GOVERNOR’S LEGAL OFFICE

OFFICE OF THE GOVERNOR STATE CAPITOL, SUITE N-203

MONTGOMERY, ALABAMA 36130
KAY IVEY
GOVERNOR (334) 242-7120
FAX: (334) 242-2335

STATE OF ALABAMA

M E M O R A N D U M

To: Nick Moore, Education Policy Advisor

From: Will Parker, Chief Deputy General Counsel

Through: Bryan Taylor, General Counsel

Date: July 26, 2018

Re: Alabama Sentry Program

This memo addresses various legal questions that have arisen concerning the Alabama
Sentry Program, Governor Ivey’s initiative to provide enhanced protection against
armed aggressors in public schools that do not currently have a School Resource Officer
(“SRO”). The basic elements of this program may be found in a memo that Governor
Ivey sent to State Superintendent of Education Eric Mackey and Alabama Law
Enforcement Secretary Hal Taylor on May 30, 2018. We will refer to that memo here as
“the Sentry Memo” or simply “the Memo.”

Before addressing these questions directly, it is important to be clear about the Sentry
Program’s underlying legal structure. Specifically, there are three main components:

 Reliance on existing legal authorities. At its core, the Sentry Program relies on
current Alabama statutes and administrative rules under which it is already
legal—that is, without additional legislation or rulemaking—for local officials to
authorize a school administrator, under certain circumstances, to possess a
firearm on campus. A chief purpose of this memo is to identify those authorities
and explain how they work together to authorize and support the Sentry
Program.

 Commitment of state resources. A second key part of the Sentry Program is the
Governor’s commitment of state resources to support administrators who do,
under existing law, become authorized to possess a firearm on campus. For
example, the Sentry Memo directs the Governor’s SAFE Council to provide to
participating administrators training approved by the Alabama Law
Enforcement Agency (“ALEA”). Although not mentioned in the Memo,
participating administrators will also be eligible to receive liability coverage
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July 26, 2018
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under the Educators Liability Trust Fund program (“ELTF”) administered by the
Finance Department. See Ala. Code § 16-22-4.1.

 Establishment of conditions on receipt of state resources. Finally, the Sentry

Program establishes certain conditions that must be satisfied before an
administrator may receive the above-referenced state resources. Examples here
(to name just two) include the health and drug screenings an administrator must
pass and the requirement that all equipment used in the Sentry Program be
approved by ALEA.

With this legal structure in mind, we can now address specific legal questions. The
questions that follow are ones we have received from members of the education-
association community here in Montgomery. We received most of them via e-mail, and
where that is the case, we quoted the email, even while re-ordering the questions to
better track the structure of the Sentry Program. We have also declined to address a
question asking whether schools that “share” an SRO are eligible for the Sentry
Program. That question, we think, is better addressed in additional implementation
guidance that we understand to be forthcoming.

1. “[The Sentry Memo] appears to conflict [with Alabama Administrative Code

rule] 290-3-1-.02(1)(b)(3)[,] which requires boards to prohibit guns on campus.
Does the memo somehow trump [this regulation]?”

The Sentry Program is fully consistent with the State Board of Education’s
administrative rules. The rule cited in this question requires local school boards to
“[a]dopt and enforce a uniform policy” prohibiting firearm possession on school
property by “all persons, other than authorized law enforcement personnel.” Ala. Admin.
Code r. 290-3-1-.02(1)(b)(3) (emphasis added). A school administrator who participates
in the Sentry Program will qualify as “authorized law enforcement personnel” under
this rule by satisfying two prerequisites. First, the county sheriff must appoint the
administrator as a reserve deputy sheriff. See Ala. Code § 36-22-3(b) (creating the
position of reserve deputy sheriff). Second, the local school board must adopt a policy
authorizing the administrator, as a reserve deputy sheriff, to possess a firearm on
campus. We would expect this to be done as a part of the school board’s statutorily
required (and confidential) “comprehensive school safety plan.” Id. § 16-1-44(a)(1).

2. “Ala. Code § 16-1-44.1 provides only [two] options for placing armed persons
on campus: (1) school security personnel or (2) local law enforcement. Both
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must be APOST certified and carry [a] non-lethal weapon as well. How can the
[Sentry Memo] overcome this state law?”

