Texas Prosecutor, January-February 2019

How can we make our courthouses safer?

Like many of those in the working world, getting to your desk becomes the most routine exercise of your day. Maybe you travel the same roads, park in the same general area, and enter through the same door every day. Fueled by coffee, your day is on track to be a rinse-and-repeat experience. But what happens when you miss a warning sign, ignore your intuition, or just flat-out forget to be observant? Failure to address Texas’s courthouse security flaws has led to numerous incidents of violence during the last decade from both internal and external actors.
    Although being a government employee has many benefits, workplace safety isn’t always one of them. Workplace violence against government employees is three times greater than in the private sector. From 2002 to 2011, about 96 percent of workplace violence against government employees was against state, county, and local employees, who made up 81 percent of the total government workforce.1 Ultimately, meeting the requirements of open government slows the implementation of stricter security policies and practices in comparison to the private sector. Add in the factors of budgetary restrictions and securing courthouses in the digital age, and achieving a safer work environment becomes a true uphill battle.  
    So why can’t we learn from the tragedies others have experienced and justify the security expenditures that our jurisdictions so desperately need? Oversaturation of security issues now impacts the public places we travel, the schools our children attend, and our workplaces. This increase in the number of societal focal points has led to a level of indifference among the governing members of the community with regards to focusing funding toward courthouse security. The “it’s not going to happen here” mentality still reigns supreme in many Texas counties. However, the occurrence of several high-profile incidents over the last 15 years shows just how pervasive courthouse tragedies have become.   
•    In Smith County on February 24, 2005, David Hernandez Arroyo, Sr., opened fire in front of the courthouse with a semi-automatic AK-47 rifle, killing his ex-wife and wounding his son. A downtown resident, Mark Alan Wilson, attempted to intervene but was shot dead. Arroyo was fatally shot by police after a high-speed pursuit.
•    In Kaufman County in 2013, Eric Williams shot and killed Assistant CDA Mark Hasse in January in the courthouse parking lot. Williams later murdered CDA Mike McLelland and his wife, Cynthia, in a home invasion-type assault in March of that year.
•    In Travis County on November 6, 2015, Chimine Onyeri opened fire on Judge Julie Kocurek, who was shot and seriously wounded in the driveway of her home in Austin.
•    In Baytown on April 3, 2017, William Kenny shot and killed Harris County Pct. 3 Assistant Chief Deputy Constable Clinton Greenwood in the parking lot of a Harris County annex courthouse.

Liability considerations
If protecting human life does not provide a persuasive enough reason to prompt change, then perhaps financial hardship is a consequence a jurisdiction may consider. Weighing the cost of security upgrades with that of future liability is a balancing act that each governing body should contemplate as a part of its risk management strategy. Don’t let the lack of caselaw mislead you: Like many areas of civil litigation, most suits related to security incidents are resolved through settlement.  
    Two high-profile security incidents offer readily available and recent examples of impressive settlement figures. Specifically, Fulton County, Georgia, suffered a heartbreaking attack in 2005, resulting in the killing of a judge and a court reporter inside the courthouse and two additional murders outside the courthouse.2 A settlement of over $10 million was approved by the Fulton County Commissioners Court. A closer-to-home example includes the settlement reached in the Judge Kocurek case referenced above.3 In this settlement, the Travis County Commissioners Court agreed to pay Judge Kocurek $500,000 for the 2015 incident.
    Two causes of action should be explored to limit liability: 1) 42 U.S.C. §1983 federal suits and 2) premises liability claims under the Texas Tort Claims Act (both special defect and premise defect claims). Most §1983 suits regarding security incidents will focus on 14th and 4th Amendment violations. Typical 14th Amendment violations revolve around negligence related to personnel—failure to train, failure to direct/supervise, failure to protect, or negligent hiring/retention4—whereas suits based on 4th Amendment violations involve excessive or improper use of force by law enforcement officers. Section 1983 suits are especially concerning to a jurisdiction because there is no damages cap. A successful plaintiff may recover a broad range of both compensatory and punitive damages, as well as potentially recovering attorney’s fees. Compensatory damages are particularly concerning regarding physically injured plaintiffs, as these damages may include costs of medical care and supplies, lost wages (i.e., back pay and lost future earnings), physical pain and suffering, emotional pain and suffering, and disability/loss of normal life.
    Texas, like many other states, grants citizens the right to sue the state, cities, and/or counties under the Texas Tort Claims Act.5 The act provides for premises liability. “Defects” are qualified into two classes: 1) special defects and 2) premise defects. If the defect is a premise defect, the plaintiff must additionally prove actual knowledge of the defect on the government entity’s part before the injury occurred. Recent cases have attempted to use the Texas Tort Claims Act to prove a failure to warn, failure to make safe, or failure to implement adequate security.6 However, showing that the plaintiff was injured by the condition or use of real or personal property—and that the property was not just a backdrop for the incident—is challenging. The act’s notice of claim requirements should be followed strictly, as a plaintiff has only 180 days from the date of the incident to send adequate notice.7 Finally, note that Texas has capped money damages in a maximum amount of $250,000 for each person and $500,000 for each single occurrence for bodily injury or death.8

