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Posted on: Jan 26, 2021


On behalf of Legally Speaking Ohio

“If we say 109 (R.C. 109.78(D)) doesn’t apply, then do we allow non-law enforcement personnel to carry a weapon, hoping they do the right thing with it?”

Justice Stewart, to counsel for Madison Local School District Board of Education

“What is ambiguous about either one of these statutes?”

Justice Brunner, to counsel for amicus Ohio Attorney General

“Don’t most of these linguistic canons simply reflect the tools that we intuitively use when we read?”

Justice DeWine, to counsel for Gabbard, et al.

On January 12, 2021, the Supreme Court of Ohio heard oral argument in Erin G. Gabbard, et al. v. Madison Local School District Board of Education, et al.2020-0612. At issue in this case is how much training schoolteachers and other school staff must complete in order to carry firearms while working in Ohio’s schools.

Case Background

In 2016, a high school student came to Madison Junior-Senior High School with a handgun. The student entered the cafeteria and shot four other students. None of the injuries were fatal. Many personnel described feelings of helplessness and while there was one deputy sheriff acting as a school resource officer at the school, it took almost fifteen minutes for additional law enforcement to respond to the rural Butler County school.

In response, the Madison Local School District Board of Education (“Madison Local”) passed a resolution and later a Firearms Authorization Policy to implement it, which authorizes certain employees to carry concealed weapons while working at the school. These employees were designated as “approved volunteers.” The volunteers had to be licensed to carry a concealed weapon in Ohio, pass a criminal background check, receive mental preparation training in the event of an active shooter, undergo a mental health examination, and pass an annual drug test. In addition, volunteers had to complete at least 24 hours of active shooter training, including a three-day Faculty/Administrator Safety Training and Emergency Response (“FASTER”) program tailored to train schoolteachers and officials to respond quickly and effectively to active shooter situations. In enacting this resolution, Madison Local purported to act within its authority granted in R.C. 2923.122.

R.C. 2923.122 makes it a crime to carry firearms in a school. If one of the listed exceptions in R.C. 2923.122 applies, that individual is permitted to carry a firearm in a school zone and will not face prosecution. Standard exceptions include security officers, federal agents, or law enforcement personnel who are independently authorized to carry deadly weapons. A broader exemption from prosecution is conferred on “any other person who has written authorization from the board of education or governing body of a school.” Madison Local relied on this latter exception to pass its resolution.

In 2018, several staff at Madison Local completed the FASTER active shooter training, met all other statutory requirements, and were authorized by Madison Local’s superintendent to possess a firearm while at the school.

Concerned for the safety risks posed to their children, a group of parents (collectively, “Gabbard”) sued Madison Local to stop implementation of the resolution on the grounds that it violated the training requirements of R.C. 109.78(D) which states “no educational institution … shall employ a person as a special police officer, security guard, or other position in which such person goes armed while on duty.” There are exceptions to this for individuals who have “completed an approved basic peace officer training program” or have “completed twenty years of active duty as a peace officer.” Peace officer training requires a minimum of 728 hours of training plus a background check, fitness test, and drug screen in order to obtain a peace officer certification. Gabbard argued that Madison Local’s mere 24 hours of active shooter training fell far short of the 728 hours or twenty years’ experience that R.C. 109.78 requires of armed school employees. 

After Madison Local passed the resolution, Gabbard sought a permanent injunction to stop Madison Local from implementing the resolution unless the employees completed the requisite basic peace officer training in accordance with R.C. 109.78.

Both Madison Local and Gabbard moved for summary judgment on the injunction request. The trial court granted summary judgment to Madison Local on the grounds that the two statutes did not conflict, and Madison Local’s resolution was consistent with the broad mandates of R.C. 2923.122. Gabbard appealed.  

The Appeal

In a 2-1 decision the Twelfth District reversed the trial court’s judgment, finding that if Madison Local wanted to allow its teachers to be armed, R.C. 109.78, which the appeals court found to be unambiguous, requires that they possess the training required of peace officers – namely 728 hours of training or twenty years’ experience as an active peace officer.

