The constitutionality of an ordinance regarding security at the Kosciusko County Justice Building was questioned at the commissioners meeting Tuesday.
On Aug. 15, the commissioners unanimously approved the ordinance, requested by the county’s judges, that says the county’s judges have authority under Indiana law to regulate their courtrooms and the commissioners have authority to regulate the security of the Justice Building. The ordinance states that no person, other than law enforcement officers, elected officials, officers of the court and authorized security personnel for the Justice Building shall possess within the Justice Building any deadly weapon as defined by Indiana code.
“Except as otherwise authorized by one of the judges and except for law enforcement officers, elected officials, officers of the court, authorized security personnel for the Justice Building, and employees or contractors of the county or the state of Indiana that are conducting official business: No person shall use a device to record audio or video or to take pictures in the Justice Building, except at a public meeting governed by Indiana’s Open Door Law ... and no person shall possess or use a mobile phone on the second floor of the Justice Building,” the ordinance states.
A violation of the weapon or phone ban may result in a fine of up to, but not more than $2,500 for a first violation and up to, but not more than, $7,500 for a second or subsequent violation.
No person shall bring food or drink into the Justice Building, except for persons that work in the building, according to the ordinance. A violation of the food and drink ban may result in a fine of up to, but not more than $100 for a first violation and up to, but not more than, $250 for a second or subsequent violation.
At Tuesday’s commissioners meeting, Matt Banta, of Warsaw, said he was a “big First Amendment auditor/advocate.”
“And it started to just kind of creep in my mind that I wanted to know about my county. I want to know how prepared we are because I don’t want to see a frivolous lawsuit because a public employee does not know how to address a camera,” he said. “So I started to call around to find out what training was like for the city and county, and I got a lot of headscratching. People didn’t know. Ended up talking with one lady who said, ‘I just saw an ordinance pass that might have something to do with what you’re looking at.’”
Banta said he read the ordinance and was “absolutely shocked” because in his mind it seemed to fly in the face of the U.S. Constitution.
“In a public building that my tax dollars pay for, I can get a $2,500 ticket for walking in the courtroom to record making a child support payment, to record a fiancee and I getting engaged and signing the paperwork. It’s a $2,500 ticket for that; $7,500 if I do it the second time,” Banta said.
He questions the constitutionality of that.
The second part of the ordinance that bothers him, he said, is the outlawing of phones at all on the second floor.
“It seems to me, through reading this ordinance, that the first part of it - the judges knowing that they have control of their courtrooms but nothing outside of the courtrooms - decided to hand the responsibility to the commissioners to protect the building. And in protecting the building, what they’ve done, in my mind, is they’ve absolved themselves of the responsibility and put it on you guys, which I think is unfair,” Banta said.
He said he previously contacted all three of the commissioners and each of them responded.
“So, what I’m looking for out of this is, why was the ordinance passed in the first place? What was its intentions? I don’t like the unable to record in a public building. Even the Department of Homeland Security put out a memo in 2018 that says it’s absolutely legal to record inside and outside federal buildings as long as you’re standing in a place where you’re legal to be,” Banta said.
He said there can be restricted areas, the judge can control his/her courtroom, but in his mind a judge needs to handle the courtroom on an individual basis.
“You do not make the county citizenry pay for individuals who do not know how to behave in a courtroom. You tell them what they’re doing is wrong, you fine them, you jail them. But you don’t take it out on me,” he said.
Banta stated he had a lot of questions that he would like to get answered.
Commissioner Brad Jackson said he appreciated Banta coming in.
Commissioner Cary Groninger thanked Banta for bringing his concerns to their attention and said it was something they are looking at and trying to sort out. He said they’re meeting with the county department heads and having conversations about the ordinance and its implications. “We’re making sure we come up with something that makes sense,” Groninger said.
Banta said the ordinance seemed like a First Amendment violation on the first floor of the Justice Building, but to outlaw cell phones completely on the second floor where there’s a public lobby and conference rooms that seemed like a Fourth Amendment violation because it deprives him of his property.
“If I want to go upstairs to support somebody that’s going to court and sit in the lobby and play games on my phone, text message, all that, completely legal. You take my phone away from me, that feels like a lawsuit and I don’t want to see that happen in our county,” Banta stated.
Commissioner Bob Conley said Banta was correct in that the judges have autonomy over their courtrooms.
“But we are given the responsibility to keeping people safe, and there’s more than one way to keeping people safe. One is keeping the security people at the front door, the things that they do to keep people safe,” Conley said. “These other things you’re mentioning about your constitutional rights, is that they have a right to do these things as long as they’re done properly, decently and in order. You also mentioned restricted areas, and that’s pretty much what that second floor is. It’s for people who have to go there, do business and eventually, possibly be testifying in court, be a witness in court. So we need to protect their rights.”
He said a person could use their cell phone to take a photo of someone who testified in court and then plaster it all over social media. While they have a right to do that, Conley said they need to do that outside of a restricted area.
“We feel that those people who go there for that purpose should leave feeling that they’re safe and secure from that invasion of possibly being used in that clandestine manner or in some other way,” Conley stated.
As for the fines, he said any judicial or penal system has them and their purpose is to deter that unwanted activity. Conley said the ordinance can be changed by the commissioners if they feel it’s necessary.
Jackson said he appreciated Banta bringing the ordinance up because he agrees there are things in it that needs to be reviewed. He said because it’s government, he shouldn’t expect an answer in two weeks but encouraged him to wait.
“I have some things that I have a problem with that I want to see changed. We’ll see what you think about that. I’m doing it more because I feel it’s the right thing to do,” Jackson said.
Banta said the second clause needs to be eliminated altogether and the fines were “absolutely ridiculous.”
Banta said he heard Kosciusko’s ordinance was copied off what other counties are doing. He asked county attorney Ed Ormsby if it’s been challenged in any federal circuit court. Ormsby said it hasn’t. Other counties that have similar ordinances include Marshall, DeKalb, Allen and Whitley and they have not been challenged.
“The constitutionality of the ordinance is such that there are reasonable restrictions that are allowed under the Constitution when we’re dealing with security where courthouses are located. And what the ordinance does is it makes exceptions for recordings that are governed by Indiana Open Door Law. So those exceptions are made and reasonable restrictions are made,” Ormsby said, adding that there may be tweaks that will be made to the ordinance that suit the public and county employees.