Effective Implementation of Body Cameras and MOUs in Schools

SRO LEGAL TRAINING

SRO LEGAL TRAINING

FERPA/

FERPA/

THE SAFE SCHOOLS

THE SAFE SCHOOLS

ACT

ACT

SCOTT SUMMERS

SCOTT SUMMERS

DIRECTOR OF SCHOOL LAWS

DIRECTOR OF SCHOOL LAWS

MISSOURI SCHOOL BOARDS’ ASSOCIATION

MISSOURI SCHOOL BOARDS’ ASSOCIATION

summers@mosba.org

summers@mosba.org

1.800.221.6722

1.800.221.6722

AGENDA

AGENDA



NEW LAWS



FERPA



SAFE SCHOOLS ACT



CASES



QUESTIONS!!

NEW

NEW

(and kind of new)

(and kind of new)

 LAWS

 LAWS

BODY CAMERAS

BODY CAMERAS

•

A recording taken by a LE mobile video recorder

(body/vehicle camera) that is taken in a non-

public location (dwelling, school, medical facility)

may be a closed record

•

Upon 

written

 request, the following may receive

unaltered, unedited copy

–

Person depicted in recording

–

Person/voice in the recording

–

Legal guardian/parent if minor

–

Atty for depicted person

–

Family member if deceased

RECOMMENDATIONS

RECOMMENDATIONS

•

Designate SRO as Law Enforcement Unit

•

Body camera footage taken at the school is

the property of local law enforcement agency

–

Created and maintained in accordance with local

law enforcement agency policies and procedures

–

Request copies of local law enforcement agency

policies/procedures

•

MOU with local law enforcement agency

MOU’S

MOU’S

•

Make it clear that camera recordings are the

property of local law enforcement agency

•

Require local LE agency to provide advance

notice to the district before officers assigned

to the district begin using the body cameras

•

Require SROs to use body cams only when

performing LE duties and in accordance with

state law and the provisions of the local LE

agency’s body camera program

MOU’S

MOU’S

•

Require SRO’s to receive training on the program including

the proper use and operation of the cameras

•

Include language about district’s access to the recordings

–

Local LE agency will if not otherwise prohibited by law provide

copies of the footage to the district upon district request

–

If providing a copy is prohibited, LE will facilitate the availability

of its officer that made the video to testify, upon district

request, in any school disciplinary hearing concerning the facts

and circumstances surrounding the videoed incident

–

If camera footage is provided to a 3

rd

 party (media, parents) LE

will provide a copy to district upon request

UNLAWFUL USE OF WEAPONS

UNLAWFUL USE OF WEAPONS

§571.030.1

•

“A crime to knowingly…

–

(10)  “carry a firearm, whether loaded or unloaded, or

any other weapon readily capable of lethal use into

any school, onto any school bus, or onto the premises

of any function or activity sponsored or sanctioned by

school officials or the school board.”

§571.030.4

•

“Subsection (10) shall not apply to any person

who has a valid concealed carry permit…”

UNLAWFUL USE OF A WEAPON

UNLAWFUL USE OF A WEAPON

§571.030

•

Consequence (weapon on district property

with NO conceal/carry permit)

–

A Misdemeanor – Unloaded

–

E Felony - Loaded

CONCEAL/CARRY LAWS

CONCEAL/CARRY LAWS

§571.107.1

•

No concealed carry permit…or endorsement

shall authorize a person to carry concealed

firearms into . . .

–

(10) Any…elementary or secondary school facility

without the consent of the governing body/school

official/school board

•

Unless authorized as SPO…

CONCEAL/CARRY LAWS

CONCEAL/CARRY LAWS

571.107.2

•

Consequences

–

Carrying a concealed firearm in an elementary/

secondary school facility by a person holding a

valid c/c permit or endorsement 

shall not be a

criminal act

, but may subject the person to denial

to the premises or removal from the premises

CONCEAL/CARRY LAWS

CONCEAL/CARRY LAWS

§571.215

•

States the same requirements as 571.107

•

Applies to those persons who have a lifetime

or extended c/c permit

PARKING LOTS

PARKING LOTS

•

§571.107, .205

•

“Possession of a firearm in a vehicle on the

premises of any…elementary or secondary

school facility shall not be a criminal offense

so long as the firearm is not removed from the

vehicle or brandished while the vehicle is on

the premises.”

ALL TOGETHER NOW…

ALL TOGETHER NOW…

•

§571.030

 - It is a crime of unlawful use of a

weapon if a person comes onto district

property with a weapon 

with no valid 

c/c

permit or endorsement

–

It is NOT a crime of unlawful use of a weapon if

the person has a valid c/c permit/endorsement

ALL TOGETHER NOW…

ALL TOGETHER NOW…

•

§571.107

 - IF a person has a valid c/c

endorsement or permit they are prohibited

from carrying the firearm/weapon onto any

elementary or secondary school facility

UNLESS

UNLESS

–

The school officials/board have authorized it

ALL TOGETHER NOW…

ALL TOGETHER NOW…

C/C Consequences

•

IF 

the person has a valid c/c permit/endsmt.

•

AND

 the person brings a firearm into the district

facility

•

AND

 the district does 

NOT

 allow weapons in the

facility

•

THEN

 it’s not a crime,

–

But the person may be barred or asked to leave

(trespassing)

–

Subject to fine and permit restrictions

ALL TOGETHER NOW…

ALL TOGETHER NOW…

•

The district is permitted to pass a policy that

prohibits weapons/firearms on school

property and in school facilities 

(MSBA Policy

(MSBA Policy

ECA/KK)

ECA/KK)

•

Also may prohibit weapons in vehicles while

on district property

–

If weapon is in a vehicle it’s NOT a crime

–

District may ban/prohibit person from district

property

JUVENILE DEFINED

JUVENILE DEFINED

SB 793/800 (211.031…RSMo)

•

Doesn’t go into effect until 2020

–

Changes the definition of “adult” in the juvenile

law from 17 to “18 years of age and older”

–

Child is person under the age of 17

NEW LEGISLATION

NEW LEGISLATION

HB 1606

HB 1606

–

If a district teaches a course in human sexuality the

district must teach students about sexual

harassment, sexual violence, and consent

HB 1355

HB 1355

–

Driver’s training courses must include instruction on

actions to be taken during traffic stops and

appropriate interactions with law enforcement.

