Guidelines for Implementing Body Cameras in Schools

SRO LEGAL TRAINING

SRO LEGAL TRAINING

FERPA/

FERPA/

THE SAFE SCHOOLS ACT

THE SAFE SCHOOLS ACT

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

AGENDA

AGENDA

•

NEW LAWS

•

FERPA

•

SAFE SCHOOLS ACT

•

CASES

•

QUESTIONS!!

NEW LAWS

NEW 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

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

STATE OF MISSOURI v. WILLIAMS

STATE OF MISSOURI v. WILLIAMS

(2017)

(2017)

Student (Williams) arrives at school 30 minutes late with

group of “young men.”  School safety employee (not an SRO)

instructed the group to remove their shoes and all items from

their pockets, then go through a metal detector. Williams goes

through undetected.  Then after that, employee “hand

checks” Williams – pat down back pocket.  Williams says

“stop.”  Goes to security office.  There, employee demands

Williams remove what was in his pocket.  Williams removes a

“white, rocky substance” in plastic wrapping.  Williams said it

is “dope.”  Williams is handcuffed, resource officer called,

drugs seized, Williams taken into custody.  Read his rights

during this process.  Charged as an adult with C Felony of

Possession of Controlled Substance.  At trial seeks to exclude

evidence of the hand search…

24

STATE OF MISSOURI v. WILLIAMS

STATE OF MISSOURI v. WILLIAMS

(2017)

(2017)

•

Security personnel stated he searched pursuant

to district/school policy

–

Students required to pass through a metal detector to

enter school

–

But – any student who was late 30 minutes or more

was hand checked according to policy

–

Hand check 



 remove all items from pocket and

even, maybe shoes. Pull pockets out. Pat down of

sleeves and pockets down to the ankles

•

Purpose of policy – to ensure student, staff,

teacher safety

–

Late arrival triggered the “suspicion”

25

STATE OF MISSOURI v. WILLIAMS

STATE OF MISSOURI v. WILLIAMS

(2017)

(2017)

•

Issue – 4

th

 Amendment Search

–

Remember – 

New Jersey v. T.L.O.

•

Reasonable suspicion – not probable cause

•

Reasonable at inception

•

Reasonable in scope

–

Pottawatomie v. Earls/Vernonia v. Acton

•

Suspicionless

 searches

•

No reasonable suspicion needed but there is a balancing

test

•

Individual privacy versus safety of public (schools)

•

If reasonable and minimal then ok (think random drug

testing)

26

STATE OF MISSOURI v. WILLIAMS

STATE OF MISSOURI v. WILLIAMS

(2017)

(2017)

•

Here – not a T.L.O. case b/c there was no reasonable

suspicion to initiate the search

•

And, the search wasn’t reasonable under the

“suspicionless” requirements

–

No evidence there was any more of a threat of drugs with

students who were late than with any other students

–

No background evidence either

–

Nothing pointed toward this invasion of privacy without

any type of suspicion

•

Search overturned and statements inadmissible

•

Have some sort of suspicion before initiating a search!!

Have some sort of suspicion before initiating a search!!

27

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…??

FERPA

FERPA

AND

AND

LAW ENFORCEMENT

LAW ENFORCEMENT

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.

WHAT WOULD YOU DO?

WHAT WOULD YOU DO?

•

Records

–

Address/phone number – directory information

–

Know your district policy on this!!

•

Grades/attendance

–

No – not directory information

–

Need parental consent

•

Unless

–

SRO is designated as a “school official” that has a

legitimate educational interest in the records

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

•

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

WHAT WOULD YOU DO?

WHAT WOULD YOU DO?

•

District provides SRO with education record

•

SRO then discloses PII from education record

to 3

rd

 party (Prosecutor, Police Dept. etc.)

–

Is this ok?

SCHOOL OFFICIAL

SCHOOL OFFICIAL

•

In certain cases, SRO’s may be considered a

“school official” with “legitimate educational

interest”

–

Perform an institutional service or function for which

the agency or institution would otherwise use

employees

–

Is under the direct control of the agency or institution

with respect to use and maintenance of education

records

–

Is subject to requirements in federal law governing

use and re-disclosure of PII from education records

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

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

•

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 LEP

•

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!!)

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

enforcement agencies/prosecutor about this and

tell them why you are not able to provide these

records

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

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 not covered under FERPA

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

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

•

NO official guidance/law/procedure for this

issue!!!