The majority also found R.C. 2923.122 to be unambiguous. R.C. 2923.122 plainly permits Madison Local to provide written authorization so that an individual is not subject to prosecution for carrying a weapon in its school zone. However, school boards may not circumvent the training requirements of R.C. 109.78 under the guise of R.C. 2923.122.  The General Assembly may, if it chooses, reduce the amount of firearms training required for teachers and staff. But the courts cannot ignore the clear mandates of R.C. 109.78 and will not substitute its policy judgments for that of the legislature or opine on the wisdom of permitting teachers to carry firearms in schools.

The concurring judge emphasized that it is untenable to think that the General Assembly would require peace officer level training of employees in R.C. 109.78, but then grant local school boards unchecked authority to permit armed teachers and staff to walk around with almost no training at all.  He would find that any armed school employees must meet either the training or peace officer experience required in R.C. 109.78.

The dissenting judge would find the phrase “or other position” in R.C. 109.78 to be ambiguous, interpreting it to mean that R.C. 109.78 only mandates higher training requirements for school police officers, security guards, or other similar positions. If local school boards want to authorize other employees to carry firearms, they may do so freely under R.C. 2923.122. Madison Local did not violate R.C. 109.78 and consequently, its resolution permitting teachers and staff to carry firearms is valid and enforceable.

Read the oral argument preview of the case here.

Key Statutes and Precedent

R.C. 109.78(D) (Certification Requirements)(“No public or private educational institution … 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.”)

R.C. 2929.122 (A)( “No person shall knowingly convey, or attempt to convey, a deadly weapon or dangerous ordnance into a school safety zone.”)

R.C. 2923.122(D)(1)(a) (those exempted from criminal prosecution for carrying a firearm in a school safety zone include: “An officer, agent, or employee of this or any other state or the United States who is authorized to carry deadly weapons or dangerous ordnance and is acting within the scope of the officer’s, agent’s, or employee’s duties, 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”)

George H. Dingledy Lumber Co. v. Erie R. Co., 102 Ohio St. 236 (1921 ) (“where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase should be held to include only things of the same general nature as those specified.”)

United Tel. Co. of Ohio v. Limbach, 71 Ohio St.3d 369 (1994) (“This court in the interpretation of related and co-existing statutes must harmonize and give full application to all such statutes unless they are irreconcilable and in hopeless conflict.”)

Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549 (2000) (“when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need for this court to apply the rules of statutory interpretation.”)

Stetter v. R.J. Corman Derailment Servs., 2010-Ohio-1029 (It is not the role of the courts “to establish legislative policies or to second-guess the General Assembly’s policy choices. The General Assembly is responsible for weighing policy concerns and making policy decisions.”)

State ex rel. Clay v. Cuyahoga Cty. Med. Examiner’s Office, 2017-Ohio-8714 (refusing to apply canon of statutory construction when statute is unambiguous)

At Oral Argument

Madison Local shared its argument time with amicus Ohio Attorney General.

Arguing Counsel

Matthew C. Blickensderfer, Frost Brown Todd LLC, Cincinnati, for appellants Madison Local School District Board of Education and Dr. Lisa Tuttle-Huff

Kyser S. Blakely, Deputy Solicitor General, Columbus, for amicus Dave Yost, Ohio Attorney General, in support of appellants

Rachel S. Bloomekatz, Bloomekatz Law, Columbus, for appellees Erin Gabbard, et al

Madison Local’s Argument

It is undisputed that R.C. 2923.122(D), which Madison Local calls the Authorization Statute, allows a school district to authorize anyone to carry a firearm in a school safety zone. So, this is a case about local control.  The General Assembly has given local school boards the discretion to use this authority as they see fit.

The issue before the Court is whether a separate statute, R.C. 109.78(D), requires completion of peace officer training for school employees who are authorized to carry a weapon in a school safety zone. By its own terms, R.C. 109.78(D) does not require peace officer training for school employees except those whose primary role is to provide security. While the statute does not say “primary role,” that is implied by the context. This interpretation becomes even clearer when the Authorization Statute and R.C. 109.78(D) are interpreted together, as they must be.  