Students will also receive information regarding the

dangers of operating a motor vehicle while intoxicate

or on drugs

NEW LEGISLATION

NEW LEGISLATION

SB 1007

SB 1007

–

Prohibits public employers (school districts) from

disciplining or terminating an employee, volunteer, intern,

or other person working in the district for discussing the

operations of the district with the legislature, state auditor,

attorney general, prosecuting attorney, law enforcement,

news/media, state investigative body, or the public

–

Prohibits districts from disciplining employees for the

disclosure of any activity that is a violation of the law,

mismanagement, gross waste of funds, abuse of authority,

violation of policy, waste of public resources, alteration of

technical findings, breaches of professional ethics, or a

substantial danger to health or safety, if the disclosure is

not prohibited by law

SB 1007 (cont.)

SB 1007 (cont.)

•

Prohibits the district from requiring an

employee to give notice prior to disclosing

information or preventing the employee from

testifying before a court, administrative body,

or legislative body

•

Requires the district (employer) to post notice

of the statute 

where all employees may view it

where all employees may view it

NEW LEGISLATION

NEW LEGISLATION

HB 1355

HB 1355

–

State law prohibits certain sex offenders from living

within 1,000 feet of a school building.  This law

clarifies how the distance will be measured

SB 655, 819

SB 655, 819

–

Removes time limits for prosecution of sex offenses in

which the victim is under 18

–

Creates a “tiered” sex offender registry program

where a person must register between 15 years and

life, depending on the severity of the offense and

where an offender can request removal from the

registry in certain circumstances

NEW LEGISLATION

NEW LEGISLATION

SB 843

SB 843

–

Creates a “task force” of state agencies, school

personnel, and advocates to make policy

recommendations for reducing child sexual abuse,

including school curriculum, school personnel

training, educational information for parents, and

support for students to be successful in school

SB 819

SB 819

–

Creates a committee to create guidance to assist in

the identification of children who have experienced

trauma and implement trauma-informed approaches

in schools and other settings

FAMILY EDUCATIONAL AND

FAMILY EDUCATIONAL AND

PRIVACY RIGHTS ACT

PRIVACY RIGHTS ACT

FERPA

FERPA

WHAT IS IT?

WHAT IS IT?

•

Federal law protecting student educational

records

•

A parent has a right to access, seek to amend

and have some control over the disclosure of

personally identifiable information from the

student’s educational records

GENERAL RULE

GENERAL RULE

•

Student education records cannot be released

without the 

written consent

 of a parent/

guardian or eligible student

–

Unless an exception applies

–

Or there is a court order

WHO IS A PARENT?

WHO IS A PARENT?

•

Biological parent, guardian, individual acting

as a parent in the absence of the

parent/guardian

•

Eligible student – reached age of 18 

or

attending a post-secondary institution

WHAT IS AN EDUCATION RECORD?

WHAT IS AN EDUCATION RECORD?

•

Records that are

–

Directly related to a student

–

Maintained by an educational agency or

institution

•

Or a party acting for or on behalf of the agency

institution

–

May include biometric records (DNA, fingerprints,

etc.)

EDUCATION RECORDS

EDUCATION RECORDS

•

Do NOT include

–

Information obtained by direct observation or

received orally

–

Records kept in the sole possession of the maker

to use as a memory aid

–

Records maintained by a law enforcement unit of

the district

–

Personnel records of the district

–

Information collected about student now alum

PERSONALLY IDENTIFIABLE

PERSONALLY IDENTIFIABLE

INFORMATION

INFORMATION

•

Information that alone, or in combination, is

linked or linkable to a specific student that

would allow a reasonable person in the school

community who has no personal knowledge

of the relevant circumstances to identify the

student with reasonable certainty

–

EX – name, mother’s maiden name, address, DOB,

SSN, parent’s name…

DIRECTORY INFORMATION

DIRECTORY INFORMATION

•

Most common FERPA exception

–

Personally identifiable information (PII) that is not

generally considered harmful or an invasion of

privacy if it is disclosed

•

NO – student ID or SSN

•

MAY include student ID if on badge

•

District decides what, if anything, to

include/not include as directory info

(Policy JO)

DIRECTORY INFORMATION

DIRECTORY INFORMATION

•

Districts must notify parents annually and allow

parents to opt out

•

If parents don’t opt out, then district is able to

disclose without the need for prior written

consent

•

The district is able to limit who directory info will

be provided to or may limit info only be provided

for specific reasons

•

Regardless – district may still require student to

disclose name, identifier, or institutional email

COMMON EXAMPLES

COMMON EXAMPLES

•

Grade level

•

Date/place of birth

•

Parent name, address, contact info

•

Awards/honors

•

Coursework displayed by district

•

Photos, videotapes, digital images, recorded

sound

•

Etc…??

DIRECTORY INFORMATION

DIRECTORY INFORMATION

•

Biggest “exception” – Directory Information

–

School MUST designate what is directory info

–

Policy JO (MSBA)

•

Subpoena/Court Order/Warrant

–

Easiest way for outside entities to get records!

–

But LE agencies don’t like to do this

–

Meet with them and discuss what FERPA is and

why they need one

FERPA

FERPA

AND

AND

LAW ENFORCEMENT

LAW ENFORCEMENT

WHAT WOULD YOU DO?

WHAT WOULD YOU DO?

