................................................ 5
B. Results of Records Review on Current Officers ............................................................... 5
C. Qualified Retired Law Enforcement Officers ................................................................... 7
SECTION 4.0 PREVENTION AND TRAINING PROCEDURES.............................................8
A. In Service Training ............................................................................................................ 8
B. Indicators of Probation Officer Domestic Violence........................................................... 8
SECTION 5.0 EARLY IDENTIFICATION AND INTERVENTION PROCEDURES ...........10
A. Pre-hire Screening and Investigation ............................................................................... 10
B. Post-Conditional Offer of Employment ........................................................................... 11
C. Departmental Responsibilities ......................................................................................... 11
D. Supervisor Responsibilities .............................................................................................. 12
E. Probation Officer Responsibilities ................................................................................... 13
SECTION 6.0 INCIDENT RESPONSE PROTOCOLS ............................................................15
A. Departmental Response.................................................................................................... 15
B. Additional Critical Considerations ................................................................................... 15
SECTION 7.0 POST-INCIDENT INVESTIGATION DECISIONS .........................................16
A. Investigations ................................................................................................................... 16
B. Administrative Investigations and Decisions ................................................................... 16
C. Job Termination Procedure .............................................................................................. 18
APPENDIX A ............................................................................................................................19
APPENDIX B ............................................................................................................................21
APPENDIX C ............................................................................................................................23
ENDNOTES AND COMMENTARY .......................................................................................27
Probation Officer
The term probation officer is any person employed by the probation department as a
probation officer, including probation officer trainee, senior probation officer,
probation supervisor or administrator. Accordingly, the term probation officer shall
refer to any person designated as a peace officer pursuant to CPL Section 2.10(24).
Supervisor
The term supervisor is any person within the organizational structure of the
probation department that directly manages the activities of a probation officer.
Unless otherwise noted, the supervisor shall be the immediate higher level in
authority of the department or any other designee of the probation director.
Probation Director
The term probation director is the legally appointed head of a probation department.
In the absence of the departmental probation director, the term shall mean the deputy
director, if any, a designee or any person legally acting in such capacity.
Garrity v. New Jersey, 385 U.S. 493 (1967). If an officer is compelled to give a statement, oral or written, as a
condition of employment and under threat of discipline, up to and including termination, for failure to provide
such a statement, any statement that the officer provides may not be used in a subsequent criminal prosecution
of the individual officer, but may be used against the officer in subsequent disciplinary proceedings and civil
lawsuits.
18 U.S.C.925(A)(1)
3
4
10
12
Requirement to Self-Report
Any probation officer, including the probation director, who is the subject of a
domestic violence criminal investigation, a suspect in a domestic incident report
(DIR) or is arrested for domestic violence by a law enforcement agency shall
immediately make a report to his/her supervisor, or the person acting in that capacity
as soon as possible, and no later than twenty-four (24) hours after law enforcement
intervention, detailing the pertinent facts including all of the following:
1. Name and location of the investigating or arresting agency;
2. Date and time of the arrest or awareness of the investigation;
3. Criminal charge(s) alleged;
4. Terms of release from custody, if applicable;
5. Knowledge of an arrest warrant or return court location, date, and time; and
6. Whether subject to an order of protection.
Any probation officer, including the probation director, who learns that he/she is a
respondent in any Family Court proceedings involving domestic violence or who is
the defendant or respondent in any order of protection, whether or not the order has
been formally served and regardless of jurisdiction, shall immediately notify his/her
supervisor and provide a copy of the order, if issued, no later than twenty-four (24)
hours after being served or made aware of the order. Failure to self-report
involvement in committing domestic violence may be subject to disciplinary action.
14
15
North Carolina v. Alford, 400 U.S. 25 (1970) was a case in which the Supreme Court of the United States
affirmed that there are no constitutional barriers in place to prevent a judge from accepting a guilty plea from a
defendant who wants to plead guilty while still protesting his innocence.
16
Administrative Orders
1. The probation director shall determine whether and when the accused officer should be
issued an administrative order.
2. The use of administrative orders can be beneficial to a probation department and:
a. Enhance victim safety;
b. Take into consideration the wishes of the victim and/or domestic violence
advocate working with the victim;
c. Cover a wide range of behaviors by the officer that can be regulated by
supervisors;
d. Involve failure to obey direct supervisory orders, making it easier to prove than
the alleged domestic violence;
e. Provide for immediate discipline for violation of the administrative order
without having to jeopardize any subsequent criminal or administrative
investigations into the domestic violence;
f. Provide for swift hearings and punishment against violators, thus reducing
department liability and reducing or eliminating the time that a department may
need to continue to pay an officer on administrative leave or suspension for the
duration of a lengthy criminal case.
