2024-02-08_NSAG-Meeting_Magisterial-System

The speaker, Chief Magistrate Brian McLaughlin, discusses the role and functions of the magistrate system in Norfolk, Virginia. The magistrates are governed by statutes and are part of the Office of the Executive Secretary under the Supreme Court of Virginia. The Norfolk Magistrates Office is open 24/7 and serves the Norfolk area, as well as Northampton and Ackermack Counties on weekends and nights. The magistrates have authority within their specific regions and can issue processes such as arrest warrants and protective orders. They are not involved in providing legal advice and make decisions based on probable cause. The office had to adapt during the COVID-19 pandemic and has seen a drop in processes. Magistrates are appointed and go through training before being released for independent judicial service. Their main function is to provide an unbiased review of complaints and issue various orders. Thank you for having me. Thank you for providing this wonderful space and thank you for the warm introduction. I am Chief Magistrate Brian McLaughlin for the Norfolk Magistrates Office, the 4th Judicial District, which is located here in Norfolk. What we're going to talk about today is the magistrate system, how it functions throughout the Commonwealth of Virginia, obviously specifically tailored towards Norfolk, although everything I'm going to talk about in a broad sense is covered by Commonwealth of Virginia. The magistrates are statutory animals. Everything that we do, we have to do by statute. Everything we do is governed by statute. The magistrates of Virginia are under the Office of the Executive Secretary, which is under the Supreme Court of Virginia. Norfolk has 15 full-time magistrates. We are open 24 hours a day, 7 days a week. Different offices in different parts of the state are open for different times and different locations depending on the area that they have to cover. Some offices do purely satellite work at certain locations and have a hub, kind of a central location where they're at. But for Norfolk, we are at 811 East City Hall Downtown. It's kind of a stone's throw away from where we are at the Chrysler Museum. We do have a satellite office at the Police Operations Center, the 1st Precinct, the Norfolk Community Services Board, and then the YWCA. As far as processes are concerned, we've seen the numbers kind of slowly drop off. When I say processes, I'm going to talk about criminal warrants, emergency protective orders, mental health, things like that. For total processes, we've seen a drop-off since COVID. I think a lot of people, even still now, aren't going out because of some of the things that happened with COVID. And unfortunately, the Norfolk Magistrates Office had to be shut down to citizen traffic because we weren't set up to deal with people face-to-face. That's how the old office was set up. We saw everybody face-to-face in a similar setting like this. So in order to help prevent the spread of COVID, we had to shut our office down. We did everything by video through the Portsmouth Magistrates Office. Prior to that, and we've seen the numbers kind of slowly climb since COVID. There was a drastic drop-off around COVID for the reasons I just explained. Prior to COVID, the Norfolk Magistrates Office is probably doing somewhere in the neighborhood of 50 to 60,000 processes over here. So a significant number of processes for what is a smaller office in the Commonwealth. So the Magistrates Offices in Virginia are divided into regions. There are eight different regions in Virginia, comprising about 32 different districts. Each region has between three to five different districts in them. So the Norfolk Office is in Region 7, which is also comprised of Virginia Beach, Portsmouth, Northampton, and Ackermack Counties. The Norfolk Office actually serves Northampton and Ackermack Counties on weekends and nights. They set up a magistrate there during the day, during the nighttime hours, and on the weekends. The Norfolk Office is the primary outlet for citizens, law enforcement on the Eastern Shore that need help. If we aren't able to provide that service to them because the office tends to get a little bit busy, we will then reach out to Portsmouth or Virginia Beach, who can all kind of help us pick up the slack with that. Region-wide, each magistrate in their particular district only has region-wide authority. So as a Norfolk Magistrate, I only have the authority to issue processes that occur within my region. So Norfolk, obviously Virginia Beach, Portsmouth, Northampton, and Ackermack Counties. If it happens outside of those regions, with the exception of a couple different processes, I can't issue that process that was requested. So if it's an assault and battery that happened in Chesapeake, and maybe the Chesapeake resident works in Norfolk, and they decided just to stop by the Norfolk Office, I can't issue the assault and battery reward because the cause of action actually occurred in Chesapeake. If the respondent lives in Norfolk, or something happened in Norfolk, we might be able to get involved with an emergency protective order. But if everything happened in Chesapeake, I have to refer them to the Chesapeake Magistrate's Office. The only exception to that for statewide authority is search warrants. So, 2014, there was a statutory change that allowed magistrates to expand and issue