November 2009 - Guns on School Grounds - Still a Loaded Question

DUFF, WHITE & TURNER, L.L.C.
Attorneys And Counselors At Law

GUNS ON SCHOOL GROUNDS -- STILL A LOADED QUESTION

Until recently, it was unlawful in South Carolina for any person (except a law enforcement officer) to possess or carry a firearm onto school property without the express permission of school authorities. This ban extended to those persons who carry a concealed firearm under a valid permit, even where that firearm was secured in a closed or locked compartment within an attended or locked vehicle. As a result, employees, parents, and school visitors who kept a concealed firearm in their vehicle expressed concerns that they could inadvertently violate the law merely by driving onto or parking their vehicle on school property.

In an effort to address these citizen concerns, the South Carolina General Assembly recently amended the two statutes, S. C. Code §§16-23-420 and 430, that make it unlawful to possess or carry a firearm onto school property. Those laws, as amended, no longer apply to "a person who is authorized to carry a concealed weapon pursuant to Article 4, Chapter 31, Title 23 when the weapon remains inside an attended or locked motor vehicle and is secured in a closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and transported in the luggage compartment of the vehicle." The amendments do not change the law that forbids firearms in public school buildings, board meetings, and school athletic events. Thus, it is no longer unlawful for a person who has a concealed weapons permit to keep a concealed weapon in a vehicle driven onto or parked on school property, so long as the weapon remains inside an occupied or locked vehicle and is further secured in a closed or locked compartment. Those persons who do not have a concealed weapons permit, however, are still prohibited from possessing or carrying a weapon onto school grounds.

Although the revised language of §§16-23-420 and 430, when read in isolation, appears to grant concealed weapons permit holders the right to carry a firearm in a vehicle that is driven onto or parked on school property, the amendments, when read in conjunction with other existing State law, may reasonably be interpreted to allow districts the discretion to prohibit the carrying of a firearm onto district-owned property. Regardless of the position that a school district takes on the amendments, however, changes to board policies will likely need to be implemented.

For those districts that intend to allow concealed weapons to be brought onto school property in accordance with the amended laws, limited Board policy revisions are needed. One such policy revision may involve the policy governing staff conduct. If district policy currently specifies that possession of a weapon on school property is misconduct, then that policy should be revised to exclude possession that is now otherwise authorized by State law. Districts also should be aware that a student who has turned age 21, or an adult education student, could obtain a concealed weapons permit and lawfully bring a concealed weapon onto district property, so long as the weapon remains locked and secured in the student's vehicle. It should be noted, however, that a concealed weapons permit does not authorize a permit holder to carry a concealed weapon where the carrying of firearms is prohibited by federal law. Two federal laws at issue, however, the federal Gun Free Schools Zones Act and the Gun Free Schools Act provision of the No Child Left Behind law, both include an exception regarding the possession of weapons that are lawfully stored in a locked vehicle.

For those districts that wish to prohibit students, staff, parents, and campus visitors from bringing concealed weapons onto school property, the state law known as the "Law Abiding Citizens Self-Defense Act of 1996 (the Act)" specifies certain instances where a holder of a concealed weapons permit is not authorized to carry that concealed weapon, despite the permit. Specifically, §23-31-220 states that the Act does not negate the right of an employer to prohibit employees who have a concealed weapons permit from carrying a firearm onto the premises of the workplace, or the right of property owners or persons in legal possession or control of property to prohibit firearms on their premises. Under these provisions, therefore, it appears that a district board of trustees, as an employer and as the body charged with control of school property, may have the authority to prohibit individuals with a permit from carrying concealed weapons onto school property, even if locked or secured in a vehicle. Although local governing bodies, including school districts, are generally prohibited by S.C. Code §23-31-510 from implementing policies or ordinances regulating firearm possession, a recent S.C. Attorney General opinion confirms that this law must be read in conjunction with §23-31-220 and thus a governmental entity is permitted to prohibit the carrying of concealed weapons onto property it owns or controls.

If a district wishes to prohibit the carrying of concealed weapons onto its premises pursuant to §23-31-220, appropriate steps must be taken to obtain approval of the board of trustees, make necessary policy revisions, and notify district employees, students, and the general public. Alternatively, some districts may choose to prohibit staff and students, but not parents or other visitors, from bringing concealed weapons onto school grounds. Districts must then ensure that the required notices are posted on district premises in accordance with State law. Those notices, stating "NO CONCEALABLE WEAPONS ALLOWED," must conform to specific requirements related to size, color, wording, and images. A person who brings a concealed weapon onto school premises in violation of a school district's notification and posting may be charged with criminal trespass and risks revocation of his concealed weapons permit if convicted of subsequent violations. However, if the notices fail to comply with the statutory requirements set forth in §23-31-235, it may be determined that the school district failed to provide appropriate notice of its prohibition to those entering the premises.

If you would like assistance with review or development of district policies and procedures in light of the amended laws, please feel free to contact this firm.