Mimesis Law
19 September 2019

Omaha Cops Claim They Are Special; They Are Not That Special

Jan. 11, 2016 (Mimesis Law) — People who have read what I have previously written know that I generally like, trust and respect cops. But the cops in Omaha, and their union, have suddenly declared that they “are special.”

cops

Very recently, the Omaha cops, supported by their union, have taken the position that they have a right to carry their guns when they testify in court even if the judge disagrees. See here. This assertion that “we are special” is disturbing and discredits the Omaha Police Department, and the Omaha Police Union.

Since 2003, when he took the bench, Judge Jim Gleason has told cops that when they testify, the officers cannot carry a gun into his courtroom. He reasons that there are security risks and that a testifying witness carrying a gun can prejudice a jury. He notes that security is provided by armed county sheriffs. Now, all of a sudden, the cops have rebelled.

Other judges in his courthouse don’t agree with Gleason. They see no problem or just don’t care to fuss about it. But as I shall point out, this disagreement is completely irrelevant to the real issue.

I know Judge Gleason from his days as a practicing lawyer. He is very bright, practical and fair. He apparently brought those characteristics to the bench, as about 84 percent of the lawyers who practice before him told the Nebraska Bar Association that he should be retained in office in the latest bar poll. The judge has also served on the Executive Committee of the National Conference of State Trial Judges.

I have reprinted the judge’s thoughtful Memorandum and Order as an appendix to this post. Please read it. Whether you agree or disagree with the judge on cops packing heat when they testify, I hope every experienced lawyer (and judge) understands that a presiding judge must ultimately have the power to regulate his or her own courtroom when it comes to how witnesses must behave when they testify.

In short, while I agree entirely with the substance of the judge’s thoughtful order (indeed, as he notes, it follows the procedures employed by our court), there is a far more important principle at stake here. News flash: Cops don’t get to run courtrooms. They aren’t that special.

Richard G. Kopf
Senior United States District Judge (NE)

Appendix—Judge Gleason’s Memorandum and Order Dated Jan 08, 2016 (Source: David Earl, Judge holds firm, will not allow guns for officers on the stand, KETV (January 9, 2016).

On December 14, 2015 a hearing was scheduled on a Motion to Suppress Evidence filed by a defendant in a criminal action. Officers from of the Omaha Police Department (hereinafter OPD) were called by the Douglas County Attorney’s Office to present evidence on behalf of the State of Nebraska.  The OPD officers declined to appear in Court in uniform without their side arms. As a result, the hearing had to be continued to a date when the officers could appear in civilian clothes.  That date was January 6, 2016.  When the time for the hearing arrived, one of the officers advised the Douglas County Attorney that she would be not be appearing in civilian clothes, but would be appearing in uniform.  That uniform would include her side arm.  The County Attorney obtained a further continuance of the hearing.

Since commencing my role and function as a District Court Judge in Douglas County, Nebraska, I have prohibited law enforcement personnel, other than the Courthouse Security personnel, from appearing in open Court while carrying their side arms. This is a period of almost thirteen years.  This is also the first instance of a law enforcement officer objecting to this protocol.  I cannot recall any time in that thirteen years when an officer appeared in uniform with a sidearm which he or she declined to leave outside the courtroom.  On several occasions officers have removed their side arms and left them with my bailiff or locked in the court reporter’s office.

This Order is the result of the objections of the OPD to the procedures applicable to proceedings held in Courtroom 505 of the Douglas County Courthouse and to any proceedings held before me wherever I may be presiding. Specifically, OPD objects to my prohibiting OPD personnel who are in uniform from carrying firearms on their persons while present in the Courtroom.

After the 14th of December, 2015, event, I met with the Chief of the OPD together with an attorney from the City of Omaha to discuss this procedural rule and to allow   OPD to express and argue its disagreement with that rule.  At this meeting, which was also attended by the Presiding Judge of this district and the Court Administrator for this district, those present had a frank and full discussion of the position of OPD regarding its officers carrying their side arms at all times when in uniform.  I also set forth my opinion on the question.  At the conclusion of the meeting, I advised all present that I would take their viewpoints and arguments in consideration and revisit this rule.  I made it clear that this rule remained in effect unless and until I changed it in any way.  This meeting obviously took place ahead of the hearing scheduled for January 6, 2016 at which time an officer chose to disregard my rule.

By way of background, it should be noted, as stated previously, that I have had this rule in place since I began on the bench in 2003. This rule has been known to OPD personnel and to the members of the County Attorney’s office.  This rule has applied in every courtroom in which I have held proceedings.

In the process of re-examining this rule I have solicited input from the Douglas County Sheriff’s Office (hereinafter DCSO) regarding this prohibition. The DCSO has responsibility for all security in the Douglas County Courthouse.  I have also examined the policies and procedures of other District Court Judges in this district as well as the procedures followed in the United States District Court for the District of Nebraska.   I have considered the history of police personnel carrying side arms in the Courthouse.  I have also considered the nature of the weapon involved in this discussion, i.e. a firearm.  Throughout the course of this Order I have used the words firearm, sidearm, and weapon.  This order is directed (as will be clear) specifically to any firearm which sworn law enforcement personnel carry as a part of their uniforms.  This policy is consistent with the policy in effect in the United States District Court for the District of Nebraska.  I think this policy applies in all United States Courts.  It is my understanding of the position of the OPD that personnel appearing in civilian clothing have no objection to appearing without their side arms.

I am not unmindful of the viewpoint of the law enforcement personnel.   I fully understand that their sidearm is considered a part of the uniform.  I understand that they are trained to maintain possession of the sidearm no matter what the circumstances.

