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This explanation of S 593 is from Stephen Fulton Shaw, Esq., PhD, James Patrick Kelley, Esq. and Sergeant G. Curtis Moore, Jr. authors of, South Carolina Gun Law. Visit their site at: http://www.scgunlaw.com/
SOME NEW RULES FOR SCHOOLS
In the spring of 2009, the South Carolina Legislature passed, and Governor Sanford signed, Senate Bill 593. The new law decriminalizes bringing guns onto school grounds for Concealed Weapons Permit holders under certain circumstances. You should still read the Rules for Schools in South Carolina Gun Law but also use the following as a supplement to the book. This supplement and the book complement each other and both should be understood together.
The context of Senate Bill 593.
Prior to the passage of S. 593, many parents dropping-off kids for school, students at colleges, teachers going to work and anybody else required to be on school property had a problem. The problem was that the South Carolina Code of Laws made it illegal to have a firearm on any grounds owned, operated or controlled by a school (except if you had permission from the authorities in charge of the premises or property). So, while parents might have otherwise been legal possessing a firearm either on their person with a Concealed Weapons Permit or in the glove compartment or console while driving the children to school, the same firearm became illegal if the parent drove onto a drop off area on school premises. Further complicating the process was that it is often difficult to determine where school premises begin and end. This situation left the parents in the unfortunate position of having to choose between breaking the law by entering school property with a firearm or forfeiting their natural right to arms as protected by the Second Amendment and the South Carolina Constitution. Similarly, teachers and college students who could otherwise lawfully carry a firearm off campus were required to forfeit their right to keep and bear arms the instant that they crossed onto school premises.
What does S. 593 do?
S. 593 amends South Carolina criminal law to provide an exception to the prohibition against certain weapons on school grounds under certain circumstances. Specifically, S. 593 amends Sections 16-23-420 and 16-23-430 of the S. C. Code of Laws. In a nutshell, S. 593 decriminalizes firearms on school grounds if the possessor has a valid Concealed Weapons Permit (CWP) and keeps the firearm in a closed glove compartment, console, or trunk or in the luggage area of the vehicle so long as the firearm is inside of a closed container that has an integral fastener. Also, the vehicle must be attended or locked. Following, we’ll take a look at each element of the law as well as potential questions and problems that may arise.
S. 593 first amends Section 16-23-430 of the S.C. Code of Laws. Section 16-23-430 prohibits “weapons” on elementary and secondary school premises (elementary, middle and high schools). The Section specifically defines a firearm as a weapon. Violations are a felony carrying a potential penalty of $1,000 fine and five (5) years in jail, or both, as well as confiscation of the weapon and a lifetime federal firearms disability. S. 593 amends the Section by adding the following:
(B) This section does not apply to a person who is authorized to carry a concealed weapon pursuant to Article 4, Chapter 31, Title 23 when the weapon remains inside an attended or locked motor vehicle and is secured in a closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and transported in the luggage compartment of the vehicle. So, on its face, S. 593 eliminates criminal liability for CWP holders possessing a weapon on elementary or secondary schools so long as the weapon remains inside the closed glove compartment, closed console, closed trunk (or in the luggage area so long as the weapon is in a closed container secured by an integral fastener) and the vehicle itself is locked or attended. Before getting too deep into the specifics of this first half of S. 593 though, let’s look at the second half of S. 593 because many of the analyses will be the same for both halves. S. 593 also amends Section 16-23-420 of the S.C. Code of laws. Section 16-23-420 is different from Section 16-23-430 because it prohibits firearms specifically and extends the prohibition to all schools as opposed to only elementary and secondary schools. S. 593 amends Section 16-23-420 as follows: The provisions of this subsection related to any premises or property owned, operated, or controlled by a private or public school, college, university, technical college, or other post-secondary institution, do not apply to a person who is authorized to carry a concealed weapon pursuant to Article 4, Chapter 31, Title 23 when the weapon remains inside an attended or locked motor vehicle and is secured in a closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and transported in the luggage compartment of the vehicle. As before, on its face, S. 593 eliminates criminal liability for CWP holders possessing a weapon on elementary and secondary schools, as well as colleges, so long as the weapon remains inside the closed glove compartment, closed console, closed trunk (or in the luggage area so long as the weapon is in a closed container secured by an integral fastener) and the vehicle itself is locked or attended. How does S. 593 apply to Me? You can only enjoy the provisions of S. 593 if you have a valid South Carolina issued CWP. If you do not have a South Carolina issued CWP (either resident or qualified non-resident), this new law does not apply to you. If you do not have any