The phrasing of R.C. 109.78 (D) is very particular: “other position in which such person goes armed while on duty.” As a matter of ordinary linguistics and the interpretive canon ejusdem generis, this is a security role—not the algebra teacher who has been authorized to carry a weapon while on school property. This reflects the commonsense notion that words must be interpreted in their context, not divorced from it. For that same reason, Madison Local concedes that its school resource officer is covered by R.C. 109.78(D) because that person is in an “other position in which he goes armed while on duty.” The hope is that an armed algebra teacher will never have to use that weapon, but rather serve as a deterrent to any would-be shooter. On the other hand, providing security is the entire job for the school resource officer or security guard. That is a reasonable distinction that could be drawn and that the General Assembly has in fact drawn with the way it has worded R.C. 109.78(D).

It is admittedly a closer question for a school that does not have a security guard, special police officer or resource officer. There, the specifics of the situation would need to be looked at to see if this  person is in a position in which the person goes armed while on duty.  The person’s job description would need to be examined to determine how much time he or she spends in the security role versus teaching algebra. If that teacher is armed throughout the school day, and is hired as an algebra teacher, that individual is still not covered by R.C. 109.78(D) because that is not a position in which that person goes armed while on duty.  That would be a person who has been authorized, typically on a totally voluntary basis, to carry a weapon at the school; to provide security as a backstop in the event of an active shooter situation. The residual clause of R.C.109.78(D) is connected back to those individuals whose fulltime jobs and primary responsibilities are the provision of safety and security in the school, as opposed to the algebra teacher who is authorized to be armed while in the school.

It is perfectly clear that R.C. 109.78(D) would not apply to a citizen volunteer, and it doesn’t appear to apply to an independent contractor the school might use because the statute is tied entirely to employment. The legislature has not covered the waterfront with this training requirement.  The real debate is to what extent employees are covered. Madison Local contends that the phrase in R.C. 109.78(D) is intended to define a subset of employees, not all employees.

There are undeniably very valid policy arguments on both sides of this issue and reasonable people can disagree. This has been very controversial at Madison Local.  But this policy debate does not tell us what the General Assembly has already chosen. If the legislature intended to require peace officer training of every school employee who is authorized to carry a firearm at the school, the legislature would have clearly said so. If this Court concludes that the residual clause of R.C.109.78 (D) covers a teacher who is authorized to carry a weapon at school, even though that is not the teacher’s primary responsibility, and concludes that teacher must take peace officer training, then Madison Local will lose this case. But if the Court says R.C. 109.78(D) does not apply, that will entrust local boards of education to make these decisions appropriately. In the case of Madison Local, the policy requires 24 hours of active shooter training, and various background checks. It’s not some free-for-all if R.C. 109.78(D) does not apply.

In Madison Local’s view, the General Assembly fundamentally trusted local boards of education to do what was appropriate for their individual districts. The line that the General Assembly has drawn is between those employees whose job duties primarily involve being armed versus those employees whose do not, but who may be authorized to be armed. Reasonable people can disagree about that policy, but Madison Local believes that the wording of the statute is the policy line that the General Assembly has drawn.

Amicus Attorney General’s Argument

The overarching goal of the Authorization Statute and the qualifications provision (R.C. 109.78(D)) taken together is that the legislature entrusted local school districts to make decisions on a case-by-case basis as to what the needs and capabilities of each school district are when preparing for an active shooter situation. Some school districts could refuse to authorize any teacher or staff member to carry a firearm while at the school, whereas other school districts such as Madison Local, could decide that a few can carry provided they meet certain training requirements. This ability to differ is important because some school districts might not have funding to hire additional police officers or security guards, but the need to protect the safety of the school children is as great today as it has ever been. So, the General Assembly wants local school districts to be able to assess the capabilities of their schools, their level of funding, and whether they think teachers should be allowed to carry. What R.C. 109.78(D) does not do is strip school districts of the flexibility the General Assembly has given them. That provision is only triggered when a school district employs a person in a specific type of position.

