January 31, 2019
Digest: (1) A supervising judge who concludes that another judge pointed a licensed firearm at a defendant in the courtroom several years ago, in circumstances where he/she would not have been justified in using deadly physical force, must take appropriate action. (2) Where the supervising judge is satisfied that it was a one-time, isolated incident provoked by the other judge’s concerns about his/her personal safety, and the supervising judge has, in consultation with the district administrative judge, counseled the other judge orally and in writing to impress upon him/her that this conduct must never be repeated, the supervising judge need not take any further action. (3) Conversely, if the supervising judge concludes, in his/her sole discretion, that the measures he/she has already taken are inadequate and the incident still raises serious questions about the judge’s fitness to continue in office that must be investigated by the Commission on Judicial Conduct, the judge must report the conduct to the Commission.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.3(B)(3); 100.3(D)(1); Opinions 18-74; 06-51.
A supervising judge has become aware of another judge’s public admission that he/she pointed a licensed firearm at a defendant in the courtroom several years ago. The supervising judge spoke extensively to the other judge (Judge B) concerning this incident. It appears that Judge B has a permit to carry a concealed weapon and lawfully carries one for personal safety at all times, including when he/she is conducting court proceedings. Several years ago, during court proceedings, a defendant rapidly approached the bench until he/she was close enough to touch Judge B, rather than stopping at a line marked on the floor. Although Judge B found the defendant physically intimidating, the defendant did not make any verbal or nonverbal threats and a nearby court officer did not move to intervene. Judge B rapidly pulled out the firearm, pointed it at the defendant, and directed him/her to move back to the designated line. The defendant complied, and Judge B put the firearm away. The supervising judge is satisfied, based on their discussions, that the bullet was not chambered and that Judge B has never otherwise displayed a weapon in open court. In consultation with the district administrative judge, the supervising judge has impressed upon Judge B “the seriousness of this matter and the appropriateness of [his/her] response” and has prepared a formal counseling memorandum for Judge B to review and sign. In particular, the judge has advised Judge B “that the use or threatened use of a firearm by a judge should be viewed, legally and ethically, from the justification standard for use of deadly physical force (i.e.: that the judge ‘reasonably believes it to be necessary to defend [him/her]self or someone else from what [he/she] reasonably believes to be the use or imminent use of deadly physical force by such individual’).” The judge now asks whether he/she must also report Judge B’s conduct to the Commission on Judicial Conduct.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge who receives information indicating a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules Governing Judicial Conduct must take “appropriate action” (22 NYCRR 100.3[D]).
As described in Opinion 18-74 (citations and paragraph break omitted):
The inquiring judge is ordinarily in the best position to decide if there is a “substantial likelihood” another judge has committed a “substantial violation” of the Rules, “given the context in which the conduct occurs.” If he/she concludes either of these two elements is missing no action is required. If the judge concludes there is a substantial likelihood another judge engaged in a substantial violation of the Rules, the action he/she must take will depend on the nature of the misconduct. Thus, if it is so serious as to call into question a judge’s fitness to continue in office, the judge must report it to the Commission on Judicial Conduct. But, if the misconduct, though substantial, is not that serious, the judge has the discretion to take other, less severe action than reporting the conduct to the Commission. As we have previously noted, the Committee “cannot judge the credibility of conflicting allegations and is not empowered to do so.”
Here, the “substantial likelihood” prong is satisfied because Judge B publicly admitted his/her conduct.
The next question, accordingly, is whether the “substantial violation” prong is satisfied. The Rules do not a prohibit a judge from carrying a concealed and safeguarded licensed firearm while performing his/her judicial duties on the bench, so long as there are no legal or administrative barriers that would preclude such possession (see Opinion 06-51). As the supervising judge notes, however, Opinion 06-51 does not authorize a judge to “display, use, or threaten the use of a firearm while in the courtroom.” Indeed, to the contrary, judges must “be patient, dignified and courteous” to those who appear before them (22 NYCRR 100.3[B]). It is clear from the inquiry that the supervising judge has concluded that Judge B pointed a firearm at a defendant in the courtroom, in circumstances where Judge B would not have been justified in using deadly physical force. If true, this amounts to a “substantial violation” of the Rules Governing Judicial Conduct, as it could seriously undermine public confidence in the judiciary and is inconsistent with Judge B’s obligation to “respect and comply with the law” (22 NYCRR 100.2[A]) and be “patient, dignified and courteous” to all litigants (22 NYCRR 100.3[B]; see also 22 NYCRR 100.3[B] [“judge shall be faithful to the law and maintain professional competence in it”]).
Accordingly, since both prongs are satisfied, the supervising judge must take “appropriate action” under the Rules (22 NYCRR 100.3[D]; Opinion 18-74). As explained in Opinion 18-74 (citation omitted):
In general, “what determines ‘appropriate action’ depends upon all the surrounding circumstances known to the judge, including an assessment of whether the individual, if confronted by the judge, shows genuine remorse, contrition, or ignorance of a rule; whether the individual has any history of unprofessional or other conduct in violation of the Rules; or any other relevant conduct or factor known to the judge.” Appropriate action could include, for example, “dealing with the matter administratively,” “discussing with the other judge the possibility of a treatment program and/or making a suitable referral thereto,” or “discussing the situation with the other judge and counseling him/her on the ethics of the claimed inappropriate conduct and then deciding what if anything else should be done depending on the judge’s response to such advice.”
Here, as in Opinion 18-74, we believe the supervising judge “is in the best position to assess [Judge B’s] motivations and receptiveness to guidance about his/her ethical responsibilities going forward.” We note that the supervising judge is apparently satisfied that it was a one-time, isolated incident provoked by Judge B’s concerns about his/her personal safety. Moreover, the supervising judge has, in consultation with the district administrative judge, counseled Judge B orally and in writing to impress upon him/her most emphatically that this conduct must never be repeated. As described, these steps appear to be reasonable and appropriate. Thus, if the supervising judge is satisfied that these steps have adequately addressed the situation, he/she need not take any further action.
In other words, the supervising judge need not report the incident to the Commission on Judicial Conduct unless he/she concludes, in his/her sole discretion, that the measures he/she has already taken are inadequate and the incident still raises serious questions about Judge B’s fitness to continue in office that must be investigated by the Commission.