The purpose of this paper is to submit to the Escambia County (Ala.

) Board of Education (Board) my impressions of the matter involving John W. Lambert. As I have requested the opportunity to address the Board at the hearing scheduled for 23 July 2012, it is not a necessity that I prepare this paper. In the interest of time and in the interest of others who may also be addressing the Board in this matter, I have chosen to submit for the record the bulk of my statement in writing rather than verbally. As required by the Code of Alabama 1975, 41-2212(g)(2), I understand, and submit to the Board, that this paper shall become part of the record of the aforesaid proceeding and may be available for public review. The initial question that must be answered is, Does the Board have the authority to regulate in any manner the possession, transport, or carrying, of firearms or ammunition? By policy the Board has done so, but from where does its authority originate? Apparently the Board has derived its superficial authority from the Alabama State Department of Education (ALSDE), who, by State Law, must adopt . . . policies that protect all students and school employees . . . [and] shall require local school systems to modify their policies, practices or procedures so as to ensure a safe school environment free of illegal drugs, alcohol, or weapons. See 16-1-24.1(a), Ala. Code 1975. So far as I have ascertained at this time, only two other policies have been adopted by the ALSDE aside from the enforcement of 16-1-24.1(a) by the ALSDE. More specifically, the ALSDE has adopted a specific policy1 requiring the Board to enact such safe school standards, and the Assurance of Compliance (2011) lists as item 3 the provision that The school board has adopted and implements a policy to provide a gun-free environment and cites 16-1-24.3, Ala. Code 1975, as the basis for this requirement.

This policy will be addressed later in this paper.

Dennis HE Wiggins

Upon reading 16-1-24.3, Ala. Code 1975, it is immediately clear that the section is intended to ensure that students do not have firearms on campus. The word student or students is used ten times in this section. No other person, persons, or group of persons is named in this section, and 16-1-24.1(a) is, at best, vague regarding the matter of whom the policies shall include. Furthermore, 16-1-24.3 is titled, Local boards of education to implement policies requiring expulsion of students who possess firearms in school areas. As can be seen, the section of the Code cited in the Assurance of Compliance (2011) is not intended to address employees. If, however, it is construed by the ALSDE and/or the Board that, in relation to 16-124.1(a), the local Boards are to include employees as well as students in their policies, further instructions are needed. Section 11-80-11(a), Ala. Code 1975, reads, in part, No county or municipal corporation, instrumentality, or political subdivision thereof, by ordinance, resolution, or other enactment, shall regulate in . . . the possession, ownership, transport, [or] carrying . . . of firearms, [or] ammunition . . . . While there is no definition of instrumentality included in Chapter 80, a definition is found in Chapter 97. An instrumentality is defined as, With respect to any county or municipality, any public corporation, public authority, board, commission or other similar body that is incorporated, established or controlled by such county or municipality. (Emphasis added.) See 11-97-2(17), Ala. Code 1975. It is reasonable to presume that this definition will be sufficient to apply to the intentions of 11-80-11(a), also. With that in mind, it is reasonable to presume that the Board is included in the organizations precluded from regulating in any manner the possession, transport, or carrying, of firearms or ammunition, at least regarding those of legal age to own firearms, including employees and nonemployees.

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Furthermore, even if the policy is within the preceding laws and guidelines, there is an issue of inconsistency with existing State Statutes. The ALSDEs policy reads, in part Effective with the 1995-96 school year and thereafter, local boards of education must: . . . Adopt and enforce a uniform policy prohibiting all persons, other than authorized law enforcement personnel, from bringing or possessing any deadly weapon or dangerous instrument on school property and prescribing specific penalties for students and school personnel who violate this policy, notwithstanding any criminal penalties which may also be imposed. See 290-3-1-.02 (1)(b)3. (Regulations Governing Public Schools).

