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Friday, December 08, 2006

Is that a Glock under your robe, Judge, or are you just glad to see me?

On May 29, 1979, as I was concluding my second year of law school, I had the good fortune to be an invitee in the chambers of one of the "Unlikely Heroes" and most legendary judges of the U.S. Court of Appeals for the Fifth Circuit, Irving L. Goldberg. I'd submitted an application to be among his law clerks for 1980-1981, and he'd graciously invited me to come in for an interview. As we were getting acquainted, he received a phone call — something urgent, I knew, because he'd told his receptionist to hold his calls while we were meeting — and I quickly gathered from hearing one side of his phone conversation that something exceptional, and exceptionally bad, had just happened. In short succession he got a half-dozen more calls, each very brief, and by the time he'd finished I had figured out what had happened.

I'd just observed the Fifth Circuit grapevine in action, and what had set it abuzz was that for the first time during the Twentieth Century, a federal judge had been assassinated outside his home — specifically U.S. District Judge John H. Wood, Jr. Judge Wood sat in San Antonio, part of the Western District of Texas, and appeals from his court went to the Fifth Circuit. The obvious concern sweeping the chambers of the judges of the Fifth Circuit was that the likely assassin had been provoked by one of Judge Wood's rulings or sentencings, most likely from a criminal case — and the odds seemed pretty high that a three-judge panel of the Fifth Circuit had also passed upon that litigant's appeal as well, perhaps making them targets too.

This was in an era when there were not so much as metal detectors at the entrance of most federal courthouses, including the one in Dallas — maybe not even a security guard visible (beyond the U.S. Marshals who came and went escorting prisoners). As I exited, though, I saw that the security status of the building had suddenly changed — Marshals with side-arms and in some cases shotguns were roaming the lobby, the stairwells, and such. They were, if anything, trying to be very conspicuous with their presence, and they were succeeding.

As things happened, my application with Judge Goldberg was still pending when I got an invitation to clerk for Fifth Circuit Judge Carolyn King in Houston, which I accepted immediately. (One doesn't apply to clerk for a judge whose offer one is unwilling to accept immediately.) Once during the year of my clerkship in 1980-1981, one of my co-clerks accidentally stepped on a floor switch tucked away beneath a table in our chambers library, and within about 90 seconds two Marshals with drawn weapons were there with us in the room. We were embarrassed, impressed, and comforted. But even then, security in the building was remarkably light — still no metal detector, and the small parking lot behind the building where the judges had reserved spots was unfenced, without a security camera. The judges had a private keyed elevator at the back entrance from that lot that their law clerks were also allowed to use, but that was as much for privacy as security, I think. Chambers doors were generally unlocked — no door-unlocking buzzers and intercoms — and clearly marked to show their occupants.


Obviously things have changed since then — in society generally, but certainly in courthouses, both state and federal. And every judge I've ever met, at any level, has been quick to praise and express appreciation for their bailiffs and other courthouse security personnel.

But the bailiff may not be the only person in the courtroom who's packing heat. The National Law Journal has an article discussing judges who themselves carry guns (hat tip: InstaPundit):

Earlier this month, a Florida judge was ordered to accept mentoring after warning a defense attorney that he was "locked and loaded." In May, a judicial ethics committee of the New York State Unified Court System found that it was ethical for a judge to carry a pistol into his courtroom.

In Nevada, Oklahoma and Texas, incidences of violence in the past year have prompted new laws or solidified rules allowing judges to bring guns into courtrooms.

"Judges in our courthouse have been carrying guns almost all the time," said Cynthia Stevens Kent, a Texas judge in the 114th District Court, where a man in a family law case killed his ex-wife and son last year on the steps of a Tyler courthouse.

"We feel strongly about providing adequate security, but it comes down to personal responsibility. And you've got to take responsibility for your own safety," [Judge] Kent said.

I was unsurprised to read that Texas may be out front of many of its sister-states on the issue of judges bearing arms:

In Texas, which permits state judges to carry concealed handguns into courtrooms, a new law became effective that expands that right to include federal judges and district attorneys. The law followed the Tyler shooting.

"We believe each judge should be able to make sure he has a system of self-defense," said [Judge] Kent, who wears a shoulder harness and carries a gun at all times. "One of our biggest areas of target is when we're in the court making decisions."

Judge Kent also testified before Congress in 2005 on the subject of security in the judicial system, during which she pointed out that the threats aren't always just to the individual participants in that system:

As any person in America, it is my personal responsibility to use common sense in protecting myself against acts of violence. As a Texan, I take full advantage of my Constitutionally protected right to self defense. However, these threats are not just a personal threat against me and my family, these are acts of domestic terrorism and are meant to disrupt our judicial system and our civilization.

And in a comment that probably related to the controversy then on-going about U.S. Senator (and former trial and appellate judge and state attorney-general) John Cornyn supposedly "stirring up hatred against judges," Judge Kent stressed that this isn't, or shouldn't be, a partisan issue:

When judges are subject to threats, intimidation, and assault, our entire system of justice is under attack. Although free dialogue and public debate regarding judges is certainly important and constitutionally protected, responsible legislators and politicians should understand that when someone paints with a broad brush the simple country judges of America can be smeared with the partisan paint of the day. Inciting the public to distrust, disrespect, or threaten the members of the judicial system only invites anarchy. There are good and bad judges just as there are good and bad plumbers. However, keeping our judges secure and independent helps prevent justice from failing the designs of our founding fathers and the needs of 2005 America.

And on March 9, 2005, before her Congressional testimony, Judge Kent had a brief moment of scary fame on CNN:

COOPER: We take you back to Tyler, Texas now, where, on the 24th of February, the town square was turned into a war zone. A heavily armed man heads to the courthouse, where armed guards engage him in a fierce gun battle.

