Liability issues — School board, officials struggle with concealed carry issues

The Weston County School District No. 1 board of trustees has asked its attorney to draft a concealed carry policy by its next board meeting, July 16, so that the board can decide whether it should enact a firearms concealed-carry policy, Board Chair Dana Mann-Tavegia told the News Letter Journal.

Meanwhile, trustees will review the new state law regarding concealed carry at schools and assess other school districts’ policies, as well as a model policy that the Wyoming School Boards Association created.

At the June 11 board meeting, trustees shared their perspectives on how the district should respond to the law, which takes effect July 1.

”Speaking for myself as a board member, and specifically not for the entire board, I am sorely disappointed in how poorly this statute was crafted,” Mann-Tavegia told the NLJ. “It left districts across the state without guidance as to how to handle district liability should any accidental or purposeful weapons discharges … happen on district property. My own analysis is that this is our biggest struggle in dealing with district policy. It is also another unfunded mandate, which our legislators claim to despise but still keep enacting into law.”

Mann-Tavegia said at the meeting that the district is legally required to have liability insurance on its grounds. She said the district’s insurance company, EMC Insurance, is requiring a $3,500 rider per person who chooses to conceal carry — and those people must be named, according to the company. The only way to legally ask for those names is to have a policy requiring that people who want to conceal carry complete training for that purpose, Mann-Tavegia said.

She said that if the district doesn’t cover itself for that liability, and an accident happens, the district would be “stuck for that amount.”

“I feel like I would be abrogating my responsibility to leave the district open to that kind of liability — the same as we have liability on vehicles,” she said.

Superintendent Brad LaCroix asked why the person who caused the accident would not be the one sued, and Abbi Forwood, of Lubnau Law and the school district’s attorney, said she doesn’t know whether a court would hold the district liable. She explained that if she were a plaintiff’s attorney, she would use a “belt and suspenders” approach, considering it would be the first case of a Wyoming court addressing this issue. She would sue the employee and the district and leave it up to the court to decide.

Forwood said that she believes the district can make a persuasive case — assuming it had told employees who choose to conceal carry that they won’t have liability insurance coverage — that the employee should be held responsible. However, the court could rule that the district should be held liable because it was aware of the state statute and knew that staff would be carrying guns on school grounds but “took no action whatsoever,” she said.

“I think it would come down to whether a court determined that the employee was acting within the course and scope of their duties,” Forwood said.

If the district doesn’t specify what duties that people who choose to conceal carry have when they are carrying, the district could easily be sued, according to Forwood.

LaCroix said he believes the district would assume liability either way. A school district would be sued before an individual would be sued because the district has more money and the district “periodically” has to defend itself in cases of negligence or wrongdoing, he said. 

LaCroix also noted that he doesn’t know many teachers who would be eager to conceal carry and he assumes that someone who would be interested in doing that must understand the duties and risks. Staff members would need to show him proof of their compliance with whatever policy the district approves. He said he believes that the most substantial issue is confidentiality — a parent might demand to be in a certain teacher’s classroom, depending on whether the teacher decides to conceal carry.

Forwood said that Wyoming school districts range from having very “bare bones” policies to Campbell County School District’s policy, which is “probably the strongest” regarding training requirements and lock boxes, according to Forwood. 

That school district has also included psychological evaluations in its policy, arguing that individuals who choose to carry guns are “acting in a quasi-law enforcement capacity” with law enforcement training, and law enforcement employees must undergo psychological testing. CCSD’s policy requires initial training of at least 32 hours of live-fire handgun training and 24 hours of scenario-based training using non-lethal training firearms and ammunition, plus annual live-fire and scenario-based training of at least 24 hours.

Trustee Tyler Mills said that because Newcastle is such a tight-knit community and teachers are “some of the best, if not the best in the state,” even if teachers completed all the requirements in CCSD’s policy, he doesn’t believe they could shoot a student, if a student were a live shooter.

Trustee Paul Bau, as Mills noted, had suggested the district consider Byrnas, which are non-lethal, self-defense launchers, and he believes staff would be more comfortable using those. He said he believes those should be excluded from the policy but should still be concealed because they look like a firearm.

Forwood said that she would recommend that staff also complete applications if they wish to carry a Byrna.

“It’s the same reasoning that you would want to know who has a weapon,” she said.

Board Vice Chair Jason Jenkins said that he would like less-lethal options, but he warned that it would be tricky for a teacher to have to decide “in a split second” whether to use a Byrna or “a real gun,” and they could face a lawsuit if they decided to use a lethal weapon instead of a less-lethal one. Law enforcement officials — who have several tools they can use — frequently face lawsuits, he noted.

