Wednesday, January 28, 2009

Armed Prosecutors in the Courtroom

Preaching to the Choir has a wonderful post up about what's happening in Kansas. A bill was unanimously passed in the State Senate which would allow prosecutors who possess concealed carry permits to come to the courtroom armed. Sarah clearly describes her opposition.
First, I dispute the claims by prosecutors that this measure is necessary to ensure their safety.

Second, the ability for one side but not the other to carry concealed weapons into a courtroom does much to skew that level playing field the criminal justice system is supposed to strive for.

Finally, the presence of additional guns in a courtroom will not make the room safer.

She mentioned the Brian Nichols case, about which we've talked here and here. He's the one who, as the defendant in an Atlanta courtroom, overpowered a sheriff, took her gun and shot and killed the judge a court reporter and another sheriff on the way to making his escape.

His story perfectly illustrates the final point of the Preaching to the Choir post. If I were a criminal planning a desperate escape, I'd go for the prosecutor's gun rather than the sheriff's. Right or wrong, I'd imagine the uniformed officer to be better trained and harder to take a gun from. The temptation to try and disarm the prosecutor might be a strong one to a desperate man.

The claim that more guns makes for more safety, to me seems ridiculous. And this applies to courtrooms in Kansas as well as the United States of America at large.

What's your opinion? Is this a good idea? Isn't the reason guns are prohibited inside a prison, even policemen's guns, because of the threat of a prisoner trying to take one away and make a daring escape? Isn't one of the benefits of this policy to remove the temptation? Shouldn't that apply in courtrooms as well.

Putting aside this long-standing argument about the benefit of guns for a moment, I'd say Sarah's second point is a clincher. Wouldn't you?

Please tell us what you think.


  1. The prosecutor would be carrying concealed, likely in an expensive well-made holster (rather than a one-size-fits-all duty holster)

    and using an unknown firearm (could be a 1911, could be a S&W wheelie, could be a Glock) rather than the one-size-fits-all standard Police glock.

    Also the prosecutor would be voluntarily be carrying a gun, while the court officer would be mandated to.

    And Mike obviously has never been at the gun club when the local five-oh were doing their qualification test.

    I HOPE the criminal thinks that the prosecutor would be an easier mark, it'll save the prison system a LOT of money!

  2. Mike,

    What is the definition of "concealed"?

    Just because the prosecutors are allowed to carry concealed doesn't mean they will, right?

    So the "criminal" who wants to make an escape would have to consider the possibility of another gun in the court room. Should (s)he go for the baliff/sheriff or the prosecutor? Knowing that while (s)he goes for one, the other could draw down and prevent the escape.

    I don't see the down side on this at all.

    As for as the second point, I miss it. How does the prosecutor carrying a firearm concealed skew the level playing field? Is she arguing the accused should be allowed to carry?
    Or perhaps the judge and jury will be "afraid" of a "concealed" firearm and have to render every judgment for the prosecutor? It's a ridiculous argument.

  3. i'm mostly concerned with the singling out prosecutors. they're certainly not uniquely fitted to carry weapons in court; if they're uniquely at risk of attack, let's let them wear level-4 ballistic vests in court.

    creating more and more "special" classes of people allowed to do what everybody else is prohibited from doing seems like exactly the wrong thing for a democratic society to indulge in. and in a court setting that's intended to be adversarial, privileging one side over the other sends the wrong sort of signal altogether.

  4. bob, the skewed playing field is in that the defense attorney is still barred from carrying.

  5. Bob, Nomen is correct on my point about the skewed playing field and it is not at all a ridiculous argument.

  6. Nomen, S.,

    The quote was Second, the ability for one side but not the other to carry concealed weapons into a courtroom does much to skew that level playing field the criminal justice system is supposed to strive for

    Note the criminal justice system is what is being skewed. I don't see how. If it is a concern, fine let the defense attorney's carry also...but the justice system itself isn't skewed by the presence of firearms.

  7. Bob, let me try again. It isn't the mere presence of firearms that is skewing the criminal justice system. It is the different treatment of prosecutors and defense attorneys inside the court room that skews the process. One side should not be granted special privileges that the other is not.

    And you yourself have commented that people will deal with gun holders differently than the unarmed. So why is it ridiculous for me to fear that perhaps jurors and witnesses will respond differently to the prosecutor, allowed to carry a gun, and the defender, who is not?

  8. S,

    First, if it is a problem of the prosecutor being armed and the defense attorney being armed, arm both.

    One side should not be granted special privileges that the other is not.

    I agree with this completely, if the cops, the judges, any number of government officials are allowed to carry concealed just about anywhere, why shouldn't the 'average' citizen be allowed to carry everywhere?