After considering everything set forth above, I make the following findings.

  1. The DCSO is solely and exclusively responsible for all security in the Douglas County Courthouse. The DCSO considers the Douglas County Courthouse to be a safe environment.  The security procedures were assessed by the National Center for State Courts in 2010 and several of the security areas met or exceeded the national “best practices”.  Also, all DCSO court security procedures were reviewed and evaluated recently by the Commission on Accreditation for Law Enforcement Agencies (CALEA) which is the DCSO’s accrediting body.  The evaluators found that DCSO security met or exceeded all mandatory standards for compliance.
  2. DCSO security protocols and procedures are the subject of significant training sessions with the security personnel. However, the personnel from OPD are not a part of the training and are not cross trained in these security protocols.  There is no indication that OPD personnel have any knowledge of the security protocols and procedures employed by the DCSO.  In fairness it should be noted that the DCSO maintains a good professional relationship with the OPD and expresses no objection to OPD personnel carrying their side arms into the Courthouse while on official business.
  3. A firearm is an inherently dangerous instrument. It makes no difference who is wielding the firearm.  It is designed and created solely for the purpose of causing injury.  The extent of such injury can never be known in advance – only after the weapon is fired.  The result of weapons being fired can be observed in the news coverage of every such event, and on an almost daily basis.
  4. The United States District Court for the District of Nebraska prohibits law enforcement personnel other than the U. S. Marshal’s Service from carrying firearms within its Courthouses. Such personnel apparently must be unarmed or leave their weapons in the care of the Marshal’s Service while they are in the Courthouse.
  5. By way of anecdotal history, I can remember when all law enforcement personnel, other than the DCSO, were precluded from carrying weapons within the Douglas County Courthouse. To the best of my recollection, this ban faded into oblivion for no apparent reason.  I am also aware of other judges in outstate Nebraska who have had similar bans in their courtrooms.  It should also be noted that most, if not all, of my fellow judges in this district do not have a similar rule in effect in their respective courtrooms.  However, it is my understanding that none of my fellow judges will allow law enforcement personnel to appear before them in uniform with a sidearm in any matter in which the officer is a party.

The following legal principles have a bearing in this issue.

  1. It is the responsibility of the trial judge to manage and control the courtroom so that all litigants receive a fair trial. State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263(2006)  (This case does not involve weapons, but merely states the obvious principle involved.  See also Nebraska Supreme Court Rules 6-206 and 6-1511.  See also State v. Guatney, 207 Neb. 501, 299 N.W.2d 538 (1980) and State v. Weikle, 223 Neb. 81, 388 N.W.2d 110 (1986)
  2. It is the responsibility of the DCSO to maintain order in the courtroom. Nebraska Supreme Court Rule 6-1512
  3. On an ancillary note, persons with permits to carry handguns within the state are prohibited from carrying those weapons in any courthouse or courtroom. §69-2441 R.R.S. Nebraska 1942 Reissue 2009 2015 Supplement
  4. There is also a concern regarding the separation of powers between the Judicial and the Executive branches of government. More specifically, the Executive branch of our government has no control over the operation and function of the Judicial branch.  In this specific instance, OPD is a part of the Executive branch.  It must defer to the Judicial branch in an area where the Judicial branch holds sway.

I am aware of the concerns expressed by OPD that any officer proceeding through the various levels of the Douglas County Courthouse without a sidearm is an open target to anyone in the courthouse who may wish to attack him or her.  I am aware that the County Attorney’s office is on the first level of the courthouse and the courtroom where I hold proceedings is on the fifth floor.  I am further aware of the disruption currently going on in the courthouse due to construction.  And, I opine on this sadly, I think the majority of the members of the public who appear in the courthouse do so as a part of the Traffic/Criminal system.  I also think that DCSO provides excellent security for all persons who enter the courthouse.  This includes the personnel of OPD who appear here on official business.  The presence of additional firearms is not necessary for the security of the public, nor for the security of any non-DCSO law enforcement personnel present in the courthouse.  I think it is a sad situation if our law enforcement personnel identify themselves not by their presence but rather by the presence of their firearms.  Moreover, I can discern no material distinction between prohibiting a law enforcement officer from appearing in open court in uniform without a side arm when the officer is a party to the proceedings and prohibiting the same when the officer is a witness.

After thorough consideration of the facts and arguments I have concluded that I will not change my protocol. In order to provide some level of comfort to those personnel who will appear in proceedings which I preside over, I have asked the county to provide a gun locker adjacent to Courtroom 505 where law enforcement personnel subject to this order may secure their weapons while they are present in court.  Until such locker is installed, law enforcement personnel may lock their weapons in the office of the official court reporter or leave them with my bailiff as has occurred on occasion in the past.  I am comfortable that the Douglas County Attorney will also be willing to make arrangements for its witnesses to secure their weapons in his offices as an additional option.  I cannot, however, speak for or control the County Attorney in this regard.  Law enforcement personnel always have the option of appearing in civilian clothes when they are appearing as witnesses.

IT IS THEREFORE ORDERED that no law enforcement personnel. whether in uniform or in civilian clothing, other than Security Officers from the Douglas County Sheriff’s Office, shall carry any firearm into any courtroom wherein Judge James T. Gleason is conducting proceedings.

36 Comments on this post.

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  • Scott Jacobs
    11 January 2016 at 1:34 pm - Reply

    So what will the good judge do when the next date for the motion hearing comes up, and the cops still won’t show up because they can’t have their gun?