search warrants across the Commonwealth of Virginia. So, if a Norfolk Bison Narcotics Detective is working with law enforcement in Lee County, which is the furthest county in Southwest Virginia, we could issue a search warrant for a home, let's say, in Lee County. And then they would have to set up contact with them in order to go down there and have it executed. As far as appointment and jurisdiction is concerned, we are appointed by the Supreme Court of Virginia and the Office of the Executive Secretary with the Chief Circuit Court Judge for the particular district with their consultation. Magistrates are then certified. Right now, it's a six-week course, virtual and in-person. After the six-week course, there is an examination, which requires 70% or better to pass. Once the individual passes the examination, they sit with a certified magistrate who's gone through a separate training for certified magistrate trainers. They'll sit with that magistrate for 240 hours of on-the-job training. Every single shift, the certified magistrate is required to do what's called a daily observation report, reporting on the processes they created that day. They're filling out various categories of their ability to find probable cause, whether or not they found probable cause correctly, their bail decision, whether they're able to rationalize their bail decision correctly, if it was a good bail decision based on that magistrate's interpretation of everything that was brought forth during that particular hearing. Assuming everything goes well at the end of the 240 hours, that appointed magistrate will then sit with me for an eight-hour session. I'll make a recommendation of whether or not they should be released to work independently as a magistrate. My recommendation is that, yes, they should be allowed to work independently. My boss, Tom Cahill, who is the regional supervisor for Region 7, will sit with them for a session as well. If his recommendation is that they be released, both of those recommendations go up to Jonathan Green, who's the director of the magistrate system here in Virginia. He then moves that information on to the magistrate, and ultimately that magistrate is released for independent judicial service. The principal function of magistrates is to provide an unbiased independent review of complaints brought by police officers, sheriffs, deputies, and citizens. We work as somewhat of a gatekeeper function for the courts and citizens. A lot of times, the first interaction a citizen's going to have with the court system is through the magistrate's office. We are especially trained to, as I said, issue those arrest warrants, search warrants that fail, and we issue a myriad of other orders, which we're going to talk about here in just a couple of minutes. One of the things that I think is also important to point out, magistrates aren't involved in getting any kind of legal advice. As I said, we're creatures of statute. We can't work in the sense of providing somebody with what you should do, where you should go, we can only tell you what the law says, and then hopefully move the process on from there. Everything that the magistrate's office does in order to issue processes is issued under what's called probable cause. Probable cause is generally considered to be sufficient facts and circumstances that lead a reasonable person, in the case of magistrates, to believe a crime has occurred. It's not more likely than not, and it's not beyond a reasonable doubt, which are higher legal standards. We accept those under complaints and witness statements. Everything is done under oath. The person will come to the magistrate's office. They will swear in under oath. We will take oral testimony. Assuming the oral testimony is sufficient, we'll ask that person to place that into a written form, and then they'll swear to that written form, and the magistrate will go through the process of issuing the criminal warrants or protective orders, whatever was requested by the citizen. The rules of evidence don't apply at our level, so we don't consider things like affirmative defenses. If you're involved in a bail hearing, and the individual who was arrested says that they were acting in self-defense, that's not something the magistrate's able to consider at that point in time. Arrest warrants make up a large portion of what the magistrates do throughout their processes. I think bail and arrest warrants make up the largest portion of it, probably 50 to 70 percent of what magistrates do. All arrest warrants require probable cause. Again, sufficient facts and circumstances that would lead a reasonable person to believe crimes occurred. We have a limited authority for juveniles. Generally, if we're issuing any kind of process for a juvenile, it's going to be a protective order. Most other processes for juveniles have to go through the juvenile intake, either through the court system or a separate juvenile intake body. We can issue search warrants for juveniles, say the body of a juvenile if DNA needs to be taken for some reason, or an emergency protective order against a juvenile. Outside of that, we're not involved in issuing processes against juveniles unless it comes on an appeal from juvenile intake. If it does come on an appeal from juvenile intake, it has to be either a Class I mystery or a felony. If it's a status offense, then we are not involved in issuing that