April 15, 2020

19A105 - Guns in Courtrooms

AMERICAN BAR ASSOCIATION

STANDING COMMITTEE ON GUN VIOLENCE
CRIMINAL JUSTICE SECTION
CIVIL RIGHTS AND SOCIAL JUSTICE SECTION
COMMISSION ON DOMESTIC AND SEXUAL VIOLENCE
JUDICIAL DIVISION

REPORT TO THE HOUSE OF DELEGATES

RESOLUTION

RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal courts and legislatures to develop policies and protocols as to who may carry firearms in courthouses, courtrooms, and judicial centers that allow only those persons necessary to ensure security, including approved safety officers, judges, and court personnel, have weapons in the courthouse, courtroom, or judicial center, including common areas within the buildings as well as the grounds immediately adjacent to the justice complex, and that require training for those who are permitted to carry firearms.

REPORT

Throughout the United States of America, the courthouses and justice centers are symbols of our constitutional system of justice. The judiciary has a compelling interest in ensuring the safety of the public as it avails itself of our courts, to seek redress from wrongs and resolve disputes.

Courtroom proceedings may sometimes become contentious and emotional, creating concerns for the safety of the litigants, as well as judges, lawyers, support staff, and law enforcement. Increasingly there have been occurrences where violence has erupted and firearms are used inside and outside of the courtroom. When the litigants and the court personnel “believe their courthouses and court facilities are not safe integrity of the entire judicial process is compromised and undermined.” “Beyond mere access [to courthouses], people require a safe and secure environment free from fear or intimidation. Judges, employees, and members of the general public need to feel safe if they are to conduct themselves impartially and decorously.”

In 2012, Timm Fautsko, Principal Staff, National Center for State Courts wrote:

The number of threats and violent incidents targeting the judiciary has increased dramatically in recent years. At the federal level, the U.S. Marshals Service’s Center for Judicial Security reports the number of judicial threat investigations has increased from 592 cases in fiscal year 2003 to 1,258 cases by the end of fiscal year 2011. At the state and local levels, the most informative data about state courts comes from studies conducted by the Center for Judicial and Executive Security (CJES). Their data shows that the numbers of violent incidents in state courthouses has gone up every decade since 1970.

All three branches of our governments should work together to promulgate, promote, and provide for responsible firearm regulations in courthouses, judicial centers, and court facilities. However, there is no uniformity among the state laws as to who may carry a firearm in a courtroom or a courthouse, nor to what extent or areas a judge may exercise discretion in limiting the possession of firearms. The National Center for State Courts did an exhaustive survey that examined the laws of all the states. While the majority of the states restrict firearm possession in the courtroom, only a small number restrict firearms in the courthouse. Additionally, most states allow so many exemptions as to make any ban of firearms useless.

William Rafferty of the National Center for State Courts notes that interest in allowing guns in the courtroom is nothing new.

“The recent uptick in interest can be traced back to two items: the U.S. Supreme Court decision in District of Columbia v. Heller, 554 U.S. 570 (2008), holding that the Second Amendment included an individual right to keep and bear arms, coupled with several high-profile courthouse shootings. These events have prompted efforts to redefine who can carry a firearm in a courthouse and where firearm bans may be imposed. For the most part, such efforts have been designed to expand the ability of individuals to carry guns into courthouses and, in some instances, directly into courtrooms.”

In Heller, the Supreme Court held the Second Amendment protects “an individual right to keep and bear arms,” 554 U.S. at 595, but not a right “to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” id. at 626. More specifically, the Court held unconstitutional the District's “ban on handgun possession in the home,” as well as its “prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense,” id. at 635 (emphasis added), noting “the inherent right of self-defense [is] central to the Second Amendment right,” id. at 628.

In McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court held that the second amendment right recognized in Heller is fully applicable to the states through the due process clause of the Fourteenth Amendment. In so holding, the Court reiterated that "the Second Amendment protects the right to keep and bear arms for the purpose of self-defense," id. at 750, and that "individual self-defense is ‘the central component’ of the Second Amendment right,” id. at 767.

Neither Heller nor McDonald would prohibit restrictions on carrying firearms in to buildings which house court facilities or the grounds immediately surrounding the courtroom facilities. The United States Supreme Court emphasized the narrowness of its holding by noting,
‘[N]othing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial side of arms.” Heller, 554 U.S. at 626–27. (Emphasis added)

The 10th U.S. Circuit Court of Appeals in Denver ruled that the Second Amendment right to bear arms does not extend to federal buildings, finding a post office and its parking lot are considered one of those “sensitive places.” It would not be unreasonable to extend the same prohibition to buildings that house courtrooms as well as the spaces and parking lots immediately adjacent to those court house complexes.