    Will the judge rule for the defense?

    • Scott Jacobs
      11 January 2016 at 1:36 pm - Reply
    • Richard G. Kopf
      11 January 2016 at 3:36 pm - Reply

      Scott,

      I don’t know the answer to your question. I would like to think that good cops would comply with Judge Gleason’s order even if they don’t like it.

      All the best.

      RGK

      • Scott Jacobs
        11 January 2016 at 4:02 pm - Reply

        I would normally make a snarky “So, none of them, then?” remark, but that would be childish. 🙂

        But I am genuinely wondering what the effect will be on any hearing that requires the cops to be present (in whatever capacity) and the cops refuse because they don’t get to have their guns with them. I mean, this hearing had been pushed twice – what do YOU think the judge might (or should) do if the prosecution’s people won’t come before the judge?

        If they refuse, would there be contempt of the court? If the DA can’t defend against the motion without the cops, and the cops won’t come, does that mean the prosecution loses and the motion is granted by default?

        This is a rare moment of me not being a snarky little shit – this is honest wonder at what the outcome might end up being, at least in this one case.

        • Richard G. Kopf
          11 January 2016 at 4:20 pm - Reply

          Scott,

          I really don’t know what Judge Gleason would do. As for me, if the cop-witness is critical to the suppression motion, and the cop-witness will not show because he or she demands to carry a gun despite my ruling, I would make a clear record and grant the defense motion.

          All the best.

          RGK

          PS I like snarky little shits.

  • Cornflake S. Pecially
    11 January 2016 at 2:26 pm - Reply

    Check your guns at the door!

    Tip of the hat to Jim and his bouncers.

    What the hell kind of establishment do they think Jim is running anyway!?

    It’s hard enough, as it is, to find a reputable establishment these days to carry on a conversation and have a drink without having to worry about the “riff raff” bitching and moaning about their not being able to take their guns in the bar.

    When will they ever learn…? The ladies aren’t impressed and all they do is scare off the honest working folk.

    Let the bouncers do their job and allow Jim to keep serving his decent upstanding patrons in peace. For crying out loud, what is the world coming too?

    Cheers!

    • Richard G. Kopf
      11 January 2016 at 4:22 pm - Reply

      CSP,

      What is the world coming too? It will end not with a bang but a whimper: I’m special!

      All the best.

      RGK

      • Cornflake S. Pecially
        11 January 2016 at 5:08 pm - Reply

        Says the guy with he gavel…

        But, if I do say so myself, you are “special” and on your finer days rather honorable as well.

        Thanks for the post. I like the subtle shit that brings with it more than meets the eye. Makes for outstanding bar chatter. Reflective consideration of the characters’ props and motivations always does.

        Keep banging or before you know it, both the outlaws and the lawmen will stop stomping off their boots before entering bar room. And heaven forbid, there is plenty enough mud in there already.

  • Greg Prickett
    11 January 2016 at 10:25 pm - Reply

    This is retarded.

    I’ve appeared in U.S. District Court several times.

    Each time, whether in uniform or civilian clothes, I lockup up my gun in the nice little lockboxes that the U.S. Marshalls provided.

    Omaha PD needs to grow a pair and man up.

    • Richard Kopf
      12 January 2016 at 9:17 am - Reply

      Greg,

      As a long serving former law enforcement officer, I especially appreciate your take on this subject. In fact, I am interested in knowing whether you think all the recent focus on cops and guns, particularly the assassination or attempted assassination of cops by nut jobs, has cued up an extreme “bunker” mentality in police forces. If that mentality exists, perhaps the recent rebellion explains this over reaction some 12 years after Judge Gleason made his rule known to the police and everyone else.

      If not for the foregoing speculation, I have no idea why the cops rebelled. In fact, if you read the news reports and the judge’s opinion, Judge Gleason went out of his way to consider the concerns of the officers and concluded that they could be addressed by a variety of methods like lock boxes.

      By the way, the OPD tries to distinguish the Omaha federal building from the Douglas County Courthouse. That is, the federal courthouse, so they say, is designed to be secure unlike the Douglas County courthouse. That seems like a distinction without much of a difference. For example, such an argument disregards our Lincoln building (where I hang out). The Lincoln building houses all sorts of federal agencies that have nothing to do with the federal courts. (Think of exploding soil science labs or disabled people pleading with Social Security Administration.) The rules in the joint use Lincoln federal building are the same as those in Omaha. If you are testifying–whether you are cop, a DEA type or an FBI agent–you don’t have your weapon in the courtroom.

      Furthermore, despite what has been said, cops haven’t the vaguest idea about protecting folks in a courtroom. I won’t go into detail, but a testifying cop with a gun in the midst of courtroom disruption would have no clue what the security protocols are or what special precautions are being taken behind the scenes. For example, the last thing I want is a testifying cop firing off a round just before the stun belt placed there by our security folks would have knocked the shackled dumb ass to the ground.

      In short, I agree that the whole thing seems on the face of it to be retarded. I simply can’t understand the motivation of the OPD to raise this issue, particularly now after adhering to it for so many years. This is especially so given the fact that everyone seems to agree that specially trained county sheriffs provide excellent security as it is.

      In short, this leaves me feeling (because I truly like cops) that this must be some mass cop hysteria brought about by recent tragic events. If that is so, I truly feel empathy for the officers despite their silly stance. But, the fact remains, cops don’t get to run courtrooms.

      Thanks for commenting. All the best.

      RGK

      • Greg Prickett
        12 January 2016 at 12:11 pm - Reply

        Your honor, you don’t understand cops on one, major issue.

