‘They could well be the most dangerous people in the courtroom’: District Judge on U.S. Marshals in vaccine dispute

KELOLAND.com Original

SIOUX FALLS, S.D. (KELO) — Three members of the U.S. Marshals Service, Marshals Service Chief of Staff John Kilgallon, South Dakota Marshal Daniel C. Mosteller, and deputy South Dakota Marshal Stephen Houghtaling, have been charged with federal contempt of court stemming from a May 10 vaccine dispute at the federal courthouse in Aberdeen.

According to an order filed by United States District Judge Charles Kornmann, the incident began when an unnamed deputy marshal from Sioux Falls brought a prisoner into the courtroom in Aberdeen. “I asked her in the courtroom whether she had been fully vaccinated. She refused to answer and I ordered her to leave the courtroom and not return until I knew the answer to the question,” writes Kornmann.

On March 25, Kornmann sent a memo to all people working or who would be working in the US courthouse in Aberdeen stating that all employees must disclose to him, in writing, their vaccination status. “We are not talking about politics and conspiracies,” he wrote. “We are talking about science and protecting all of us who serve the public here as well as the jurors, lawyers and parties who come to this building.”

Page 11 of Order to show cause marshals
Contributed to DocumentCloud by Jacob Newton (KELO-TV) • View document or read text

In support of his ability to require individuals, including Marshals, to disclose their vaccination status, Kornmann in his order puts forth exhibit 3, a letter from Chief Judge Roberto Lange to Kilgallon which states the following:

Guidance from the Administrative Office of U.S. Courts makes clear: “Inquiring whether an employee has been vaccinated for COVID-19 is not a prohibited disability-related injury.” There is nothing in the Health Insurance Portability and Accountability Act preventing us from learning vaccination status of employees.

Chief Judge Roberto Lange

Kornmann says that after being ordered to leave the courtroom on the 10th, the deputy attempted to remove the prisoner from the room, but was told to leave him there. “The refusing officer was very discourteous and frankly had to be told that she was bordering on contempt of court,” Kornmann continues.

The deputy left the courtroom, and the morning portion of the hearings began. Kornmann says it was when they went to begin the afternoon portion of the hearings that the problem occurred.

When ready to conduct the p.m. hearings, we learned that the Marshals Service had left the courthouse with the prisoners, without telling the Court or the assistant U.S. Attorney present, or the attorneys for the defendants scheduled for hearings, making it impossible for the Court to conduct the hearings long ago scheduled.”

Judge Charles Kornmann

Kornmann in his order charges that the U.S. Marshals Service retaliated by “kidnapping” the criminal defendants as a result of him ordering the deputy marshal to leave the courtroom. In doing so, Kornmann says the Marshals committed both in-court contempt and out-of-court contempt, interfered with the judicial process and caused the defendants who were removed to be in violation of a court order to appear.

As part of his order, Kornmann presents a transcript of the call between himself and Houghtaling on the May 10. In the call, Houghtaling tells Kornmann that the Marshals Service ordered the removal of the prisoners due to the exclusion of the marshal from the courtroom, saying that it is their policy that marshal deputies are required to be physically in the courtroom during proceedings, and that without the deputy in the room, they cannot safely provide security for the hearing to take place.

The US Marshals Service, on behalf of Kilgallon, Mosteller and Houghtaling filed a response to Kornmann’s order saying that charges of contempt are unwarranted. In addition to stating that the Court’s ‘show cause order’ is not specific enough in some aspects, their response also reiterates Houghtaling’s reasoning that the removal of defendants was due to security reasons.

(T)he evidence will show that the Marshals Service did not temporarily remove the criminal defendants from the courthouse to obstruct the administration of justice or retaliate against the Court for its decisions on how to conduct its proceedings. Rather, the Defendants acted in compliance with their statutory mandate to ensure the physical safety and security of individuals in a federal courtroom, specifically the Court, its personnel, litigants, and members of the public.

Official Capacity Defendants’ Response

Kornmann says in the filing that he does not believe the policy of requiring marshals to be present has ever been followed in Aberdeen. “If there is or was such a policy, it has rarely been followed here,” he writes.

During the phone call between Kornmann and Houghtaling, the transcript shows that the judge told Houghtaling that the Marshals Service could send new marshals who were fully vaccinated, to which Houghtaling explained that it was the Marshals Service policy that employees do not have to disclose vaccination status, and that he does not know the status of their employees’ vaccinations.

This claim by Houghtaling is supported by the letter from Lange to Kilgallon, cited by Kornmann, in which Lange states that it is his understanding that, at least in the District of South Dakota, the US Marshal does not know which deputies are or are not vaccinated. He does note, however, that the US Marshal believes that 30% of the deputies declined vaccination, despite having early access as members of the law enforcement community.

In his order, Kornmann discussed the importance of his requirements and the concerns he has about the Marshals Service policy on vaccinations. “I had always thought that the principle responsibilities of the Marshals Service was the protection of the federal judiciary,” he writes. “As it stands now, they could well be the most dangerous people in the courtroom — I do not know the answer to that as I have no information since deputies, with the encouragement and full support of their supervisors, are refusing to tell me whether they have been vaccinated or not.”

I had always thought that the principle responsibilities of the Marshals Service was the protection of the federal judiciary. As it stands now, they could well be the most dangerous people in the courtroom in a given case.

Judge Charles Kornmann

You can view the full copy of Kornmann’s show cause order here:

The trial had initially been set for Sept. 13 in Aberdeen, but will now begin Dec. 14 in Sioux Falls. A scheduling and case management order issued by the court states that the change in venue will be more convenient for the defendants, the majority of counsel, the Court, and potentially any witnesses.

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