CWP, you are prohibited from bringing a firearm of any kind onto school premises (S.C. Code of Laws Section 16-23-420 (A)) (unless you fall under an exemption like police officers or you have permission from the authorities in charge of the school). If S. 593 stood alone, a person with an out-of-state CWP asserting reciprocity would benefit the same under S. 593 as would someone with a South Carolina issued CWP. But, S. 593 does not stand alone and out-of-state CWP holders are burdened by the federal Gun Free School Zones Act. What if I do not have a South Carolina issued CWP? Without a South Carolina issued CWP, under the federal Gun Free Schools Act of 1996, you are prohibited from knowingly possessing a firearm in a “school zone” (basically within 1,000 feet of an elementary, middle or high school with some exceptions). The Gun Free Schools Act has been interpreted by the Bureau of Alcohol Tobacco and Firearms to require that the individual carrying the firearm must have a CWP issued by the state that the school is in. This distinction is important because there are many instances where out of state parents might have to travel to a South Carolina school for student competitions or events. To insure compliance with the Gun Free Schools Act, holders of out-of-state CWPs (with S.C. reciprocity) should park off elementary, middle or high school premises with any firearms stored in the closed glove box, closed console, closed trunk, or in a closed container with an integral fastener in the luggage area of the vehicle. Before we move on, let me mention that you should consider the federal Gun Free School Zone Act to apply within 1,000 of an elementary, middle or high school boundaries or within 1,000 feet of an off-site event sponsored by one of these schools. The Act defines a school zone as:
[I]n, or on the grounds of, a public, parochial or private school; or within a distance of 1,000 feet from the grounds of a public, parochial or private school (18 U.S.C. 921(a)(25)).
The Act goes on to define a school as:
[A] school which provides elementary or secondary education, as determined under State law (18 U.S.C. 921(a)(26)).
So, to fully define school under the Act, we have to look at South Carolina law. With respect to firearms, the South Carolina Code of Laws defines schools as:
[P]roperty owned, operated or controlled by a public or private school (S.C. Code of laws 16-23-420(a)).
Therefore, you should consider the federal Gun Free School Zones Act not only applicable to within 1,000 feet of all public and private schools but also within 1,000 feet of all premises where any school sponsored or controlled activity is occurring. If this law seems burdensome, it is, and it should be struck down for a number of reasons. However, at this point, it is the law and you can incur criminal liability if you are found in violation of it.
What if I do have a South Carolina CWP? If you have a valid South Carolina CWP, the new law provides an exception to the prohibition against firearms on all school premises or areas controlled by schools without getting special permission from the authorities in control of the school. The firearm can be loaded and chambered. To fall within the exception, the CWP holder must have the firearm in a closed glove box or console, closed trunk, or in the luggage area of vehicle so long as the firearm is in a closed container with an integral fastener. In our book South Carolina Gun Law, we go into detail explaining the terms used in this section of the Code. For the purposes of this article, I will try to give brief definitions or descriptions: Schools – Public and private preschools through Colleges including technical schools. School Premises – Inside the real estate boundaries of the school property and any other premises that the school is controlling (i.e. off campus ball games or competitions). Console – There exists reasonable debate amongst gun owners as to the definition of console. There is no case defining console so I can only give my reasoned opinion. A factory installed console between the front seats is clearly a console. Aftermarket consoles that attach to the floor between the front seats or the front seat itself might likely be ruled a console also. It is also reasonable to think that consoles between the rear seats would be included in the definition but you can’t be sure. However, the more that the console gets away from a factory installed or permanently attached aftermarket console between the two front seats, the more wiggle-room a court has to find that the console is not a console under the Section. Luggage Area - The luggage area of a vehicle is that area designed for storage of luggage. In a typical SUV, the luggage area is behind the last row of seats. Closed Container - A container that is capable of fully closing so that items inside the container cannot be seen (i.e. a gun case, tackle box, or gun rug). Integral Fastener - A device, designed as part of the container, that is capable of positively keeping the container closed (i.e. a metal or plastic clasp on a gun case or tackle box or the zipper on a gun rug). The above definitions are important because, even though CWP holders will now be legal carrying onto school premises and events, the CWP holder cannot carry as typically allowed under the permit. In general, the CWP allows the holder to carry a concealable weapon, concealed in many places. That generally means carrying a handgun in a concealed holster on the person, in a pocket, around an ankle or in a purse or briefcase. Under S. 593, the CWP holder cannot carry a concealable weapon, concealed on school premises. Alternatively, the