        They have to be in control. Always. Even in your courtroom.

        It sort of reminds me of the joke about the difference between God and doctors is that God doesn’t think he’s a doctor. You could substitute police officer for doctor and it would be just as valid. It’s not that the officers have a clue about courtroom security, it is that someone is telling them that they can’t do something that they believe they have every right to do.

        Some of it may very well be tied to current events, but if so, I don’t think that it is due to attempted assassinations, I think it is because they are no longer automatically believed by the general public. There’s too much out there in the press.

        On PoliceOne, a good officer who has bought into the military equipment, over-the-top officer safety look was having difficulty understanding why officers like Encinia are being indicted for perjury, why the Baltimore officer may be forced to testify under testimonial immunity, why they are looking at the Salt Lake shooting again. His position is that the police should be left alone to arrest criminals, that it is society that is messed up for wanting police accountability, and that no one who’s not a cop can tell him how to do his job.

        He’s a good guy overall, and he means well, but that’s the overwhelming attitude of police officers.

        The attitude is basically:

        “Who is Judge Gleason to tell them, police officers, that they can’t wear their guns? Who does he think he is?”

        It’s really that simple–they don’t like being told what they can and can’t do.

        They live with it from the feds, because they know that nothing they do or say will cause a change. They think that they can force the issue with the state judges.

        • Richard G. Kopf
          12 January 2016 at 1:25 pm - Reply

          Greg,

          Thank you very much for your response. In particular, I conclude that it is true what you write:”Your honor, you don’t understand cops on one, major issue. They have to be in control. Always. Even in your courtroom.”

          Your reminder reminds me of Lord Acton’s dictum. “”Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”

          Again, I, and very sincerely so, appreciate your keen insights. All the best.

          RGK

      • Keith
        14 January 2016 at 10:59 am - Reply

        I’m reminded of the time a Federal Marshal mistook me for an FBI agent and told me not to forget my firearm as I was about to leave the Federal Courthouse here in NY.

        But regardless of whether the police are safe, regardless of whether they are an obstacle to known procedures or a complement to them, if a Judge isn’t master of his domain because the cop says so… where does the line get drawn?

        Judge: overruled!
        Cop: not so fast…

        • shg
          14 January 2016 at 11:02 am - Reply

          I’m reminded of the time a Federal Marshal mistook me for an FBI agent…

          Protip: Never wear white socks with a dark suit.

  • repenting lawyer
    12 January 2016 at 9:46 am - Reply

    The Omaha Police Union has a long history of petulance and childishness. This is typical.

  • Kahuna
    12 January 2016 at 3:55 pm - Reply

    Courtrooms are completely safe all the time. Never has there been an attack in such a safe environment. Even if there was a threat, highly trained court deputies that know all about court security would spring into action, not some untrained bumbling city police officer! Good to see a judge with no law enforcement training making sound tactical decisions. Wonder what would have happened to this judge if the same protocols were in place?

    http://articles.latimes.com/2009/mar/05/local/me-courthouse-shooting5

    • Richard G. Kopf
      12 January 2016 at 6:58 pm - Reply

      Kahuna,

      Several thoughts. Use your real name–and give me some background about you–so I can better understand who you are and how I can respond more intelligently. Second, your attempt to rewrite what I wrote is, to be charitable, not convincing. Third, I don’t have tactical training in courthouse security. Neither do cops.

      All the best.

      RGK

  • Scott
    12 January 2016 at 3:57 pm - Reply

    Given the contempt for oversight and accountability I find myself questioning your characterization of what constitutes a “good man”.

    In much the same way I question calling someone who refuses to call out bad behavior of his mates a “good cop”.

    • Richard G. Kopf
      12 January 2016 at 7:01 pm - Reply

      Scott,

      Clarify please. Who is the “your” you are writing about. If you are referring to something I wrote, quote it or describe so I can adequately respond to your concern.

      All the best.

      RGK

      • Scott
        15 January 2016 at 4:02 pm - Reply

        Sorry, Your Honor, for the late response (had completely forgotten about this) and that “reply” here seems as finicky as on Greenfield’s blog… This was in response to Mr. Prickett’s characterization of his “good” cop friend.

  • Kahuna
    12 January 2016 at 7:36 pm - Reply

    Richard,

    First I do not use my real name when commenting on these online articles for many various reasons. My opinion is my own, but if I identify myself someone may be able to associate me with my employer which in turn may give the impression I speak in some official capacity. I don’t think having a real name associated with my comments gives me any more credibility as I could simply say my name is “John Doe” and no one would be the wiser. If this makes my opinion less valid so be it.

    As for my background. I have been a law enforcement officer for over 23 years. I have worked at the local, state, and federal levels as both a line level officer, investigator, and supervisor. Let me qualify my opinion by first stating the judge is the judge and as such has a right to run his courtroom however he sees fit. If I were to be required to go to his courtroom I would disarm as ordered (not liking the policy is my right, not adhering to the judges order is not). I would personally never appear in court in uniform without my duty weapon. I would appear in a suit.

    As for police officers not having tactical training in courthouses, you’re sadly misinformed. Perhaps local officers don’t train at the courts or operate metal detectors or X-ray machines, but all have had (or should have had) basic tactical training in use of force, active shooter response, riot control, etc. etc. Most police officers don’t work in factories or on boats/trains/buses or in schools or banks, yet all would be and in fact are called to respond to these locations for many different reasons. With your line of thinking each officer would need some type of specific training or certification to respond to any of these calls?

