Judges’ right to bear arms (sometimes)

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

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.

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.

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.”•