Opinion 19-155
December 12, 2019
Digest: (1) A judge may, but is not required to, disclose his/her concerns to any appropriate authority, including the village police chief, about whether a newly appointed provisional village police officer has proper legal authority and credentials to carry a firearm.
(2) A judge who concludes he/she is legally authorized or required as a firearms licensing officer to initiate an investigation into the propriety of the new officer’s possession of a pistol may take whatever steps he/she deems legally permitted or required in that capacity.
(3) A judge who concludes he/she has a reasonable, good-faith basis to question the firearm authorization status of a police officer who has been designated to provide security in the judge’s courtroom may, but is not required to, meet with the village police chief concerning the issue. If the judge concludes the officer is not properly authorized, trained, and/or licensed to carry a firearm, he/she may take any lawful measures to ensure order and decorum in his/her courtroom, including, but not limited to, objecting to the officer’s placement in his/her courtroom and consulting with court administrators on how to proceed.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(1)-(2); 100.3(C)(2); 100.3(D)(1)-(2); Opinions 19-84; 19-26; 19-10; 18-57/17-166; 16-154; 16-55; 16-25; 07-144.
Opinion:
A county court judge who is a firearms licensing officer and a village justice both write to ask if they may meet with certain village officials to express their concerns about a newly appointed provisional village police officer carrying a pistol. In particular, they wish to ascertain whether the officer has proper legal authority and credentials to carry the pistol. The officer is 20 years old and has not completed the police academy, although he/she plans to enter the academy shortly. As the officer does not appear to fall within statutory exemptions, the judges believe he/she “may potentially be committing a crime by carrying such weapon,” absent proper certification or a pistol permit.1
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]). A judge must “respect and comply with the law” (id.) and “be faithful to the law” (22 NYCRR 100.3[B][1]). Although a judge’s disciplinary obligations relate solely to “a lawyer” or “another judge” (22 NYCRR 100.3[D][1]-[2]; Opinion 19-84), a judge must nonetheless “require order and decorum” in proceedings before him/her (22 NYCRR 100.3[B][2]) and must “require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge” (22 NYCRR 100.3[C][2]).
County Court Judge
The county court judge has personally observed the new provisional village police officer carrying a pistol while serving as a uniformed crossing guard and has heard similar reports and concerns from members of other law enforcement agencies. The county court judge thus asks if he/she may meet with the village mayor and police chief, in his/her capacity as a pistol licensing officer, “to express [his/her] concerns ... and request information concerning [the new] officer’s legal authority/credentials to carry the pistol.”
As the judge recognizes, he/she has no obligation to report this potentially illegal activity to any authority, as the officer is neither an attorney nor a judge (see e.g. Opinion 19-84). However, a judge generally may do so, in his/her sole discretion (see Opinions 07-144 [judge’s acquaintance admitted embezzlement]; 19-10 [judge’s former housekeeper admitted an ongoing medical fraud]; 19-26 [judge suspects his/her tenant is engaging in criminal activity on the premises]; 16-25 [police officer failed to comply with legal mandate]; 16-154 [judge may, but is not required to, disclose his/her habitability concerns to a local code enforcement officer]). We see no reason why the judge cannot do so here as well.
Moreover, if the judge concludes he/she is legally authorized or required as a firearms licensing officer to initiate an investigation into the propriety of the new officer’s possession of a pistol, he/she may also take whatever steps he/she deems legally permitted or required in that capacity. While we cannot advise on legal questions, our observations in Opinion 18-57/17-166 may be relevant here as well:
According to the [inquiring] administrative judge, a judge acting as a licensing officer may (or even potentially must) in certain circumstances initiate investigations and/or proceedings concerning possible revocation or suspension of a firearm license. The statute does not necessarily provide for a law enforcement or prosecutorial agency to be notified or involved in the proceeding. Instead, it is a civil/administrative licensing proceeding, albeit one that may potentially have constitutional dimensions.
. . .
Judges acting as licensing officers may, of course, undertake the functions, duties, and responsibilities conferred on them by law. We note that these functions, as explained by the inquiring administrative judge, are in some ways inconsistent with the traditional neutral role of a judge, particularly to the extent they may authorize or mandate the judge to investigate sua sponte the propriety of a previously granted firearm license and/or to initiate and conduct a firearm license revocation or suspension proceeding without participation of the functional equivalent of a separate quasi-prosecutorial or law enforcement agency.
Nonetheless, we believe a judge does not violate the Rules Governing Judicial Conduct by fulfilling his/her statutory powers, functions, and duties as a licensing officer in good-faith reliance on statutory authority and administrative guidance on how to exercise that authority (see generally 22 NYCRR 100.2[A]; 100.3[B][1]; cf. Opinion 16-55 [“a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law (if any) is necessarily acting ethically”]).
Village Justice
The village police chief advised the village justice that the newly appointed provisional police officer will provide armed court security for the village court twice a month. He/she assured the justice that a current village police officer personally “trained the new officer on the use of the weapon.” The justice is concerned that the new officer “may not be legally possessing the weapon in my Courtroom (and possibly committing a crime).” Accordingly, the judge asks if he/she must “make further inquiry of the Chief of Police as to the officer’s legal credentials to possess the weapon” and, if necessary, “take steps to ensure” that the officer does not carry an unauthorized or unlicensed weapon in his/her courtroom.
In our view, the village justice has no obligation to investigate the firearm authorization status of a police officer who has been designated to provide security in the judge’s courtroom. Nonetheless, on the facts presented, where the judge appears to have a reasonable, good-faith basis to question the propriety of the officer’s carrying a firearm in his/her courtroom, we conclude he/she may, in his/her sole discretion, meet with the village police chief concerning the issue. If the judge concludes the officer is not properly authorized, trained, and/or licensed to carry a firearm in the courtroom, he/she may take any lawful measures to ensure order and decorum in his/her courtroom (see 22 NYCRR 100.3[B][2]), including, but not limited to, objecting to the officer’s placement in his/her courtroom and consulting with court administrators on how to proceed.
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1 The village police chief apparently believes the new officer has “authority to make an arrest and to take any defendant sentenced to a term of jail into custody,” and otherwise possesses “all the powers of a police officer, except for the ability to use a radar gun or breathalyzer test.”