Additionally, it is not especially surprising that research data indicates that more liberal rules regarding gun possession, such as right-to-carry (RTC) laws, do not reduce crime. “Supporters of the idea that such an effect occurs assume that the laws reduce crime because prospective criminal offenders are deterred by a greater perception of risk of confronting an armed victim, which supposedly results from either the enactment of RTC laws or the issuance of large numbers of carry permits to potential crime victims.”


Unfortunately, some state legislatures seek to expand the class which would be permitted to carry firearms not only in to the courthouse, but the courtroom as well. In April 2014, the Georgia legislature enacted, and the governor, signed The Safe Carry Protection Act, a new gun law that, among other things, will allow Georgians to legally carry firearms into churches, schools, airport common areas, bars, courtrooms, and government buildings.

When Iowa Chief Justice Mark Cady issued on June 19, 2017, a supervisory order directing "all weapons are prohibited from courtrooms, court-controlled spaces and public areas of courthouses," the county supervisors, claimed that was an "over-reach" by the court and conflicted with the new gun law. A new supervisory order by the Iowa Supreme Court, issued on December 19, 2017, will enable individual counties to seek to allow weapons in public areas of floors of a courthouse that are not totally occupied by the court system.

On July 1, 2011, a Mississippi law that enhanced concealed carry permit holders “shall also be authorized to carry weapons in courthouses except in courtrooms during a judicial proceeding [.]” Miss. Code Ann. § 97-37-7(2) (Rev. 2014). On November 28, 2011, the chancellors of the Fourteenth District issued an order prohibiting those permit holders from carrying weapons within 200 feet of any door to any courtroom. On June 7, 2018 the Mississippi Supreme Court in a divided opinion ruled that local judges can't restrict conceal carrying at courthouses.

The chancellors may have good and noble intentions, and their concerns are well founded. However, their personal fears and opinions do not trump, and cannot negate, constitutional guarantees. The ultimate outcome of today’s issue is reserved for the Legislature, not to be commandeered by unilateral local judicial proclamations. Courts must give more than lip service to the rule of law; they must insist upon its lawful application. Judges cannot allow their sense of superior knowledge, perceptions, or understandings to justify open defiance of the very laws that they are called upon to uphold. Indeed, we have held repeatedly that courts are guardians of the Constitution, not guardians of the courthouse. Without question, the orders defy existing law and seek to exercise a power that plainly is reserved for the other branches of government. The orders contain no authority to suggest otherwise. The law of Mississippi is clear: enhanced-carry licensees are permitted to possess a firearm in courthouses. No matter how well-intentioned, judges are without the power to limit enhanced concealed-carry licensees’ right to carry a firearm beyond courtrooms in the State of Mississippi. The orders are vacated.

In a well-reasoned dissent, Justice Leslie D. King noted,

The judiciary, and access thereto, implicates numerous constitutional rights. The safety of those compelled to be at the courthouse is necessary for the fair administration of justice; keeping safe and free from threat those people necessary to the judicial process, such as parties, criminal defendants, witnesses, and jurors, is crucial for the administration of justice, the integrity of the judicial system, and the preservation of the constitutional rights implicated at the courthouse.

While most statutes and court decisions recognize the right of judges to restrict who may carry a firearm into the courtroom the reality is that the firearms in the courthouse and the immediate areas surrounding the court facility pose the greatest danger. Trained courtroom safety officers, judges and court personnel provide protection for the court personnel and litigants while inside the courtroom. However, once in the hallways or elevators or parking lots, those who were constrained within the courtroom now are free to act out their hostilities. And if one is prohibited from carrying a firearm into the courtroom, the weapon must be stored somewhere in a safe place. If courthouse security does not include gun boxes, the owner is likely to give the weapon to another family member or friend who is not as well trained or security conscious as the owner.

The American Bar Association should urge state legislatures to prohibit the possession of firearms or dangerous weapons, except those trained and approved safety officers, judges and court personnel. These limits should apply to the courtroom, judges’ chambers, witness rooms, jury deliberation rooms, attorney conference rooms, prisoner holding cells, and similar locations except where trained courtroom safety officers, judges and court personnel possess such firearms. Such limitations have worked with federal facilities.

In a society that has become increasing volatile and where civility has diminished, the time has come for firearms to be banned from the courtroom, courthouses and court facilities except for those persons properly trained and charged with providing security at these locations. Where permitted, only a limited number of exemptions should be allowed. The judges and the law enforcement agency charged with providing security in the courthouse or judicial center should collaborate and decide who should be permitted to carry a firearm.

Respectfully submitted,

Joshu Harris
Chair, Standing Committee on Gun Violence
August 2019