The two federal laws that address firearms in K-12 schools do not apply to community colleges. They therefore must look to a variety of federal and state laws and case history in considering how to regulate weapons on campus. When engaging in this conversation, community college boards and administrators face a variety of factors before making an informed decision that maximizes student and staff safety yet minimizes the college’s risk and liability.
Can community colleges have a blanket “no firearms” policy established by Oregon Administrative Rule?
No. In 2011, Oregon Firearms Education Foundation vs. Board of Higher Education, 264 P.3d 160, 165 (Or. Ct. App. 2011), held that the Oregon State Board of Higher Education’s rule imposing sanctions on persons who possessed or used firearms on university property was invalid. Why? Because the rule was outside the Board’s authority to regulate firearms and not expressly authorized by the Legislature.
Can a community college broadly regulate via policy where and when an individual (regardless of concealed carry license) can carry a firearm?
It appears so. In Oregon Firearms Education Foundation vs. Board of Higher Education, the court also concluded that a board’s “broad scope of authority to control and manage its properties includes the ability to make rules regarding the conduct of visitors or members of the public on institutional properties.” In 2012, the Oregon Board of Higher Education, using its statutory authority to control and manage its properties, banned guns, including licensed concealed carry, from classrooms, buildings, dormitories and sporting and entertainment events. We believe the Oregon University System (OUS) policies – and the many similar policies enacted at community colleges – to be legal, as they are internal policies focusing on controlling and regulating the Board’s property, not regulations enacted through an administrative rule. While the OUS Board gains this authority via ORS 351.060(2) (the Board may “Manage, control and apply all property of whatever nature given to”), we believe similar authority exists for community colleges via ORS 341.290(4) (Boards may “Control use of and access to the grounds, buildings, books, equipment and other property of the district”). These policies have yet to withstand legal challenge.
Is it illegal for a non-licensed person to carry a concealed handgun on campus?
That depends. State law (ORS 166.370(1)) defines possession of a firearm in a public building as a Class C felony. While ORS 166.370(3) provides an exemption for “[a] person who is licensed under ORS 166.291 and 166.292 to carry a concealed handgun,” no exemptions exist for non-licensed individuals. As such, it is certain that an individual may not possess a firearm in a public building without a concealed carry license. The space outside of “public buildings,” however, is less certain. Localities that prohibit non-licensed open carry of loaded firearms in public places include Astoria, Beaverton, Independence, Newport, Oregon City, Portland, Salem, Tigard and Multnomah County.
Can community colleges enact policies prohibiting employees from carrying firearms on campus?
Yes. Doe v. Medford School District (232 Or. App. 38, 221 P.3d 787 (2009)) held that state law did not conflict with school policy prohibiting an employee from bringing a handgun to school, even though she had a valid concealed handgun license. The court noted the policy applied solely to employees and not to members of the public who enter district property. This upholds the right of employers to set reasonable work rules, including establishing rules surrounding the carrying of weapons in the workplace. As such, community colleges can establish a work rule prohibiting the carrying of firearms while employees and volunteers are at work.
Can community colleges legally arm campus security officers?
That is doubtful. While there is no express statutory prohibition on arming security officers, community colleges do not have statutory authority to establish police departments and commission officers (unlike Oregon universities). As such, it is doubtful that community colleges have the authority to arm their security employees. Community colleges can, however, contract with local law enforcement to provide security, contract with private security to provide armed but non-commissioned officers, or employ officers who receive their police powers, commission, and ability to carry a firearm from a local law enforcement agency. There are always liability and risk concerns when discussing arming employees with weapons.
For members of the Property and Casualty Coverage for Education (PACE) insurance pool, a college’s employees, board members and volunteers are all covered under the Liability Coverage Document when acting within the course and scope of their duties. In the event a college wishes to contract with local city or county law enforcement, and those individuals use a firearm against a student or other party, resulting in a lawsuit, coverage will be provided based on the following language:
Additional Coverage H:
Corporal Punishment - This coverage document will provide bodily injury coverage for damages arising out of corporal punishment. Corporal punishment means the use of reasonable force to protect persons or property or, with respect to the named participant's law enforcement activities or the named participant's departmentally-approved law enforcement activities of others, to an act of the participant (unless deemed to be a criminal act) within the arrest or incarceration process.
Some key coverage terms are important to recognize. The first is "course and scope of their duties." For coverage to apply, the act must be within the job duties of the person committing the act. For example, if a college’s security officer uses a weapon in self-defense, according to established college policies, then there will most likely be coverage. But if the individual uses a weapon for something that is clearly not authorized, or part of his or her job duties, then coverage may not apply. Another key term is "reasonable force." If a firearm is intentionally discharged by a college security officer, when it is clear that other less lethal options are obviously available and reasonable, then it is possible that coverage would not apply. The determination of whether the use of force is reasonable would be decided during legal proceedings.
One of the best ways to reduce risk is to transfer that risk to another party, either through the purchase of insurance or contractually. Most colleges have transferred much of their financial risk to PACE through the purchase of insurance. In addition, colleges can contractually transfer their risk related to law enforcement liability to either a city or county law enforcement agency, by contracting for security services. But financial risk is not the only consideration. When there is an allegation of negligence involving security officers, the media are often involved, and a great deal of community conflict can develop. A good example is an alleged sexual abuse incident at McMinnville School District several years ago. The school resource officer (SRO), who was a contracted city of McMinnville police officer, arrested two middle school students for alleged acts of sexual abuse. The incident quickly escalated in the media. Attorneys for the arrested students filed suit against the city and county but not against the district. If the security officer had been a district employee, then it would likely have faced further media exposure and costly litigation.
Update policy to address the college's position on firearms in schools. Review and update procedures related to facility lock in/lock out/lock down to incorporate any changes to the college's position on firearms on campus.
Why is it important for the governing board to weigh all these issues before making a decision?
While there is no clear legal path regarding regulations and policy for firearms in community colleges at this time, it is vital that the board have a discussion about the options related to firearms and student safety, evaluate those choices and make an informed decision on how to proceed. Going through this process will provide some protection for the college if it is ever challenged legally. Why? Because the board can show it went through a thoughtful and deliberate process before making its decision.