CWP holder can only possess a firearm on school premises if the firearm is in the vehicle’s closed glove box, closed console or closed trunk or in the luggage area in a closed container with an integral fastener. So, if the CWP chooses to carry his or her concealable weapon, concealed, on or about his person on the way to a school, the CWP holder must remove the handgun from its concealed location and place it into one of the listed areas of the vehicle before entering the school premises or event. While it seems illogical to move a safely holstered firearm to one of the areas of the vehicle listed, that is the law and a violation will subject you to criminal prosecution. (I will later discuss the legality of transitioning from concealed carry to one of the vehicle areas). Another requirement is that the vehicle must be locked or attended. So, if you simply drop children off at school, you remain in the vehicle and the vehicle remains attended. Also, if you stand alongside of your vehicle or nearby the vehicle, you could probably successfully argue that the vehicle is attended under the meaning of the law. If, however, you leave the car in the school parking lot and walk the child to the first class or assembly, you must lock the vehicle before leaving it in the parking lot. Since there is no court case defining the term “attended vehicle” under this Section, the best practice is to lock your vehicle if you are not in it or standing very nearby to it. The South Carolina CWP holder should pay special mind to the concepts of attended vehicle and person in possession of the firearm if leaving the vehicle on school premises. For instance, what if the husband has a South Carolina issued CWP and leaves his handgun in the glove box to walk his child to first period class after locking the vehicle. In that instance, he is in compliance because the firearm is in a legal place and the vehicle is locked when he walks away. However, say that wife is also in the vehicle on the school premises but she does not have a South Carolina issued CWP. The firearm is now in the possession of the wife who does not have a South Carolina issued CWP so she is not legal under S. 593. But, what if the husband locked his wife in the car before leaving the car? Has the husband complied with the law because he left the firearm in a legal place in the locked vehicle? This issue might eventually require court interpretation or a modification of the law. For now, the best practice is to ensure that anyone left in the vehicle with a firearm has a valid South Carolina issued CWP. Once the South Carolina issued CWP holder is off of the school or school event premises, the weapon can be retrieved from its storage in the vehicle and returned to the place of concealment on or about the person. Or, if the CWP holder wants to leave the handgun in the glove box, console, trunk or luggage area, he or she can because those areas fall within an existing exception to the general prohibition against handguns (Section 16-23-20(9)(a)). Transitioning from concealed carry to one of the vehicle areas is protected by a different Section. South Carolina Code of Law Section 16-23-20(12) makes it legal for a CWP holder to transition between his person and a closed glove compartment, console or trunk or in a closed container with an integral fastener in the glove compartment. Notice the Section says between the CWP holder’s person and those specified areas of the vehicle so it is legal to transition both to and from concealment on your person. Employer Liability vs. Criminal Liability for Teachers, Administrators & School Staff Teachers, administrators, professors and staff with CWPs can keep firearms in their attended or locked vehicles, in the specified areas of the vehicle on school premises, without criminal liability. Undoubtedly, some authorities in charge of the school or school premises might try to institute a policy of “no guns on the premises” as a condition of employment. This issue has already been addressed in a South Carolina Attorney General’s Opinion dated March 1, 2000. The Attorney General concluded that a Department of Corrections policy could not prohibit that which state law allows. Therefore, the Department of Corrections could not prevent employees from having guns in their vehicles. Before going on, it is important to note that the Attorney General Opinion is applicable to state-run school facilities and possibly not private facilities. In his opinion, the Attorney General discussed a Department of Corrections policy that prohibited employees, including guards, from having a firearm in their vehicles. The policy provided that any employee violating the rule would be fired. Citing caselaw from as far back as 1928, the Attorney General opined the long-established precedent that a state agency is powerless to prohibit that which the State authorizes, directs, requires, licenses, or expressly permits. He then went on to note that, because the General Assembly specifically granted, through Section 16-23-20, the right to carry a firearm in the closed glove compartment, closed console, or closed trunk of an automobile, the Department of Correction's prohibition against an employee's having a weapon in his locked motor vehicle would be without authority and inconsistent with state law. The same analysis applies to S. 593. The new law expressly permits a CWP holder to have firearms on school premises in his vehicle in the specified vehicle areas and either attended or locked. So, CWP holders are not prohibited for having a firearm in the vehicle nothwithstanding any state-run school’s policy against firearms on school premises.