This is in direct conflict with the Code of Alabama 1975, 13A-11-72(c) and (e), which reads: (c) Subject to the exceptions provided by Section 13A-11-74, no person shall knowingly with intent to do bodily harm carry or possess a deadly weapon on the premises of a public school. (e) Law enforcement officers are exempt from this section, and persons with pistol permits issued pursuant to Section 13A-11-75, are exempt from the provisions of subsection (c) of this section.2 To further address the issue at hand, it becomes necessary to review the Boards specific policy regarding the possession of a deadly weapon . . . on school property. The Boards Policy 826 reads, in part, No employee . . . will be in possession of an unauthorized weapon on any school premises . . . . As the term unauthorized weapon is not defined in the policy, a reasonable definition must be determined. To find that definition, it is most practical to look to clearly established laws, specifically the Code of Alabama 1975, 13A-11-72 (e). Again, the Code specifies that persons with pistol permits issued pursuant to Section 13A-11-75, are exempt from being barred from carrying or possessing a deadly weapon on the premises of a public school.
2

Interestingly, the State law actually allows people who intend to do bodily harm [to] carry or possess a deadly weapon on the premises of a public school, as long as they have pistol permits issued pursuant to Section 13A11-75. The law itself should be considered a greater danger than a teacher such as Mr. Lambert having a firearm on the premises.

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This further substantiates the claim that the Board does not have the authority to regulate in any manner the possession, transport, or carrying, of firearms or ammunition by persons with pistol permits issued pursuant to Section 13A-11-75. This is further bolstered by the Gun-Free School Zones Act of 1995 which reads, in part: It shall be unlawful for any individual knowingly to possess a firearm . . . [in] a school zone . . . [unless] the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license. See 18 USC 922(q)(2)(A) and (B)(ii). As Mr. Lambert had a properly issued pistol permit at the time of the alleged offense, it is reasonable and apparent to understand that he was not in possession of an unauthorized weapon. This, then, is indicative that Mr. Lambert did not violate any legal policy or law in place. As there have been no in-court challenges to the policy, or the related laws from the Code of Alabama for that matter, there are no judicial guidelines to confirm whether or not the Boards Policy 826 is legal. One may note, however, the decision of the Supreme Court of the United States (the Court) in McDonald v. the City of Chicago, U.S. , 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). The petitioners in McDonald alleged that Chicagos handgun ban, and several related City ordinances, violated the Second and Fourteenth Amendments, making the ordinances unconstitutional and in the process had left them vulnerable to criminals. The case was appealed to the Court for a final decision on the issue, and the Court ruled in favor of the petitioners. In its 214 page slip opinion, the Court ruled, as summarized by Justice Thomas, that the right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by 1 of the Fourteenth Amendment, which provides, inter alia: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United
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States. Although there is far greater substance to the Courts decision than is contained in the short quote from the summary, the bottom line is simple the States and local governments do not have the right to make laws that override or bypass the Second Amendment right to keep and bear arms. Additionally, the Fourteenth Amendment to the United States Constitution provides, in part, that, No State shall . . . deny to any person within its jurisdiction the equal protection of the laws. As has been clearly established, the laws of the State of Alabama unequivocally state that persons with pistol permits issued pursuant to Section 13A-11-75, are exempt from being barred from carrying or possessing a deadly weapon on the premises of a public school. It is my opinion that if the State were to allow the ALSDEs and Boards policies, which inarguably violate provisions in the Code, to stand as written, Mr. Lamberts Fourteenth Amendment right has been violated simply because he is excluded from the protection of the Code of Alabama 1975, 13A-11-72 (e), which has no provisions for exceptions to the stated exemption. In light of the several laws that have been reviewed (including the Courts decision in McDonald), it is apparent that the answer to the initial question is, No, the Escambia County (Ala.) Board of Education (Board) does not have the authority to regulate in any manner the possession, transport, or carrying, of firearms or ammunition. Based upon that conclusion, Mr. Lamberts rights, including his Second, Fourth, and Fourteenth Amendment rights, may have been violated in this matter. Ultimately, it will be up to the judicial system to decide that, but presently it is up to the Board to decide how to address the predicament in which it has found itself. In my opinion, the best way to solve this problem is to allow Mr. Lambert to return to work and make no reference of this issue on his employment record aside from that which is required by law.