process. The complaint has to appear in person. Under oath, that can be either in person or live via video. We do, as I said, with the satellite offices, we have the POC and other locations in Norfolk. Of course, working in Akron, Northampton County, we do see a lot of them by video. We can take it by video. We do these complaints, obviously, with citizens or law enforcement by video. Everything coming from a citizen is reduced to a written form by law. So if a citizen comes in and requests a criminal warrant or an emergency protective order, that has to be reduced to a writing. Certain processes for law enforcement have to be reduced to a writing, but most of that's just based on the oral testimony that law enforcement is providing. We are required to issue, if probable cause is found, by law. Magistrates have no discretion in that sense. If PC is there with what is presented, the magistrate, by law, has to issue that criminal charge or whatever the requested process is. And then we talk about permitted versus not permitted warrants. That's the magistrate's discretion based on what's happened at that point in time. If it's a citizen, depending on the severity of the act, the magistrate can issue the warrant as permitted or not permitted. Not permitted warrants mean law enforcement has to arrest that person when they're found and they execute the warrant. They have to take them into custody and bring them before the magistrate for a bail hearing. Permitted warrant means it's law enforcement's discretion at that point in time. They will have the person sign off on the warrant and serve them their copy, give them a court date, and then the courts will take it from there. If something happens in that process, maybe the person refuses to sign the warrant, law enforcement doesn't believe they're going to discontinue whatever the illegal act is. They can forego the permitted nature of the warrant and take them into custody and bring them to the magistrate's office for a bail hearing. I would say the vast majority of what we do on the citizen's side are issued as permitted warrants. Obviously, if law enforcement has arrived on scene and has decided to take somebody into custody for a criminal act, that's going to be issued as a not permitted warrant. That kind of ship has sailed, so to speak. Once they're taken into custody, we're going to proceed with the bail hearing once law enforcement brings them down. Felony warrants get a little bit tricky when they're requested by citizens. Again, by law, magistrates cannot issue a felony warrant unless the citizen receives pre-authorization from the Office of the Commonwealth's Attorney or from law enforcement. So only law enforcement can receive criminal warrants. They can either do that, law enforcement can do it on their own and have the citizen subpoena to come to court to testify in regards to the warrant, or the criminal complaint form has a box in the bottom right-hand corner that law enforcement can sign off on authorizing whatever that requested felony was. We can issue summonses and subpoenas. We can issue summonses in lieu of issuing an arrest warrant. It doesn't happen often. I would say most of the time, if a citizen comes down and the magistrate finds a probable cause to issue a criminal charge, we're issuing that on either a permitted or not permitted warrant. If it's a Class 3 or 4 misdemeanor that's been requested, those have to go on summonses by law as they're non-jailable offenses. So the magistrate will issue a summons in that situation. Magistrate summonses don't have to be signed. So if law enforcement interacts with somebody in the field for, let's say, providing a false ID, which is a Class 3 misdemeanor, they can bring that person to the magistrate. They don't have to sign our summons. We'll give them a court date and move the process along in court. The summons, does that mean you have to go to court? The summons is basically the same as an arrest warrant, but if it's on the summons, it's not arrestable at that point. So you talk about permitted versus not permitted warrants. If it's not permitted, law enforcement has taken that person into custody. A magistrate can put, say, a Class 1 misdemeanor on a summonsable offense. At that point, the only job for law enforcement to do is to execute that on that person. Can you give me an example for me to understand? Class 1 through 4 misdemeanors in Virginia. Class 1 is the more severe misdemeanors in Virginia. Class 4 is something like a drunken public is a Class 4 misdemeanor. Class 3 and Class 4 misdemeanors are non-jailable offenses, meaning that if I issue, say, the false identification of law enforcement, the person's not going to be jailed on that offense. All I'm going to do is issue the summons for them and then move them on their way to court. You're summoned to court to hear for what you've been charged with. Search warrants take up probably the other 20 or so percent of what magistrates do. As I said, that's statewide that we are able to issue search warrants. Those are, again, an affidavit is required by law. They're written under oath. They determine whether or not there's a fair probability that evidence of a crime, fruits of a crime, contraband in the person, place, or thing which constitutes evidence of a crime is at the place to be searched and whether or not the thing to be seized is a fair probability that those items