Sean Callebs takes us behind the headlines again, shows us what happened inside the courthouse as the battle began.


CALLEBS (voice-over): This is Smith County Courthouse surveillance tape, deputies rushing to confront a gunman who has already killed. While the shootout played out in the town square, chaos on the second floor. A capital murder trial interrupted by the unmistakable pop of weapons firing.

UNIDENTIFIED MALE: Get down. Stay down.

CALLEBS: Deputies, guns drawn, prepare for the worst. In the back of the courtroom, Judge Cynthia Stevens Kent is ushered to safety. For the first time in recent years, the judge realizes she has left something important in her car.

JUDGE CYNTHIA STEVENS KENT: I carry a Smith and Wesson .38 revolver. A lot of the judges do carry personal protection. Of course, this is Texas, OK? And in Texas, I'm a Second Amendment gal. I like the revolver.


I've been fortunate in my law practice in that with rare exceptions, the civil litigants with whom I've dealt have mostly been, well, civil, or at least non-violent. (Among the exceptions was the CEO of a publicly traded company who tried to take a swing at me in a videotaped oral deposition. His lawyer, a very petite woman who now is on the federal bench, literally grabbed him by the ankles and hauled him back across the conference table, plopped him back into his executive armchair, and rolled him out into the hallway.) Like many Texans, especially those raised in a rural or semi-rural setting, I've got some deer and quail hunting in my background, and some time at the firing ranges. I'm comfortable with guns, but I've never felt the professional need to carry one, notwithstanding this amusing conclusion to the NLJ article (emphasis mine):

On Jan. 1, Kansas plans to permit judges and whomever they designate to carry concealed firearms in the courtroom. Phillip Journey, the state senator who authored the bill and a practicing attorney, said he spent a decade seeking to overturn a blanket prohibition on firearms in the courthouse.

"If I had a judge's permission, I'd do it every day," he said of bringing a gun into the courtroom. "Guns are like lawyers: Better to have one and not need it than need one and not have it."

I have been compared to a "hired gun" before, but I think that was meant metaphorically.

While it's far from unknown, however, for disappointed litigants in both civil and criminal cases to blame the prosecutors and/or their own lawyers, us "hired guns" aren't typically the final decision-makers, and just by the nature of their job responsibilities, judges in general are at a higher risk. I don't very often have occasion to think about it, but when I do, my working assumption is that any judge I appear before might be packing. I certainly could picture the late Judge Goldberg, liberal but often libertarian and nobody's wimp, with an ankle holster. I probably couldn't have imagined my own judge carrying twenty-five years ago, but now? Maybe.

And I've appeared from time to time before state-court judges who not only were armed, but were not at all shy about ensuring that the lawyers who practiced before them knew about it. What good, after all, is a secret deterrent? The casual display of the weapon was typically done in chambers rather than in open court, and contrary to Blue-State assumptions about Texans, only very rarely included any fast-draw practice or shooting of tin cans off a fence.

But I'm always vaguely aware of — and every time I think of it, more than vaguely grateful for — the security personnel I deal with at the courthouse. I sometimes get funny looks, but always returned appreciation, when I say to the security guards as I'm going through the metal detectors, "Thank you for helping keep us safe." (Joke about them privately if you must, but the fact is that they do help.) And while I've appeared before some judges whose reversal rates in the appellate courts may suggest they're more prone than others to err, I've never been worried about one of them going postal.

New judges in both the state and federal courts typically get training now on "how to be a judge" — focusing on the administrative tasks, mostly, since they're presumed (rightly or wrongly) to already know quite a bit about courtroom practice and substantive law. But it wouldn't surprise me too much to see some ambitious Texas legislator introduce a bill to include target-range experience among that training, along with some tips on how, for instance, to keep the new bailiff on duty from mistaking the pistol-packing judge, perhaps not yet robed because she's merely en route to her chambers, from an ordinary litigant, witness, or lawyer. Risks are inherent in firearms, there's just no denying that. But risks are also inherent in courtrooms, and risks associated with firearms can be substantially minimized through training and forethought.

And if we can't presume that the person in the black robes is one of the "good guys" in addition to being one of the likely targets, then why are we letting them decide our fates in court?

Posted by Beldar at 03:41 PM in Law (2006 & earlier), Trial Lawyer War Stories | Permalink


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(1) Xrlq made the following comment | Dec 8, 2006 7:35:58 PM | Permalink

Hmmm, just got into San Antonio about an hour ago. I'm not packing heat - should I be? Then again, no one ever mistook me for a judge.

(2) Beldar made the following comment | Dec 8, 2006 10:52:47 PM | Permalink

Xrlq, just don't mention Woody Harrelson and you should be fine.

(3) Xrlq made the following comment | Dec 9, 2006 8:11:19 AM | Permalink

I'm drawing a blank. What is the connection between San Antonio and he who shall not be named? Of course, now that I'm thinking of that idiot I'll probably end up mentioning him.

(4) Beldar made the following comment | Dec 9, 2006 11:32:48 AM | Permalink

The man convicted of having assassinated Judge "Maximum John" Wood is Woody Harrelson's father, Charles Harrelson. But I doubt that many San Antonians today would actually know that.

(5) dchamil made the following comment | Dec 10, 2006 11:56:39 AM | Permalink

Yes, Beldar, the sobriquet "Maximum John", as in maximum sentence, is relevant to this story and might well have been put in the first paragraph.

(6) Xrlq made the following comment | Dec 10, 2006 11:01:22 PM | Permalink

Ah, I knew dear ol' dad was rumored to have been involved in the Kennedy assassination, but I did not know he had anything to do with this murder. I used to think Woody H. was dumber than the character he played on Cheers. I still do, but compared to his father, he's doing well.

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