This case comes down to meaning. What does R.C. 109.78(D) mean when it says schools are prohibited from employing a person as a police officer, security guard, or other position in which such person goes armed while on duty?  Some teachers will be carrying a firearm, but it is important to remember they are already employed as teachers. The fact that they are carrying a firearm doesn’t change the fact that they are employed in the exact same position as every other teacher in the school district. Carrying a firearm is not an additional duty; it is an option. Even if a teacher is authorized to be armed while teaching, that does not mean that he or she now has a legal duty to defend against a school shooter. By contrast, protecting the safety of students is likely in the job description of school resource officers, which is why there is a more stringent training requirement for them.

If for example an algebra teacher is authorized to carry a firearm at an after-school sporting event, he or she is no longer acting in a teaching capacity. Rather, he or she is now working in a position as a security officer and would be required to complete peace officer training.  But when this algebra teacher is simply authorized to carry a firearm while teaching, nothing about his or her duties changes.

If Gabbard’s proposed construction is correct, that would lead to many surprising results, the most glaring of which is that school districts would have total discretion to allow parents to bring a firearm with them every day when they pick up their children. But when it comes to school employees, individuals that the district has direct control over, the hurdles would be much higher. That’s not the only unreasonable consequence.  Another is that if Gabbard is correct, then authorized teachers would essentially have to become police officers in order to carry a firearm. The training for that is not just directed at firearms safety, but includes learning about traffic and automobile accidents, field sobriety testing, and training in human trafficking and domestic violence. It would be surprising if the General Assembly had wanted school districts to allow teachers to carry a firearm, but only if they became police officers.

The Authorization Statute shows that the General Assembly enacted a provision that focused on local control. We trust you, school districts, to make these decisions and set requirements for teachers to meet, but if their employment status changes, and a threshold is crossed, if they are security-related personnel, that is when state-wide uniformity is required. That’s the balance that the General Assembly struck.  If a school district allows a teacher to carry a firearm, Ohio law does not require that teacher to then become a police officer.

In a conundrum like the one in this case, the words of the statute must be examined in context. Part of examining context is looking at semantics and linguistic canons of construction. Every interpretive principle used favors Madison Local in this case and demonstrates why Gabbard’s proposed construction is not correct. There is certainly nothing ambiguous about the Authorization Statute. But R.C.109.78(D) is unclear. It appears in a statute that addresses the police officer training commission, and specifically certification of police officers, security guards and persons who are privately employed in a police capacity.  Taken as a whole R.C. 109.78(D) deals with security personnel.  That’s its context.  The question is whether the residual clause, “other position,” applies to non-security personnel. Those words are not entirely clear. That’s why these grammatical canons of interpretation are required, to determine not just what the words mean in isolation, but also what the words mean in conjunction with the other words in the statute.

Here, Gabbard’s plain meaning is not confirmed by ejusdem generis. Ejusdem generis is not an outcome-based test; it is not informed by what we would like the statute to say, but rather by ordinary linguistics. The legislature entrusted school districts to adopt training requirements. Under Madison Local’s policy, the authorized teachers must go to active shooter training, must obtain a handgun qualification certificate, must pass a background test, drug test, and mental health examination. Local school districts are accountable to their community, and the legislature knows that. If school boards just haphazardly allow teachers to bring firearms to school, they most assuredly will be voted out of office.  But the General Assembly also wanted statewide uniformity for full blown security guards.

As far as training armed teachers, it is reasonable to assume that even if a school district authorizes a teacher to carry a firearm while at school, that individual might be hesitant to use it when the time arises. Simply because a teacher is armed does not mean he or she must draw and fire his or her weapon. Part of training is knowing when to fire and when not to. The security guards and police officers are hired to actively protect the safety of the children and school staff, whereas the teachers are more of a backstop. They are there just in case, as a last resort, and hopefully that is how these local school districts can protect their children. If an active shooter situation were to arise, the teacher who is authorized to carry the firearm would know his or her role. As soon as they see outside police officers coming onto campus, the teachers would defer to them. The police are adequately trained in those scenarios and undoubtedly would handle that situation very well.

The legislature wanted to give the school districts the flexibility to decide what capabilities they had and what they needed to do to protect their children. When it comes to the regular run-of-the mill teacher who is authorized to carry a firearm, nothing changes in his or her employment position, nothing changes in his or her duties; that teacher simply does not fall within R.C. 109.78(D). He or she must still meet the training requirements that the school district sets out. But he or she doesn’t need to become a police officer. Admittedly there will need to be some factual determinations made in these situations, but courts deal with these things all the time.