are located at the place to be searched. A fair probability that a person constitutes evidence of a crime or tends to show the person has committed a crime for purposes of issuing the search warrant. Bail determinations, as I said, make up a large chunk of what we do. Bail is a very intricate part of the process. I think it's one of the harder things that magistrates have to do in determining bail. We have to grant reasonable bail. Anybody who comes before the magistrate for the bail determination hearing is eligible for bail. They have an opportunity to get bond. Obviously, that's kind of a sliding scale depending on what they were charged with, but there is an opportunity to get bond. What magistrates statutorily are looking at, is the person a danger to themselves or others? Are they a flight risk? Are they not likely to appear in court? If they're not one of those two things, then magistrates should be setting an unsecured bond. We'll talk about the difference between bonds here in just a couple of minutes. We have to consider statutorily what the bail checklist questions that we're looking at. We're going to run their criminal history. We're going to look at the time in the community, employment, and other resources to try to establish whether or not the person has a strong footing here and is likely to go to court. If they do, again, as I said, magistrates should be setting unsecured bonds in those situations. Certain other things that come into play, statutorily magistrates have to set a secured bond. If the person is before us on a felony offense, if they are on probation or parole, if they've been previously convicted of felony offenses, in those certain situations, magistrates will have to set a secured bond by law. June 21st of 2019, the Commonwealth's attorneys, which Greg Underwood at that point in time, provided our office with a letter of blanket concurrence prior to that time. We're still, that's specific to Norfolk. Magistrates in other jurisdictions, if they don't have that kind of blanket concurrence, what they have to do is they have to call the Commonwealth's attorney's office if they want to set an unsecured bond in a situation where the secured bond requirement would apply. Once the CA's office concurs in that, then the magistrate can set an unsecured bond. CA Underwood at that point in time, in 2019, provided our office with a blanket concurrence. We're not required now to call the Commonwealth's attorney's office to seek a concurrence on the secured bond requirement. If the magistrate determines that the person should be released on an unsecured bond and a secured bond requirement applies, we are allowed to make that decision under our judicial discretion. Prior to July 1 of 2021, magistrates were required to hold a person without bond for certain offenses, and those were kind of the worst of the worst offenses, murder, rape, robbery, arson, many offenses involving children. A magistrate could not set a bond on those. They had to hold the person without bond and have them directed to the court for the court to determine whether or not they should be released. That was revealed in July 1 of 2021, so now magistrates do have discretion for those types of criminal offenses to set bonds if they think it's necessary based on everything that's gone on in the surrounding circumstances. Sure, go ahead. We don't. No. No, I mean, we do work a little bit with the Commonwealth's attorney's office, but not something regular. We have a list that comes through my office to ensure that we're fulfilling our statutory obligation. So it's just with the city court system, then? You're just directing the defendant to the correct court system? Correct. Okay, that's what I was trying to say. Sure, so we're dealing primarily, at our stage, we're sending everybody to the general district court or the JDR court. Correct. If we are sending somebody to the circuit court, most of the time that's on a probation violation that's already been issued. Something that's already come out of the circuit court, and we're determining bail at that point in time and sending them to the circuit court. Law enforcement brings somebody to the magistrate for, let's say, a domestic assault battery warrant, and we find probable cause to issue the domestic assault battery warrant. We then issue the warrant, go to the bail hearing, and we'll determine, again, whether or not they're going to be released. If we determine they're going to be released, we'll set a court date for them and then move them on to the JDR court for their court appearance. Okay, I'm just trying to think of logistics. Sure, no, I understand. So, I kind of mentioned the types of bail with secured and unsecured bonds. So, recognizance, unsecured and secured bonds are what we deal with. The recognizance is just a promise to appear. There's no money involved in that. The unsecured bond is a promise to appear, plus the potential that the individual would have to forfeit a set amount of the bond. So, with the example I just gave, with a law enforcement arrest, somebody had a domestic assault battery warrant, the magistrate runs their steps for bail checklist questions. They determine that they're going to release the person on a $1,000 unsecured bond. At that point in time, the person does not have to make payments of any kind. The $1,000 bond is essentially an amount that's kind of hanging over their head