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.”
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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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)
- It is the responsibility of the DCSO to maintain order in the courtroom. Nebraska Supreme Court Rule 6-1512
- 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
- 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.