“Each one of those is a separate type (of) use of force, and you use the wrong application for the wrong situation and you’ve got yourself a lawsuit,” he said.

Jenkins, trustee Billy Fitzwater and trustee Dana Gordon said that the board should take its time in crafting the policy and not steer toward getting it done by July 1. Jenkins said that there are advantages to having the policy but the district would be “stuck” with that policy and could, conceivably, overlook something.

Mann-Tavegia said that her primary concern is obtaining the liability insurance and that she wouldn’t want to require staff to undergo psychological testing.

LaCroix continues to contend that the district should not have a policy. He said he believes that a policy is “just really messy right now.” He said he believes the intention of the law wasn’t to add burden to school districts, such as liability insurance issues and role creation. He counseled that other districts’ actions in the court system will demonstrate to WCSD No. 1 what it should do, and said that staff haven’t shown excitement about being able to conceal carry. He also said that he never saw anyone at Newcastle High School conceal carry, unlike what Bau said at a previous board meeting.

“They must have been very good at it,” LaCroix said.

He told the NLJ in a follow-up that he believes Bau is being truthful, even though he himself, who was the school’s principal in that era, never noticed a staff member conceal carrying a gun. The school never had a firearms accident, according to LaCroix, who said he assumes liability in everything he does, every day, so he’s not concerned about liability.

“I hope that we don’t make it so tough or (have) so many demands on staff to carry that they don’t want to carry,” he said.

He said his biggest fear is that an incident involving a gun occurs at school and the training the district mandated is found to be inadequate. He said he believes that any staff member who would want to conceal carry understands the responsibility and liability and that nobody works in public education to shoot kids.

“The minute I lose faith in people, I need to get out of the people business,” he said.

LaCroix admitted that he likely risked alienating some people, but that he sees no reason to make the issue more costly and complex than it needs to be. The cost indicated by insurance carriers, for example, isn’t applicable if the district doesn’t have a policy that would require people to report that they are conceal-carrying, he explained.

Trustee Joe Prell said that he understands the insurance concern and that the district should seek to cover its liability, but he couldn’t decide that night whether the district needs a policy. He said he will support whatever the majority of the board decides.

Fitzwater said that he is uncertain regarding whether the district should have a policy and he believes that he — and, he hopes, the board — would be able to make that decision at the July meeting.

Forwood said the district will be better able to defend itself in a lawsuit regarding a case where the accident was caused by someone who isn’t a staff member than someone who is an employee.

“A plaintiff would have to show that the school district did something to create that situation and or create the accident or that they were actively involved,” Forwood said. “You would have to show negligence on the school district’s part, and I think that would be difficult considering that there’s a state law saying ‘bring your guns.’”

Trustee Sean Crabtree said that people who are concealed carrying should be required to undergo drug testing because they could experience a life change and start abusing drugs, without reporting it, within months of when they receive a concealed carry permit. 

“I see it every single day in this world, and you can’t trust anybody,” he said.

Forwood said there would be legal standing to justify drug testing. Transportation employees are drug tested, so there is precedent for having employees undergo those tests, she said. LaCroix countered, asking rhetorically whether he would lose his job as superintendent if he failed a drug test and can’t carry a gun.

“That is the slippery slope with all of this, and even as a lawyer, I recognize the importance of policies,” she said. “I also recognize that they can be used as a double-edged sword. They can either be used to cut — or they can cut against you.”

She said that she thinks the district would want to know for liability reasons who is carrying a weapon so that it can have the $3,500 insurance rider, and she’s unaware of any other way to determine who is carrying without having a policy. Forwood said she thinks CCSD’s policy will be challenged and that CCSD has the resources to defend itself in a court battle.

“I’m watching you guys struggle to afford Special Olympics,” she said. “I don’t think you want to be in front of the Supreme Court expending those legal fees.”

She said the policy should be simple and, at a bare minimum, state that staff members need to follow state statute and that they must disclose to specified people that they are carrying so that the district can provide liability insurance.

“While I understand the additional requirements, and as a parent who has two young children who are going to be going to school in this environment, I want all the training — I want the lock boxes — but as an attorney, I’m saying be careful with how complex your policies get,” Forwood said.

LaCroix said that the policy should state that if a person who is concealed carrying does not choose to follow the policy, that person forfeits their teaching position, so that the policy “has teeth.”

Forwood recommended that the district ask the insurance company what information it requires regarding the individual rider and then only ask staff for that information, but LaCroix said that even that policy is holding staff to a different standard than other people and districts assume liability with all people around children.

“This is just a big rabbit hole that we’re not going to win,” Jenkins said.