Dennis HE Wiggins

Appendix Laws, Policies, and Statutes Referenced Section 1 of the Fourteenth Amendment to the United States Constitution: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 18 USC 922(q)(2)(A) and (B)(ii): (2) (A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone. (B) Subparagraph (A) does not apply to the possession of a firearm (ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license; Code of Alabama 11-80-11(a) No county or municipal corporation, instrumentality, or political subdivision thereof, by ordinance, resolution, or other enactment, shall regulate in any manner gun shows, the possession, ownership, transport, carrying, transfer, sale, purchase, licensing, registration or use of firearms, ammunition, components of firearms, firearms dealers, or dealers in firearm components. 11-97-2(17) INSTRUMENTALITY. With respect to any county or municipality, any public corporation, public authority, board, commission or other similar body that is incorporated, established or controlled by such county or municipality. 13A-11-72(c) and (e): (c) Subject to the exceptions provided by Section 13A-11-74, no person shall knowingly with intent to do bodily harm carry or possess a deadly weapon on the premises of a public school. (e) Law enforcement officers are exempt from this section, and persons with pistol permits issued pursuant to Section 13A-11-75, are exempt from the provisions of subsection (c) of this section.

16-1-24.1(a) The Legislature finds a compelling public interest in ensuring that schools are made safe and drug-free for all students and school employees. The Legislature finds the need for a
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comprehensive safe school and drug-free school policy to be adopted by the State Board of Education. This policy should establish minimum standards for classes of offenses and prescribe uniform minimum procedures and penalties for those who violate the policies. It is the intent of the Legislature that our schools remain safe and drug-free for all students and school employees. The State Board of Education shall adopt and all local boards of education shall uniformly enforce policies that protect all students and school employees. The State Board of Education shall require local school systems to modify their policies, practices or procedures so as to ensure a safe school environment free of illegal drugs, alcohol, or weapons. Any rules and regulations adopted by the State Board of Education pursuant to this section shall be exempt from Section 41-22-3(3). These modifications shall include the formulation of a discipline plan setting forth policies, practices, and procedures dealing with students or other persons who bring illegal drugs, alcohol, or weapons on a school campus. The discipline plan shall also include uniform drug-free school policies with uniform penalties.

16-1-24.3(a) All city and county boards of education shall develop and implement local policies and procedures requiring the expulsion of students, for a period of one year, who are determined to have brought to school or have in their possession a firearm in a school building, on school grounds, on school buses, or at other school-sponsored functions. Notwithstanding the foregoing, city and county boards of education and the local superintendent of education of each board may modify the expulsion requirement for a student on a case-by-case basis. Students who are expelled for violation of this section shall not be allowed to attend regular school classes in any public school in the state during the expulsion period. Students who are expelled from schools for firearm possession may be permitted to attend alternative schools designed to provide education services. Discipline of students with disabilities who violate the firearm possession policies of city and county boards of education shall be determined on a case-by-case basis in accordance with the requirements of the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act.
41-22-12(g)(2) (g) The record in a contested case shall include: (2) All evidence received or considered and all other submissions; provided, in the event that evidence in any proceeding may contain proprietary and confidential information, steps shall be taken to prevent public disclosure of that information;

290-3-1-.02 Regulations Governing Public Schools. (1) Safe School Equipment and Facilities, Laboratories, and Policies. *********** (b) Effective with the 1995-96 school year and thereafter, local boards of education must: ***********
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3. Adopt and enforce a uniform policy prohibiting all persons, other than authorized law enforcement personnel, from bringing or possessing any deadly weapon or dangerous instrument on school property and prescribing specific penalties for students and school personnel who violate this policy, notwithstanding any criminal penalties which may also be imposed. Policy 826