Gabbard’s Argument

Under Madison Local’s interpretation, and by the Attorney General’s own admission, there could be countless factual permutations that boards, teachers, parents and courts will have to sort through to try and figure out who is covered and who is not. That is not what the legislature did. The legislature drew a bright line with its plain language text in R.C. 109.78(D), which says that a school cannot employ a person as a special police officer, security guard, or other position in which such person—that employee—goes armed while on duty unless they have the requisite training or experience. 

By its plain text, the statute is not limited only to security or similar positions requiring a person to go armed. It simply says, “other positions.” When the legislature has already been clear and has already unambiguously identified what triggers that training requirement, it would be improper for this Court to add more limitations, to add more qualifying phrases that are not in the statute.

Based on its plain text, the statute is not limited to a particular position or positions that have particular job descriptions. Position just means job, and it could be any job in the school. The legislature here is not getting at job categories or job titles; it is getting at what an individual does. The statute says a school cannot employ “a person” as a special police officer, security guard or other position in which such person goes armed while on duty.  And while referring to that same person, the statute goes on to require that person to have  twenty years’ experience as a police officer or meeting the training requirements. Those who are involved don’t have to sort through how much time is spent doing security.

Madison Local and the Attorney General have tried to define that “other position” phrase many different ways. Sometimes they argue it must be a security-related position; other times they say it is security personnel. Sometimes they say primary duty, so that’s not full time or integral; other times they say a person must be required to carry a firearm or be inherent in the job. One thing is definitely clear by its plain text–the statute applies to employees, not to parent volunteers.

There are all sorts of anomalies that go along with Madison Local’s interpretation.  Under Madison Local’s interpretation, a security guard or a school resource officer must have a lot of training to ensure that the person is going to be safe carrying guns around kids at school. By contrast, the algebra teacher can carry a gun around kids in the class all day with just eight hours of concealed carry training, six of which can be completed online or no training whatsoever if they open carry. That’s certainly anomalous. While the school board here mandated 24 hours of training, that’s less than the training required for a little league umpire or a nail technician.

Properly understood, the so-called Authorization Statute is really a criminal statute. In 1992, when the legislature decided to make it illegal to carry a gun into a school safety zone, it allowed school boards to grant an exemption to anyone who has written authorization by that school board. But it did not give boards broad unfettered discretion to displace all other areas of the Revised Code that may apply.  Madison Local concedes as much. The training requirement was already in existence when the legislature added this (D)(1)(a) exception to the criminality of bringing a gun into a school safety zone.  That provision doesn’t mention training; it is silent.  That silence doesn’t displace or supersede anything else in the Revised Code.  Nor does the statute say that now schools can develop whatever sort of armed teacher policy it wants notwithstanding anything else in the Revised Code.

On the one hand there is (D)(1)(a), this criminal statute that says individuals won’t face criminal penalties as long as they have school board authorization. But that doesn’t displace R.C. 109.78(D) that mandates training requirements for employees. 

The armed staff in this case testified that they bring their firearm with them every day to school, to have it while they are on duty. But returning to the plain text of the statute, it doesn’t say that an individual goes armed while on security duty or for the purpose of providing security. As long as that individual is authorized to go armed while on duty while at school, even if he or she is not required to do so, that individual meets the basic plain language of the statute and therefore the training requirements apply.  That’s why the 12th district recognized this distinction between people who volunteer and those who are paid to go armed while on duty. The statute doesn’t say “hired to go armed while on duty.” These are all individuals who are hired by Madison Local and they all go armed while on duty. They go armed while in their positions as teachers or librarians or cafeteria workers while on duty at Madison Local.