Private schools and colleges are not agencies of the state so the same analysis above cannot be strictly applied to those institutions. Private schools are private organizations operating on private property and are not state agencies. So, teachers, staff and administrators might face employment sanctions if the particular institution has a policy against employees having firearms on the premises. Likewise, visitors and students of private universities are subject to the rules and regulations of each private institution. While violators of such institutional policies would not face criminal liability, they are none-the-less subject to any penalties applicable for rule violations. Students and S. 593 S. 593 will allow some students to possess firearms on campus. The first thing that a student must do is determine whether it is legal for them to possess a firearm in general. Under South Carolina law, with some exceptions, the minimum age for possessing a handgun is 18 years of age. Remember, though, that the new law is not applicable to a person on college campuses unless that person has a valid South Carolina CWP or reciprocity from another state (the federal Gun Free School Zones Act is only applicable to elementary, middle and high schools). The minimum age to get a South Carolina CWP is 21 years of age. States other than South Carolina might issue CWPs to persons under age 21 (18 to 20 year olds). If the student is relying upon a CWP from a reciprocal state, the student should be aware that South Carolina Code of Laws Section 23-31-215(N) requires a CWP holder from a reciprocal state to abide by SC law. Thus, it would appear that an 18 to 20 year old CWP holder from a reciprocal state would not be legal in SC. However, this issue has not been determined by a court. To ensure compliance with the law, holders of out-of-state CWPs, relying upon reciprocity, must be 21 years of age when bringing firearms onto campus according to S. 593. If the student has a CWP, the student must remember to leave the handgun in an attended or locked vehicle in the specified areas as discussed previously. As a final note, the federal Gun Free School Zones Act is not applicable to colleges, community colleges, technical schools or any similar educational institution that is not an elementary or secondary school. Students should be aware of differences between public and private universities. As stated earlier in the section regarding employee liability, private universities and colleges are not agencies of the state. Private universities and colleges are private organizations operating on private property and are not state agencies. So, students and visitors on private university premises might face non-criminal sanctions if the particular institution has a policy against having firearms on the premises. Can I now have a Rifle or Shotgun on School Premises? Some have suggested that the language of the new law allows CWP holders to have not only concealable weapons (most handguns) in vehicles on school grounds, but any type of weapon. This interpretation is based upon language in S. 593 never referring to “firearms” or ‘handguns” but only weapons. Under this interpretation, a CWP holder is allowed to have any type of weapon on school grounds so long as it is stored in a closed glove compartment, console, or trunk, or in the luggage area in a closed container with an integral fastener. The benefit under this interpretation is that weapons larger than those that qualify as concealable weapons under the CWP Section would qualify as weapons. The CWP Section defines concealable weapons as a firearm having a length of less than twelve inches measured along its greatest dimension. Because legal rifles must have a barrel length of at least 16 inches and shotguns must have a barrel length of 18 inches, rifles and shotguns do not fall within the definition of a concealable weapon. So, if the new law is interpreted to mean weapons and not concealable weapons, CWP holders would not be prevented from having rifles and shotguns so long as they are stored in the allowed areas of an attended or occupied vehicle. Obviously most glove compartments and consoles are not able to contain a rifle or shot gun. However, most trunks and luggage areas are. There are not yet any court cases interpreting the meaning of weapon under this new law. If a CWP holder chooses to carry a rifle or shotgun under this interpretation and is later arrested for possession of firearms on school grounds, that individual might well be the “test case” for the issue. Because the new law specifically cites carrying pursuant to the CWP Section, the most conservative way to approach interpreting weapon is to define it the same way the CWP does. To carry a weapon pursuant to the CWP Section, the weapon must be a concealable weapon. Therefore, the best practice is to only store concealable weapons in the allowed areas of attended or locked vehicles. In general, concealable weapons are handguns less than 12 inches long. Can I have a firearm in my motorcycle saddlebag on school premises? Section 16-23-20 of the S.C. Code of Laws spells out the general handgun prohibition and the exceptions. That Section of the Code of Laws differentiates motorcycles from vehicles. Subsection (9)(a) provides the exact language upon which the new law (S. 593) gets its language (i.e. [there is an exception to the handgun prohibition if] the person has the handgun in a vehicle and the handgun is in the closed glove compartment, console, etc.) Later Section 16-23-20, Subsection (16) grants a separate and distinct exception for a person on a motorcycle if the firearm is secured in a saddlebag. So, it can safely be said that the legislative intent of Section 16-23-20 is to view vehicles separately from motorcycles. It is also significant that the Subsections refer to an exception of the person is in a vehicle or on a motorcycle. So, when we look at the new law, S. 593, you should assume that the legislature had the same intent. The new law tracks the language of 16-23-20(9)(a) which provides for an exception if the gun is in the vehicle in one of the legal areas. The new law makes no provision for a person on a motorcycle. You should assume that if the legislature wanted to include an exception for motorcycles, it would have included an exception for them as it has in section 16-23-20. Therefore, the best practice is to not assume that the new law applies to motorcycles. Conclusion In summary, with some conditions, South Carolina issued CWP holders can now possess firearms on all school premises and events without incurring criminal liability. The firearm must remain inside an attended or locked vehicle in the closed glove compartment, console, or trunk, or in the luggage area in a closed container with an integral fastener. The firearm should be a concealable weapon as defined in the CWP Section of the South Carolina Code of Laws. While S. 593 has some conditions that require you to think through a trip to schools, the new law is important progress toward implementing the full protection of gun rights under the Second Amendment and the South Carolina Constitution. GrassRoots GunRights South Carolina has been vital to the effort in getting S. 593 passed.
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