Proposed Uniform School Marshals Legislation for Washington & Other States

School Marshals—Training Standards—Certification—Immunity from Liability.

The following discussion includes certain draft proposals that we are proposing as uniform School Marshal legislation for all the states to consider. The language is cast in terms of Washington state but provides a template that can easily be adapted to other states. The advantage of providing training programs that are standardized as much as possible is in the potential growth of  state-of-the-art multistate training facilities that will benefit from economies of scale by training and certifying School Marshals from across whole regions.

The sections of the following proposed model School Marshal legislation that have been lined out are alternative provisions. The question has arisen as to whether to deem School Marshals as agents of the School Board or more like Special Deputies of the local Sheriff or another law enforcement agency. Another alternative is to simply provide for each school district to make such a determination in conjunction with local law enforcement.

An urgent public peace and safety situation exists; and there have been increased random attacks against students in schools across the United States. School districts have been unable to provide cost effective defenses for the schools, at least in part because of the additional insurance and/or risk related costs presented by the need to insure against liabilities related to authorizing armed personnel in the schools. Nevertheless, the nature of the  existing threats to the lives of students and school staff demands that school districts arm embedded personnel randomly within the schools in order to provide a strong deterrent to active shooters who target school bodies.

The threats and attacks on schools have risen to the point that the potential for substantial liability exists for School Districts that do not provide adequate protection for students within the schools, up to and including properly trained and armed personnel. Districts may presently appoint personnel within the sole discretion of the local school boards pursuant to the federal gun free school law and Washington state law. Nevertheless, resources available for law enforcement to protect the schools is limited.

The costs for Districts to self-insure are about to increase dramatically. This is because firearm related assaults in schools have become so foreseeable that trial lawyers will eventually break through the shield known as the Public Duty Doctrine that protects policy decisions but not the critical use of force decisions made by armed personnel. Decisions to use deadly force are defined as “Ministerial Acts” that are not related to policymaking and the potential exposure is therefore greater.

The Washington State Legislature has waived Sovereign Immunity against local subdivisions of state government; i.e., municipalities and School Districts. The potential for liability is difficult to predict but the missed opportunities to prevent foreseeable harm in the Parkland Schools is likely to produce huge payouts that will threaten self-insured school districts in their ability to predict exposure and set aside funds adequately.  The present risk management situation for school districts is analogous to the tobacco companies that continually managed to get lawsuits dismissed until a critical mass of litigation resulted in judgments that were astonishing and astronomical.

Note well: RCW 4.96.010 makes public entities and agents of said entities liable to the same extent as private parties:

 Tortious conduct of local governmental entities—Liability for damages.

See Washington State’s 45-Year Experiment in Governmental Liability, by Michael Tardif & Rob McKenna.

The unpredictable nature of liability is why most states should opt for immunity for certified School Marshals who act according to their training. The conventional school board approach has been limited use of a few law enforcement officers in the schools and little motivation to employ armed professionals because the expense of employing armed School Resource Officers exceeds the cost of setting aside funds in an insurance pool made up of participating school districts. On the other hand, Districts that authorize individuals to protect the schools while armed presently find it prohibitively expensive to use non law enforcement personnel in significant numbers to deter school shootings.

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The proposed legislation will provide a standard for management by the Washington State Sheriff’s Association to request and process applications for private School Marshal Training Providers (SMTPs) and maintain a list of approved SMTPs who have been determined eligible to meet the SMTP training criteria. Those training providers meeting the criteria will be authorized to certify School Marshal training for qualified individuals.

Approved School Marshal Training & Certification. Individuals that complete 56 hours of School Marshal approved training and who are authorized by a District to provide armed protection in that District’s schools need to be immune from liability for negligence while acting in good faith and according to their training to guard and protect school personnel, students, or others on school premises.

Immunity from Liability Provisions. It is also important to provide immunity where a School Marshal provides protection for those present during school functions at a school or at another location, including while traveling to and from school functions away from the school campus. Said immunity from liability should also apply to School Districts that authorize such individual School Marshals and applies to third parties hosting District functions, including but not limited to other School Districts when schools affiliated with participating School Districts authorize certified personnel to participate in school functions with other School Districts inside the State of Washington.

For example, the draft legislation, as it currently exists, defines a School Marshal as follows:

Definition & Appointment of School Marshal. A School Marshal is individual who has completed at least 56 hours of approved training and received certification from an approved training provider, and who is thereby qualified to work in the schools with or without pay at the sole discretion of the school district. Decisions as to whether or not to publicly identify any Marshals, whether to have some marshals in uniform and when, how and where Marshals shall function in the schools, shall be within the sole discretion of the District and/or the District’s delegated school administrators.

School Marshals therefore can be duly commissioned law enforcement officers, any certified school personnel or volunteers in the schools and might be in uniform or in plain clothes conducting themselves the same as any other school personnel. The embedded School Marshal conducting himself or herself as a regular school employee or volunteer is more effective in deterring random violence because a potential  violent, armed criminal will not know where or how many Marshals are present at any given time. Thus, Marshals may be most effective as regular school personnel, either employed by a school district, or who volunteer to work at a school in some capacity that contributes to the functioning of school operations, administrative work and or any other role, including but not limited to librarians, teachers, teachers aides, counselors, coaches, cooks, janitors, and bus drivers. The fact that many Marshals may be embedded shall  not in any way restrict a District or its delegates from designating some Marshals to act exclusively as security personnel either in uniform or in plain clothes.

Appointment or Commission of School Marshal. A School Marshal is a person certified as defined herein, 21 years of age or older, and commissioned by a law enforcement agency or appointed by a superintendent or chief executive officer of a public or private school who has completed at least 56 hours of approved training with an approved training provider who is thereby qualified to work in the schools with or without pay at the sole discretion of the school district. Superintendents of a participating School District, at their sole discretion, may appoint a certified School Marshal with an appointment to exercise powers of search and arrest that are commensurate with the police power of a school principal for said District (or, in the alternative, specified law enforcement powers of arrest designated within a commission from the Sheriff or other law enforcement agency providing protection).

