Gabbard v. Madison Local Sch. Dist. Bd. of Educ.

• Decision Date: 23 June 2021
• Docket Number: No. 2020-0612,2020-0612
• Citation: 179 N.E.3d 1169
• Parties: GABBARD et al., Appellees, v. MADISON LOCAL SCHOOL DISTRICT BOARD OF EDUCATION et al., Appellants.
• Court: Ohio Supreme Court

179 N.E.3d 1169

GABBARD et al., Appellees,

v.MADISON LOCAL SCHOOL DISTRICT BOARD OF EDUCATION et al., Appellants.

No. 2020-0612

Supreme Court of Ohio.

Submitted January 12, 2021

Decided June 23, 2021.

Bloomekatz Law and Rachel S. Bloomekatz ; and Everytown Law, Alla Lefkowitz, and James Miller, Dayton, for appellees.

Frost Brown Todd, L.L.C., Matthew C. Blickensderfer, Cincinnati, Brodi J. Conover, and W. Joseph Scholler, West Chester, for appellants.

Bolek Besser Glesius, L.L.C., and Matthew D. Besser, Cleveland; and Gwen E. Callender, Columbus, urging affirmance for amicus curiae Fraternal Order of Police of Ohio, Inc.

Brian Eastman, Columbus and Matthew Cooper-Whitman, urging affirmance for amicus curiae Ohio Education Association.

Muskovitz & Lemmerbrock, L.L.C., Susan Muskovitz, and Brooks W. Boron, urging affirmance for amicus curiae Ohio Federation of Teachers.

Vorys, Sater, Seymour & Pease, L.L.P., and Daniel E. Shuey, Columbus, urging affirmance for amicus curiae Professor Peter M. Shane.

Cooper & Elliott, L.L.C., C. Benjamin Cooper, and Sean R. Alto, Columbus, urging affirmance for amici curiae Experts in School Safety and Firearms Training.

Warren Terzian, L.L.P., and Thomas D. Warren, urging affirmance for amici curiae Teacher Educators and Educational Researchers.

Law Offices of John C. Camillus, L.L.C., and John C. Camillus, urging affirmance for amici curiae Ohio K-12 Teachers and Staff.

Zach Klein, Columbus City Attorney, Richard N. Coglianese, City Solicitor General, and Adam S. Friedman, Deputy Solicitor General, urging affirmance for amicus curiae city of Columbus.

Andrew W. Garth, City Solicitor, urging affirmance for amicus curiae city of Cincinnati.

Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, Michael J. Hendershot, Chief Deputy Solicitor General, and Kyser S. Blakely, Deputy Solicitor General, urging reversal for amicus curiae Attorney General Dave Yost.

Lyons & Lyons Co., L.P.A., and Jonathan N. Fox, West Chester, urging reversal for amici curiae Claymont City Schools, East Guernsey Local Schools, Edgerton Local Schools, Hardin Community School, Hardin-Houston Local Schools, Jackson Center Local Schools, Mad River Local Schools, Manchester Local Schools, Morgan Local Schools, New Lebanon Local Schools, Noble Local Schools, River View Local Schools, Rolling Hills Local School District, Russia Local Schools, Sidney City Schools, Streetsboro City Schools, and Upper Scioto Valley School District.

O'Connor, C.J. {¶ 1} In April 2018, just over two years after a school shooting at Madison Junior/Senior High School that resulted in injuries to four students, appellant Madison Local School District Board of Education ("the board") passed a resolution to authorize certain school-district employees to carry a deadly weapon or dangerous ordnance on school property "for the welfare and safety of [its] students." This appeal asks us to determine whether that resolution complies with Ohio law. We conclude that it does not.

Background and relevant statutes

{¶ 2} The 2016 shooting at Madison Junior/Senior High School is part of an alarming pattern of gun violence in American schools. A recent study identified 180 school shootings that occurred in the United States between 2009 and 2019. CNN, 10 years. 180 school shootings. 356 victims. , https://www.cnn.com/interactive/2019/07/us/ten-years-of-school-shootings-trnd/#storystart (accessed June 1, 2021) [https://perma.cc/56KH-263L]. As parents, educators, and policymakers have confronted difficult questions about how to best protect students from harm, one response that has gained traction—especially following the tragic 2012 massacre at Sandy Hook Elementary School—has been a call to arm teachers and other school staff as an additional layer of security. See EducationWeek, Should Teachers Carry Guns? The Debate, Explained , https://www.edweek.org/leadership/should-teachers-carry-guns-the-debate-explained/2018/08 (accessed June 1, 2021) [https://perma.cc/A25T-D7ZF].

