With the exception of duly appointed school police officers, Pennsylvania does not permit school staff to carry firearms in schools and/or on school grounds.  However, there are two pending bills which, if enacted, would allow school staff to carry firearms in school buildings and/or on school grounds.

Senate Bill 1193, if passed, would authorize school boards to establish policies that permit school personnel to have access to and to carry firearms in the buildings or on the grounds of a school. Similarly, House Bill 122 would authorize trained school personnel to carry a concealed firearm on school property.  Both bills, however, would require that school personnel have a valid license to carry firearms and to undergo specialized training and education, such as that currently required for municipal and county law enforcement.

In light of this pending legislation, it is important for school districts to carefully examine the potential civil liability that may be associated with authorizing such actions.

There is case law establishing that a local government body, such as a school district, may be held liable for the payment of damages under Section 1983 of the Federal Civil Rights Act when there has been a decision officially adopted and promulgated by that entity’s officers that is causally related to the unconstitutional conduct of an employee which ultimately causes injury to a person.  Damages may include the payment of compensatory damages such as damages for the loss of life, damages for emotional distress, or damages for pain and suffering.

In actions for civil rights violations, one key area of potential liability is the failure of the school district to properly train and supervise its employees in the performance of their job duties.  There are numerous legal cases in which civil liability has been imposed upon a local government based upon an alleged failure to train and supervise individuals who exercise the use of force while performing their job-related duties, most commonly police officers.

In a 1994 Federal case in the 10th Circuit, Graham v. Independent School District No. J-89, the court addressed a theory of liability for school districts under the “state created danger” doctrine.  In Graham, the Court reviewed relevant case law related to Section 1983 constitutional violations and noted that a school district can incur civil liability if, through its own affirmative conduct, the school district creates a dangerous situation or makes occupants of the school more vulnerable or susceptible to danger.  A school district, which takes the affirmative action to authorize its teachers and school personnel to carry firearms or have access to such weapons within the school setting, arguably increases the risk of harm to co-workers, students and community members.  Any failure to adequately train and supervise the teachers and school personnel, as well as to protect against unauthorized access to firearms by others, could create civil liability for the school district under the state created danger doctrine.

It is important that the District provide adequate ongoing training and supervision of employees who will be authorized to carry or have access to firearms within the school setting.  Any training program will need to address not only the safe handling of firearms as one of its primary components, but also how to effectively assess the nature and degree of any perceived threat of harm and to determine the proper response to that harm.  It is clearly insufficient for a school district to simply provide a firearms authorization to its teachers and school personnel.

Under Pennsylvania law, school districts and other governmental bodies have broad general immunity under the Pennsylvania Political Subdivision Tort Claims Act (“PPSTCA”) subject to eight (8) specific exceptions delineated in the Act.  None of those exceptions would apply to a school district’s decision to authorize teachers and school personnel to carry or have access to firearms within the school setting.  That does not mean, however, that governmental immunity would prevail. The U.S. Supreme Court and the lower federal courts have consistently held that state governmental immunity provisions have no force or effect in protecting school districts or school employees against federal civil liability for violations of an individual’s civil rights under Section 1983.  Additionally, a school district may be required to indemnify a school employee who is held personally accountable for injuries to a person that occurred while the employee was acting within the scope of his or her employment.

Obtaining insurance to address any such potential school district liability may be problematic for districts as insurance companies may not be willing to provide the necessary liability coverage.  The Kansas state legislature in 2013 passed a law which permitted school districts to decide whether to authorize school employees with concealed-carry permits to bring firearms into the school setting.  Following the enactment of the Kansas law, the largest insurer of Kansas public school districts, EMC Insurance Co., declared it would not provide civil liability insurance for school districts which authorized employees to carry firearms on school property.  A representative of EMC Insurance Co. stated that the decision was based upon a consideration of the increased risk of liability associated with school employees carrying firearms on school property.  Other school districts as well have encountered insurance carriers which are either threatening to raise premiums or decline to provide liability coverage.

In conclusion, the importance of these potential new civil liability issues to Pennsylvania school districts is that “just because you can, does not mean that you should.”  If SB 1193 and/or HB 122, or a later version of either  is enacted into law, school districts will have to weigh any potential new civil liability versus any perceived or actual gain in augmenting traditional law enforcement protection for schools by authorizing school staff to carry firearms and/or have access to them on school property. Contact Mike Brungo or Judy Shopp at 412.242.4400 with any questions.

Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.