Law enforcement entities in your community are

investigating an assault that occurred on your

school campus during the school day.  Officers

have requested you to provide a class list

containing the names and addresses of all

students who were in the classroom for the

particular period when the assault occurred.

Can you give it to them?

WHAT WOULD YOU DO?

WHAT WOULD YOU DO?

Frankie, age 15, is arrested for shoplifting.  It’s

his first offense.  Police department contacts you

and wants information on Frankie’s attendance,

discipline referrals, grades.  Can you give this

information to them?

WHAT WOULD YOU DO?

WHAT WOULD YOU DO?

Macy and Allison get into a fight while on campus.

You, the SRO, break up the fight.  You file an

incident report with the assistant principal.  You

give the AP the report AND you keep a copy of the

report for your own records. Later, that weekend,

Macy and Allison are taken into custody for

continuing their fight at the local mall. Police

department knows you were involved with the

incident at school and ask you for a copy of your

incident report.  Can you give them a copy?

WHAT WOULD YOU DO?

WHAT WOULD YOU DO?

You are employed by your local police department and

have been assigned, with an MOU, to work at a local

school district as an SRO.  You are investigating an current

student’s involvement in an incident of vandalism at the

school and on district property.  You request the student’s

education records, including his home address, phone

number, attendance records, and grades from the school

counselor.  You want to use this information for

disciplinary proceedings with the school and also seek

restitution for damages.  You have a video of the incident

which shows the student damaging the property.

THE BASICS

THE BASICS

•

Law enforcement agencies unconnected to

district have no FERPA authority to receive

student education records

•

No automatic exception to law enforcement

to 

receive

 records from school

–

May receive if consent or other exception applies

THE BASICS

THE BASICS

•

Remember – Schools cannot disclose an

education record without prior parental

consent (or 18 year old student)

•

But…School MAY disclose the education

record to a 

school official

 with a 

legitimate

education interest/purpose

•

So…what is a school official?

SO…WHAT’S A SCHOOL OFFICIAL?

SO…WHAT’S A SCHOOL OFFICIAL?

•

Includes a teacher, school principal, board president,

chancellor, board member, trustee, registrar, counselor,

admissions officer, attorney, accountant, human resources

professional, information systems specialist,

support/clerical personnel

•

Contractor, volunteer, or other party to whom school has

outsourced institutional services or functions if performing

a service or function the school would otherwise use

employees to perform AND

•

The party is under the direct control of the agency or

institution with the respect to use and maintenance of

education records

•

Could be a School Resource Officer…

SCHOOL OFFICIAL

SCHOOL OFFICIAL

•

In certain cases, SRO’s may be considered a

“school official” with “legitimate educational

interest”

–

Is under the direct control of the agency or institution

with respect to use and maintenance of education

records (would apply if SRO is employed directly by

district!)

–

But, SRO is subject to the requirement that PII from

the education record may ONLY be used for the

purpose the disclosure was made to the SRO –

school/student safety, physical security

SCHOOL OFFICIAL

SCHOOL OFFICIAL

•

Also – must meet the criteria specified in the

school district’s annual notification of FERPA

rights for being a school official with a

legitimate educational interest

–

Legitimate educational interest if official “needs to

review an education record in order to fulfill his or

her professional responsibility”

–

Notification means that parents now that SROs

have access to children’s educational records

SCHOOL OFFICIAL

SCHOOL OFFICIAL

SRO wants to view a student’s educational

records

•

First question is “why – for what purpose?”

–

School

–

Law Enforcement

•

If for LE – you don’t get them unless you’re a

“school official”

–

But then must show you have legitimate

educational interest in getting them

SCHOOL OFFICIAL

SCHOOL OFFICIAL

•

So

–

Any records shared with SRO cannot be re-

disclosed to other law enforcement agencies

–

Usually this is why the SRO wants the records

–

Need to have a frank conversation with law

Need to have a frank conversation with law

enforcement agencies/prosecutor about this and

enforcement agencies/prosecutor about this and

tell them why you are not able to provide these

tell them why you are not able to provide these

records

records

SCHOOL OFFICIAL

SCHOOL OFFICIAL

•

Discipline (Example)

–

Yes, discipline is “legitimate educational purpose”

–

But is SRO really involved in the school discipline (we advise not

to be!)

–

Not involved – no Legit Educational Purpose

•

What if you are also the Law Enforcement Unit as well as

the school official?

–

Need to review student statements maintained as an

educational record to determine if student committed a criminal

act on campus

–

Yes!  SRO gets records BUT

–

Can’t “re-disclose” to outside LE agency (unless consent or

exception applies!!)

LAW ENFORCEMENT UNIT

LAW ENFORCEMENT UNIT

Under FERPA, law enforcement unit records may

be used and/or disclosed without penalty.

LAW ENFORCEMENT UNIT

LAW ENFORCEMENT UNIT

What is a LEU?

•

Any individual, office, department, division, or other

component of an educational agency or institution,

such as a unit of commissioned police officers or non-

commissioned security guards, that is 

officially

officially

authorized or designated by that agency to

authorized or designated by that agency to

–

Enforce any local, State, Federal law, or refer to

appropriate authorities a matter for law enforcement of

any local, State or Federal law against any individual or

organization other than the agency or institution itself, OR

–

Maintain the physical security and safety of the agency or

institution

LAW ENFORCEMENT UNIT

LAW ENFORCEMENT UNIT

•

Authorized to perform, other, non-law

enforcement functions for the educational

agency or institution, including incidents that

lead to disciplinary actions against students

•

Records created by the LEU for a law

enforcement purpose and are maintained by

the law enforcement unit are NOT covered by

FERPA

LAW ENFORCEMENT UNIT

LAW ENFORCEMENT UNIT

Can an SRO be designated as a LEU?