{¶ 3} In 2013, the year after the shooting at Sandy Hook Elementary School, more than 30 states introduced legislation relating to arming teachers or other school staff, and as of November of that year, seven states had passed such legislation. Council of State Governments Justice Center, Arming Teachers and K-12 School Staff: A Snapshot of Legislative Action , available at https://csgjusticecenter.org/wp-content/uploads/2020/01/NCSL-Arming-Staff-Brief.pdf (accessed June 1, 2021) [https://perma.cc/YCV2-3BH3]. Ohio was not among those states. But that same year, then Ohio Attorney General Mike DeWine stated in a letter to the chairman of the Buckeye Firearms Association, "Ohio law does not prevent a local school board from arming an employee, unless that employee's duties rise to the level that he/she would be considered ‘security personnel,’ " in which case the employee would be required by statute to have specific training or experience. Buckeye Firearms Association, https://www.buckeyefirearms.org/sites/buckeyefirearms.org/files/publicfiles/pdf/DeWine-109-78-ltr.pdf (accessed June 1, 2021) [https://perma.cc/MC55-AHXV]. The statutes that the attorney general cited in support of that opinion— R.C. 109.78(D) and R.C. 2923.122(D)(1)(a) —are the same statutes that govern our analysis here.

{¶ 4} Before turning to the specific circumstances of this case, we review those statutes. The first statute, R.C. 109.78(D), provides:

No public or private educational institution or superintendent of the state highway patrol shall employ a person as a special police officer, security guard, or other position in which such person goes armed while on duty, who has not received a certificate of having satisfactorily completed an approved basic peace officer training program, unless the person has completed twenty years of active duty as a peace officer.

{¶ 5} The second statute, R.C. 2923.122, defines the criminal offenses of illegal conveyance into or possession in a school safety zone of a deadly weapon or dangerous ordnance.¹ R.C. 2923.122(A) and (B) respectively prohibit any person from knowingly conveying or attempting to convey into or possessing in a school safety zone a deadly weapon or dangerous ordnance. The statute then carves out exceptions to those general prohibitions. Relevant here, the prohibitions established in R.C. 2923.122(A) and (B) do not apply to the following:

a law enforcement officer who is authorized to carry deadly weapons or dangerous ordnance, a security officer employed by a board of education or governing body of a school during the time that the security officer is on duty pursuant to that contract of employment, or any other person who has written authorization from the board of education or governing body of a school to convey deadly weapons or dangerous ordnance into a school safety zone or to possess a deadly weapon or dangerous ordnance in a school safety zone and who conveys or possesses the deadly weapon or dangerous ordnance in accordance with that authorization.

(Emphasis added.) R.C. 2923.122(D)(1)(a). In other words, a person who possesses in or conveys into a school safety zone a deadly weapon or dangerous ordnance in accordance with written authorization from the board of education is not subject to criminal liability under R.C. 2923.122.

{¶ 6} The question presented here is whether the training or experience that R.C. 109.78(D) requires of a school employee who holds a "position [other than a special police officer or security guard] in which such person goes armed while on duty" applies to teachers, administrators, and other school staff whom a board of education has authorized to carry a deadly weapon in a school safety zone. This is a pure question of law, which we review de novo. See Progressive Plastics, Inc. v. Testa , 133 Ohio St.3d 490, 2012-Ohio-4759, 979 N.E.2d 280, ¶ 15.

Facts and procedural background

{¶ 7} The board's April 2018 resolution "to allow armed staff" in a school safety zone states that, pursuant to R.C. 2923.122(D)(1)(a), the board will grant written authorization to individuals to be designated by the district's superintendent, who is currently appellant Lisa Tuttle-Huff, to convey into and possess in a school safety zone deadly weapons or dangerous ordnance for the safety of the district's students. It goes on to state that a person so designated by the superintendent must be permitted under Ohio law to carry a concealed handgun, undergo response-to-active-shooter training, and "re-certify each year."

{¶ 8} The board subsequently adopted a "firearm authorization policy" for the purpose of implementing the April 2018 resolution. The policy states that pursuant to R.C. 2923.122, the board will authorize up to ten school employees designated by the superintendent to carry concealed firearms in a school safety zone. It specifies that, to be so designated, an employee must maintain an Ohio concealed-handgun license, satisfactorily complete at least 24 hours of response-to-active-shooter training, hold a handgun-qualification certificate, receive training regarding mental preparation to respond to active killers, and pass a criminal-background check and mental-health exam. Neither the resolution nor the firearm-authorization policy requires designated persons to satisfy the training-or-experience requirement set out in R.C. 109.78(D).

{¶ 9} Appellees, Erin Gabbard, Aimee Robson, Dallas Robson, Benjamin Tobey, and Benjamin Adams (collectively, "the parents"), are parents of students enrolled in the Madison Local School District. They filed this action in the Butler County Court of Common Pleas in September 2018. They sought a declaratory judgment that the board's April 2018 resolution violates R.C. 109.78(D) and an injunction precluding the board from implementing the resolution as to any school employee who has not satisfactorily completed an approved basic peace-officer-training program or who does not have 20 years of experience as a peace...