    As for safety in the court. I can certainly understand the Sheriff not wanting plain clothes officers from being armed at the court. Blue on blue shootings are tragic and are often the result of one officer not recognizing another officer who they don’t know personally or who is not in some type of identifying uniform or gear. Again a rule saying no armed plain clothes officers would be a safety decision and reasonable, but a fully uniformed officer? It makes absolutely no sense. Using the federal courts as an example is also not a very good benchmark as normally with federal courts and many federal properties you have exclusive jurisdiction meaning local officers don’t have any authority there anyway.

    Again the judge is the judge and can do as he wishes, but to shroud this issue in the sense of it being a control issue or machismo issued for the officers not being allowed to carry their duty weapons is misleading. What next? No armed officers can enter a school, a hospital, a church? Where does it end? Just sad when the people making the decisions or comments don’t have a day of real world experience in the job.

    KahunA (not my real name)

    • Greg Prickett
      12 January 2016 at 8:10 pm - Reply

      You take off your gun when you go into a jail, don’t you?

      I don’t see any whining on the part of police that they can’t have their sidearms inside the jail–why is that?

      It’s simple really, the officers understand that they don’t control the inmates, the jail staff does, and what they say goes. It’s the same thing in a courtroom.

      Judge Kopf brought up a good point, being concerned about an armed officer popping a cap into a defendant right as the bailiff was activating the stun belt. Oops. Oh well, all the cops are OK, right?

      The judges and the sheriff’s office are responsible for the security of the courtroom, not you. You are a witness. Period. You’re entire role in the courtroom is to testify as to the facts of whatever case you are there on, you are not there to provide security.

      You’re also wrong about the training. Active shooter training? Are you serious? Do you have any real idea what you are talking about? What about the local cells? The jury rooms? Active shooter training does nothing towards preparing you to handle an incident at a courthouse. Riot control? Really? Are you serious? You’re talking about a whole different type of operation than court security.

      This shows very clearly why officers should not be armed in courtrooms, not reasons why they should.

      By the way, you’re wrong on the federal jurisdiction of most federal courthouses. Most are proprietary jurisdiction, meaning that offenses are reported to the local police, not to the FBI or USMS. Almost no federal courthouses are exclusive federal jurisdiction.

      Finally, if you want to be taken seriously, you need to use your real name and your bonafides need to be visible. Otherwise how do we know that you just didn’t stay at a Holiday Inn?

    • Richard G. Kopf
      12 January 2016 at 8:31 pm - Reply

      Kahuna,

      Thank you very much. Your response is nicely articulated and thoughtful. However, I continue to disagree. Courtroom security, like other law enforcement special activities (SWAT, for example), is different in kind and degree from the typical duties and training of beat cops and criminal investigators.

      I also note that Gregory J. Prickett also disagrees with you. He is a thoughtful contributor to Fault Lines. He is intellectually honest. His posts reflect a nuanced view of police officers.

      Greg is an attorney in Fort Worth handling criminal defense among other things. Prior to becoming an attorney, Greg served over 20 years as a police officer and supervisor. He holds a master peace officer and instructor certifications from the Texas Commission on Law Enforcement. His assignments included patrol, investigations, training, and administration.

      After his police career, he attended the Texas A&M University School of Law in Fort Worth, earning his juris doctorate and becoming a member of the bar. He also holds both an associate and bachelor’s degree from Excelsior College, earned while he served in the military. Greg retired from the USAF Reserves as a captain, following a career in the Army Guard and the Air Guard, where he served as a paratrooper, in the mechanized infantry, and in the USAF security police.

      Greg’s law enforcement experience seems similar to yours. Yet your views are quite different than his. I wonder if you have an explanation for this difference in viewpoint.

      In any event, I truly appreciate the fact that you have taken the time to comment. All the best.

      RGK

      • kahuna
        13 January 2016 at 5:53 am - Reply

        Judge Kopf,

        Typing these replies on an iPad so forgive the typos. I noticed quite a few after posting a reply to Greg. I’m sure there will be more in this one as well.

        You are correct. Courtroom security is a different animal and certainly is a specialized skill. Decorum, security procedures, etc. Again as I said to Greg… I’m not suggesting local officers come into the courtroom to act in a security capacity. I have been in court many times in uniform (armed) when disturbances have erupted either in the gallery of the courtroom or with a defendant at the defense table. In those instances I simply sat in my seat watching the deputies handling the issues.

        Never once have I (or any other officers in the court with me at the time) jumped up to get involved. I’ve simply looked at the deputies handling the issue made brief eye contact and basically waited for them to request my assistance. Fortunately in all of the situations I witnessed (and in 20 years I can count maybe 3 I recall) never once was I asked to assist.

        Why did I not immediately start to get involved? Very simply it was not my “house” to do so without being requested to do so by a deputy or the judge. If a judge can issue an order prohibiting a uniformed police officer from carrying their duty weapon into court and the officers obey, why then couldn’t the same type of order not to assist without expressed request be issued and obeyed as well with the officer still being armed?

        The article I linked showing the judge who was stabbed by the murder defendant who was then shot and killed by a police detective from a local police department is an extreme example of things something happening very quickly before anyone has a chance to react. That store made national news because it was such a freak occurrence. At the very moment that police detective shot and killed the suspect he was not a deputy for the court and was not “specially trained” in court room operations. This made no bit of difference as a deadly force threat was dealt with just as it would have been in an office building, school, bus, etc. The environment made little difference when the judge started being stabbed.