•

Probably, yes

–

But would still be under the restrictions outlined

above

–

Again



 what function are you performing

•

Investigating/dealing with discipline

•

Investigating/dealing with crime/criminal behavior

–

If performing a law enforcement purpose, then

records are law enforcement (not student) records

and thus able to be disclosed without permission

LAW ENFORCEMENT UNIT

LAW ENFORCEMENT UNIT

•

Thus, law enforcement may provide 

their

record to school and it still is a law

enforcement record BUT

•

When school gets it, it’s now an 

education

record

and district may not re-disclose it!

WHAT’S IT ALL MEAN?

WHAT’S IT ALL MEAN?

•

The basic question is…

•

As an SRO can I get student records from school?

And, if I get them, what can I do with them?

–

Assume that you aren’t going to get them unless an

exception applies

•

Directory Information

–

If you are a “school official” with a “legitimate

educational purpose

” you might get them but

remember…

•

You won’t be able to “re-disclose” to outside agency (your

department)

WHAT’S IT ALL MEAN?

WHAT’S IT ALL MEAN?

•

Probably not a bad idea to have your district

officially

 designate you as a “Law Enforcement

Unit” and 

officially

put it in the notification to

parents that you, as the SRO, could have

access to student records

–

Remember, 

IF

you have been designated as a LEU,

AND

 you create records as part of a “law

enforcement investigation (

NOT

 school discipline)

THEN 

those records are 

NOT

 student records and

are 

NOT

 subject to FERPA restrictions

WHAT WOULD YOU DO?

WHAT WOULD YOU DO?

Law enforcement entities in your community are

investigating an assault that occurred on your

school campus during the school day.  Officers

have requested you to provide a class list

containing the names and addresses of all

students who were in the classroom for the

particular period when the assault occurred.

Can you give it to them?

WHAT WOULD YOU DO?

WHAT WOULD YOU DO?

Frankie, age 15, is arrested for shoplifting.  It’s

his first offense.  Police department contacts you

and wants information on Frankie’s attendance,

discipline referrals, grades.  Can you give this

information to them?

WHAT WOULD YOU DO?

WHAT WOULD YOU DO?

Macy and Allison get into a fight while on campus.

You, the SRO, break up the fight.  You file an

incident report with the assistant principal.  You

give the AP the report AND you keep a copy of the

report for your own records. Later, that weekend,

Macy and Allison are taken into custody for

continuing their fight at the local mall. Police

department knows you were involved with the

incident at school and ask you for a copy of your

incident report.  Can you give them a copy?

WHAT WOULD YOU DO?

WHAT WOULD YOU DO?

You are employed by your local police department and

have been assigned, with an MOU, to work at a local

school district as an SRO.  You are investigating an current

student’s involvement in an incident of vandalism at the

school and on district property.  You request the student’s

education records, including his home address, phone

number, attendance records, and grades from the school

counselor.  You want to use this information for

disciplinary proceedings with the school and also seek

restitution for damages.  You have a video of the incident

which shows the student damaging the property.

VIDEO RECORDINGS

VIDEO RECORDINGS

Bus video shows two students getting into a fight

on the bus.  The video also shows several students

in background, watching.  The video also shows two

students, with their phones out, videotaping the

fight.

–

Both parents of the two students want to see the

video and also get a copy

–

Local police department wants a copy to see if there

was an assault committed by one student

–

Attorney for one student wants a copy of the video for

a potential civil suit

VIDEO RECORDINGS

VIDEO RECORDINGS

•

A photo/video of a student is an education

record if

–

The video/photo is “directly related” to a student

–

Is maintained by an educational agency/institution

or by a party working for agency/institution

DIRECTLY RELATED

•

Context specific; case by case basis

–

Does the agency use the photo/video for disciplinary

action/official purpose involving the student or victim

–

Does the photo/video contain a depiction of an

activity that

•

Results in disciplinary action, or that would reasonably result

in the use of the photo/video for disciplinary purposes

•

Shows a student in violation of local/state/federal law

•

Shows a student getting injured, attacked victimized, ill, or

having a health emergency

DIRECTLY RELATED

•

Does the person or entity taking the photo or video

intend to make a specific student the focus of the

photo/video

•

Does the content of the photo/video contain

personally identifiable information contained in a

student’s education record

•

Not considered directly related if these factors are

absent and if the student’s image is incidental or

captured only as part of the background or if

participating in activities open to the public or

without specific focus on a student

EXAMPLES

EXAMPLES

•

School camera showing fight in hallway, used

as part of discipline, directly related to the

students fighting

•

Close up picture of 3 students playing

basketball with background shot including

crowd of students

–

Education record of 3 players

–

Non record of any background

MAINTAINED BY LEA

MAINTAINED BY LEA

•

Must be maintained by the LEA in order for it

to be considered an education record

–

Photo taken by parent – not an education record

–

But, if photo shows two students fighting, and

parent gives the photo to school, which then

maintains the photo in the discipline files, then

the copy of the photo is an education record

MAINTAINED BY LAW ENFORCEMENT

MAINTAINED BY LAW ENFORCEMENT

•

If law enforcement unit of the LEA creates and

maintains the school’s surveillance video for a

law enforcement purpose (no discipline!) then

not an education record

•

But, if law enforcement provides a copy to

district administration, etc. THEN the copy

COULD become an education record  if it

directly relates to a particular student and is

maintained by LEA

WHO GETS TO SEE IT?

WHO GETS TO SEE IT?

•

FERPA generally requires the district allow the

parent/eligible student the opportunity to

view

 the video

–

No requirement for giving copy

•

What about more than one student?