It is theoretically possible that school boards could allow parents or other individuals to come into the school armed and to volunteer. But that is a situation which the legislature hasn’t addressed because it hasn’t come up. The legislature can’t be expected to address every single circumstance, particularly hypothetical circumstances. What the legislature has addressed in this statute and what this Court must follow is the language of this statute which clearly applies to employees who go armed while on duty at school.  The legislature  knows how to make proper exemptions, but that’s not what it did here.  There have been bills proposed that would do that. But that is not what the statute says now. Rather than trying to change the law or write in exceptions or figure out the best policy outcome, this Court is bound to follow that plain text in the statute.

This statute doesn’t draw a line between primary roles or full-time employees and other individuals.  It just says the school shall not employ a person as a special police officer, security guard or other position-no limitations-in which such person goes armed while on duty. The legislature already drew a bright line. It is already very clear about who must have that training, namely an individual employee if that person goes armed while on duty. It would be improper to read all sorts of limitations into the statute that the legislature didn’t put there.

What Was on Their Minds

A lot! This oral argument lasted one hour and twenty minutes, more than twice as long as the normal thirty, and the longest I can recall since I started blogging. So, that’s why this post is so long!

Purpose Of It All

What’s the overarching goal of all this, asked Justice Stewart? Isn’t this to allow educators in a school to be armed in these days of school shootings, to help protect themselves, their students, and their colleagues? But aren’t the parents still going to want adults in the building with their children to know how to secure and use their weapon safely?

Statutory Language

Why can’t the General Assembly simply say R.C. 109.78 is inapplicable, asked Justice Stewart? If teachers are required to comply with R.C. 109.78(D) wouldn’t that be unduly burdensome since they are full- time educators not full-time peace or police officers? Isn’t it the legislature’s duty to come up with something in between rather than for this Court to decide whether R.C. 109.78(D) applies?

If you can read the plain language and apply both statutes, you don’t need to interpret, you don’t need to get into statutory interpretation, noted Justice Brunner. Why doesn’t just plain language work? What is ambiguous about either one of these statutes? School districts can adopt policies, but the training requirement is already in the statute, and districts must comply with these, she noted, adding that the two statutes can work together as written.

Obviously “armed while on duty” modifies “position,” so how is a teaching position where some teachers may be carrying firearms, others not, how is that a position in which someone goes armed while on duty, asked Justice DeWine? Why wouldn’t the statute just say any person who goes armed while on duty? Why does it say employed in a position?

That Hypothetical Armed Algebra Teacher

Not every school has a security guard or special police officer, noted Chief Justice O’Connor. In many of the schools, is the algebra teacher that is armed the security on site? Then how is that algebra teacher not a person in an “other position who goes armed while on duty”? How is an algebra teacher not described in that clause of the statute? If a school building has a special police officer, then the algebra teacher wouldn’t be armed? Would that be unnecessary? Can that algebra teacher be the security at a football game played on the premises of the school? What if there is no security officer, police officer, or school resource officer, and just the algebra teacher carrying a weapon? If the algebra teacher is the only armed adult in that school, does that transform that teacher into a security officer?

If we look at the statute, an algebra teacher is not someone who is in a position who goes armed while on duty, is he, asked Justice DeWine? It just happens he is authorized to have a gun? If that algebra teacher became a security guard and his job was to provide security for the football stadium, then he would fall under the statute and have to have the extra training requirement, correct?

 Training Requirements For Armed Teachers

If we say that R.C. 109.78(D) doesn’t apply, then do we allow non-law enforcement personnel to carry a weapon, hoping they do the right thing with it, asked Justice Stewart? Let’s say in the worst possible scenario there’s an active shooter in the building, wouldn’t we want the person who has that weapon to be trained somehow, to know about safety procedures? What is there in place that assures parents that there is safety with these weapons being in close proximity to their children, how they are locked up, how they are used?

Isn’t there a patchwork among school districts as to the caliber of training that each armed teacher can have from one high school to another high school in a neighboring community, asked Chief Justice O’Connor?

If an event takes place where there’s an active shooter and one of these teachers voluntarily assumes a position to go and protect others and presumably trained police officers are going to be called to the scene, there will then be untrained people interacting with trained police officers, noted Justice Donnelly.  Isn’t that the type of situation that the legislature wanted to protect against? If you are going to give people the power to have a gun and use it, then you are going to have to be properly trained, he added. What if, in hearing shots, the armed teachers assume they are coming from the active shooter, but they are actually coming from police officers trying to take control of the situation, and a police officer is now placed in danger because of untrained individuals making a mistake?