to ensure that they go to court, they abide by all the terms and conditions of their bond. That bond could be revoked, it could be subject to being brought back before the magistrate for another bail determination to be had at that point in time. The secured bond means they have to pay some kind of, provide some kind of surety in order to be released at that point. That can be cash, it can be property, they can seek the services of the bail bondsman. In Virginia, the bail bondsman can only charge them between 10% and 15% of the total amount of the bond, and that's just an arrangement that they work out with them to keep their own business. I couldn't give you a percentage between what we go with secured or unsecured bonds. It's really based on the facts and circumstances of every individual bail hearing. Magistrates do a number of mental health orders as well. ECOs, emergency custody orders, is really the starting point for a lot of citizens who come in to talk to the magistrate's office. This we do for adults and for juveniles. So magistrates kind of have to wear a different hat in this situation. We might have to go from issuing a criminal warrant, determining bail, to the very next hearing, having to determine whether or not somebody meets the statutory criteria to have an emergency custody order issued for a mental health crisis that they're having. So what we're looking for is a mental illness. If anybody's ever seen the DSM-5, it's a very, very thick statistical manual. There are a lot of potential mental illnesses that the magistrate could be trying to determine as well. Substance abuse is also included in that. We're determining whether or not they're a danger to themselves or others, or whether they're unable to care for themselves in a particular way. Unable being likely due to the mental health crisis that they are suffering from. They're unable to understand the gravity of what's going on. Unwilling meaning they maybe have some understanding of what's going on, they just don't want to help. At that point in time, if the magistrate finds a probable cause, if all those statutory criteria are met, they have to issue that emergency custody order by law. That's eight hours for law enforcement to find the person and execute the ECO to take them into custody. Once they're taken into custody, that's eight hours for the community services board to do a mental health evaluation and determine whether or not they meet criteria for a temporary detention order, which is a 72-hour hold. We do paper ECOs, so our ECOs come on a paper order. Law enforcement has what's called a paperless ECO authority. If they meet any statutory criteria, law enforcement just has the ability, if they encounter somebody in the field who they believe is suffering from a mental health crisis, they can take them into custody under their orderless authority to take them to the community services board for an evaluation. We do a number of emergency protective orders every year. Last year we did approximately 1,800 family abuse emergency protective orders, civil emergency protective orders. We did about 1,700, so we do quite a few emergency protective orders every year. They are required by law. If the magistrate issues a warrant for domestic assault and battery, we are required to issue an emergency protective order along with that. We are looking at cases of violence, force, or threat, specific instances of violence, force, or threat where somebody has actually been physically violent or if they have threatened violence on someone as criteria for issuing the emergency protective order. They last for three days through the magistrate's office. Assuming the court is in session or not in session, the magistrate cannot extend that order. We can't issue successive orders. Most bang for your buck, so to speak. If an individual came in and they got an emergency protective order on Wednesday, Thursday, Friday, it would technically expire on Saturday. If the court is not in session on Saturday, if not in session on Sunday, that rolls over to 1159 p.m. the following Monday. The emergency protective orders are really a holdover before the individual can get to court to speak about a longer protective order, the preliminary protective order, which is 15 days, and then ultimately a hearing for an order of protection, which lasts for up to two years. Magistrates can order a number of different conditions. The vast majority of what we do are no-contact emergency protective orders. We can also order no-hostile contact, meaning the two individuals could have contact with each other. If law enforcement gets involved and they deem it hostile, or if the individual believes that the person they have a protective order out against has been hostile towards them, then they could seek a criminal warrant at that point in time. We can exclude people from residences. This happens a lot with domestic assault battery warrants, where we'll exclude family household members. One of them will be excluded from the residence for the duration of the emergency protective order. We can grant companion animals and any other necessary conditions in the non-family orders. Most of that is just removing somebody from a property. So it could be two roommates who live together, and in that sense, we could remove one of them from the property, as we do with the domestic assault battery warrants. In order to charge