Thursday, November 19, 2009

Medford Teacher Loses Appeal to Have Firearm in Classroom

The Oregon Court of Appeals held that the Medford School District has the right to have a policy preventing teachers from possessing firearms on campus. The central issue was the state law which gives the state legislature exclusive authority to restrict the right to carry firearms. In particular the state law prohibits local governments from passing civil or criminal ordinances regulating firearms. The Court of Appeals held that the school district's policy was not an ordinance and thus not subject to the state preemption. It is a detailed opinion based on the meaning of the state statute and the legislature's intent. Read it for yourself here and beware of media summaries.

Mike Arnold,
Attorney at Law
Eugene, Oregon
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Zak Johnson said...

I find it very troubling that a court says that a policy can override a statute, e.g. law. My only conclusion is that the court is inserting an opinion that has nothing to do with law and more to do with guns. Besides the obvious problem with the 2nd Amendment being brushed aside, the court has now created a precedent that "policies" and "rules" set locally can override statewide laws specifically enacted by the legislature. The line that the school district is correct to ignore state law because "its policy is merely a valid employment policy pertaining to the use of its own property by its own employees" would never have been allowed in any case not involving guns. The court does not even attempt to hide its anti-gun bias in this case and makes no effort to draw broader legal consequences--though of course others might and probably will cite this case going forward as allowing public agencies to create whatever "policies" they wish. For example, Oregon's DHS last year attempted to create special restrictions on firearm storage in homes where foster children are placed. DHS will no doubt reconsider that in light of this decision.

The court also swept aside privacy concerns with its brief "the school district learned that petitioner possessed a license to carry a concealed handgun." They did this in a way that constitutes a witch hunt and a presumption that anyone with a license can be discriminated against by their employer on the assumption that they intend to violate policies even if their is no evidence that they have. The manner in which the district "learned" that the employee had a license is of course not considered, though it very much should have been.

I'd also like to point out that the amicus brief filed by the OSBA was filed without ANY input from its members--the OSBA puts its wet finger in the wind to see which way the political winds are blowing and then acts without regard for member input. I was on a school board and went to meetings where this court case was discussed--other school board members in those meetings were very critical of the decision to take away 2nd Amendment rights and in fact the OSBA staff hosting the meetings agreed. We encouraged OSBA to stay out of this unless members were involved in forming the policy but apparently they couldn't help themselves.

Mike, one thing I can't fathom is why the Oregon court supported the use of Washington state law and precedents from the Washington appeals court when the statutes involved are state specific and therefore no precedents in Washington should apply to a strictly Oregon decision. Can you enlighten a non-lawyer on that? Thanks.

Zak Johnson said...

Let me add one more thing before I shut up: as I wrote in the Oregonian at the time, the school district has failed both its employee and its students by not taking any action to address the real problem, which was that the teacher wanted to carry a gun because she claimed her ex-husband had threatened to kill her. I think 3 women a day are killed by spouses or ex's and police of course can only respond. It was never established whether a real threat was made, but a restraining order was issued, which should have been enough to alert the district that they needed to (1) protect their employee and (2) to protect their students. Nobody in the world would want their children in a classroom with someone who was a known target of a terrorist threat. The district should have moved quickly to (1) remove her from the classroom [with pay], (2) enlist assistance from local law enforcement to keep her husband away from school property [I believe he was a photographer who frequently came to schools] and (3) push the parties to resolve the issue. If it turned out that the threats could be proved, then the husband was actually guilty of denying his wife a living since she could not reasonably be employed in a classroom under a threat. The district by not acting in any way other than to try to disarm the teacher could have been (and should have been IMO) libel for any harm that came to her or to her students (since they kept her in the classroom) once they learned of the threats against her.

Classic case of punishing the victim, in this case the (alleged) victim of domestic violence.

brian r said...

Zak, I agree with all of the comments and opinions that you expressed. What the hell? I agree that this is definitely opening the door and setting precedence for some future decisions. It sucks that the court just blatantly ignored the law, and unfortunately it seems it may be happening more in the future (since they got away with it). This frightens me as I work at a school.

C. Michael Arnold said...

The legislature said they couldn't make an "ordinance" and an employment policy is not an ordinance. Blame the legislature for not anticipating this and for not fixing it in the last session. The court just gave the word "ordinance" its plain meaning. The implications are scary, such as potential DHS rules. However, the courts are more likely interpret a DHS administrative rule (OAR) as a law than to interpret an employment policy as a law. We can only hope.

Zak Johnson said...

It's also extremely disappointing this teacher's union is not sticking up for her protection. I know union reps in Oregon who have really gone to bat for threatened spouses who needed to carry a firearm at all time. In this case, it seems neither the district nor the union has done anything to protect this teacher, only enough to try to absolve themselves of any liability should something happen to her.

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