Didn’t the school board mandate additional training beyond 8 hours, asked Justice DeWine?


Isn’t the teacher or employee of the school that is armed there to provide the safety and security of the students and co-workers, asked Chief Justice O’Connor? Couldn’t there be a security guard or school resource officer who has had the peace officer training, and an armed teacher with 24 hours of active shooter training operating simultaneously in the event of a threat at the school? What about a school district that doesn’t have a security officer, special police officer or resource officer? All they have is the armed algebra teacher. Doesn’t that transform that teacher into the employee who according to the statute’s language is armed during the school day while going about his or her duty? Doesn’t that take them out of the realm of just being your average teacher and put them into the classification as the security backstop? Isn’t the purpose of their being allowed to bring their guns into the building to provide security? But not every teacher who has a concealed carry permit can bring their gun into the school. This is a special person that has been identified to be a security entity for that school. Is a teacher who is authorized to carry assuming an additional duty? She added that once a teacher volunteers to be armed, he or she assumes that duty to carry a weapon in the school.

But even having a school resource officer wouldn’t stop an authorized teacher from being armed, would it, asked Justice Stewart?

This all starts with R.C. 2023.122 (D)(1)(a), which is a criminal statute, noted Justice Kennedy. Concealed carry permit holders are prohibited from bringing a firearm into a school. They can lock the weapon in their car, in a secure place, leave it there, and enter the building without that gun. What this statute does is allow the concealed permit holder to bring that weapon into the school without violating the law if the Board gives him or her permission to do so. In order for the school board to do that, they have to create a policy that would allow a concealed carry permit holder to bring the weapon into the building. That does not change that person’s role. How does relief from a criminal prohibition somehow change a teacher into a police officer?  They are still a teacher. They are not a security officer. They have no enforcement or investigative power. They are just a concealed carry permit holder that now is not subject to a criminal charge because the school board has authorized this permit holder with additional training to bring their gun into the school.

This isn’t about somebody being the security person at the school, is it, asked Justice DeWine? We’re talking about someone who is authorized to carry a firearm, who’s there in case there’s an active shooter situation. This is not a question of school boards authorizing teachers to be security guards, it’s a question of school boards being concerned about active shooter situations and wanting to make sure that some teachers who have training have their firearms available. That’s what this is about, isn’t it? If a teacher volunteers to take on the key club, aren’t they still a teacher? Isn’t that still their primary position? It doesn’t change that position because they volunteered to do something else, does it?

Is a teacher authorized to carry a weapon required to bring that weapon to the school every day, asked Justice Fischer?


Isn’t the reason why the armed school employees in the policy are called volunteers to avoid the application of R.C. 109.78(D), asked Justice Brunner? Can teachers be employed and be a volunteer at the same time so that they don’t fall under the ambit of R.C. 109.78 (D)?

Could the school board authorize some non- employees, such as retirees, to walk around the school and carry firearms, asked Justice DeWine?

Does R.C. 29293.122 (D)(1)(a) exempt a parent who volunteers every day and assists as a teacher’s aide, asked Justice Stewart? If that parent is a concealed carry permit user, would this allow her to carry a concealed weapon into the school?

Interpretative Canons and Ordinary Language

What is the difference between ordinary linguistics and plain language, from a legal standpoint, asked Justice Brunner? Under the Court’s existing precedent, ambiguity means that the statutory provision is capable of having more than one meaning. How exactly does that apply here? She added that sometimes the plain meaning is not the preferred meaning, but it is not the Court’s job to change what the legislature is required to change.  The Court simply applies the plain meaning, and that’s it.