somebody criminally with violating a protective order, they have to be served with it. So they have to have a paper copy in hand, which tells them they cannot have contact with this person, they cannot be at the premises before we make the charge them criminally with violating that protective order. Emergency substantial risk orders, I wanted to mention because I think it's an important point that maybe doesn't get brought up a lot. These tend to red flag laws. They can only be stopped by law enforcement or the Commonwealth Attorney's Office. But I think it's important for citizens to understand that if you believe somebody poses a substantial risk of injury to themselves or others, due to their ability to purchase, possess, or transport a firearm, you can request an emergency substantial risk order from the management's office. Or, excuse me, you would have to go through law enforcement or through the Commonwealth Attorney's Office. They can then submit an affidavit and we can issue the emergency substantial risk order to have firearms confiscated from that individual. Once the emergency substantial risk order is issued, it's 14 days. That's a hard date. The court has to have a hearing, a substantial risk order hearing, within that 14 days to determine whether or not the person should be prevented from owning a firearm for longer. That can be up to 180 days. The person has an option to appeal that decision one time. The court can continue to extend that 180 days until they feel like the individual is safe to possess a firearm. So, when should you go to the management's office? Honestly, at any point in time. If you feel like a crime has occurred, if you feel like you need, somebody needs a mental health process issued for them, an emergency custody order, an emergency protective order, please come to the management's office. Please seek the services of the management's office. We only do misdemeanor offenses and the emergency protective orders and mental health orders. As I said earlier, felonies have to go through law enforcement or through the Commonwealth Attorney's Office. We can certainly help walk people through that process, but we will not be able to issue any kind of requested felony at that point in time. We're open 24 hours a day, 365 days a year, 811 East City Hall Avenue. Sandwiched between the court building on 150 St. Paul's Boulevard and the jail and the lower level of that public safety building. I have your telephone number if anybody would like to call that 757-664-4799. Now, this is not just for any citizen that might have probable cause on some neighbor that might be doing drugs out of their house? Would that be? I mean, you can certainly come talk to us. If it's a drug-related offense, we're going to have to send you on to law enforcement for them to do an investigation. And that's not working. We have one, there's one house currently, one rental that's been in bad news for several years. I'm not bashing law enforcement, but we cannot get them out there to explore the situation, except just to check the registration on the front of their car and say, okay, then they go. So, we've got, I have friends who work for the DEA, and I've asked them if they knew how to get in there and check this place out. And they called in, they took an interview with me, and they said, well, we have to refer it back. We'll probably refer it back to the locality. Right. So, we're just, we're, it's very strange. Yeah. Very strange. No, I understand that you have that point. If you were to come to the mattress office, I would say, well, you'd have to go to law enforcement for an investigation to have them take care of that. I know. And I can't say a whole lot against law enforcement. No, no, no. It's going to get them upset. Yeah, yeah, yeah. I don't want to get them any more upset than they've already. And I support law enforcement. Sure. I will make a point of saying, and I didn't mention this earlier, we do a number of other civil processes with landmark tenants and stuff like that. We can, by law, do landlord-tenant processes, tenant insertion and complaints, things like that. We don't, for the most part. The courts in Norfolk have decided that's something they want to handle primarily. So, if somebody wants to file a debt and excedure action, we send them on to courts. They are rare. I've, you know, worked at the Norfolk mattress office for almost 10 years now. I've had an opportunity to do it one time. To help a tenant? Yeah, yeah. To do a civil process. Civil process, yeah. Yeah, so somebody who wanted to file a debt and excedure action. Okay. Tom Cahill, my boss, the magistrate and supervisor, he's worked with the magistrate system in this area for 15 years. And I think he's issued maybe two of them. So, they're kind of unicorns in the world of magistrates issuing them. It may be different in other parts of the state, but we see them very, very infrequently, rarely ever. And if we do, we normally send them on to courts. So, we can, if necessary, issue civil processes for minor tenant actions and things like that. I'm just trying. That's it. I'm going to stop the recording. Yeah, that was really fascinating. Would you mind sharing the slides or no? It's really great. I didn't realize all the different areas that you guys sort of touch upon. It's a lot. We have a lot of different. Yeah, it's really interesting. I'm going to pause it. Thank you.