Unfortunately, we live in an age where we all must worry for the safety of our children when they go to school. School shootings have been in the forefront of our collective awareness more than any other issue in our political discourse over the last several years. The national conversation, from holiday dinner tables to social media, has been marked by tension over the meaning of the Second Amendment and proposed gun control measures.
School Resource Officers (SROs) are typically specially trained law enforcement officers assigned to work in schools. SROs are generally permitted to carry firearms, but they are expensive hires for tight-budget school districts forced to choose between more teachers and school safety. One solution to the school shooting crisis that has been proposed by some, including the President, is to arm teachers so that they can protect children from gunmen at school. That would save money by avoiding the hefty costs of SROs. Some school districts have taken that leap: there are over 170 school districts in Texas that have established programs to allow teachers to carry firearms in the classroom. Like any policy proposal, there are pros and cons to arming teachers, but before getting to those pros and cons, one must ask whether it is even legal for a school district to permit teachers to carry firearms at school.
Federal law prohibits possession of a firearm in a school zone under the Gun Free School Zone Act (GFSZA). There is an exception under this federal law for individuals licensed to carry concealed weapons by their own state. However, the majority of states, including Maine, have their own laws which are more restrictive than the GFSZA and prohibit individuals with concealed carry permits from possessing a firearm anywhere on school grounds.
In Maine, the law makes it a Class E crime (a misdemeanor) for a person to “possess a firearm on public school property or the property of an approved private school.” There are three basic exceptions to this general rule. The first exception is that the prohibition does not apply to “law enforcement officials.” The second exception is for limited occasions where an unloaded firearm is permitted when associated with an educational program approved and authorized by the school board, or if unloaded and stored in a secure container while the person is attending a hunter’s breakfast or similar event during hunting season outside of regular school hours. The third exception similarly allows for possession and discharge of a firearm at a school-operated gun range, or as a part of a school sanctioned program at a school operated gun range pursuant to a written policy. The first exception for “law enforcement officials” is the only exception germane to the question of whether it would be legal for a school district to arm teachers or other school personnel.
Interestingly, municipalities are authorized to appoint individuals as Police Officers under the law. Why couldn’t the Select Board or City Council, appoint the principal and history teacher (for example), as law enforcement officers so that the town could avail itself of the exception to the rule that there are no guns at school? While the law authorizes municipal appointments of police officers, this power comes with two qualifications: 1. Before making such an appointment, the municipal officers must investigate the qualifications and background of any person being considered for appointment; and 2. “An appointed law enforcement officer is subject to the training requirements of Title 25, chapter 341.”
Chapter 341 of Title 25 establishes the Maine Criminal Justice Academy (the Academy) and sets forth the regulatory framework for the training and the qualifications for becoming a law enforcement officer. Therefore, a municipality’s power to appoint an individual as a law enforcement officer is limited to the appointment of those individuals who have been qualified by the Board of Trustees of the Academy. The training is rigorous and time consuming. The Basic Law Enforcement Training Program (BLETP) is described by the Board of Trustees as, “an intensive 18 week, 720 hour residential program to prepare Law Enforcement Officers for duty for the State of Maine.” While there is a waiver process for this program established by the Board of Trustees of the Academy, “most federal and military programs do not meet the substantially similar requirement,” for other training programs which can sometimes substitute for BLETP and qualify for a waiver. Prior to BLETP, a law enforcement officer candidate must also complete Phase I and Phase II of the training process. Phase I is a 40 hour online training course with a final exam requirement. Phase II is an 80 hour class-based training. There are also annually mandated continuing education/training requirements for all law enforcement personnel in the State of Maine to maintain certification. It is expensive and time consuming to put a law enforcement candidate through the Academy.
Anyone appointed as a law enforcement officer by a municipality must go through the rigors of the Academy in order to be so designated. Chapter 341 does provide for exceptions to the training rigors of the Academy, but these are limited to very specific persons, such as: Capitol Police; a harbor master; a fire marshal; a judicial marshal; a municipal shellfish conservation warden; game wardens; and probation officers, for example. The definition of “Law enforcement officer” referenced in the State’s concealed carry gun law would include all law enforcement officers who went through the Academy, as well as those excepted from going to the Academy (described above). However, the authority for municipal appointment of police officers under Title 30-A expressly requires that such persons are “subject to the training requirements of Title 25, chapter 341.” The implication is that an individual, who is exempt from the training requirements, would not qualify for appointment as a law enforcement officer by a municipality, unless they went through the Academy. This is where many towns are likely to run into a roadblock if they desire to use their appointment power to designate school personnel as law enforcement with the legal authority to possess a firearm on school property.
Like many other states, Maine has what’s called a preemption statute, that generally gives the State of Maine the sole authority to regulate firearms in Maine, and municipalities therefore are not permitted to make their own regulations governing firearms. Because Maine law makes it illegal to possess a firearm on school property, unless you are law enforcement (or one of the other limited exceptions apply), it would be impossible for any municipality to create any ordinance that would alter that criminal law. Any attempt by a municipality to work around the law by designating or appointing teachers as law enforcement would be fraught with complication, expense, and would be of questionable legality at best.
Additionally, arming school teachers would likely draw the ire of the union representing the teacher(s). There may be a clause in the union contract which prohibits a school district from requiring a union member to engage in any act that constitutes a violation of state law as a part of his/her employment. Even if it were not a direct breach of the contract terms to arm a teacher, it is likely that not many teachers would want to put themselves at risk of committing a Class E crime.
Even if state laws on the issue were to change, and an exception to the criminal law was created for teachers who went through a training program, a town should weigh the potential liabilities associated with such an action. In the event of an accidental injury or death involving a school sanctioned firearm, the school and/or the firearm possessor could be subject to significant civilliability. It would be a fact intense analysis and an open question as to whether governmental immunity would protect the teacher or the municipality from civil liability in the event that an accident occurred that caused injury or death. While loss avoidance measures would necessarily be a part of any plan to arm teachers, accidents can and do happen.
Any municipality considering this oft cited policy response to the school shooting problem is well advised to begin by advocating for a policy change in Augusta. Federal law would not prohibit a licensed adult from carrying a concealed weapon at the school, but Maine law would, and there are no viable exceptions, short of hiring a law enforcement officer to work in the school. To force an uncertain exception (by hiring the harbor master as your history teacher, for example) would open the municipality to potential liability from: the teachers’ union, the victim of any gun accident that might occur, and potential criminal liability for the teacher.
We are distributing this article to bring useful and timely information to our clients and colleagues. The interplay between federal, state, and municipal laws can present complex legal challenges, especially when Constitutional rights are at issue. Given the controversial nature of matters pertaining to gun control and gun rights, future court opinions and legislation may alter the applicability of the information contained in this article. This article is not intended to be legal advice and you should not rely on the information herein as specific advice on any particular facts that you or your municipality may be dealing with. In the event you wish to explore this topic further, have questions, or would like to comment, please contact the author, James F. Pross at jpross@sta-law.com or reach out to any member of our team of municipal attorneys at Skelton Taintor & Abbott.