–

If you can reasonably redact/segregate without

destroying the meaning of the record, then do so

–

If cannot be “reasonably accomplished” then the

parent of each student would have a right to

access the entire video

VIDEO RECORDINGS

VIDEO RECORDINGS

Our scenario (based on informal “guidance”)

•

Parents of all students involved may 

view 

the

video without consent of the other parents

–

None may get a 

copy

without consent of all

•

The students in background – no issue

–

“set dressing” and it’s not an education record

–

But if using the video to get witnesses, then the

video becomes a record for those particular

students

VIDEO RECORDINGS

VIDEO RECORDINGS

•

Police Department

–

No copy without prior consent

–

May come in and view the video

•

Attorney

–

No view/no copy without consent

•

Kids who are videotaping

–

Not an education record per se b/c not maintained by the

district

–

Could be a discipline violation for those kids, then main

video becomes an education record of those kids

•

Can the kids video be used as evidence

–

Perhaps – who wants it and as evidence of what?

VIDEO RECORDINGS

VIDEO RECORDINGS

•

Recommendations

–

ALWAYS think and analyze before giving a copy or

allowing someone to view it

–

EASIEST way around all of this is to get a …

•

SUBPOENA!

Safe play is to get consent before showing it to

parents.

MORE PRACTICE

MORE PRACTICE

•

Student and teacher on camera. The student

claims teacher was inappropriate with them. Can

SRO provide police with video?

•

Video recording of vandalism outside school

building after hours.  Can SRO provide video to

police?  If we find out vandal is a student, can

district discipline off of the video?

•

Video shows students breaking into school after

hours – can identify them as students. Is this a

student record?

MORE PRACTICE

MORE PRACTICE

•

Adult depicted on camera committing a crime and

there are student in the video as well – ok to give video

to LE?

•

Student’s misconduct is recorded on video –

misconduct is violation of school policy AND a criminal

act.  Can it be released to LE? Does it make a difference

if school took disciplinary action?

•

Video captures accident between two student drivers

in school parking lot.  Can video be shown or given to

parents? Can it be shown or given to an insurance

agent? LE?

MORE PRACTICE

MORE PRACTICE

•

Video of fight between 2 or more students.

They have been disciplined.  Can video be

shared with LE?

•

School cameras capture footage of a

convenience store robbery.  Can district

provide video to LE?

•

What if a staff member is caught on video

committing a criminal act.  Ok to release to

LE?

THE SAFE

THE SAFE

SCHOOLS ACT

SCHOOLS ACT

SAFE SCHOOLS ACT

•

Adopted in 1996 after student was murdered

in a school by another student who was

recent transfer

•

Transferring district provided no records, etc.

•

Special Ed and had a violent past

•

District did not place the student and he was

allowed to roam campus unsupervised

•

SSA created to prevent this type of situation

and to promote sharing of information

WHO SHARES WHAT WITH WHOM?



LAW ENFORCEMENT 



 SCHOOLS



SCHOOLS 



 LAW ENFORCEMENT



ADMINISTRATION 



 STAFF



STAFF 



 ADMINISTRATION



STAFF 



 STAFF



PARENT 



SCHOOL



DISTRICT 



 DISTRICT

LAW ENFORCEMENT 



 SCHOOL

167.115



Juvenile officer, sheriff, chief of police or other

appropriate law enforcement authority to notify

superintendent or district

–

When petition is FILED

–

Alleging that student has committed one of 22 crimes

(will change in 2017)

–

Orally or in writing

–

Timely manner

–

No later than 5 days following filing of petition

LAW ENFORCEMENT 



 SCHOOL



Shall include complete description of the

conduct but not the name of victim



Notify upon disposition of case



Superintendent shall report to teachers or

other district employees with a need to know



Cannot be sole reason to exclude from school



If student transfers – forward to new school

JUVENILE OFFICER/CD 



 SCHOOL

167.122



Shall notify the district that a child under

judicial custody is enrolling or that a child

currently enrolled is being taken into custody



Orally or in writing



Within 5 days of court taking custody



Share info on need to know basis



Can’t be sole reason to exclude from school

JUVENILE OFFICER/CD 



 SCHOOL

167.123



Shall notify district when a case is active if district

requests it



Orally or in writing



Within 5 days



Include the complete description of the case, the

conduct child is alleged to have committed, dates, but

NO victim’s name



Share on need to know basis



Can’t be sole reason to exclude from school

DISTRICT



 LAW ENFORCEMENT

167.117



Principal shall “immediately” report to law enforcement



An act which if committed by an adult would be



1

st

, 2

nd

, 3

rd

 degree assault (4

th

 degree??)



Sexual Assault



Deviate Sexual Assault against a pupil, school employee while on

school property, bus or involved in school activities



Possession of a Controlled Substance



Possession of a Weapon



MOU with law enforcement on 3

rd

 Degree Assault

ADMINISTRATORS 



 STAFF

160.261



All school administrators shall report acts of

school violence to all district employees who are

directly responsible for the student’s education or

who interact with the student within the scope of

their assigned duties



Act of School Violence – the exertion of physical force

by a student with the intent to do serious physical

injury to another person while on school property,

including while on school transportation in service on

behalf of the district or while involved in school

activities

ADMINISTRATORS 



 IEP’S

160.261



District shall share any portion of a student’s

IEP that is related to demonstrated or

potentially violent behavior with any teacher

or other district employee who interacts with

student as part of their assigned duties

EMPLOYEE 



 EMPLOYEE

167.117



Teachers shall “immediately” report to

principal/administration



1

st

, 2

nd

, 3

rd

, Degree Assault (4

th

 ??)



Drug Possession



Weapon Possession



Protected from all civil liability for making a report

DISTRICT 



 PARENT

160.261



District must provide a written copy of

district’s discipline policy to the pupil and the

parent/guardian of every pupil enrolled



Make policy available in office of superintendent

during normal business hours



ALSO INCLUDE CONSEQUENCES



John S. v. Ozark R-VI School District

PARENT 



 DISTRICT (ENROLLMENT)

167.023



District may require parent to provide a sworn

statement or affirmation indicating whether

student has been expelled from school

attendance at any public or private school in MO

or other state



For an offense in violation of board policies relating to

weapons, alcohol, drugs, willful infliction of injury to

another



Crime to lie!!