The proposed legislation should maintain the present status quo under state and federal law where Districts decide whether to appoint certified School Marshals pursuant to the new legislation. Any policy decision as to whether or not to make any such appointment should continue to be within the sole discretion of the district. The same rule should apply to decisions as to whether a district decides to contract with a local law enforcement agency for law enforcement commissioned School Marshals. Such commissioned School Marshals would exercise powers as defined by a law enforcement agency commission, up to and including a commission to act as a special police officer or deputy on behalf of the contracted law enforcement agency. Each law enforcement agency will define the scope of school marshal powers for use of force, detention, search and arrest or apprehension that are consistent with existing requirements for law enforcement training certification and commissioning pursuant to RCW.43.101.200, 43.101.095 and 43.101.080.

The following proposed paragraph is a sample of the language presently proposed regarding School District School Marshal appointment and/or law enforcement School Marshal commissions:

Arrest & Power to Search. Each School District that utilizes certified School Marshals shall promulgate written School Marshal policies for use of force, detention, search and arrest or apprehension that are consistent with the police power and authority residing in the statutory, common law and Constitutional authority of a school district in Washington state; provided that School Marshals commissioned by duly authorized ;aw enforcement agencies shall provide a written commission that includes such powers and policies commensurate with a law enforcement officer’s training certification pursuant to RCW.43.101.200, 43.101.095 and 43.101.080; nothing herein shall be construed to prevent a law enforcement agency from deploying law enforcement officers, peace officers and/or School Resource Officers, and volunteers, and reserve officers whether paid or unpaid to work in the schools; provided that the immunity from liability set forth herein shall be contingent upon each officer obtaining 56 hours of approved training with School Marshal certification and with continued annual training to be certified by the chief training instructor of said law enforcement agency or an approved SMTP as meeting the requirements for 24 hours of annual continued training as set forth herein.

School Marshal Training Providers. We are reaching out to the Sheriffs in more than one state to craft a consensus regarding training criteria for training providers (SMTPs) that may include law enforcement training academies and/or private training firms. In either case, the present consensus is to require 56 hours of training to qualified individuals as to be defined in the final statute. Said training shall be based as much as practicable on the Federal Flight Deck Officer (FFDO) training provided by TSA in Artesia, New Mexico.

 

Another template exists in the two-tiered training model enacted in Texas. School Guardians in Texas receive only 16 hours of training and must be school employees who must meet high standards of proficiency with firearms. Most applicants do not pass the range qualification portion of the program. School Marshals in Texas, on the other hand, are commissioned law enforcement officers that meet a different set of standards with additional hours of training.

School Marshals appointed by School Districts- that do not have a law enforcement commission in Washington- would be like the Guardians in Texas insofar as that they will not be required to receive training to seek out a threat and engage an active killer.  The primary focus of training will be on firearms proficiency and getting students and other school staff to a sheltered location and then being prepared to protect those within the sheltered location.

The concept of having flexibility to utilize one of the other or both in a combination of law enforcement commissioned School Marshals and embedded non-law enforcement Marshals is an option that maintains the virtue of school district autonomy and empowerment with an incentive to use individuals that meet very high training standards. The incentive is immunity from liability for the individuals and the school district.

Training Standards. The Washington State Sheriffs’ Association shall be authorized to promulgate criteria and standards for training School Marshals and to provide and maintain a list of authorized SMTPs qualified to certify School Marshals in a number of skills. At this time, we are seeking feedback from law enforcement regarding specific recommendations to be included in the proposed statute.

Nothing in this act shall require School Districts to utilize certified School Marshals and all authority and autonomy presently possessed by the Districts shall remain unchanged and unimpaired.

Provided that; any individual School Marshal certified under the provisions set forth above and authorized by a School District in writing to provide protection for said District shall be immune from liability as follows:

• All liability for negligence while acting in good faith and in accordance with SMTP training to guard or protect a school;
•  Immunity from criminal liability for display of a weapon that is commensurate with the exceptions for law enforcement officers pursuant to RCW 9.41.270 (3) (b); i.e., any person who by virtue of his or her office or public employment is vested by law with a duty to preserve public safety, maintain public order, or to make arrests for offenses, while in the performance of such duty:

Immunity shall also extend to the following persons, entities and/or third parties:

(i) School Districts authorizing School Marshals certified by an approved SMTP to preserve public safety and protect lives at schools, school functions and while traveling to and from school functions while guarding and protecting school personnel, students or members of the public traveling to and from school functions; and

(ii) Other entities or persons, school districts, municipalities or third parties, including but not limited to, lessors and lessees leasing facilities to any School District for a school function or leasing facilities from a School District for any purpose;

Continued Annual Maintenance Training.  All School Marshals shall attend at least 24 hours of continued annual training. This is consistent with current law enforcement training requirements  hours per year of training maintenance programs with training sessions designed by the SMTP and the WSSA in conjunction with other participating law enforcement agencies that shall develop and maintain training modules…

School Marshal training and equipment;  may be paid for by School Districts, PTAs, or other private and public partnerships.; however, there is no obligation and nothing which would prevent a School Marshal from paying for their own required training.

Please contact Mark Knapp at mark@firearmslawyer.net if you are interested in serving on a committee or knowing more about the progress of the proposals summarized above. Let your local Sheriff, other law enforcement officials, school boards and lawmakers know what we are proposing and why the economics of the insurance industry are paralyzing school boards that should be taking action now! The carnage is increasing and talking about the causes will not address the threats.