        Again I don’t hang my hat on this incident as being the gold standard of why officers need to carry guns inside the court. Just and example of how things sometimes go bad even with all the safety and security protocols in place. This suspect was actually IN CUSTODY and had been transported to the court by the sheriff’s office from JAIL! In reality this person should have been less likely to have a weapon than someone off the street coming into the courthouse. My rationale for saying this is the defendant was coming from one controlled environment (jail) to another (court) yet still was able to arm himself and began stabbing the judge as she sat on the bench in open court with SEVERAL deputies just feet away from her. Again it was the detective at the prosecutors table who reacted first (for whatever reason).

        As for Greg’s CV. Greg does sound like a very experienced and well educated former police officer / supervisor. You are correct in saying our views are quite different. The impression I get from Greg is he (and I say this without knowing him and it’s only the impression he gives and may be the furthest from the truth) is a former supervisor who probably had his fair share of encounters with sub-par police officers.

        At some point when many officers get promoted to higher ranks, some begin to believe everyone beneath them are some how trying to scam the systems or get away with things. In some instances these officers who are actually bad and who should be dismissed are able to get away with bad deeds do to strong union representation, labor laws, or other barriers. If I had to bet money, I would guess Greg did not retire as a first line supervisor (like a Sgt.). My gut (and again I could be wrong) points more toward a Lt. or other mid manager rank.

        Somewhere, sometime, somehow Greg tried to make an officer (who I’m guessing rightfully deserved) comply with a directive or he tried to hold this person accountable, but for whatever reason they were able to thumb their nose at him while hiding behind the union or some other technicality. My guess is this soured him and he has very little tolerance or patience now when he feels someone is attempting to do the same thing (as with the union complaining about the court rules) when they are told something they don’t want to hear. Nothing is more satisfying than seeing a bratty kid throwing a tantrum who is denied whatever they’re crying for.

        For me it’s not about being told not to do something. I just disagree with the thought process behind the reasons the decision was made. Saying the court was audited by the USMS and found to exceed security standards is great, but again nothing is 100%. We only reduce risk, we can’t completely be rid of it.

        My personal opinion is when we are in uniform and in contact with the general public we should be armed. This is not true in a jail. Again this is not the general public in a jail. Not sure how the jail works in your neck of the woods, but out here we disarm and go into a small booking area. The deputies then take our custody into their secure facility. Even though we aren’t armed in this booking area, we also don’t go into the main jail facility.

        Kahuna

        • Richard Kopf
          13 January 2016 at 10:01 am - Reply

          Kahuna,

          Thank you, thank you, thank you. Fault Lines is the place to have these discussions, and, without intending to be cloying, I very much appreciate your insights.

          The difference of opinion between you and Greg has helped me to understand even better what a difficult position Judge Gleason finds himself. He is a good guy trying to do his best as he sees it. Good folks (and that includes cops and judges) can have strongly divergent views particularly at the intersection of the professions.

          To repeat, I sincerely appreciate your taking the time to write. Stay with Fault Lines and see what other contributions you can make.

          All the best.

          Rich Kopf

  • kahuna
    13 January 2016 at 5:26 am - Reply

    Greg,

    Yes I take my gun off when I go into a jail. I’m not quite seeing the comparison you’re trying to make between a courthouse and a jail. In a courthouse the majority of people are not screened to the level PRISONERS in a jail are screened. At the same time those folks in a jail are from the general public as opposed to being in custody. The level of controls you have in a jail are very different than what you have in a courthouse. I would hope even you would be able to concede that point.

    You start to make a point about Judge Kopf, but then instantly loose me with your terminology “being concerned about an armed officer popping a cap into a defendant”. “Popping a cap” really? Your tone is hostile and gives me the impression you’re painting an officer as a “thug” with a gun. To me this gives a bit of a glimpse into your bias which I find surprising coming from a former law enforcement officer.

    You are correct. The sheriff’s office is responsible for the security of the courtroom, no argument there. As I stated before the judge is also the judge and he/she gets to make the rules. Again no arguments there. I will repeat what I wrote last time. I don’t have to like it, I just have to do it if the judge orders it. However I again will disagree with you when you say “You are a witness. Period”. Actually no, you are still a law enforcement officer, that doesn’t change just because you are also acting as a witness.

    We could go through a bunch of various “what if” scenarios here such as a person getting a weapon into the courthouse and the first person in a position to confront them, or the first person confronted by the suspect could be the uniformed (unarmed) police officer. Again we can do what ifs all day here. The bottom line (and you may agree or disagree with this) is as a uniformed police officer you *ARE* a target. People will come to you for help, people will target you sometimes as the threat in the room if they plan on doing something illegal. Sometimes people will not attack you because they *DON’T* want the added issue of going after a police officer (I wouldn’t bet my life on this one, but I know it does happen on occasion people don’t want to hurt/kill a cop).

    As for me being wrong about training… I was giving a brief list of *SOME* of the training *MANY* officers do attend. I don’t pretend to know what the state standards are and the training levels for various departments, but as an example I used those specifics. I do have a real idea of what I’m talking about. I don’t follow your questioning. Local cells, Jury Rooms? No clue what you mean by those questions.

    Perhaps you’re misunderstanding what I’m trying to express here. I’m not suggesting local police officers are suddenly going to take on court room / court house security. I do stand behind what I’ve said before and I’ll explain it again for you here. Just a local police officer walks into a courthouse does not mean they become a bumbling incompetent trigger happy fools who know nothing about safety/security and are waiting to “Pop caps” into someone.

