Judicial Security

Keeping It Safe

The case involved members of a group known as the Soldiers of the Aryan Culture. The FBI and the U.S. Marshals Service had told Alba a leader of the group had requested a “hit” on the prosecutors. Those making the threats knew where the prosecutors lived and their usual routes to and from work.

Alba issued an order restricting the defendants’ visiting and communication privileges for the duration of the trial. He was later told by a lawyer in the U.S. attorney’s office that the white supremacists might try to retaliate against him for the order.

Alba, chief U.S. magistrate judge for the District of Utah, based in Salt Lake City, told the Senate Judiciary Committee in May that he initially thought the U.S. Marshals Service was going to offer him a protective security detail during the trial as a result of the threats. But no such offer was made that day in November 2004.

One night while Alba was away at a conference, the family dog began barking insistently at the back door. Alba’s wife let the dog out, and it continued to bark for about half an hour, refusing to return to the house for a long time. Alba says his wife is now afraid to be at home alone and his son’s teacher has expressed concerns about whether the school can adequately protect the boy in the event of a genuine threat to his safety.

Alba contacted the Marshals Service and asked for help. He was told that no funds were available and that he did not qualify for a security detail because no direct threat had been made against him. Alba ultimately turned to the local Salt Lake City Police Department, which provided a home safety assessment and increased patrols in his neighborhood. Alba has since installed a commercial home security system at his own expense. But, he said, he wishes Congress would provide more funding and oversight for the Marshals Service, whose job it is to protect federal judges, both on and off the job.

In Alba’s case, the threats resulted in no physical harm. But in two other high-profile incidents early this year, those caught up in the justice system turned violent.

Worst Fears Realized

On Feb. 28, a man later identified as Bart Ross, a disgruntled civil litigant, broke into the home of Judge Joan Humphrey Lefkow, a federal district judge based in Chicago, and killed her husband and mother. Then on March 11, Brian Nichols, in custody on criminal charges, overpowered a courthouse deputy in Atlanta, stole her gun and killed Superior Court Judge Rowland Barnes, a court reporter and another deputy.

Reports of recent violence against lawyers also abound: In one high-profile case in October 2003, a lawyer was wounded by a man with a gun who chased him around a small tree outside a Southern California courthouse. And in April, an East Chicago, Ind., attorney’s home was firebombed, and though the attorney, Noah Holcomb, refused to speculate publicly on the source of the firebomb, local police acknowledged a probable link to Holcomb’s work, according to news reports.

The incidents come at a time when judges face increasing criticism for their decisions. Conservative members of Congress loudly decried the Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005), finding that mandatory sentencing guidelines set forth by Congress were advisory, not binding, on federal judges. And after several courts’ refusal to get involved in the Terri Schiavo case, some members of Congress promised that judges would be called to answer for their alleged misdeeds.

In one telling example, televangelist Pat Robertson said that so-called judicial activists pose a threat to national security that is “probably more serious than a few bearded terrorists who fly into buildings.”

Most who advocate installing more conservative jurists to the federal bench are more measured in their tone. Still, some federal judges are beginning to point out that the rhetoric can be dangerous when it’s misinterpreted by unstable members of the public.

In her first public appearance since her family members’ deaths, Lefkow spoke before the Senate Judici­ary Committee on May 18 and pleaded for better security for federal judges and their families. In her testimony, Lefkow asked Congress to “publicly and persistently repudiate gratuitous attacks on the judiciary.”

Acknowledging that a cause and effect would be nearly impossible to prove, Lefkow said that “fostering disrespect for judges can only encourage those that are on the edge, or the fringe, to exact revenge on a judge who ruled against them.”

Security for federal courthouses, and for judges when they are away from court, is the purview of the U.S. Marshals Service, an arm of the Justice Department. A report from the Justice Department’s inspector general released in March 2004 found significant problems in gathering and assessing intelligence by the Marshals Service.

Specifically, the report said that threat assessments are often “untimely and of questionable validity,” that the Marshals Service has “limited ability to collect and share intelligence” with other law enforcement agencies, and that it “lacks adequate standards for determining the appropriate protective measures that should be applied to protect the judiciary against identified potential risks during high-threat trials and when they are away from the courthouse.”