18
20
21
22
APPENDIX B
Effective: July 22, 2004
UNITED STATES CODE ANNOTATED
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I--CRIMES
CHAPTER 44--FIREARMS
926C. Carrying of concealed firearms by qualified retired law enforcement
officers
(a) Notwithstanding any other provision of the law of any State or any political subdivision
thereof, an individual who is a qualified retired law enforcement officer and who is
carrying the identification required by subsection (d) may carry a concealed firearm that
has been shipped or transported in interstate or foreign commerce, subject to subsection
(b).
(b) This section shall not be construed to supersede or limit the laws of any State that-(1) permit private persons or entities to prohibit or restrict the possession of concealed
firearms on their property; or
(2) prohibit or restrict the possession of firearms on any State or local government
property, installation, building, base, or park.
(c) As used in this section, the term "qualified retired law enforcement officer" means an
individual who-(1) retired in good standing from service with a public agency as a law enforcement
officer, other than for reasons of mental instability;
(2) before such retirement, was authorized by law to engage in or supervise the
prevention, detection, investigation, or prosecution of, or the incarceration of any
person for, any violation of law, and had statutory powers of arrest;
(3)(A) before such retirement, was regularly employed as a law enforcement officer for
an
aggregate of 15 years or more; or
(B) retired from service with such agency, after completing any applicable probationary
period of such service, due to a service-connected disability, as determined by such
agency;
(4) has a nonforfeitable right to benefits under the retirement plan of the agency;
(5) during the most recent 12-month period, has met, at the expense of the individual, the
State's standards for training and qualification for active law enforcement officers to
carry firearms;
(6) is not under the influence of alcohol or another intoxicating or hallucinatory drug or
substance; and
(7) is not prohibited by Federal law from receiving a firearm.
(d) The identification required by this subsection is-(1) a photographic identification issued by the agency from which the individual retired
from service as a law enforcement officer that indicates that the individual has, not
less recently than one year before the date the individual is carrying the concealed
firearm, been tested or otherwise found by the agency to meet the standards
23
24
APPENDIX C
Suggested Topics for Comprehensive Training
1. Understanding the Nature and Dynamics of Domestic Violence
a. General domestic violence training
b. Domestic violence and stalking dynamics, tactics, and behavior patterns
c. Common victim strategies to domestic violence
d. Common offender strategies, including denial, minimizing, blaming, justifying
e. Understanding oppression and cultural issues, including racial, gender, and samesex issues
f. Legal rights of victims
g. Role of local victim advocates and available services
2. Departmental Domestic Violence Protocol
a. Notification and reporting procedures
b. Cross-jurisdictional policies and protocol
c. General domestic violence investigation and evidence collection
d. Stalking and other appropriate criminal charges
e. Working with victim advocates
f. Primary aggressor determination and recognition of defensive injuries
g. Dangers and limitations with using risk assessment tools
h. Officer safety
i. Confidentiality issues
j. Ethical considerations
k. Criminal and civil liability
l. Firearms removal and seizure
m. Risks posed to children by domestic violence offenders
3. Warning Signs and Indications of Probation Officer Domestic Violence
a. Orientation to department policy
b. Responsibilities of all personnel
4. Victim Safety
a. Preliminary safety planning
b. Knowledge of local domestic violence programs and available services
c. Potential barriers to assistance/intervention
5. Federal Domestic Violence Laws
a. Intrastate and Interstate enforcement of protective orders
b. Federal stalking, domestic violence, immigration, and firearms laws
25
26
Domestic Violence
There is no New York State legal statutory definition for domestic violence. Generally,
domestic violence is described as a pattern of coercive tactics, which can include physical,
psychological, sexual, economic, and emotional abuse, perpetrated within the context of a
domestic relationship, with the goal of establishing and maintaining power and control over
the victim. This description provides the basis for the wide range of domestic violence
behaviors and associated criminal offenses identified in this section and throughout this
policy.
