ILNews

Judges' right to bear arms (sometimes)

Back to TopCommentsE-mailPrintBookmark and Share

A southern Indiana judge sees inconsistencies in state law and wants to see lawmakers address that by strengthening the rights of Hoosier judicial officers to carry firearms in county courthouses and other public places where they can currently be restricted.

Jackson Superior Judge Bruce S. Markel III says it’s a matter of self-protection, and that judges should not be limited from carrying firearms in some of the places they most often frequent or when they are walking to and from the courthouses where they work.

“I don’t see this as a diabolical plan to discriminate against judges and exclude them,” said the trial judge who’s been on the bench since 2006. “Everyone presumes that judges have the same rights as law enforcement officers to carry weapons, but we don’t.”
 

Markel Markel

At least two dozen of Judge Markel’s colleagues on courts throughout the state agree, signing on that they support the concept of adding judicial officers to the list of those who should be able to carry weapons anywhere. But that wasn’t enough to convince a state legislative committee that it should recommend changes to the 2011 General Assembly, and the idea remains on the table without any recommendations as the next legislative session approaches.

The Commission on Courts came close Oct. 15 to recommending revisions that would have given Indiana’s judicial officers unparalleled authority to carry weapons in places such as county courthouses, usurping county ordinances and laws that might be passed locally to put limits on carrying weapons in those places.

Attending an earlier commission meeting, Judge Markel joined with Jennings Superior Judge Gary Smith to advocate for the changes supported by several others throughout the state – including Indiana’s newest Supreme Court Justice Steven David, who’d voiced his agreement earlier this year while serving on the Boone Circuit Court.

Though he doesn’t know how common a concern the issue is for judges statewide because no poll on that topic has ever been done, Judge Markel suspects that a large number of judges don’t even realize they might have been legally restricted from carrying in places such as on school or county property.

“If you’re a judge and you go to a school basketball game, then it’s a felony right now to have a gun locked in your car,” he said. “Off-duty police and prosecutors have the right to keep one in there, but you don’t and they presume you’re just another law enforcement officer. I think that’s very discriminatory.”

While Indiana Code 35-47-2-2 exempts judicial officers from being required to obtain a permit to carry a handgun, several other statues and county ordinances ban judges from carrying guns in places such as school property and county courthouses.

Some laws – such as IC 35-33-1-2 – give judges the power to arrest someone who’s committed a crime. Caselaw from the Indiana Supreme Court in 1979 upholds that right and former Chief Justice Richard Givan held for the court that a Vanderburgh County justice of the peace had the authority to make an arrest and that the jurist had absolute immunity from liability for any injury arising from the exercise of his judicial authority in issuing that warrant.

With that statutory authority to make arrests, Judge Markel wonders how judges can then be limited from carrying weapons in certain places. He examined legislative history and found that judges maintained the right to carry in those places up until the 1980s, when it appeared that lawmakers revised state law about carrying firearms in schools and left judicial officers off the list.

Jackson County doesn’t have any ordinance restricting weapons in the court, and Judge Markel said he’s tried to address that with his own local court rule allowing both law enforcement and judicial officers to carry firearms in the court. He said that while some larger counties may be able to offer more institutional security, smaller counties don’t have those same resources and security might be more of a concern. In his court, Judge Markel said he has an armed bailiff and that he also carries a gun on him.

“We’re the security, too,” the judge said.

Some counties – such as Allen County – have gun locker options where any judge or court visitor can store their weapon while inside the courthouse. But Judge Markel said he doesn’t think that’s common, and he’s more often heard examples of firearm-carrying judges who have had to turn around at courthouse security checkpoints and go put their weapons in their vehicles. That defeats the purpose of self-protection, he said.

A law passed last year that went into effect in July gives all Indiana citizens the right to keep firearms locked in their vehicles’ glove compartments, and Judge Markel said he believes that new statute covers judicial officers who might want to keep weapons locked up in their vehicles while inside a courthouse.

But the rest of the public places still apply, and that’s what concerns some judges the most. Up until about a year ago, Judge Markel said the Indiana Judicial Center didn’t provide any specific identification for state trial judges identifying them as jurists. As a result, judicial officers had no way to identify themselves to police or law enforcement if they were stopped for carrying without a permit.

“If I’m senior judging somewhere outside my local jurisdiction, the police may not know me from a hole in the wall,” Judge Markel said. “They may not just be inclined to take my word that I’m a judge and can carry without a permit. That’s why most of us have permits and have always carried them.”

Changes proposed to the Commission on Courts would have added judicial officers as being exempt under IC 35-47-9-1, and also would have added a new provision prohibiting judges from not being able to carry guns on land or in buildings and other structures owned or leased by the state or any local political subdivision, as well as on or in school property and school buses. A legislative fiscal impact statement doesn’t show any data about judicial officers carrying firearms, though it does note that state correctional admissions data shows between 2002 and 2009 one offender was incarcerated for the Class D felony of possessing a firearm on school property or on a school bus.

Analyzing the issue, the Commission on Courts voted 5-3 against the idea of giving judicial officers the kind of authority that was proposed. Essentially, it would have given them the same exemption as law enforcement officers, but also would have allowed judges to have authority that doesn’t exist for any other category of citizen who isn’t a law enforcement officer.


Randall Shepard Shepard

Indiana Chief Justice Randall T. Shepard, who sits on the legislative panel, opposed the idea of giving judicial officers more authority than others receive in possessing firearms.

“We’ll do whatever the sheriff says to do, or commissioners vote on for county courthouse security,” he said. “We ought to be treated just like everyone else is, no better or no worse.”

Voting in favor of the proposed change were Johnson County Clerk Jill Jackson; Rep. Eric Koch, R-Bedford; and Sen. Tim Lanane, D-Anderson. Koch said he wasn’t convinced the committee understood the ramifications of the legislative changes being proposed, but he wasn’t closed to the idea and supported the judges’ rights to be able to carry firearms in those locations.

Five commission members weren’t at the hearing to vote on the measure, including Allen Superior Judge Thomas Felts and former deputy prosecutor Sen. Randall Head, R-Logansport.

Marion Superior Judge Dave Certo said he also supports the idea of judges being able to carry guns in those areas, but that he doesn’t necessarily see the Commission on Courts action as a bad thing.

He carries his gun in a holster while serving on the bench in the Environmental and Community Court. Though he could legally not carry a permit, he has a lifetime carry permit and keeps it with him whenever he’s carrying his weapon.


Cedrto-David-mug Certo

“I’m not interested in doing anything different than other citizens,” he said. “I always carry my permit with me so there’s no ambiguity. I’m not interested in going out and arresting folks, but think my family should be protected and safe. I’m not nervous, but want to be able to have the last word on my security if it comes down to it.”

Judge Certo said he’s pleased that other judges and state officials have started discussing the issue, and he hopes that conversation will continue. In Jackson County, Judge Markel agreed with that and said he wasn’t yet sure how this matter might proceed. Some lawmakers have expressed interest in proposing legislation, but nothing is finalized. He wonders if judges should advocate for local ordinance revisions at the county levels.

“Concerns about judges being treated equally would be valid if judicial officers were given consideration at the time these local ordinances were passed, but they aren’t,” he said. “We are presumed to have the same rights as law enforcement officers, so many are not thinking about this at all. The problem is that this is an oversight, and that’s what I want to call to everyone’s attention.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

ADVERTISEMENT