There have been three assassinations of federal judges since 1978, according to the report, which was issued prior to the murders of Lefkow’s family earlier this year.

In testimony before the same congressional committee, Judge Jane Roth of the 3rd U.S. Circuit Court of Appeals based in Philadelphia criticized the Marshals Service for allegedly refusing to communicate with federal judges about courthouse and off-site judicial safety. Roth chairs the U.S. Judicial Conference’s Committee on Security and Facilities. The Judicial Conference is made up of judges from every federal circuit plus some district courts, as well as magistrate and bankruptcy judges.

Roth told the committee that her attempts to obtain staffing figures and other information from the Marshals Service were ignored or rebuffed. She said that in one case, an official there told her that the Marshals Service could not allow federal judges to participate in staffing or security decisions because to do so would be a violation of the Constitution’s separation of powers clause.

Roth and Lefkow had high praise for rank and file deputy marshals serving in their respective courthouses. But Roth said that anecdotal evidence her committee has received from local Marshals Service offices indicates that some courthouses may be understaffed by as much as 30 percent. Many local marshals offices hire contract security workers to supplement the work of deputy U.S. marshals. These contract workers do not have the same training as “real” marshals, Roth said, and in many cases, thorough background checks of the contract workers are not conducted.

A Response in Defense

In his testimony, Marshals Service Director Benigno Reyna defended his organization’s handling of judicial security on a limited budget. In addition to protection of courthouses, the Marshals Service is also responsible for transporting federal prisoners to court appearances, serving arrest warrants, tracking fugitives and overseeing more than 17,000 witnesses and their families in the federal witness pro­tection program. The service investigates some 700 “inappropriate contacts” with judges, lawyers and other courthouse personnel each year, he said. He defined inappropriate contacts as anything from an expression of extreme frustration by a litigant to direct threats from people or groups inside or outside the court.

Reyna told the committee that the Bush administration’s fiscal year 2004 budget request for the Marshals Service was not fully appropriated by Congress, but the fiscal year 2005 budget includes a 5 percent increase, which will allow the service to hire 94 new deputies. For fiscal year 2006, a 6 percent budget increase will fund the hiring of 65 more deputies, bringing the total to 2,542.

But Roth remains dissatisfied with Reyna’s handling of the Marshals Service judicial protection function. She notes that in the immediate aftermath of the killings of Lefkow’s family, the two senators from Illinois, Democrats Richard Durbin and Barack Obama, pushed through $11.9 million in emergency funding for security systems for judges’ homes. She questions why that money has not yet been made available to judges and wheth­er the ser­vice is clear on Congress’ intent that the money be used for the specified purpose and not for other things.

Reyna admitted in his testimony that inefficiencies remain to be fixed in his organization, but he added that any judge who feels the need for a security detail should discuss specific concerns with the head of the local Marshals Service office.

In her testimony, however, Lefkow found fault with the present system of judges asking for protection.

In the months before the killing of her family members, the decision was left up to Lefkow whether to continue to receive Marshals Service protection that was assigned to her after the arrest of white supremacist Matthew Hale, whom Lefkow had ruled against in a remanded trademark infringement case involving the name of his group, World Church of the Creator. Hale was arrested for allegedly plotting to harm Lefkow in revenge for the ruling.

Because of the shortage of deputies to conduct other marshals’ functions such as prisoner escorts, Lefkow said, many judges believe that asking for a security detail will take marshals away from those other vital functions, further slowing the already clogged court system. Conse­quently, many judges discount feelings of vulnerability and don’t ask for protection. Lefkow allowed marshals to remove a home security system from her house and suspend her security detail after Hale’s arrest.

“I am not a law enforcement expert,” Lefkow told the judiciary committee. “It shouldn’t be up to judges whether we receive protection. That decision is a law enforcement function.”

Roth compares the situation to the way the Secret Service treats its protectees. The president, vice president and their families do not decide whether a potential threat is real. The Secret Service has the authority to protect its charges even against their will when necessary. Although the level of protection afforded to judges will never be as great as that provided to the president, Roth says she agrees that the Marshals Service should take a more active role in assessing threats and erring on the side of caution when assigning protection to judges–even judges who might protest that the level of protection is unnecessary.