    Greg I don’t know you, but based on your pedigree (as provided by Judge Kopf) I have to say I’m a bit shocked at your demeanor here. I know posting text sometimes looses a lot in translation and tone, but overall the impression you give me is you have a great disdain for law enforcement officers who in your view (at least this is the vibe you’re giving out) need to be slapped down a few notches and put in their place. You seem to be painting with a pretty broad brush and making a lot of generalized assumptions that police officers are upset because they’re being told they can’t do something and “too bad!” since the judge can tell them whatever he wants.

    No one is arguing the judge’s ability to direct the behavior in their courtrooms. I think the question is why is a fully uniformed officer restricted from carrying that firearm in court as opposed to being ordered not to take any action in court unless specifically requested to do so by the judge or a deputy? I would be interested to know what type of MOU exists between the sheriff’s office and the local police department in the event of some emergency at the courthouse (major incident, shooting, hostages, etc) where mutual aid is requested. I’m guessing responding officers from the local agency and/or any other law enforcement officers responding for a call for help would be welcomed into the court immediately to assist armed and all?

    As for me being wrong about federal jurisdiction of most federal courthouses. I’m not wrong, re-read what I wrote. I wrote “many”, I did not say “all”, I wrote “many”, much like you wrote “most” in your response. I guess I could ignore “most” in your post, and list a few federal courthouses which are exclusive jurisdiction so I could say you were wrong as well, but we won’t go there.

    Lastly… I don’t feel you’re taking me seriously and that is more than fine with me. I don’t imagine posting my own pedigree here would do much to change your mind or opinion of me and again that’s fine by me. If you truly think I just stayed at a Holiday Inn then I’m sure you probably stopped reading my post quite a few paragraphs back, or more likely you read to the feverishly to the very end to write a scathing rebuttal of why else I’m wrong to have the opinion I do.

    By the way, I don’t agree with your opinion, but I have no problem with you having one.

    Kahuna (I will head to the courthouse tomorrow to have my legal name changed to this, voila instant credibility?)

  • LawDog
    13 January 2016 at 10:54 pm - Reply

    Good on the Judge! “Nebraska Nice.” In Texas, YMMV.

    On a sadder note, I mark the passing of Lawrence Phillips, who was found dead in his jail cell. He was serving a 25-year sentence, and awaiting trial on a new murder charge.

    Those were the days. Back when the Corn was competitive, and at Nebraska, a “lineup” really MEANT a “lineup.”

    • Richard G. Kopf
      14 January 2016 at 2:08 pm - Reply

      LawDog,

      I understand that Tom Osborne corresponded with Phillips over the years. The last correspondence took place in November. If Coach Osborne could not reach Phillips, then I doubt that anyone could. Nonetheless, Osborne did not forget Phillips.

      I was thinking about Phillips this morning. Where will he be buried? Who will mourn him? What awful despair Phillips must have suffered throughout his troubled life. This, by the way, is not to gloss over the fact that Phillips was a violent and very dangerous young man who avoided a murder trial for killing his cellmate by killing himself.

      Yet, Phillips will go to his maker knowing that one person cared deeply about him. To my mind, that makes Tom Osborne a great man for reasons that have nothing to do with sports. Osborne cared for the least among us. I wish I could honestly say that about myself, but I can’t.

      Thanks for writing. All the best.

      RGK

  • The Big Kahuna To Judges: You’re Not Special Either | Simple Justice
    14 January 2016 at 6:51 am - Reply

    […] Fault Lines, Nebraska Senior District Court Judge Richard Kopf wrote of a state judge who refuse to allow […]

  • LawDog
    15 January 2016 at 6:15 am - Reply

    Judge K: “I would like to think that good cops would comply with Judge Gleason’s order even if they don’t like it.”

    Then, would you not also agree that a judge has a duty to comply with the Constitution in EVERY case, even if HE doesn’t like it?

    If not, and Omaha cops aren’t “that special,” what makes judges “that special”?

    If so, shouldn’t you be as quick to excoriate your wayward colleagues as you were with those arrogant Omaha cops? And if not, why not?

    Judge K: “To my mind, that makes Tom Osborne a great man for reasons that have nothing to do with sports. Osborne cared for the least among us. I wish I could honestly say that about myself, but I can’t.”

    Why the hell not? Why can’t you even TRY?

    To gently remind you of a dispute mentioned on your old blog, permitting judges to sit in judgment of their own case (the Rule of Necessity did not apply) wouldn’t even pass muster in Moscow or Harare. But that is what American judges did, and other American judges looked the other way, even though a flagrant procedural due process violation (and federal crime) was committed. Yet, you didn’t even mewl in protest when you were apprised of it. Has our Judiciary become so thoroughly lawless that nothing can shock your conscience any more?

    I don’t care HOW those judges “ruled.” And neither does the law. That they “ruled” at all was so outrageous that it cannot be excused.

    What Would Doctor Tom Do?

    The Judge Kopf we saw on that blog was an inherently decent guy with a wicked sense of humor. I may be a terrible judge of character, but I refuse to believe that THAT Judge Kopf can’t do a little better than a greasy Joe Paterno.

    P.S.: I’m glad you like snark, because I have an inexhaustible supply. 🙂

    • Richard G. Kopf
      15 January 2016 at 8:15 am - Reply

      Law Dog,

      I will try to respond to your criticisms.

      First, I am unwilling to debate you on the “rule of necessity.” There is a cottage industry revolving about one particular fellow who was, so he said, harmed by such a rule. His sole complaint went on endlessly and became tiresome. So, I banned him from Hercules.