DISTRICT 



 DISTRICT

167.020



Requires district upon enrollment, including

special ed student



Within 2 business days of enrollment request

those records required by district policy for

student transfer from all districts the pupil

previously attended within last 12 months



Any district receiving such requests shall respond

within 5 business days of receiving request

DISTRICT 



 DISTRICT

All districts 

MAY

 report or disclose to law

enforcement or juvenile authorities student

records BUT



Such disclosure must concern law enforcement’s

ability to effectively serve the student prior to

adjudication



CONFIDENTIAL!!



FERPA???

CORPORAL PUNISHMENT

160.261

•

Any form of “physical” punishment

•

Not abuse if

–

Administered in presence of certificated personnel

in presence of witness who is employee of district

–

Also may use reasonable force to protect persons

or property in a reasonable manner in accordance

with board policy

WEAPONS

160.261

•

Discipline policy shall provide for suspension

of at least one year or expulsion for student

who brings a weapon to school – playground,

parking lot, school bus, school activity

•

Sup may modify on case by case basis

WHAT’S A WEAPON?

Blackjack, concealable firearm, explosive

weapon, firearm, firearm silencer, gas gun, knife,

knuckles, machine gun, projectile weapon, rifle,

shotgun, spring gun, switchblade as defined in

571.010



Firearm as defined in 18 U.S.C. 921



District may expand definition



Applies only to students



Pocketknives??

CASES/

CASES/

USE OF FORCE

USE OF FORCE

IN THE INTEREST OF J.L.H. (2016)

IN THE INTEREST OF J.L.H. (2016)

•

Off duty police officers receive tip about individual

with a gun

•

Officers begin following JLH (14yo) – had a hoodie on

which fit description

•

He runs

•

They catch him, handcuff, frisk and detained

•

Asked where he threw the gun

–

No Miranda warning

•

Officers started searching for the weapon and found a

gun where JLH said he’d thrown it

–

Question about whether officers looked there b/c of

statement or just were canvasing area

•

Charged with crime – seeks to suppress his

statement

•

Court denies motion – public safety exception

to Miranda

•

Was given SES put on probation

•

Appeals

•

Court looks to section 211.059, RSMo

•

Expressly states what procedures must be

followed when conducting a custodial

interrogation of a juvenile

•

No “public safety” exception!

–

If legislature wanted to have such an exception it

would have provided for it

•

Statement is suppressed b/c the statute was

not followed!

QUESTIONING A JUVENILE

QUESTIONING A JUVENILE

SB 160

•

(211.059) – When child is taken into custody by

juvenile officer/LE with or without a warrant … the

child shall be advised 

orally and in writing

prior to

questioning

–

The child has the right to remain silent

–

Any statement the child does make can/may be used

against the child in subsequent juvenile court proceedings

–

The child has the right to have parent/guardian  custodian

present during questioning

–

Right to consult with an attorney and one will be provided

if cannot afford one

QUESTIONING A JUVENILE

QUESTIONING A JUVENILE

•

The child has the right to stop talking at any time

•

Any statement the child does make to LE can/may be used against

the child if the child is transferred to a court of general jurisdiction

to be prosecuted under general law

•

The JO shall halt or discontinue any questioning by LE upon notice

from the child that the child wishes to stop being questioned

•

The JO shall ensure a child is advised of the limited role of the JO

during questioning by LE and specifically advise the child that the JO

is NOT legal counsel for the child or an advocate for the child during

questioning by LE

•

The JO shall not participate in the questioning by LE by asking any

questions or soliciting any information from the child regarding the

alleged offenses

K.W.P. v. KCPS (2017)

K.W.P. v. KCPS (2017)

•

U.S. District Court

–

Motion for Summary Judgment

Elementary School student alleges that school

patrol officer violated his 4

th

 Amendment Rights

by handcuffing him in the hallway and kept him

handcuffed in the front office

K.W.P. v. KCPS (2017)

K.W.P. v. KCPS (2017)

Many disputed facts

–

Student was allegedly causing a commotion in classroom

–

Officer was asked to step inside classroom to help with situation

–

Dispute as to the extent of the student’s outbursts and his reactions to

the officer trying to calm him down

–

Student allegedly tries to get away/get out of officer’s grasp

–

Officer grabbed student’s wrist and student attempted to get away

–

Officer felt student posed a safety threat, flight risk, and substantial

risk of serious physical injury

–

Also believed student was “committing a crime” by resisting arrest

–

Cuffed him, took him to office, and removed handcuffs when dad

arrived

–

Dispute as to how long he was cuffed – 5-20 minutes

K.W.P. v. KCPS (2017)

K.W.P. v. KCPS (2017)

•

Court denies summary judgment because too

many facts are in dispute

•

Will look to these specific facts in the future for

ruling

–

Was student out of control when officer arrived

–

Did student attempt to flee

–

Was student screaming in front office

–

Did student pose a safety threat once in the front

office

–

How long was student actually cuffed

D.Z. v. STATE

D.Z. v. STATE

(Indiana, 2018)

(Indiana, 2018)

•

Graffiti in high school boys bathroom.  Assistant

Principal investigates.  Requests help from SRO in

investigation. Look at surveillance video and

narrow search down to D.Z.  Assistant Principal

calls D.Z. to office for a “discussion.” Questions

D.Z. in office, with doors closed.  No opportunity

for D.Z. to speak with parent or guardian, no

contact with parent/guardian prior to his removal

from class.  Not advised he had a right no not

incriminate himself.  A.P. says he knows D.Z. is the

one responsible for the graffiti. D.Z. admits to

doing it and is suspended for 5 days.