“The judges want that. We’ve discussed it. We know we’re not law enforcement experts, and we want those who are to take on that role of telling us how much protection we need,” Roth said in an interview.

At the same time, Roth insists that the Marshals Service must be more open with the judges about how it determines staffing levels and assesses threats. If the present stalemate continues, Roth says, she thinks that some judges, concerned for their families’ safety, may opt for early retirement. At the same time, well-qualified lawyers may think twice about accepting a federal judicial appointment.

Currently, the judiciary budget pays for court security officers, who run the metal detectors in courthouse lobbies and provide general building security. Though the CSO budget comes from the judiciary, the officers report to the Marshals Service.

Roth says that if the Marshals Service fails to meet judges’ expectations, it’s not inconceivable that the Judicial Conference could consider starting its own full-fledged security force to supplant, rather than merely supplement, the Marshals Service.

“But I’d really like to see if we can work this out with the marshals first. The needs of the judiciary compared to the overall federal budget are very small. What needs to be done can be done. It’s not a budget-buster,” Roth says.

How States Are Faring

Even as the debate rages over security in federal courts, the situation in state courts varies widely. In most rural areas, very few courts have security at the courthouse entrance. Although no comprehensive study exists, anecdotal evidence compiled by the Nation­al Center for State Courts suggests that the reason is primarily money. Rural courts with limited budgets simply don’t see metal detectors and the staff to run them as the best use of their resources. A few places, such as Tuscola County, Mich., tried metal detectors but, when faced with a budget shortfall, chose to turn off the detectors to save on the salaries of the security officers who ran them, according to news reports.

But in some urban areas, where crime is a bigger priority across the budget board, state courts are taking the initiative to improve courthouse security. In Maricopa County, Ariz., Judge Colin Campbell says his jurisdiction, which includes the city of Phoenix, recently implemented a full metal detector and X-ray system for courthouse visitors. Even lawyers must go through screening, although in a concession to the local bar, lawyers are given identification cards that allow them to use an express inspection lane to speed their entry to court, Campbell says. Only judges and elected officials are allowed to bypass security entirely.

Like the federal judges, Campbell believes judges are most vulnerable outside the courthouse. He says one of the judges in his county received a threatening letter with a photo of the judge’s house enclosed. Another was hosting her daughter’s Girl Scout troop in her backyard when a mentally ill litigant darted out of her oleander bushes and began making threats. That judge confronted the litigant and got him to leave. She then ushered the scouts inside and called police.

Campbell says when he surveyed his fellow judges, he was surprised to find that as many as 20 percent felt vulnerable enough that they were interested in learning about how to obtain a permit to carry a concealed weapon.

The Maricopa County court also provides security training for new judges, along with advice urging them to be wary of unknown packages at home, to learn to tell if something is amiss in their neighborhoods and the like.

The training also helps judges try to distinguish between what Campbell calls “the howlers and the hunters.”

“Howlers are the ones who write passionate letters or express frustration, but are generally not a real threat. Hunters are often less vocal, but they’re the ones who will show up at your house with a gun,” says Campbell, who notes that recent legislation allows Arizona judges to have their home addresses sealed from public disclosure.

“But that only goes so far, too, because it’s a simple matter to get that information on the Internet for free or a nominal fee,” Campbell says. He supports federal judges’ request that Congress pass a law restricting access to home addresses or similar personal information about judges on the Internet and elsewhere.

In Las Vegas, a new courthouse has opened with room for as many as six security lanes for peak periods such as early morning and after lunch. In Minneapolis, family court, which is traditionally among the most violence- prone areas of law, has been moved to a separate building away from the other court divisions. Everyone who enters the family court building, including judges, is screened.

Campbell believes the need for security will alter the way courthouses are built, just as it has already changed how current ones are operated. He says he sees a change in the number of people interested in serving as judges. But, he says, while his fellow jurists remain vigilant, most know that they can never be completely safe from determined people with violence in mind.

“Judges cannot hide from the people we serve. You have to live your life in public,” he says.

Margaret GrahamTebo, a lawyer, is a senior writer for the ABA Journal.

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