Domestic violence, as defined here, occurs within the context of a domestic relationship
where an intimate partner or family or household member commits or attempts to commit
any of the following:
1. Any of the following designated Family Offenses included in the Family Court Act
812(1) and CPL 530.11(1):
a. Harassment 1st and 2nd degrees,
b. Aggravated Harassment 2nd degree,
c. Disorderly Conduct, including not in a public place,
d. Sexual Misconduct
e. Forcible Touching
f. Sexual Abuse 3rd degree
g. Sexual Abuse 2nd degree as set forth in PL130.60 (1)
h. Criminal Mischief
i. Assault 2nd and 3rd degrees,
j. Attempted Assault 2nd and 3rd degrees,
k. Reckless Endangerment 1st and 2nd degrees,
l. Menacing 2nd and 3rd degrees,
m. Stalking 1st, 2nd, 3rd, and 4th degrees.
2. Acts that violate the terms of a valid order of protection issued by the family,
criminal, or supreme courts of New York State, or any valid order of protection
or restraining order issued by a court in any other state, commonwealth,
territory, or possession of the United States, or by any tribal governments
located within the United States. Any such violation shall be the basis for criminal
charges for the appropriate degree of criminal contempt or aggravated criminal
contempt and for any underlying crime(s) associated with the violation of the order.
3. Acts that violate the terms of a valid special order of conditions issued pursuant
to subparagraph (i) or (ii) of paragraph (o) of subdivision one of Section 330.20 of
the Criminal Procedure Law following a verdict or plea of not responsible by
reason of mental disease or defect. Any such violation shall be the basis for criminal
charges for the appropriate degree of criminal contempt or aggravated criminal
contempt and for any underlying crime(s) associated with the violation of the special
order of conditions.
4. Repeated pattern of coercive acts or petty offenses which, taken singly, may be
non-criminal in nature, but create a course of conduct that instills reasonable
27
Administrative Order
1. An administrative order is a directive from a supervisor ordering an officer to refrain
from particular conduct toward a particular person as a condition of continued
employment. It is recommended that any such order be in writing and documented as
to when furnished to the officer.
2. Though these are not considered qualifying orders of protection for the federal
firearm ban the supervisor issuing the administrative order may seize the officers
duty firearm for the duration of the order.
3. Since these are administrative orders, rather than judicial mandates, and there are no
requirements to provide the accused officer with due process requirements of
reasonable notice and a hearing before issuance, the Full Faith and Credit provisions
of the Violence Against Women Act do not apply.
4. The probation director should discuss parameters of such an order with the
departments legal and/or personnel/human resources representative and where
utilized, specify who within the department can issue such an order.
Order of Protection
1. The term order of protection (absent any modifying words such as administrative
or qualifying) simply refers to an order issued by a judge that specifically forbids a
person from doing something or requires a person to do something in an effort to
provide safety and security to another person, that persons children, and/or that
persons companion animals or pets. Such order of protection shall include:
a. Any order of protection from the family, criminal or supreme courts of New
York State;
b. Any foreign order of protection, as such is defined in subdivision 2 below;
and/or
c. Any order defined within the federal term protection order, (contingent upon
the determination of a pending lawsuit) as such is defined in subdivision 3 of
this section.
2. A foreign order of protection is a court order that is issued by a court other than a
court located within New York State, including:
a. Any state, county, or local court of other states;
b. Any Indian tribal court located within the United States;
c. Any court within the District of Columbia; and
d. Any court of a commonwealth, territory, or possession of the United States
(American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and the U.S.
Virgin Islands).
Note: The full faith and credit provisions of Article IV of the United States
Constitution and the federal Violence Against Women Act (VAWA) shall be the
basis for the enforcement of any foreign order of protection in New York State.
According to 18 U.S.C. 2265(a), full faith and credit means that probation
officers must enforce orders of protection issued by another jurisdiction as
though they were issued by their own jurisdictions. (Exceptions:
31
Domestic Relationship
A domestic relationship shall include persons who:
1. Are members of the same family or household, as defined as such in New York State
Family Court Act 812(1) and Criminal Procedure Law 530.11(1) in that they are:
a. persons related by consanguinity or affinity;
b. persons legally married to one another;
c. persons formerly married to one another regardless of whether they still reside
in the same household with such persons;
d. persons who have a child in common, regardless of whether such persons have
been married or lived together at any time; and
e. persons who are not related by consanguinity or affinity and who are or have
been in an intimate relationship regardless of whether such persons have lived
together at any time. Factors the court may consider in determining whether a
relationship is an "intimate relationship" include but are not limited to:
the nature or type of relationship, regardless of whether the relationship is
sexual in nature; the frequency of interaction between the persons; and the
duration of the relationship. Neither a casual acquaintance nor ordinary
fraternization between two individuals in business or social contexts shall be
deemed to constitute an "intimate relationship".
2. Assert they are intimate partners, as defined, including same gender couples.
32