    Second, it is "CONCEALED" carry. How will the people know if they are carrying or not? Not every attorney will carry, so how will the people know who to treat differently or not?

  9. I think the rationale is that, in a criminal trial, the prosecutor is an agent of the court the same way the bailiff is. It's silly to bar one agent from carrying a concealed gun for "safety reasons" when another agent is standing right next to him openly wearing a pistol. I understand this logic breaks down if you believe the "cops are the only ones responsible enough to carry guns" argument, and thats a bigger discussion than this comment thread can handle. :) I'm just saying it seems like a consistent position to me.

    That said, since statistically concealed-carry permit holders commit fewer violent crimes per capita than off-duty cops, I really don't see the logic of barring the defense, the jurors, the witnesses, or anybody else from carrying, as long as they already have concealed carry permits.

    A common oversight in these cases (talking about concealed carry in courtrooms, schools, national parks, etc.) is assuming that we mean just letting anybody slip a gun in his pocket when he goes to those places. What we're actually talking about are safe, sane, qualified, trained people who carry concealed everywhere _else_. The existing rules assume that these people will spontaneously become homicidal if they don't disarm before entering those specific places.

  10. In terms of who's an agent of the court, both prosecutor and defense attorney are. It is the categorization of prosecutor as agent with law enforcement privileges, privileges not shared by defense counsel, that I object to. All attorneys are officers of the court. If we pass a law that treats one party to litigation as more of an officer than the other side, we've created an imbalance. This bill has received a lot of attention statewide. I fear the imbalance is created simply by the public being aware that one side CAN bring guns into the courtroom while the other side cannot.

    In a long day of trial, even the best concealed gun may inadvertently be visible as a prosecutor adjusts a pant leg or a suit coat. But I'm not even so much concerned about the actual appearance of a gun in the court room for this point as I am about the public perception.

    Michael, of course I am aware about the requirements that must be met for someone to receive a concealed carry permit. The actual licensed carriers are not the people I'm worried about in terms of safety. It may seem far-fetched to think that a distraught family member or a desperate defendant would succeed in getting a concealed gun away from a prosecutor, but I don't think it's at all crazy to worry that they might try. The chaos that might ensue in a court room isn't to anyone's benefit.

  11. S, so a gun must be present to raise chaos in a courtroom??

    You lack imagination.

  12. S, I was implying that private defense lawyers aren't "agents of the court", and completely neglected to consider public defenders. I apologize for my ig'nance. ;)

    In any case, lots of things aren't to anyone's benefit. An enraged family member or desperate defendant trying to get the bailiff's gun (or just attacking the judge empty-handed, or bowling for the door) would be pretty chaotic, too. The question isn't "can we imagine a scenario in which this could end badly", it's "does the possibility of a dangerous party noticing a concealed firearm, deciding to take it, and managing to actually overpower the gun owner and take control of the gun without being stopped by the bailiff present a significantly greater risk to the courtroom than a bailiff's openly-carried sidearm does, to the extent that we can justify abridging the Constitutional rights of every lawful citizen who wants to (or is compelled to) make use of the court?"

    Simply, I don't think the blanket prohibition on legally-carried guns in the courtroom could bear strict scrutiny.

  13. believe me, Beard, when it comes to possible chaos in the court room, no I do not lack imagination. It is because I know what kinds of chaos can ensue that I'd like us to do all we can to limit the possible contributing factors to chaos. Anecdotally, the sheriff's deputies I have heard from on this issue agree with me that they don't want to introduce any more guns into court rooms.

    Michael, all attorneys, no matter who they're paid by, are officers of the court.

    Bob, I forgot to write this before, but in case it wasn't clear, if the bill allowed both defense attorneys and prosecutors to carry concealed weapons into court, that would address the imbalance concern. I would much prefer that version of the bill to the one that passed the Senate.

  14. From my post: "Isn't the reason guns are prohibited inside a prison, even policemen's guns, because of the threat of a prisoner trying to take one away and make a daring escape? Isn't one of the benefits of this policy to remove the temptation?"

  15. Yes Mike, that is one of the reason. The prisoners are often in better shape, more numerous then the guards and have a high motivation to commit mayhem.

    Given that many states don't execute convicted criminals, what incentive do they have to maintain good behavior?

    Prisoner A sentence to life in prison sees an armed guard and wants to kill the guard and another the threat of another life sentence going to deter him?

    The court rooms are a different story...most of the crimes dealt with in courts aren't of such serious nature. Why not let people go armed?

    Make it a law that any person within the court room who tries to take a weapon gets either executed or an additional sentence tacked on. That provides incentive for people to behave.

    What....another law might not encourage people not to behave? But isn't that the answer gun control groups are trying?