•

The LAW states

–

If any material or document in the education record

of a student includes information on more than one

student, the parents of one of such students shall

have the right to 

inspect and review 

only such part of

such material or document as relates to such student

OR to be informed of the specific information

contained in such part of such material

VIDEO RECORDINGS

VIDEO RECORDINGS

•

General “rule” – the current position of the

feds:

–

Video is not an education record 

UNLESS

 the

school uses the video for a specific student for a

particular reason 

AND

 the 

school maintains 

the

record for that purpose

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.

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

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

E.G. v. BOND (2016) TX

E.G. v. BOND (2016) TX

•

Bond was SRO employed by city police

department and assigned to school district

•

PD and District had an “agreement” (MOU) on

Bond’s scope of employment

•

Bond was assigned to an alternative school in

the district

BOND CONT.

BOND CONT.

The agreement

•

SRO’s are employees of the police department and

subject to the administration, supervision, and control

of the PD

•

Subject to all personnel policies and practices of the PD

•

SRO required to attend mandatory training

•

Be a visible, active LE figure on campus dealing with

law enforcement matters

•

Act on “consent and call” of campus administrator at

all times to provide a safe environment to matters of

law enforcement…

BOND CONT.

BOND CONT.

•

The SRO shall not be involved in ordinary school

discipline, unless it pertains to a potential disruption

and/or climate that places students at risk of harm.

•

Disciplining students is a school district responsibility

and only when the principal and the SRO agree that

the SRO’s assistance is needed to maintain a safe and

proper school environment would the principal

request SRO involvement

•

If principal believes a situation or incident involves a

violation of a criminal nature, may request SRO

involvement

BOND CONT.

BOND CONT.

“Intent” of agreement

•

Engage in law enforcement actions involving children

including use of restraints and use of force when necessary

•

Under the agreement – Bond was authorized to become

involved in “minor” school discipline incidents that did not

involve criminal matters and where there was no threat of

imminent physical harm or serious property destruction

•

School personnel frequently requested Bond to become

involved in minor incidents – untucked shirts, talking back

to a teacher, not following teacher direction

BOND CONT.

BOND CONT.

•

Agreement had no guidance on use of

restraints, or use of force

•

District officials and SRO’s were under the

belief that SRO’s could be involved in

situations where there is no risk of criminal

matters or imminent danger and SRO’s could

use force as they would on adults in similar

situations

BOND CONT.

BOND CONT.

•

4 students sued Bond, the district and the city

•

Alleged that Bond used “unreasonable physical

force and restraint against them”

–

Placed one student in a choke hold and sprayed with

pepper spray

–

Used a “pain compliance” maneuver on another

–

Used a choke hold and then handcuffed and detained

another

–

Repeatedly slammed another student against a

concrete wall and to the ground before handcuffing

and detaining

BOND CONT.

BOND CONT.

•

What’s the issue?

–

Was Bond, as SRO, acting within the scope of his

employment

•

Was the conduct the kind the employee is

expected to perform, and does it occur within

substantially the authorized time and space limits

and is intended to serve the employer?

•

If these rules are satisfied, then in scope of

employment even if engaging in acts specifically

forbidden by employer

BOND CONT.

BOND CONT.

•

Looked to the MOU!

–

Court found Bond was acting within the scope of

his employment

–

Whether listed in MOU or not, the duties as

actually performed in the district included law

enforcement actions involving children, use of

restraint and force when needed, handling minor

incidents of student disruption, etc. unrelated to a

threat of imminent physical harm or property

damage

BOND CONT.

BOND CONT.

•

Although MOU stated SRO wasn’t involved in

school discipline, by their own accounts the boys

stated that the incidents went far beyond regular

school discipline

•

“Officer Bond was on duty, on the school campus,

and interacting with students in his capacity as an

SRO when he engaged in the actions. These

actions were in the general scope of his duties,

even if they were shown to be improper under

the circumstances.”

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

IN re WELFARE OF T.D.B. (2017)

IN re WELFARE OF T.D.B. (2017)

•

Teacher suspected T.D.B. smelled of alcohol

•

Told a staff member who went to TDB’s room and while talking with

student, smelled alcohol

•

Took student to office, student denied drinking that day but

admitted to drinking the prior weekend (smell was coming from

clothing)

•

SRO contacted, came to office, smelled alcohol, student had same

story

•

SRO takes student to SRO’s office

•

Student was standing in doorway of office and SRO asked student

to submit to a PBT (preliminary breath test)

•

Student submitted to the test without indicating he was unwilling

to do so

•

Test result showed .034 level

IN re WELFARE OF T.D.B. (2017)

IN re WELFARE OF T.D.B. (2017)

•

17, never refused to answer questions, never

asked for an attorney or parent

•

Charged and found guilty of underage

consumption

•

Appeals

–

Test results not admissible

–

No search warrant – no Miranda

–

Statement suppressed b/c no Miranda

–

Consumed alcohol in another state

IN re WELFARE OF T.D.B. (2017)

IN re WELFARE OF T.D.B. (2017)

•

Based on state law, PBT was legally

administered

–

But was a warrant required to make it admissible

in court?

