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Teachers, Staff Must Have Peace Officer Training or Experience to be Armed at School

Ohio school teachers, administrators, and staff members are not permitted to carry firearms while on duty unless they have completed basic peace officer training or have had 20 years of experience as a peace officer, the Ohio Supreme Court ruled today.

In a 4-3 decision, the Supreme Court struck down a 2018 Madison Local School District Board of Education “firearm authorization policy” that allowed up to 10 designated employees who held  concealed-handgun licenses and met other training requirements to carry concealed weapons in a school safety zone.

A group of parents challenged the Butler County school district’s decision, which was drafted in the wake of a 2016 shooting at Madison Junior-Senior High School that wounded four students.

Writing for the Supreme Court majority, Chief Justice Maureen O’Connor stated a school employee must meet the training-or-experience requirements that apply to those persons employed by schools as special police officers or security guards if the employee “goes armed” during the time the employee is performing job duties, whatever those duties might be.

Justices Michael P. Donnelly, Melody J. Stewart, and Jennifer Brunner joined the chief justice’s opinion.

In separate written dissenting opinions, Justices Sharon L. Kennedy, Patrick F. Fischer, and R. Patrick DeWine maintained that the peace officer training specified in R.C. 109.78(D) does not apply to teachers and school staff, but only those employed “in a police capacity.” The dissenting justices asserted that Madison Local, relying on the Ohio attorney general’s legal interpretation, properly invoked its authority under R.C. 2923.122(D)(1)(a) to grant written authorization for designated individuals to possess deadly weapons in a school zone.

The Court’s majority opinion affirmed the Twelfth District Court of Appeals’ March 2020 split decision that blocked the policy from taking effect. Chief Justice O’Connor noted in the opinion that House Bill 99 is pending in the General Assembly and the bill, as introduced, specifically expresses its intention to overrule the Twelfth District’s decision.

Communities React to Rise in School Shootings
The majority opinion notes that a recent study reported that between 2009 and 2019, 180 school shootings occurred in the United States, including the one at Madison Junior-Senior High. In the wake of the 2012 massacre at Sandy Hook Elementary School in Connecticut, proposals have been made to arm teachers and other school staff to protect students.

In 2013, more than 30 states introduced legislation to arm teachers and school staff, and at least seven states passed laws to that effect. Ohio was not one of them. But the Ohio attorney general at the time, Mike DeWine, who is now governor, stated in a 2013 letter to the chairman of the Buckeye Firearms Association that Ohio law would allow a local school board to arm an employee without requiring peace officer training. Only those employees whose duties rise to the level of “security personnel” required training, the letter stated. The statutes the attorney general cited in support of that opinion were R.C. 109.78(D) and R.C. 2923.122(D)(1)(a).

R.C. 109.78(D) states a public or private educational institution or the superintendent of the state highway patrol shall employ as a “special police officer, security guard, or other position in which such person goes armed while on duty” only those who have completed an approved basic peace officer training program or have 20 years’ experience as an active-duty peace officer. The law was adopted in 1969.

In 1992, state lawmakers enacted R.C. 2923.122, which makes it a criminal offense to carry a deadly weapon into a school zone or to possess a deadly weapon in a school zone. R.C. 2923.122(D)(1)(a) provides an exemption, excluding from criminal liability under the statute law enforcement officers, on-duty school-employed security officers, and “any other person who has written authorization from the board of education or governing body of a school” to carry a deadly weapon within a school zone.

Citing R.C. 2923.122(D)(1)(a), the Madison Local school board authorized the superintendent to designate 10 employees as authorized to carry concealed weapons in the school zone.  Designated employees were required to have: a concealed-handgun license and handgun-qualification certificate; completed 24 hours of “response-to-active-shooter” training; received training to respond to active killers; and passed criminal-background and mental-health checks.

Five parents challenged the policy, arguing the resolution did not require the armed employees to meet the training-or-experience requirement in R.C. 109.78(D). They sought an injunction in Butler County Common Pleas Court to prevent any employee who  had not completed peace-officer training and did not have 20 years of experience as a peace officer from being designated to carry a concealed weapon in the school zone. The trial court granted summary judgment to the school district.

The parents appealed to the Twelfth District, which reversed the trial court.

The school board appealed to the Supreme Court, which agreed to hear the case.

Supreme Court Examines State Laws
The chief justice noted the school board’s argument that applying the training-or-experience requirement in R.C. 109.78(D) “guts” the board’s authority to designate persons to carry weapons under R.C. 2923.122(D)(1)(a). The opinion stated that, although R.C. 2923.122(D)(1)(a) does “implicitly say that a board of education or governing body of a school may authorize a person” other than law enforcement to possess a dangerous weapon in a school safety zone, that authorization only exempts the designated person from criminal liability for having a weapon in a school zone.

The question is not whether a person can be charged with a crime for a carrying a weapon, but rather whether school staff must meet the training-or-experience requirement under R.C. 109.78(D) to carry firearms in a school safety zone while on duty, the majority opinion stated.

The Court stated it focused on the unambiguous language in R.C. 109.78(D), and noted that neither the parents nor the school board argued the law was ambiguous. The parties disagreed about the meaning of “other position in which such person goes armed while on duty.” The school board argued the training-or-experience requirement only applies to those serving in safety and security positions, while the parents asserted it applies to every school employee who goes armed while on the job, regardless of their primary duties.