Senate Bill 42: the legislature’s best intentions
Senate Bill 42 was passed by the Texas Legislature during its 85th Regular Session (2017). Entitled the Judge Julie Kocurek Judicial and Courthouse Security Act, the bill represents the legislature’s reaction to the assassination attempt against Travis County District Judge Kocurek and takes important steps forward in meeting the state’s courthouse security needs. Prior to the bill passing, the Office of Court Administration (OCA) sent a court security survey to judges across the state to investigate the status of judicial security. The survey’s findings indicated an urgent need for counties to implement security plans, training, and incident reporting standards. SB 42 provides for these initiatives and several more regarding safety for judges and their families.
    SB 42’s four main initiatives:
•    amends Tex. Code Crim. Proc. Art. 102.017(f) to say that a written report is required regarding any incident involving court security that occurs in or around a building housing a court to be filed with the OCA no later than the third business day after the incident occurred. The presiding judge of the court in which the incident occurred must receive a copy. The report is confidential and exempt from disclosure under Chapter 552, Government Code (Open Government).
•    amends Tex. Gov’t Code §51.971 to include a $5 fee on the filing of any civil action or proceeding requiring a filing fee. The fee may provide for: 1) continuing legal education for prosecuting attorneys and their personnel, 2) innocence training for law enforcement officers, law students, and 3) court security training programs for individuals responsible for providing court security.9
•    amends Tex. Gov’t Code Ch. 158 to provide that a person may not serve as a court security officer unless the person holds a court security certification issued by a training program approved by the Texas Commission on Law Enforcement (TCOLE).
•    amends Tex. Gov’t Code §74.092 to require the local administrative judge to establish a courthouse security committee and adopt security policies and procedures.

Courthouse security committees
While being on a committee is not always everyone’s favorite task, SB 42’s committee mandate actually proves to be a great way to bring awareness to your community regarding security issues. First, the committee brings together the right players and courthouse stakeholders—those who represent law enforcement, the judiciary, and the county’s purse strings. Specifically, the statute mandates the following six individuals make up the committee: 1) the local administrative judge, who chairs it; 2) a representative of the sheriff’s office; 3) a representative of the commissioners court; 4) one judge of each type of court in the county other than a municipal court or a municipal court of record; 5) a representative of any county attorney’s, district attorney’s, or criminal district attorney’s office that serves in the applicable courts, and 6) any other person the committee determines necessary to assist the committee.
    Regarding the final “wild card” committee member, consider appointing a human resources representative. Not only do employees need routine training and support, but they also represent a concern group for internal threats of violence. By appointing a committee member who deals with employee-related issues, you obtain insight into current personnel issues and brewing conflicts or controversies.
    The committee’s official purpose is to “establish policies and procedures necessary to provide adequate security.” Because the committee may not direct the assignment of resources or expenditure of funds, sharing the committee’s concerns and security needs with the commissioners court is crucial to implementing any changes—and it should ideally be done prior to the county’s annual budget adoption.

Third-party resources
Kaufman County’s Courthouse Security Committee chose to adopt an annual report, going beyond just adopting a general security policy.10 Since when is adopting a longer report preferable? Keep in mind that it is highly likely that your sheriff’s office already has an operational “courthouse security policy” document. By incorporating the sheriff’s policy, discussing the current security needs, and then making recommendations, our county’s committee could generate a more useful and comprehensive report. Courthouse security is a complex topic, and usually people have quite a bit to say regarding it. How you say it—and the persuasiveness of your recommendations—become incredibly important during the budget process and when dealing with the public or media.
    Additionally, using multiple resources to justify security expenditures will help overcome political biases and strengthen the committee’s report. Kaufman County’s committee utilized data from several third-party sources. Below are some example resources that may prove useful to bolster your own committee report.
    A historical courthouse master plan. A master plan must be complete to participate in the Texas Historical Courthouse Preservation Program.11 These architectural plans are extremely comprehensive and show structural vulnerabilities and building integrity issues that will impact security. Note that the Texas Historical Commission (THC) plans to request additional funding from the 2019 Legislature and continues to accept applications for preservation projects. THC does consider security upgrades as a part of its preservation initiatives.
    The Office of Court Administration’s (OCA) Court Security Division Incident Reporting. OCA provides useful data compilation regarding incident reporting.12 OCA anticipates a significant rise in reported incidents post-SB 42 as Texas courts become more efficient at reporting.
    The Department of Justice United States Marshals Service security survey of the Kaufman County Courthouse (April 12, 2013). This study was performed after the prosecutor murders in Kaufman County; however, OCA’s court security director, Hector Gomez, has been assisting counties with obtaining their own security surveys as a proactive measure. Contact Mr. Gomez for more information.13
    City of Kaufman Fire Marshal’s Office Occupancy Study. Due to privacy concerns, the Kaufman County committee redacted sections of its full report to generate a summary so that the committee’s findings and recommendations could be shared as a part of its public information campaign. The summary report was presented to the commissioners court during its budgetary process. In the event that your commissioners court has additional questions that touch on private security concerns, there are two viable ways for the court to enter into an executive session regarding security audits pursuant to the Texas Open Meetings Act.14
    Finally, distribution of the committee’s summary report and the officially adopted “courthouse security policy” to each law enforcement stakeholder must be a priority. Kaufman County’s law enforcement positions tend to overlap, such as CDA investigators who are sometimes asked to perform general security duties and the duties of bailiffs. Making sure that each law enforcement officer who carries a weapon and would be a first responder has a copy of the plan is crucial. You want law enforcement officers to “speak the same language” during a security incident, which means that having the same training and protocols is essential. Additionally, armed prosecutors should consider and address their own responsibility to engage in security training.  

