Controversial Arming School Personnel Policy Legal Challenges | KingSpry

Overstepping Authority? Controversial Policy on Arming School Personnel Faces Legal Challenges

Posted on December 27th, 2018
by John E. Freund, III

Tamaqua Area School Board (TASB) Policy allowing the arming of school personnel and the use of deadly force faces serious legal challenges in lawsuit brought by teacher’s union.

On September 18, 2018, the TASB adopted Policy 705, “Standard Operating Procedures for Person’s Authorized to Use Weapons.” 

The policy creates a new category of employment called School Resource Professionals (SRP’s).  SRPs can be any district employee approved by the School Board, who meets the qualifications and training specified by the Board’s policy.  The policy goes on to express detailed requirements for record keeping, carrying a weapon, cleaning the weapon, loading and unloading, storage and maintenance of a firearm, loss and disposal of the firearm and more.

Although the policy sets out detailed conditions for use of force based on the level of threat and degree of resistance, the permitted use of deadly force is spelled out with military precision. Depending on the precise circumstance the SRP is advised to “shoot at the center of available body mass,” or alternatively shoot at the “head or pelvic area” when the center of body mass would present an ineffective target.

The policy specifically directs the SRP to make no distinction relative to the age of a potential threat and not to fire warning shots.  Verbal warnings are encouraged if feasible.  Deadly force is to be used only when the SRP “reasonably believes there to be an immediate threat of death or serious bodily injury to himself/herself or others.  If at any time the SRP believes himself/herself emotionally, physically or medically impaired in his/her ability to safely carry a firearm the SRP is to report the impairment to the building administrator or Superintendent and the authority to carry a firearm under the policy will be suspended until the impairment is resolved.

On November 14, 2018, the Tamaqua Education Association (TEA) filed suit in Schuylkill County Common Pleas Court, seeking to have the court declare the policy void and to issue a permanent injunction against the policy. 

As described in its Complaint, the TEA claims that TASB exceeded its express statutory authority in adopting the policy and that in any event, the authorization the TASB attempts to give the SRPs is in direct conflict with comprehensive legislature regulating firearms in schools contained in the school code.

TEA points to the provision under Chapter 13-C of the School Code, specifically School Police Officers are authorized to carry firearms only after they complete training under the Municipal Police Educator and Training Law 24 P.S. 13-1305C. 

The School Code allows for public school entities to contract with local law enforcement for School Resource Officers who must be trained under the M.P.E.T.L. Independently contracted security providers must be either retired law enforcement officers or be certified under M.P.E.T.L.  In contrast to School Code qualifications, Tamaqua’s policy 705 requires training under the less rigorous Lethal Weapons Act.

TEA bolsters its arguments by pointing out that Municipal, County and Court officials are authorized to carry firearms only if they are trained and certified under specific statutes, none of which is the LWA which is intended for private employers.

TEA also invokes the age old common law principle that local governments are creatures of the state and therefore have only the authority expressly granted by statute or what is necessary to carry out that express authority.  This is sometimes referred to as the “Rule in Dillon’s case.”  Since the legislature has not granted express authority to arm school employees other than what is already provided in the School Code by TEAs argument, policy 705 should be void.

The School District has filed preliminary objections to the TEA’s Complaint in which the District argues that the arming of school employees is implicitly allowed by recent amendment to the School Code providing that nothing [contained in Section 13-C] shall be construed to preclude…”[schools]…from employing other security personnel …deem[ed] necessary.  24 P.S. §13-1312-C.  Also, referenced by the District is Section 912 of Pennsylvania’s Criminal Code that makes it a crime to possess a weapon on school property.  One Commonwealth Court decision has held that possession is not a crime where it is for a “lawful purpose.”  18 P.S. 912 (SLB 225).

Although it is much too early in the TEA litigation to predict the outcome, the lawsuit does raise some very important questions about the limits of school board authority. Notwithstanding whether school boards have the basic authority to allow teachers to carry and use firearms, the policy’s presumption to prescribe whether and who to kill and when and who to wound seems to be a step beyond what most might think as the pale of school board authority.

Bottom Line for Schools

Aside from the underlying question of whether arming school personnel and authorizing their use of force is good public policy, the TEA case raises serious questions about whether school boards have the legal authority to authorize the arming of school personnel for security purposes.  For the protection of the school district as well as the legal liability of school directors themselves, school boards would be well advised to put off consideration of policies to arm its employees until a clear definition of authority to do so is handed down by the courts or the legislature.

If your school has a question, please contact your legal counsel or one of the attorneys at KingSpry.

 

This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.