      Second, I have been plenty critical of some of my federal judicial colleagues. So, that part of your complaint rings hollow, at least, to me.

      Finally, and as for at least trying to minister to the least among us as the Coach has done, the best I can say is that when I wear the robe that’s not my job. You may not like the honest answer but it is the truth so far as I know it.

      But there is one exception, however, to the foregoing paragraph. As a judge, I try to be supportive of ex-cons who have turned their lives around but the details of that stuff, frankly, are none of your business.

      All the best.

      RGK

      • LawDog
        16 January 2016 at 10:53 am - Reply

        Judge Kopf:

        Again, I thank you for engaging me. It is a rare pleasure to be able to talk law with an actual senior federal judge.

        I’m mostly interested in spectacles like Obergefell, and the tension between Bickel’s “passive virtues” and a citizen’s right “to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison.

        It is axiomatic that the citizen has a right to “equal justice under law.” Leeper v. TX. Ergo, it logically follows that the judiciary has a duty to provide it, as there can be no “right” without a corresponding remedy for its breach. As “caselaw on point is the law,” Hart v. Massanari (per Kozinski), whenever a judge willfully defies such precedent, s/he has also deprived the litigants of that right, and the most flagrant offenders are federal appellate courts.

        So, if an intermediate court goes rogue, what is the remedy? SCOTUS doesn’t DO error correction. They flat-out say so in their Rules. And unredressed judicial error is ubiquitous: forty years ago, when appellate courts did their jobs, the reversal rate was over 30%; these days, the 4th Circuit reversal rate is 4%. And given that judges rarely even read the opinions they deliver, I can’t accept that the product of their sloth is good law.

        And what of those people who were similarly situated to Obergefell? That case should have been decided upon the first petition. Like it or not, it is the Court’s job to “say what the law is,” and if the issue had been resolved at the earliest opportunity, it would have saved countless hours of Court and lawyer time.

        My interest regards how to fix it. As long as judges are unaccountable to anyone, you and your colleagues will continue to act like out-of-control tin-horn dictators.

        Just as it is the Omaha cop’s duty to follow the lawful orders of judges, it is your duty as judges to follow our standing orders (e.g., COTUS) without fail. But without a way to drive that point home, judges will continue to be agents of lawlessness.

        Judge K: “Second, I have been plenty critical of some of my federal judicial colleagues. So, that part of your complaint rings hollow, at least, to me.”

        You can’t pull the wool over this old ‘Dog’s eyes. I know better. While you are the first to read management (SCOTUS) the riot act, you tend to swallow the whistle when your fellow line judges offend (sex offenders and wife-beaters excepted). I knew that I’d have to call bullshit on you, which is why I brought “that case” up.

        Judge K: “I am unwilling to debate you on the “rule of necessity.” There is a cottage industry revolving about one particular fellow who was, so he said, harmed by such a rule.

        I don’t have to debate you on the Rule, as under your accurate exposition of it, the judges were clearly in the wrong. As it was a pendent action, and state law provided for substitute judges, it was a pristine 14th Amendment violation. All the facts were judicially noticeable, which reduced it to a simple equation.

        As for the “cottage industry,” I would gently suggest that if you had simply admitted the obvious, the kerfluffle would have gone away. One of the things about becoming a legal commentator is that, unlike federal judges, you can be held to account for your inconsistencies.

        Judge K: “when I wear the robe that’s not my job.

        And I wouldn’t dispute that for an instant. Where I have a problem is that members of your Order do such a fine job on cases like Driskell v. Homosexuals, but issue a pile of incontinent crap in cases where a legitimate claim is presented. I maintain that everyone deserves your “A” game, and your open admission that you don’t read briefs is mortifying. I work HARD on those damned things, and don’t bother you unless there is a pressing need.

  • Diogenes
    16 January 2016 at 6:00 pm - Reply

    In a courtroom, every participant holds everyone else in contempt. Cops hold both the lawyers and the judge in contempt. Attorneys hold the judge and the cops in contempt. Judges hold everyone else, including the jury and the Constitution, in contempt. And everyone thinks that they and they alone are “special.”

    What a way to run a railroad….

  • Stan Butterfield
    20 January 2016 at 10:23 am - Reply

    This question of law enforcement officers carrying their guns into court has been at issue here in Oregon over the last few years in our county. Budget cuts have been responsible for stripping our courthouse of any armed courtroom security for several years. I have been present when a defendant has flown into a violent rage and had to be subdued. It has added to my feeling of security to have armed officers in the courthouse even if their presence was simply to appear as witnesses. While this presence is on a haphazard basis, some possible security has seemed more prudent than nothing. I recognize that the facts in Nebraska are different. In some measure I can even conceive of a prejudicial impact of a uniformed officer, with or without a gun could have on a jury. (I think uniformed, gun or no gun, in terms of prejudice, is a difference without distinction) In the final analysis, even though I disagree with the judge on the presence of law enforcement appearing with their guns, the Omaha Police are wrong in insisting on wearing a sidearm if the judge has said otherwise. The court decides not the witnesses.

    • Richard G. Kopf
      20 January 2016 at 1:38 pm - Reply

      Stan,

      Thanks for your comment. I am very sorry that budget cuts have resulted in the lack of security you face in the courtroom(s) of your county. The lack of such security astonishes me in this day and age. Moreover, as you suggest, there are reasonable grounds for disagreeing about whether police should appear as witnesses while armed. And, I, of course, agree with you that such a call should be left to the judge who has the obligation to run his courtroom as a safe place while also considering a host of other factors.

      I appreciate your taking the time to write. All the best.

      RGK