The code section cited in this question does not apply to the Sentry Program. It applies
to persons specifically employed by a local school board as “school security personnel”
or “school resource officers” who “carry a firearm while on duty.” Ala. Code § 16-1-
44.1(a). The Sentry Program, by contrast, fills a gap in schools that do not employ school
security personnel or SROs. See Sentry Memo at 1. The Sentry Memo limits participation
to full-time “active school administrator[s],” and thus does not include persons
employed as school security personnel or SROs. Id. Furthermore, the Sentry Program
involves storing firearms in a “biometrically-secured safe,” not carrying a firearm on
campus. Id.

3. “The [Sentry Memo] refers to the sentries [as] reserve deputies. Under what
legal authority will the reserve deputies be appointed? Are there any
requirements for their qualifications or limitations for the duties reserve
deputies can perform?”

Alabama law says that “[a]ny of the duties of the sheriff . . . as . . . provided by law may
be carried out by . . . reserve deputies . . . as determined appropriate by the sheriff in
accordance with state law.” Ala. Code § 36-22-3(b) (emphasis added). Some local laws
may address the appointment of reserve deputy sheriffs in a particular county. See, e.g.,
id. § 45-17-231.20 (Colbert County local law). But otherwise, a sheriff appears to be free
to set his or her own qualifications and standards, subject to any generally applicable
laws (for example, antidiscrimination statutes).

Some prior attorney general opinions concluded that “auxiliary deputy sheriffs” lack the
power of arrest and should therefore work “under the supervision of a properly
appointed deputy.” Op. Att’y Gen. No. 97-00037 at 4-5 (Nov. 8, 1996) (emphasis added).
But these opinions were issued over twenty years ago, at a time when “there [were] no
provisions under Alabama law relating to reserve or auxiliary deputy sheriffs.” Id. at 3
(quotation marks, citation omitted). In 2011, the Legislature changed the law. See Ala.
Act No. 2011-685. As noted in the preceding paragraph, today a reserve deputy sheriff
may carry out any duty assigned by law to a sheriff “as determined appropriate by the
sheriff in accordance with state law.” Ala. Code § 36-22-3(b).
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July 26, 2018
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4. Will an administrator’s appointment as reserve deputy sheriff

undermine his or her existing legal authority to conduct “reasonable”
searches of student backpacks, lockers, etc.?

No, an administrator’s appointment as a reserve deputy sheriff will not affect his or her
existing legal authority to conduct searches of students on school grounds.

Given school administrators’ “substantial interest” in maintaining discipline, the United

States Supreme Court held in the mid-1980s that they may conduct warrantless searches
of students, on school grounds, under a relaxed “reasonableness” standard as opposed
to the traditional (and higher) “probable cause” requirement. New Jersey v. T.L.O., 469
U.S. 325, 339 (1985); see also id. at 340-41. Since then, as U.S. District Judge Myron
Thompson has explained, “most courts” have applied this same relaxed standard to
searches on school grounds by police officers when the search is “initiated by school
officials” or “where police involvement in the search is minimal.” M.D. ex rel. Daniels v.
Smith, 504 F. Supp. 2d 1238, 1245 (M.D. Ala. 2007) (citing State v. Angelia D.B., 564
N.W.2d 682, 687 (Wis. 1997)). 1

An administrator participating in the Sentry Program will ordinarily be acting as an

administrator under the reasonableness standard—not as a reserve deputy sheriff
subject to the probable-cause standard. But even were a court to disregard the
distinction between these two hats an administrator may wear, a search conducted by
such an administrator would still be assessed only for reasonableness. This is because
the search would, in Judge Thompson’s words, be “initiated by school officials” or
involve only “minimal” police involvement. In short, a reasonable search will be upheld
so long as it furthers the school’s substantial interest in maintaining safety and
discipline.

Of course, local school boards concerned about the validity of student searches may
easily avoid this issue altogether: They may direct school staff who are not designated
as reserve deputy sheriffs to conduct any necessary searches.

1 See also Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1301, 1304-05 (11th Cir. 2006)
(applying the reasonableness standard to a seizure conducted by a Tuscaloosa County
Sheriff’s Deputy who served as a school resource officer).
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July 26, 2018
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5. “If the names of the administrators and participating school boards will not be
released, what would be the process for Boards to choose to participate in the
program? Would they not be required to vote in an open meeting?”

Alabama law allows local school boards to keep confidential the identities of Sentry
Program participants as well as other operational details. This is because these details—
relating, as they do, to “emergency events that compromise the safety of school
property, students, and employees”—may be included in the school board’s statutorily
required “comprehensive school safety plan.” Ala. Code § 16-1-44(b)(1). Such a plan
must be updated as “necessary” and “shall . . . not [be] considered public record.” Id. §
16-1-44(c)(1)-(2).