D.Z. v. STATE

D.Z. v. STATE

(Indiana, 2018)

(Indiana, 2018)

•

After talking with D.Z. AP leaves office and informs

officer that D.Z. had admitted to writing the graffiti on

the wall. AP contacts father.  Meanwhile, SRO in full

uniform enters office and speaks to D.Z.  No Miranda,

no contact with parent/guardian, no recording the

interview.  At end of this interview, D.Z. charged with a

crime. At trial, statements to officer were suppressed

but not statements to AP.  D.Z. found guilty.  He

appeals claiming the statement to AP were obtained in

violation of 5

th

 Amendment because it was a custodial

interrogation and no Miranda rights were given.

D.Z. v. STATE

D.Z. v. STATE

(Indiana, 2018)

(Indiana, 2018)

•

Issue:

–

Was he in custody and if so, was the questioning

by the AP an interrogation?

–

Was the AP merely conducting a disciplinary

inquiry or was he acting as an “agent” of law

enforcement

D.Z. v. STATE

D.Z. v. STATE

(Indiana, 2018)

(Indiana, 2018)

•

Custodial Interrogation

–

The interrogation must commence after the

person’s freedom of action has been deprived in a

significant way

–

Would a reasonable person in similar

circumstances believe they are not free to leave

D.Z. v. STATE

D.Z. v. STATE

(Indiana, 2018)

(Indiana, 2018)

•

Court finds that D.Z. was subjected to

custodial interrogation

–

Should have been Mirandized

–

AP questioned D.Z in office with door closed

–

“No reasonable student would believe they were

at liberty to leave the office”

–

Juveniles are susceptible to influence of authority

figure

–

In controlled setting at school where disobedience

can be the cause for disciplinary action

STATE v. WILLIAMS (2017)

STATE v. WILLIAMS (2017)

•

High school student (Williams) arrives 30

minutes late for school

–

With a group of “young men”

•

Williams was instructed by “school safety

employee” to remove shoes and all items

from pockets

–

Go through a metal detector

–

Undetected

•

After metal detector – hand search

STATE v. WILLIAMS (2017)

STATE v. WILLIAMS (2017)

•

Attempted to pat down backpack – Williams

resisted

•

Suspected something – brought to security

office

•

Safety officer demanded Williams to remove

whatever was in the backpack

–

Removed a “rocky substance” in wrapper

–

Williams confessed it was “dope”

STATE v. WILLIAMS (2017)

STATE v. WILLIAMS (2017)

•

Resource officer called, Williams handcuffed

•

Booked, read rights, etc.

•

Charged as an adult with possession of a

controlled substance – C Felony

–

Williams seeks to suppress the evidence of the

hand search

•

Issue

–

Was the hand search constitutional?

STATE v. WILLIAMS (2017)

STATE v. WILLIAMS (2017)

•

School policy

–

All students were required to pass through metal

detector

–

Students late 30+ minutes get additional “hand check

•

Remove all items from pocket/shoes

•

Pull pockets out

•

Physically check the front of the body, down the sleeves,

ankles

–

Policy is to “protect the teachers, staff, students”

–

Reason 



 location of school, late students, something

bad probably happening

STATE v. WILLIAMS (2017)

STATE v. WILLIAMS (2017)

•

New Jersey v. T.L.O. 

(1985)

–

Search based on “reasonable suspicion”

–

Must be “reasonable at inception”

–

“Reasonable in scope”

–

Some chance of finding a violation of law or

school policy/discipline

STATE v. WILLIAMS (2017)

STATE v. WILLIAMS (2017)

•

Earls v. Pottawatomie,

(2002); 

Vernonia v.

Acton, 

(1995)

–

Suspicionless search

–

Usually related to drug testing of students

•

Extra/co curricular activities only

–

Must weigh the intrusion on student’s 4

th

Amendment rights

–

Promotion of legitimate governmental interests

STATE v. WILLIAMS (2017)

STATE v. WILLIAMS (2017)

•

Nature of privacy interest that is compromised

•

Character of the intrusion imposed

•

Nature and immediacy of the government’s

concerns and the ability of the proposed

policy to address them

•

So – which framework applies here?

–

Need individualized (reasonable) suspicion OR

–

No suspicion needed b/c of need to keep school

safe

STATE v. WILLIAMS (2017)

STATE v. WILLIAMS (2017)

•

Is simply being tardy enough to search?

–

Court says “no”

–

Tardiness, standing alone, does not establish

reasonable suspicion that allows a pat

down/search

–

No “suspicion” that Williams had drugs – only that

he was tardy

–

No evidence of pervasive drug activity, no

evidence students who were late were also likely

to bring drugs into school

STATE v. WILLIAMS (2017)

STATE v. WILLIAMS (2017)

•

What about “suspicionless” search?

–

Did the school policy authorize a constitutional search?

•

Williams still had a legitimate expectation of privacy

•

Physical touching (pat down) was excessively intrusive

for suspicionless search

–

Also – resulted in law enforcement involvement

•

While finding drugs is important – no specific evidence

of such in this school!

–

No specific evidence linking tardiness to participation in

drug activity

–

No thought process on why the policy was inacted

THOMAS v. BARZE (8

THOMAS v. BARZE (8

TH

TH

 CIR.)

 CIR.)

•

Two officers – one an SRO/one “part time”

–

SRO is LE with MOU

–

“Part Time” officer hired by district

•

Alternative school – lunch room behavior getting

out of hand

•

“Part Time” officer asked to stand by a table for

“safety” reasons

•

One student – Thomas – acting out, cursing,

allegedly making threats to police and other

students

THOMAS v. BARZE (8

THOMAS v. BARZE (8

TH

TH

 CIR.)

 CIR.)

•

Officers ask to talk with Thomas after lunch –

wanted to use a teacher’s office for the

conversation

•

Thomas was told he could not go back to class

until he spoke with the officers

•

Meets with officers and it escalates

•

The “part time” officer lifts student up out of a

chair and puts him in a “neck restraint” –

student passes out

THOMAS v. BARZE (8

THOMAS v. BARZE (8

TH

TH

 CIR.)

