Ability of School Employees to Carry Weapons Affected by Ohio Supreme Court Decision
The Gabbard decision was announced on June 23, 2021 by the Ohio Supreme Court. (Gabbard v. Madison Local Sch. Dist. Bd. Of Edn., Slip Op. No 2021-Ohio-2067)
After a 2016 school shooting in the district in which a student emptied a gun in school injuring several students, the school board acted in 2018 to adopt a “firearm authorization policy,” which allowed the superintendent to designate up to ten teachers to carry concealed weapons while in the course of their duties. The Board also required the designated employees to possess a concealed handgun license, twenty-four hours of training in active shooter response, training on mental preparation to respond to active killers, and a handgun-qualification recertification every year. However, none of the employees had the training required by R.C. 109.78.
Parents sued the school district alleging that it did not comply with Ohio law. The case required the court to analyze the interaction between two Ohio statutes. One statute allows school boards to designate in writing persons authorized to carry concealed weapons on school property, exempting them from criminal penalties for doing so (R.C. 2923.122). The other statute (R.C. 109.78) stated that persons employed as school security officers, special police officers, or other employee goes armed while on duty requires either twenty years’ experience as a police officer or completion of Ohio peace officer training (over 700 hours of training.)
The court analyzed plain terms of both statutes independently. The court found that the language of R.C. 109.78(D) requires any school employee authorized by a board of education to go armed while on duty must meet training-or-experience requirements of that statute. The court rejected the attorney general’s argument (in an amicus brief on the case) that the phrase “other position” in the statute was limited to a position that is a law enforcement or school security function, stating:
While school employees may volunteer to be designated to carry a weapon pursuant to the resolution, the application of R.C. 109.78(d) is not dependent upon an employee being hired particularly for the purpose of carrying a weapon. As we have already stated, the statute does not tie application of the training-or-experience requirement to the duties of an employee’s position. That an employee might have been hired to teach, to coach, or to perform other primarily nonsecurity functions does not alter the fact that an employee who carries a weapon while performing his or her job “goes armed while on duty. (Slip Op., at ¶21)
The court also found that the ability of school boards to authorize people (including school employees) to carry concealed weapons without criminal liability (R.C. 2923.122) was not an exception to the requirements of the training-or-experience requirements of R.C. 109.78. The court found that the statute simply excludes certain people as designated by a board of education from criminal liability, and does not allow a board to disregard other statutory provisions that apply. The court held:
We conclude that R.C. 2923.122(D)(1)(a) does not clearly constitute a legislative grant of power for school boards to authorize their employees to go armed so long as the employees undergo whatever training a board might deem advisable.” (Slip Op., at ¶33)
The court held the statutes were not incompatible, noting that the training-or-experience statute had been in effect for more than 20 years when the newer written authorization statute was enacted in 1992. The court also noted that policy decisions and the desire or need to amend or reconcile the statutes is within the purview of the General Assembly, not the Ohio Supreme Court. The court went on to state that, “…we bear in mind that the General Assembly likely did not contemplate at the time of those statutes’ respective enactments in 1969 and 1992 that they would address a board of education’s authority to arm its teachers and other school staff for protection against a school shooting.” (Slip Op., at ¶40).
What this means for your district:
First, if your district has authorized any school employee to carry concealed at school, this should immediately cease, unless they meet the training-or-experience requirements of being a police office or having completed the 700+ hours of Ohio peace officer training. Contact us if you have questions about this. Second, the opinion mentions several times the role of the General Assembly in making policy decision or reconciling the statutes’ application. There has been a bill introduced that would do this, HB 99: however, it was introduced in February of this past year, was referred to the House Criminal Justice Committee, and has received no hearings. HB 99 would allow school districts to arm school employees with minimum training requirements, the same as obtaining a concealed handgun license. It is unlikely that this bill will see immediate action.