Opinion 22-160

October 27, 2022

Digest: On the facts presented, a judge may not participate in a public demonstration against gun violence.

Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.5(A)(1); Opinions 21-152; 20-92/20-93; 18-110; 17-108; 17-38; 15-113; 15-26/15-44; 13-34; 10-59; 08-191; 04-91.

Opinion:

         A judge asks if it is ethically permissible to participate in a silent demonstration organized by a local not-for-profit civic organization. As proposed, community members will gather and hold hands to symbolically show their opposition to gun violence, in reaction to both the recent death of a local child and an overall increase in local incidents of gun violence. Some participants will hold signs with slogans such as "Stop the Violence" or "No More," but the judge will not hold any signs. The organizers will instruct participants to remain silent and engage only in law-abiding and peaceful behavior. The judge will not help organize or promote the demonstration, and will not take any substantial or prominent role at the event. We note the judge presides in a court that hears criminal cases.

         The judicial duties of a judge take precedence over all the judge's other activities (see 22 NYCRR 100.3[A]). A judge must always avoid even the appearance of impropriety (22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]). In general, a judge may engage in extra-judicial activities that do not (1) cast reasonable doubt about the judge's capacity to act impartially; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A judge must not publicly comment on a pending or impending matter in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]) and must not "directly or indirectly engage in any political activity" unless an exception applies (22 NYCRR 100.5[A][1]).

         This inquiry once again requires us to "walk the tightrope of the need for judicial independence amid controversial public events" (Opinion 20-92/20-93). We here consider three lines of prior opinions.

1. Events Seeking to Discourage Violence Among Targeted Populations

         We have addressed a judge's participation as a speaker or silent supporter at certain anti-violence events seeking to dissuade a specific audience from engaging in, or continuing to engage in, violence. Relevant factors have included the identity of the audience, the balance of speakers, and whether the event is likely to be seen as a law enforcement program.

         In Opinion 13-34, we said a judge may not lecture at an anti-violence program for young people detained at a local correctional facility who are "either awaiting disposition of an unresolved case or are awaiting sentence" and could appear before the judge as criminal defendants. We considered the perspective of a person who hears the judge's anti-violence presentation while detained at a correctional facility, and "is then brought before the same judge" for sentencing or other judicial determinations and concluded the judge's impartiality might reasonably be questioned (id.). We also perceived a risk of impermissible ex parte communications, even if unintentional (see id.).

         By contrast, in Opinion 15-113, we advised that a judge may serve as the introductory speaker at a Criminal Justice Services Division program which sought to discourage gun violence among individuals the Division deemed "most at risk." The invited audience consisted of probationers and parolees with no pending charges, and other speakers included both law enforcement personnel and Legal Aid attorneys. We emphasized the overall balance of speakers, the preventative purpose of the program, and the fact that the audience members were not currently detained or incarcerated (Opinion 15-113). Although not highlighted in the opinion, we also note the event was to take place on neutral ground, i.e., a courthouse, rather than at correctional or law enforcement facilities as in Opinion 13-34.

         In Opinion 18-110, we advised that a city court judge may attend the mayor's anti-violence outreach event for "street group members and their associates" as an audience member with no speaking role. Since the event was preventative in nature and the speakers would "include service providers, community members, and law enforcement representatives who wish to dissuade attendees from resorting to violence," we concluded the program could not reasonably be seen as an impermissible law enforcement event and was unlikely to cast doubt on the judge's ability to be impartial (id.).

         We note that each of these anti-violence programs was organized with a specific audience or demographic in mind, and featured speakers on topics unlikely to involve any discussion of pending or impending cases.

2. Advocacy Events for Domestic Violence or Abuse Victims

         Extra-judicial activities that seek to further "society's goal of extricating domestic violence victims from abusive relationships" (Opinion 08-191) have different ethical implications based on their purpose and participants, among other factors (see Opinion 15-26/15-44 [identifying four different categories]). Indeed, it "is critical to maintain both the appearance and the reality of impartiality" in matters involving charges of domestic violence or abuse (Opinion 17-108).

          Consequently, we have said a judge may not attend "advocacy events for crime victims, particularly where the occasion is highly emotional or likely to attract substantial public attention and interest" (Opinion 21-152). As we explained in Opinion 15-26/15-44 (citations omitted):

[A] judge should not attend a candlelight vigil held for those affected by domestic violence and should not attend a tree planting on behalf of certain crime victims in the judge's county. The Committee was concerned that a judge's mere presence at either of those events "would create an appearance of particular sympathy toward one side in court and therefore an appearance of partiality."

In such instances, we found the event itself was "so extraordinarily one-sided in nature" that the judge's mere attendance "would necessarily cast doubt on [the judge's] ability to be impartial" (id. [citations omitted]).

         Likewise, in Opinion 17-108, we said a judge may not attend a "Call to Service and Compassion Workshop" honoring child abuse victims and survivors and their families, hosted by a child advocacy center, and lead a prayer at the event. We analogized it to the candlelight vigil and tree planting events for domestic violence victims, with similar emotional resonance. Thus, we again concluded that the judge's presence and participation would "create an appearance of particular sympathy toward one side in court" and necessarily cast doubt on the judge's ability to be impartial.