 CIR.)

•

Some questions…

–

Was student making threats?

–

Did student become aggressive?

–

Did SRO say “night night” while other officer was

putting restraint on student?

–

Was student “free to leave” or was it custodial?

THOMAS v. BARZE (8

THOMAS v. BARZE (8

TH

TH

 CIR.)

 CIR.)

•

Student sues

–

Excessive force, false arrest and unreasonable seizure

–

Failure to intervene

–

And claim against the city

•

The officers filed motion for summary judgment

but court found there was enough evidence for a

jury to conclude there was indeed excessive

force, false arrest, and a failure to intervene

•

Why?

THOMAS v. BARZE (8

THOMAS v. BARZE (8

TH

TH

 CIR.)

 CIR.)

•

Big difference in student’s version and the

officers’

•

Fourth Amendment issues

–

Did LE initiate the search/seizure or was it at behest of

school officials

–

Also, these officers were LE – not school officials

–

Part Time officer was off duty LE

Was student free to leave???

–

Did officers even have reasonable suspicion to detain?

–

Was it “reasonable” to detain for “mentoring”

purposes?

THOMAS v. BARZE (8

THOMAS v. BARZE (8

TH

TH

 CIR.)

 CIR.)

•

“Police officers have a “duty” to intervene to

prevent the excessive use of force – where the

officer is aware of the abuse and the duration

of the episode is sufficient to permit an

inference of tacit collaboration”

•

LE loses this one – it goes to court

SAMUELS v. INDEP S.D. (8

SAMUELS v. INDEP S.D. (8

TH

TH

 CIR.) 2003

 CIR.) 2003

•

9

th

 grade student involved in dispute with

another student and teacher called administrator

•

Administrative assistant took student to SRO’s

office

•

Requested the SRO to handcuff the student to

“teach him a lesson”

•

SRO handcuffs student for 30-40 seconds

•

Student sues for false arrest/detention under 4

th

Amendment

SAMUELS v. INDEP S.D. (8

SAMUELS v. INDEP S.D. (8

TH

TH

 CIR.) 2003

 CIR.) 2003

•

T.L.O.

–

Reasonable at inception

–

Reasonable in scope

•

Was there a seizure?

–

Yes

•

When government actor in some way restrains the

liberty of a person to a degree that a 

reasonable person

would not feel free to leave

–

Here student was not free to leave

SAMUELS v. INDEP S.D. (8

SAMUELS v. INDEP S.D. (8

TH

TH

 CIR.) 2003

 CIR.) 2003

•

Does T.L.O. apply to seizures?

–

Yes

•

Question – was placing handcuffs on student “reasonable in scope”

to the situation?

–

No – as to the administrator

–

Student was upset but not physically aggressive or dangerous

–

No imminent threat of harm or injury

•

Yes – as to the SRO

–

Handcuffed at request of administrator

–

Based on relationship with administrator and previous

interactions he believed handcuffing was warranted

–

His actions were reasonably related in scope to the situation

JACKSON v. MIDDLETOWN (CONN.)

JACKSON v. MIDDLETOWN (CONN.)

(2017)

(2017)

•

Lunch lady accused student of stealing a beef

patty from lunch line

•

When asked if he paid for it, said “no.”

•

Asked to put patty back, he puts patty in lunch

lady’s hand

•

Argument ensues – he calls her a “bi**h”

•

Cashier calls security officer – says student

needs to go to office – student says “why – I

gave it back”

JACKSON v. MIDDLETOWN (CONN.)(2017)

JACKSON v. MIDDLETOWN (CONN.)(2017)

•

SRO – employed by local PD approaches

–

Told student to go to office – student refuses

–

SRO touched the student to escort him to office

–

Student says “don’t touch me, I can walk by

myself, I’m not a little boy”

–

SRO lets go, but minutes later bear hugs student

and takes him to the ground

–

Attempts to “arrest” student

JACKSON v. MIDDLETOWN (CONN.)(2017)

JACKSON v. MIDDLETOWN (CONN.)(2017)

•

Another SRO approaches saw the scuffle

•

Believed student was being non-compliant

•

Tased the student – did so at least 6 times

–

While saying to student “who’s the bitch now?”

•

Student blacked out and foamed at mouth

•

Escorted student to office, student refused to

comply with directives (take off your shoes)

•

SRO slammed student to ground and then

student took his shoes off

JACKSON v. MIDDLETOWN (CONN.)(2017)

JACKSON v. MIDDLETOWN (CONN.)(2017)

•

Student charged with larceny, breach of

peace, interfering with police

•

Mom sues – excessive force, IIED, false arrest

JACKSON v. MIDDLETOWN (CONN.)(2017)

JACKSON v. MIDDLETOWN (CONN.)(2017)

•

LE use of force based upon whether officers’

actions are objectively reasonable in light of

the facts and circumstances confronting him

–

Use the “reasonable officer on the scene”

standard

–

Doesn’t matter if the student suffered minor

injuries instead of major ones

–

Also, officer should have intervened to prevent

the tasering

•

Officers lose on the excessive force

JACKSON v. MIDDLETOWN (CONN.)(2017)

JACKSON v. MIDDLETOWN (CONN.)(2017)

•

Also lose on IIED – reasonable officer should

have known tackling a student could likely

subject student to imminent harm/distress

•

No false arrest

SCOTT SUMMERS

SCOTT SUMMERS

DIRECTOR OF SCHOOL LAWS

DIRECTOR OF SCHOOL LAWS

MISSOURI SCHOOL BOARDS’ ASSOCIATION

MISSOURI SCHOOL BOARDS’ ASSOCIATION

summers@msbanet.org

summers@msbanet.org

1.800.221.6722

1.800.221.6722