The majority opinion stated that if the Court were to hold that the training-or-experience requirement applied only to school employees in positions “the duties of which involve being armed,” then the Court would be adding words to the statute. Contrary to the school board’s argument, the law does not tie application of the training-or-experience requirement to the nature or duties of the “other position.”  The requirement applies when a school employee “goes armed while on duty,” the opinion stated.

“A person might be hired as a teacher, but when that person agrees to go armed while teaching, his or her duties expand to encompass additional duties akin to those normally performed by special police officers and security guards,” the opinion stated.

Other parts of R.C. 109.78 include the phrase “employed in a police capacity,” the majority opinion noted. The majority stated that lawmakers did not use a similar phrase to limit the training-or-experience requirement in R.C. 109.78(D). The majority noted one of the dissenting opinions suggests the omission could be blamed on “legislative inadvertence.” The majority opinion stated the General Assembly can take up the cause to eliminate those inconsistencies.

The majority concluded that while other state legislatures have tailored legislation to respond to calls to arm teachers and school staff, Ohio has not. Because the training-or-experience requirement does not conflict with the board’s authorization to permit someone to carry a weapon in a school zone without facing criminal charges, the Court stated both laws must be applied to Madison Local schools.

Dissent Questions Application of Training Law
In her dissent, Justice Kennedy pointed out that R.C. 109.78(D) and R.C. 2923.122(D)(1)(a) are parts of separate statutory schemes serving different purposes. She explained that R.C. 109.78(D) provides that a school board may fill a position in which the job responsibilities require the employee to be armed while on duty only with a person who has satisfied the training and experience requirements of that statute.  Further, reading R.C. 109.78 as a whole shows that the hiring requirements apply to positions in which the employee acts in a police capacity. 

In contrast, she wrote, R.C. 2923.122(D)(1)(a) creates an exception to criminal liability for carrying a firearm in a school safety zone, stating that no person who has authorization from the board of education to possess a deadly weapon or dangerous ordnance in a school safety zone can be charged with a crime under R.C. 2923.122(A).

R.C. 2923.122(D)(1)(a) does not prescribe hiring requirements as R.C. 109.78(D) does, the dissent stated.  When a school board authorizes an employee to carry a firearm on school grounds, Justice Kennedy explained, it does not “change the position for which the employee was hired,” nor does it mean the “employee then serves the school district in a police capacity.”

The dissent stated that the majority improperly limits the school board’s authority to permit employees to carry firearms on school grounds by reading R.C. 2923.122(D)(1)(a) and R.C. 109.78(D) “in pari materia” in order to impose the peace officer training requirement on school employees.  The in pari materia rule of construction is inapplicable, she maintained, because neither statute expressly refers to the other.

“Had the General Assembly intended to condition the authority to carry a firearm in a school safety zone on having the basic police training required of peace officers, it could have written the statute that way,” as it had in other parts of the statute, the dissent stated.

R.C. 2923.122(D)(1)(a) places no other condition on school employees carrying firearms on school grounds other than the written permission of the school board, and “the analysis should stop there,” Justice Kennedy concluded.

Phrasing of Law Limits It Application to Policing, Dissent Stated
A dissenting opinion written by Justice DeWine, and joined by Justice Fischer, maintains the majority of the Court misinterprets how R.C. 109.78(D) applies to an “other position in which such person goes armed while on duty.” Justice DeWine explained the majority interprets the law by considering the meaning of the words “position,” “other,” and “while” in isolation.

“But that is not how anyone reads or understands language. Instead, words are grouped together to form clauses and sentences and paragraphs that, as a whole, convey information to the reader,” he wrote.

The provision prohibits a school from employing a person in a position in which the person goes armed while on duty. The provision’s focus is on the position in which the person is employed and whether it is a position in which the person goes armed while on duty, the dissent explained. When read in concert with “special police officer” and “security guard,” the “other position” must mean a similar security-related job, the dissent stated.

“Because that’s the way we tend to use language. If a parent tells a child, don’t forget your bat, baseball glove, uniform, and other equipment, we all understand that the parent isn’t asking the child to also bring his football helmet,” Justice DeWine wrote.

The dissent said that the majority’s conclusion that “other position” refers to any job at the school would make the General Assembly’s specific references to the positions of “special police officer” and “security guard” redundant. “The link is the position—the clause applies to the category of security-related positions in which the employee goes armed while on duty,” the dissent concluded.

Law Does Not Include Nonsecurity Personnel, Dissent Maintained
Justice Fischer joined Justice DeWine’s dissent in full, but also wrote separately to consider a rule for interpreting statutes that would indicate R.C. 109.78(D) only applies to those employed in a security capacity.

Justice Fischer cites the rule of “expressio unius est exclusio alterius,” which means that the expression of one or more items in a class implies that those not identified are to be excluded. When two or more terms in a series should be understood to go hand-in-hand, failure to include a term indicates the legislature’s intent to exclude it, he explained.

In this case, the lawmakers recognized the schools employ numerous teachers, and that schools  should not be allowed to hire security personnel who lack training. But the legislature did not include “teachers” in the terms of people who are subject to the training requirement. The language does not include school employees, including teachers, who are required to have peace officer training in order to carry a weapon at school.

“If the General Assembly had wished to prohibit nonsecurity personnel, like teachers, from carrying weapons on school property without the required training, it could have done so and may still do so,” Justice Fischer wrote.  He emphasized that the court “does not have the authority to make that requirement.

2020-0612. Gabbard v. Madison Local School Dist. Bd. of Edn., Slip Opinion No. 2021-Ohio-2067.

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