3. Protests, Rallies, Marches, and Demonstrations

         In this third line of opinions, our determinations are necessarily fact-specific and we have declined to state categorically whether judges may "participate, without speaking, in a local rally, march or demonstration sponsored by grassroots organizations" (Opinion 17-38). However, we opined that such events "would generally be prohibited political activity, subject to specific facts fitting within a narrow exception to the blanket prohibition" (id.). For example, we advised that a judge may not participate in a grassroots organization's "rally ... in opposition to the so-called Trump Muslim Ban" because it clearly involves great public controversy, which is also the subject of litigation" (id.).

         In that same opinion, we also addressed whether judges may participate in a March for Science. Our starting point was that the march "purports to be a non-partisan gathering advocating for a recognition of the importance of scientific endeavors and rational thought in society" (Opinion 17-38). Notwithstanding this apparently neutral purpose, we noted "conflicting reports about the full agenda" of the march (id.), and we set forth a multi-factor test for a judge to assess the propriety of participating as facts develop. The first two elements are relatively straightforward: the judge must not participate in the march unless the judge determines it "is not co-sponsored by or affiliated with any political organization" and "does not support or oppose any political party or candidate for election" (id.). The third element similarly bars the judge from joining the march unless the judge determines that participating "will not involve the judge in impermissible political activity" (id.). The fourth element is the most expansive. Even when a judge determines no "political party or candidate" is involved, a judge "must be careful not to be 'associated with matters that are the subject of litigation or public controversy'" and, further, ensure that the judge's own participation "will not insert him/her unnecessarily into public controversy" (id.).

         For these reasons, we subsequently advised judges not to participate in an informal silent and peaceful "walk for justice" organized by a bar association in response to the death of George Floyd, an African-American man who died in police custody (see Opinion 20-92/20-93). We noted that the organizers intended the walk to be not only "a time for quiet reflection or thought" but also, simultaneously, "a time for action," as the walk will "visually demonstrate and let it be known that the legal community … is committed to remembering George Floyd [and] acknowledging the injustice of his death." On those facts, we concluded:

Participation in a high-profile silent "walk for justice," organized around an intensely emotional appeal concerning a man whose death in police custody has roiled the nation in ongoing protests, could "create an appearance of particular sympathy toward one side in court" and necessarily cast doubt on the judge's ability to be impartial.

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         While the judge's question here appears to be a matter of first impression, we draw some principles from our precedent to give judges guidance going forward.

         First, unlike the anti-violence events in Opinions 13-34, 15-113, and 18-110, this is not a structured event intended to persuade a targeted audience not to engage in violence in the future. Unlike a moderated forum or a planned speaker addressing an intended "at risk" audience, this is a protest or demonstration aimed at the public at large. It is more akin to a candlelight vigil or a silent walk for justice, in that it aims to direct the public's attention to a current social problem, in an effort to end complacency with the status quo. In essence, it is a call to action - even though it does not specify what actions should be taken (cf. Opinion 20-92/20-93 ["kneeling for a moment of silence in front of the U.S. Constitution is itself a powerful but controversial symbol"]).

         While we understand the advertising for this demonstration does not invoke the name of specific gun victim(s), we find it is more similar to the Walk for Justice discussed in Opinion 20-92/20-93 than the March for Science discussed in Opinion 17-38 because it focuses on issues that are likely to come before the courts. It is surely fair to say that, if a March for Science is "advocating for a recognition of the importance of scientific endeavors and rational thought in society" (Opinion 17-38), those objectives do not have any clear intersection with matters that are likely to result in litigation. By contrast, any given incident of gun violence - especially one involving young and/or multiple victims - is likely to result in litigation. Most predictably, there may be criminal charges against the individual who allegedly pulled the trigger and any purported accomplices. In some instances, civil claims and even criminal charges may ensue against a wide spectrum of others who allegedly facilitated or failed to stop the shooter.¹

         Moreover, questions about how to end gun violence in America are intensely partisan and political. In New York, recent legislative amendments and constitutional challenges have raised the temperature of this debate. There are many fact-specific controversies about the root causes of gun violence, the proper function, interpretation and application of the Second Amendment, and what restrictions should apply to the possession and use of firearms.

         Participation in a public anti-gun violence demonstration, organized around an emotional appeal concerning not only a statistical increase in gun violence but also at least one recent high-profile incident involving the death of a local child, could "create an appearance of particular sympathy toward one side in court" and necessarily cast doubt on the judge's ability to be impartial (Opinions 20-92/20-93; 04-91; 17-108; 10-59). This is also important where, as here, the judge may be called upon to preside in criminal matters involving gun violence, as judges must "carefully protect rights of an accused and hold offenders accountable only after a legally sound plea or conviction," even when it may be natural to "feel strong sympathy" for victims (Opinion 15-26/15-44).

         Accordingly, we conclude the inquiring judge should not participate in the described demonstration against gun violence.

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¹The breadth of litigation theories that have been asserted in such matters may also reflect a partisan divide. Gun-control advocates may hope to hold accountable the gun's manufacturer, seller, or owner. Conversely, those who prioritize a constitutional right to gun ownership may focus more on alleged deficiencies in mental health services or other social interventions.