The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In June, I blogged about an unusual case. A U.S. District Court judge held in contempt several U.S. Marshals. The dispute, which always seemed murky to me, centered around the Marshals' refusal to disclose their vaccination status. And the judge required everyone in his courtroom to be vaccinated. As a result, the Marshals removed several prisoners from the courtroom, because the Marshals were not in compliance with the judge's policy. The Marshals were then held in contempt. The United States refused to prosecute the contempt case. The district court judge appointed a special prosecutor, then recused. The case was then assigned to another district court judge.
On Thursday, the new judge dismissed the case. Here is, I think, a good summary of the case:
The United States District Court for the District of South Dakota made clear to the USMS that the Court, including Judge Kornmann, expected any United States Marshals who appeared in courtrooms in the district to be vaccinated for COVID-19. Despite the Court's clear and explicit instructions, the USMS for the District of South Dakota provided a U.S. Marshal in Judge Kornmann's courtroom who refused to state—due to USMS policy or otherwise—whether she was vaccinated. This act of defiance of the Court's instructions set up the dispute that led us here today. Subsequent to this incident, the President of the United States, pursuant to Executive Order 14043, has ordered that all U.S. Marshals be vaccinated for COVID-19.
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.
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.
The U.S. Marshal Service determined that it could not comply with its own statutory mandate, during a difficult time.
At bottom, I think there was a failure of communication, that escalated rapidly. Indeed, the entire case had significant separation of powers concerns:
Additionally, the Court feels obligated to consider what, by all accounts, is really going on here: a policy dispute between two branches of government. See, e.g., Filing 1 at 6; Filing 46 at 2-8; Filing 49 at 1-2; Filing 44 at 2. As prudently noted by Justice Stevens, "there are a variety of mechanisms that should be used before the marshals and the courts engage in judicial combat." Penn. Bureau of Correction, 474 U.S. at 51 (Stevens, J., dissenting). Clearly, some of those "mechanisms" were skipped here. Given the concession by all involved that the conflicting desires and policies of the USMS and the Court regarding COVID-19 and court security precipitated the events in this case, it is wholly unjust to place the blame solely on these named defendants by trying them for contempt. Further, the public is best served by the Court and the USMS attempting to resolve their differences through the mechanisms available to them short of contempt proceedings.
Thankfully, this brewing separation of powers dispute has come to a close.