Marshals Naughty But Not Punished for Contempt After Refusing Kornmann’s Vaccine-Disclosure Order

The United States Marshals who defied U.S. District Judge Charles Kornmann’s coronavirus safety protocols in May will face no judicial penalty, not because they did not express clear contempt for the Court, but because the contempt complaint was misdirected and because President Joe Biden’s requirement that all federal employees get covid-19 vaccines has mooted Judge Kornmann’s complaint.

In a ruling issued Wednesday, U.S. District Judge Brian C. Buescher dismissed all charges, but not before he made clear that the Marshals’ refusal to follow “the Court’s clear and explicit instructions,” in contravention of “the primary role and mission of the United States Marshals Service to provide for the security and to obey, execute, and enforce all orders of the United States District Courts,” was “unbecoming of the Service”:

This Court concludes the USMS, by directing its employees that they could refuse to state whether they were vaccinated for COVID-19 in a federal courtroom upon inquiry by a federal judge, and by removing prisoners ordered to be present for hearings without informing the presiding judge, acted in a manner unbecoming of the Service [Judge Brian C. Buescher, Memorandum and Order, United States of America v. Kilgallon, Mosteller, and Hougtaling, 2021.11.10, p. 2].

Judge Nuescher says in a footnote that he concludes that Judge Kornmann can require the USMS to “provide a marshal willing to disclose his or her vaccination status.” However, Judge Buescher concludes that since Judge Kornmann based his contempt charge on the Marshals’ removal of prisoners from the Aberdeen federal courthouse rather than on the specific defiance of his vaccine disclosure requirement, the Marshals can excuse their wrong-headed action by appealing to their security mission:

Although this Court believes the USMS failed in their duty to handle delicate matters like this with the grace and dignity expected of and normally displayed by the USMS, the question before the Court is not the good or poor judgment of the USMS but whether three members of the USMS must face a criminal trial over this incident. This Court concludes that the criminal contempt citation against the three defendants should be dismissed.

Judge Kornmann did not base his contempt charges on a failure to disclose vaccination status in his courtroom, nor did he hold the marshal who was in his courtroom that day in contempt. Rather, Judge Kornmann cited the defendants for ordering or allowing the removal of the prisoners despite his scheduled hearings. The marshals removed the prisoners from the Aberdeen courthouse after the USMS determined that they could not have at least one marshal in Judge Kornmann’s judicial proceedings the day of the incident and the following day as required by long-standing policy. However, the USMS admittedly came to this conclusion based upon their flawed determination that they had no obligation to provide a marshal who was willing to disclose his or her vaccination status when appearing in a U.S. District Court courtroom proceeding when so directed by a federal judge.

Although the USMS is obligated to obey Court orders such as those having incarcerated defendants present for hearing, 28 U.S.C. § 566(i) states that the USMS “retains final authority regarding security requirements for the judicial branch of the Federal Government.” The USMS concluded they could not securely produce incarcerated persons for hearings in front of Judge Kornmann under the circumstances, given their internal policies and rules at the time. The defendants therefore cannot be tried for contempt of court on the charges levied [Buescher, 2021.11.10, p. 3].

While allowing the Marshals to escape punishment, Judge Buescher does not let them escape blame for unnecessarily provoking conflict:

While securing prisoners is undoubtedly a critical task in ensuring court security, the USMS’s actions demonstrate it did not hold a similar high regard for the health and safety of Court participants when it came to the COVID-19 pandemic. Additionally, while the Court went to great lengths to make its concerns about COVID- 19 and its policy regarding vaccination and vaccination-status disclosure well-known, it appears the USMS did not return the courtesy of preparing in advance to avoid conflict and strife. The incident in Judge Kornmann’s courtroom on May 10 could have and should have been averted had the USMS been more proactive, cooperative, and communicative with the Court [Buescher, 2021.11.10, pp. 21–22].

But the point of punishing the defendants for contempt of court is to deter them from further contempt. In this case, Judge Buescher says the Court’s “need to vindicate its authority through punishment has abated” because the Marshals now face the President’s vaccine mandate and because the Marshals have complied with subsequent coronavirus-related court orders:

…on September 9, 2021, President Biden issued an executive order mandating vaccination for all federal employees. Exec. Order No. 14043, 86 FR 50989 (Sept. 14, 2021). Thus, any issues with unvaccinated USMS personnel being in the courtroom should soon become a thing of the past, and much of the underlying COVID-19 policy dispute that led to this matter has been resolved. Further, there is no suggestion that the USMS has failed to comply with any of the District of South Dakota’s subsequent orders regarding the pandemic. See, e.g., Standing Order 21-07 N (Judge Kornmann’s order that unvaccinated personnel and personnel whose vaccination status is unknown must wear N-95 masks or double mask issued May 26, 2021). Finally, as a result of this case, the contours of the USMS security requirements should be well understood by all involved, which will allow personnel from each branch to work towards solutions that are mutually satisfactory. The likelihood of a situation like this one occurring again is low [Buescher, 2021.11.10, pp. 22–23].

Thus, no trial, no penalties, case closed.

Consider yourselves lucky, Marshals. Now if you haven’t already, go get your shots.

Related Requirements: Per Amended Standing Order 21-6, issued by South Dakota’s chief U.S. District Judge Roberto A. Lange on August 4, 2021, masks are optional in common areas of any federal courthouse or probation office in South Dakota only for fully vaccinated individuals, and only in counties that are not experiencing substantial or high covid-19 transmission. The four counties which host federal courthouses—Minnehaha, Brown, Hughes, and Pennington—all currently show substantial (not high!) coronavirus transmission. Court Security Officers must stop individuals meeting any of the following conditions from entering the courthouse, meaning CSOs must ask and individuals must respond to questions about vaccination status:

• has contracted the covid-19 virus and has not fully recovered for a period of at least 14 days;
• is unvaccinated and has had contact within the past 14 days with someone who has contracted the covid-19 virus;
• has been directed to self-quarantine by any doctor, medical provider, hospital, or health agency;
• has a fever (by CDC guidelines, a temperature greater than 100.4); or
• is unvaccinated and has traveled internationally within the past 14 days [Judge Roberto A. Lange, Amended Standing Order 21-6, 2021.08.04].