•

Not clear – court did not rule on it

–

Central question as always – was there reasonable

suspicion and was it “reasonable in scope”

IN re WELFARE OF T.D.B. (2017)

IN re WELFARE OF T.D.B. (2017)

•

Was student in custody?

–

Look at his age (17)

–

Admitted he had been drinking over the weekend

–

Encounter was brief and not even in the office

–

Totality of circumstances shows not in custody for

purposes of the 4

th

 Amendment

IN re L.G. (2017) (OHIO)

IN re L.G. (2017) (OHIO)

•

Bomb threat made toward school

•

Director of Safety and Security (head of 26 SRO’s)

•

School evacuated and dogs searched building –

found nothing

•

Brought all students into gymnasium and Director

asked students for information (also offered a

reward)

•

2 students implicated L.G.

SRO goes into gym and takes L.G. out, brings him to

cafeteria, and sit across from Director

IN re L.G. (2017) (OHIO)

IN re L.G. (2017) (OHIO)

•

Two uniformed officers stood nearby

•

Questioned L.G. about involvement

–

No Miranda warning prior to questioning

•

When told about informants, L.G. confesses

•

L.G. was then placed under arrest and

transported to police station for further

questioning

•

Charges filed and L.G. seeks to suppress his

confession/statement based on no Miranda

IN re L.G. (2017) (OHIO)

IN re L.G. (2017) (OHIO)

•

Question – was L.G. in custody thus requiring

Miranda?

–

Would a “reasonable” person in that position

understood the situation and felt free to leave

–

What were circumstances surrounding the

interrogation

–

Given those circumstances would “reasonable

person” feel they were not at liberty to terminate

the interrogation and leave

IN re L.G. (2017) (OHIO)

IN re L.G. (2017) (OHIO)

•

The subjective viewpoint of officer and

suspect are immaterial to analysis

–

J.D.B. – US Supreme Court decision stating that a

child’s age could be used in the analysis

IN re L.G. (2017) (OHIO)

IN re L.G. (2017) (OHIO)

•

Outcome?

–

Yes – in custody

•

Active police investigation was underway

•

Uniformed officers, bomb sniffing dogs

•

Reward offered

•

Students sequestered in gym – not free to leave

•

Retrieved by SRO – authority of LE

•

Questioned alone by Director with LE standing close by

•

“Reasonable person” in L.G.’s position would have

believed he was in custody

IN re L.G. (2017) (OHIO)

IN re L.G. (2017) (OHIO)

•

Court goes on to say that it is not holding that

Miranda is required every time a teen is

questioned by LE or school personnel

•

When viewing the totality of the

circumstances Director was acting in

conjunction with LE and Miranda was required

•

Was a LE investigation – NOT a district

investigation for discipline violation

•

Agent of LE

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

G.C. v. STATE (2016) (FL)

G.C. v. STATE (2016) (FL)

•

School was being dismissed and 8 students

reported to the “school security specialist” that

they had observed several student playing with a

taser in the park adjoining the school

•

Students identified a specific student (G.C.)

•

Security specialist talked with AP who suggested

that since school was over and students had left

they’d leave investigation until the following

morning

G.C. v. STATE (2016) (FL)

G.C. v. STATE (2016) (FL)

•

Next morning SP asked G.C. to come to the office

•

Made G.C. empty her purse

–

Searched the inside pocket of the purse

•

No taser found

•

SP told the AP of the findings

•

Later that day AP called G.C. and the SP to the office

–

This time AP noticed a small bulge in G.C.’s purse

–

AP searches purse and…finds a small taser

SP thought the AP had received some further information

to justify the second search

G.C. v. STATE (2016) (FL)

G.C. v. STATE (2016) (FL)

•

Student was adjudicated and placed on

probation

–

She appealed

–

Suppress the evidence of the second search

•

T.L.O.

 – were the searches “reasonable”

G.C. v. STATE (2016) (FL)

G.C. v. STATE (2016) (FL)

•

First search?

–

Yes – reasonable suspicion

–

Search for dangerous weapon on school property

–

Was observed with taser prior to search and search

was reasonable in scope

•

Second search?

–

No – no reasonable suspicion remained

–

Without some additional facts or circumstances to

provide further reasonable suspicion

•

Taser evidence thrown out – vacate adjudication

of G.C.

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