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President's Message: Addressing courthouse security must be a priority

By Brian C. Smith
State Bar of Montana President

As a public defender in state court, I saw what qualified for court security almost every day I went to work. Most days, court security didn’t stand out. It was usually someone from law enforcement filling in as a bailiff, a retired officer, or at times private security. But it wasn’t unusual for there to be no bailiff in the courtroom. It was very rare that I had to pass through a metal detector, or other screening, prior to entering the courtroom. That being said, I always felt like I could bring issues of security to the court’s attention, and the court and law enforcement were very responsive. Throughout my legal career, I have taken court security, or my safety in court, for granted. As courthouse and judicial threats increase, my feeling of safety has changed.
As many know, federal court is a different ball game. The federal courts are set up with security first. In my experience, there was always a bailiff in the courtroom, and I always had to pass through a metal detector. Security was always present and was not dependent upon the case or the litigants. This was also the observation of a legislator from Billings who was a former federal prosecutor. In the 2021 legislative session, a resolution was introduced to examine judicial security. It passed the House 58 to 40. I was a little surprised that 40 people opposed it, but it did pass the House. However, once it reached the Senate, it died in committee, 5-6, and not on party lines. House Joint Resolution 43 was introduced by Rep. Bill Mercer, an attorney and a Republican from Billings, and supported by the Montana Association of Clerks of District Court, the Montana Sheriff and Peace Officers Association, the Montana County Attorneys’ Association, the State Bar of Montana, and the Montana Judges Association. It appears the Judiciary Committee had some concern the resolution would require several studies which would have added to the workload. During the hearing, questions were asked about examples of security concerns. While it is true, we don’t have a reported horror story to point to, we have been extremely lucky. Other court participants, in other states, have not been so lucky. Most feel like it isn’t if Montana has one — it really is when. My concern is that we are closer to “when” than we have ever been. It will be too late when we have that example of a horror story. 
Even without the resolution, there are steps being taken to hopefully prevent the worst-case scenario. In 2020, the State Bar created a working group to explore critical issues of court security, which gathered baseline data regarding attorneys’ experiences with courthouse security, and provided that information to the Office of the Court Administrator. The District Court Council is reviewing the information and may be making state-wide security recommendations this spring. This is only the beginning. It will take the cooperation of many stakeholders to solve the security issues currently pervading state courts. It will require a commitment from law enforcement, the ones in charge of local court security, to make security a priority. Although events in the courtroom have increasingly become politicized, court security has no place in politics. Everyone needs to be at the table, including civil practitioners and others not regularly in court. Even if you haven’t been in court in years, this issue needs your attention. Now is the time for everyone to be involved in the court security discussion.
Everyone who goes to court, works in court, is a juror, a clerk, a witness, a court reporter, a lawyer, a judge, or is just watching court, deserves to feel safe in the courtroom or courthouse. This can be a challenge because court is the place where we go to resolve disputes. Emotions run high. If we don’t study the security problem and implement positive improvements, litigants may be less likely to take their problems to court to solve them and instead “solve” them outside court. 
Courts are vital to our system of government. Issues that destabilize the courts, like court security, make our entire system weaker. Safety in court is a no-brainer. The issue will require an investment of time and money, but it will be worth it. We can’t afford not to make court security a priority.

Brian C. Smith is a longtime criminal defense attorney from Missoula who currently serves as Public Defender Division administrator with 
the Montana Office of State Public Defender.