Threat Assessment Team
Making your courthouse security initiatives proactive and not just reactive should be a very important cause to your courthouse security committee. During the course of multiple committee meetings, it became apparent that simply adopting a policy would not provide a blanket fix to our county’s security issues. First off, many security concerns occur without ever manifesting into an actual reportable incident. To deal with these types of high-risk situations, the committee explored the creation of a courthouse Threat Assessment Team (TAT). Kaufman County’s TAT is also responsible for training and employee-support issues. The committee specifically recommended that training be provided immediately to law enforcement and courthouse employees regarding armed shooters, prisoner escapes, medical situations, hostage situations, explosive devices, fire evacuations, and severe weather.
    The primary goal of any TAT is to proactively assess the conditions, policies, and procedures of the organization to prevent or reduce the chances that a potentially violent situation will occur. The TAT identifies threat-makers, assesses risk, and recommends a risk abatement plan—all of which are preemptive measures intended to increase communication about potential threats and reduce incidents from occurring. Members on the Kaufman County TAT consist of: 1) courthouse security supervising sheriff’s deputy; 2) the chief investigator from the CDA’s Office; 3) a human resources representative, and 4) a City of Kaufman Police representative.  

Encouraging creativity in security solutions
It is up to your county to create a courthouse security model that fits the challenges facing your own community. We offer the Kaufman County model as one idea to share with your community’s planning efforts. It is by no means perfect, but it does move the county forward by taking steps to increase safety and encourage community leaders to recognize the cost of tragedy. Courthouse violence is not dependent on your location or population size and can truly occur anywhere at any time. Like any piece of legislation, SB 42 doesn’t come close to solving this multifaceted issue, but it does provide a vehicle to kick-start security initiatives for your courthouse. Whether those initiatives are compiling a comprehensive security report, creating a TAT, or reaching out to third-party resources, just remember to get creative and encourage new answers.

Endnotes

1  Erika Harrell, Bureau of Justice Statistics, Workplace Violence Against Government Employees, 1994-2011, (April 2013), www.bjs.gov/content/pub/pdf/ wvage9411.pdf.

2  Atlanta Courthouse Shootings Fast Facts, CNN (Mar. 6, 2018), https://www.cnn.com/2013/10/31/us/atlanta-courthouse-shootings-fast-fact...

3  County agrees to settlement with Judge Kocurek over 2015 attack, KVUE (Jan. 31, 2017), https://www.kvue .com/article/news/investigations/defenders/county-agrees-to-settlement-with-judge-kocurek-over-2015-attack/269-393652590. 

4  Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992); Thompson v. Upshur Cnty., 245 F.3d 447, 459 (5th Cir. 2001); Rocha v. Potter Cnty., 419 S.W.3d 371, 381 (Tex. App. 2010); Dorris v. County of Washoe, 885 F. Supp. 1383 (D. Nev.1995).

5  Tex. Civ. Prac. & Rem. Code §101.021.

6  Tex. S. Univ. v. Mouton, 541 S.W.3d 908, 916 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

7  Tex. Civ. Prac. & Rem. Code §101.101.

8  Tex. Civ. Prac. & Rem. Code §101.023.

9  Tex. Gov’t Code §56.004.

10  Contact Kaufman County Criminal District Attorney’s Office for a copy of the report.

11  Tex. Historical Comm’s, How to Participate, http://www.thc.texas.gov/preserve/projects-and-programs/texas-historic-c... (last visited Oct. 26, 2018).

12  Tex. Judicial Branch, Court Security, http://www.txcourts.gov/programs-services/court-security/court-security-... (last visited Oct. 26, 2018).

13  Mr. Gomez can be reached by phone at 512/463-1679 or e-mail at [email protected]. More information about the Court Security Division is available at txcourts.gov/programs-services/court-security/.

14  See Tex. Gov’t Code §§551.076, 551.089.