Aren’t these canons just really part and parcel of how we read things, asked Justice DeWine? Of course, there is precedent that says canons aren’t applied unless the statutes are ambiguous, but really most canons or at least these kinds of canons are based on how we think and read. For example, if we had a rule that said no one can have Coke, Pepsi, Mountain Dew, Dr. Pepper, or any other soda in the courtroom, everyone would know that meant soda as in soda pop and not baking soda or sodium bicarbonate because that’s common sense. That’s part of how people read. We don’t have to declare that sentence ambiguous in order to apply that canon and know that doesn’t mean you can’t bring baking soda. In all reality, don’t we apply ejusdem generis all the time as part of ordinary English? It’s part of how we read. It’s a little unfair to say that should never be applied unless there’s ambiguity because whether or not something is ambiguous depends on context and the basic linguistic tools that we use when we read the sentence, doesn’t it? Don’t most of these linguistic canons simply reflect the tools that we intuitively use when we read? Realistically, isn’t this just how people read? If a list of things ends with “and other stuff,” the reader or listener is thinking of things in that same category, because that’s how people think about things, DeWine added.

How it Looks from the Bleachers

To Professor Emerita Bettman

Like a 4-3 win for Gabbard, with the Chief and Justices Stewart, Donnelly, and Brunner in the majority and Justices DeWine, Kennedy and Fischer dissenting. Despite the length of this argument, if readers have lost the thread, the disagreement is whether teachers authorized by the school board to bring their weapons into school are required to take the peace officer training required in R.C. 109.78(D). In short, I think the majority bought the parents’ argument that the peace officer training or experience is required, while the dissenters, and Justices DeWine and Kennedy (who, it seems, has begun to ask questions during oral argument) in particular, agree with Madison Local and the OAG that allowing a teacher to be armed while on duty does not transform that individual into some kind of police officer or security guard. The irony of trying to discern legislative intent here is undoubtedly this exact scenario was probably never in the legislative consciousness. 

In the event of a win for Gabbard, I suspect a legislative fix is in order for this, making it clear that the peace officer training mandated in R.C. 109.78 is not applicable to volunteer teachers who are authorized to go armed while on duty, and school districts can determine the training required for those teachers. The legislature has come close to this several times, and this may send them over the top.

To Student Contributor Brandon Bryer

Two things were clear after oral argument. First, Justices DeWine and Kennedy believe Madison Local is correct and second, Chief Justice O’Connor will side with Gabbard. Beyond that clarity, it is a bit more difficult to pinpoint where the justices are in this case. Justice Stewart’s questioning suggests a vote for Gabbard. Justice Brunner had very pointed, fair questions for both parties, but ultimately, I sense she will also side with Gabbard. Justices Donnelly and Fischer asked only one question each, but for Madison Local to prevail, both would need to side with the school’s position. Because I find that unlikely, I am calling this one for Gabbard and Madison Local’s armed teacher/staff program will be invalidated for failure to meet minimum training requirements.  

This argument showcased exceptional lawyering. I found Rachel Bloomekatz, counsel for Gabbard, to be particularly persuasive. Justice DeWine challenged Bloomekatz on numerous occasions and she gave direct responses while never failing to emphasize the points most favorable to Gabbard’s position. For Madison Local, Matt Blickensderfer did an admirable job navigating the critically intense questions from the active bench. Kyser Blakely, representing the Ohio Attorney General, did an excellent job of tying together loose ends. One by one, Blakely boldly tackled unanswered questions from the justices and in doing so argued eloquently in support of Madison Local.   

The outcome of this case will hinge on the answer to “when does an armed teacher rise to the level of  security personnel?” To Chief Justice O’Connor (and Gabbard), if an algebra teacher carries a firearm while teaching, they provide security for the school, point blank. Even counsel for Madison Local conceded as much. Because of this quasi-security role, teachers are considered “armed while on duty” and need extensive peace officer training to comply with Ohio law. However, Justices Kennedy and DeWine (and Madison Local) believe that only school police officers or similar security personnel are “armed while on duty.” An algebra teacher has no affirmative duty to provide security in the event of an emergency and can carry a firearm while teaching with whatever training requirements the local board of education authorizes. How Justices Donnelly, Fischer, and to an extent, Justice Brunner answer this question will determine the outcome of the case. While both parties have strong, reasoned arguments, I sense that a majority of the Court will side with Gabbard’s position.

The Ohio Association for Justice does not provide legal advice. All information, content, and materials provided on this website are for general informational purposes only and do not constitute legal advice. 

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