April 4, 2016
EDCAL 5
Concealed weapons on campus requires careful consideration
Trevin Sims, attorney with ACSA Legal
Collaborative partner Lozano Smith, wrote
the following article addressing the legal implications of Senate Bill 707.
Too often we are reminded of the firearm-related dangers students face in our
schools. From 2000 to 2013, there were 27
active-shooter incidents at K-12 schools in
the country, according to the U.S. Justice
Department. Regularly, school officials
must also evaluate the credibility of firearmrelated and other violent threats. Keeping
students safe in the face of these acts and
threats is a national priority that requires
effective local strategies.
Allowing teachers and others to carry
firearms on school grounds is one strategy
being debated. Since the tragedy at Sandy
Hook in 2012, more than 30 states have
considered or passed legislation dealing
with the possession of firearms on school
grounds.
In California, Senate Bill 707, effective Jan. 1, 2016, amended the Gun-Free
School Zone Act to give school officials the
authority to decide if Carrying a Concealed
Weapon (CCW) license holders may possess a firearm on school grounds. Before
SB 707, CCW license holders could do so
without either the knowledge or consent of
school administration. Now, they need the
permission of the superintendent or equivalent authority.
According to the bill’s author, Sen. Lois
Wolk, D-Davis, this change
was specifically intended to
reduce the presence of firearms
on school grounds and give
school officials greater control.
However, by shifting control of
CCW firearms possession, SB
Sims
707 also expands the potential
liability to schools and school officials for
firearm-related injuries and losses involving
CCW license holders.
Students and staff have a constitutional
right to schools that are safe, secure and
peaceful, according to the state Constitution.
California courts have ruled there is a special relationship between a school and its
students, creating an affirmative duty to
take all reasonable steps to protect students.
Courts determine whether a specific duty
existed in a given instance on a case-by-case
basis. An important factor in that determination is whether the particular harm was
reasonably foreseeable in light of all the
circumstances and does not require prior
identical events or injuries. Even if rare, one
can imagine scenarios where questions of
duty and foreseeability arise from incidents,
intentional or accidental, involving schoolauthorized CCW license holders.
Whether to allow CCW license holders
to carry on school grounds is a discretionary decision. Under California law, schools
and school officials are statutorily immune
from liability for the exercise of discretion,
according to Government Code sections
815.2, 818.4 and 820.2. There are also other
immunities that could potentially apply to
incidents involving CCW license holders.
However, the extent to which any of these
immunities would actually apply on par-
ticular facts is uncertain. As a result, liability
could still arise because the circumstances in
which the injury or loss occurred breached
the school’s duty to protect.
Given the uncertain liability picture,
schools should carefully evaluate whether
to permit CCW license holders to carry
firearms on campus. SB 707 gives school
officials broad discretion. They may grant
blanket permission, impose a blanket prohibition, or implement a case-by-case evaluation process with specific criteria in place
to mitigate risks associated with granting
permission. In any case, the objective should
be to make an informed decision designed
to promote student safety and minimize
liability.
The decision involves consideration of
many important questions. For instance, is
simply having a CCW license sufficient?
There is variation in the type of training
law enforcement officials require to obtain
a CCW license and most do not require
active-shooter or similar crises intervention training. Additionally, law enforcement
officials must determine whether the CCW
license holder is of “good moral character.” However, standards for making this
determination vary, with few involving a
professional psychological evaluation. As a
result, school officials may consider whether
to impose enhanced training and screening
requirements above those required to obtain
a CCW license.
SB 707 offers no guidance to school
officials on how to make the CCW decision. However, they can look to legislation
in other states for assistance. For example, Texas has adopted a School Marshall
Program that requires 80 hours of training
and a psychological evaluation. Many other
states have adopted varying requirements
as well.
Finally, schools should consider the
CCW issue within the broader context of
their comprehensive safety planning. In the
effort to provide safe schools, the development and implementation of the statutorily required safety plan is the first line of
defense. As part of that planning, school
officials should dialogue with local law
enforcement on, among other things, how
the presence of concealed weapons factors
into incident tactical response.
Additionally, and perhaps most importantly, most violent threats and acts are
committed by individuals in the school’s
community, according to the “Final Report
and Findings of the Safe School Initiative:
Implications for the Prevention of School
Attacks in the United States,” U.S. Secret
Service and U.S. Department of Education
( June, 2004). Therefore, in addition to having a thoughtful incident response, it is
critical for schools to have robust violence
prevention and threat assessment procedures in place.
Trevin Sims is a partner in Lozano Smith’s
Los Angeles office and leads the firm’s school
safety practice.