It is true that a school board must conduct votes on all matters “during the open or
public portion of a meeting for which notice has been provided pursuant to [the
Alabama Open Meetings Act].” Ala. Code § 36-25A-5(b). But that act also allows a
school board to go into executive session “[t]o discuss security plans” and other
security-related matters where public disclosure “could reasonably be expected to be
detrimental to public safety or welfare.” Id. § 36-25A-7(a)(4).

For these reasons, a school board could go into executive session to discuss revising its
security plan to include participation in the Sentry Program. It could then then vote on
the revised plan in open session without releasing the plan or otherwise disclosing any
sensitive details—including whether the board’s plan includes participation in the
Sentry Program at all.

Relatedly, there is no reason for a local school board to reveal its participation in the
Sentry Program indirectly, such as through disclosure of receipts for sentry-related
equipment purchases. Alabama’s public-records law contains an express exemption for
records such as these. Specifically, it exempts from disclosure any records concerning
“security plans, procedures, assessments, measures, or systems, and any other records
relating to, or having an impact upon, the security or safety of persons, structures, [or]
facilities.” Ala. Code § 36-12-40. Records related to a school board’s participation in the
Sentry Program would seem to fit comfortably within this exemption.

6. “Ala. Code § 36-1-12 grants discretionary function immunity for educators in

their individual capacities for specific duties, like exercising judgment in
educating students. Would educators be immune for acting in a law
enforcement capacity?”
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July 26, 2018
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Yes, for at least two reasons, participating administrators will be immune from civil
liability when acting as a reserve deputy sheriff in response to an armed aggressor.

First, the cited code section is a general statute, applicable not only to “education
employee[s]” but also to any “officer, employee, or agent of the state.” Ala. Code § 36-1-
12(c). As such, it would extend civil immunity to a school administrator acting as a
reserve deputy sheriff under the Sentry Program for any one of several reasons set out
in the statute. For example, one basis for granting immunity would be that the
administrator was “[e]xercising judgment in the enforcement of the criminal laws of the
state.” Id. § 36-1-12(c)(4). There may be other statutory bases for granting immunity as
well.

In addition, a separate statute creating the reserve deputy sheriff position contains a
specific grant of immunity that would apply in an armed-aggressor situation. It says
that a reserve deputy sheriff may perform all of a sheriff’s statutory duties “as
determined appropriate by the sheriff.” Id. § 36-22-3(a)(4), (b). As long as the reserve
deputy acts “under the direction and supervision of the sheriff,” (i.e., in accordance
with the written guidelines of the sheriff applicable to the use of force as a reserve
deputy in a school), “within the line and scope of his or her duties,” and “in compliance
with the law,” then that reserve deputy “shall be entitled to the same immunities and
legal protections granted to the sheriff under the general laws and the Constitution of
Alabama of 1901.” Id. § 36-22-3(b). With the exception of several forms of injunctive
relief not relevant here, “a sheriff is immune from being sued in the execution of the
duties of his office.” Ex parte Haralson, 853 So. 2d 928, 932 (Ala. 2003) (citing Ala. Const.
art. I, § 14).

7. “Ala. Code § 36-1-12 grants immunity for educators in their individual

capacities for specific duties. Wouldn’t acting as a sentry be acting beyond his
authority, and cause him to lose his discretionary function immunity?”

No. As explained in the Sentry Memo, an administrator may use a firearm to respond to
an armed aggressor only pursuant to a policy adopted by the local school board—
typically, the board’s statutorily required, confidential school safety plan. See Ala. Code
§ 16-1-44(a)(1). In this way, the sentry clearly would be acting within his or her authority
when responding to an armed aggressor.

As an aside, it bears reiterating that participating administrators will not just be

immune for acts taken as a reserve deputy sheriff; they will also be eligible for state-
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Page 7

provided liability insurance. Alabama law requires the Department of Finance to

provide insurance to “certificated [school] personnel” to “protect [them] against
damages for claims arising out of the performance of their duties or in any way
connected therewith.” Id. § 16-22-4.1(b). Finance Director Clinton Carter has confirmed
that his department will extend coverage eligibility to administrators acting as reserve
deputy sheriffs in conformity with a local school board’s security plan and other Sentry
Program guidelines pursuant to the ELTF program guidelines.

8. “Why has this been issued as an executive memo rather than an executive
order?”

At least to some extent, the Sentry Memo is an executive order. Under Alabama law, the
Governor may issue an executive order “to existing agencies and instrumentalities of
the state government” requiring any action “not in conflict with the Constitution of
Alabama” and “not specifically prohibited by . . . existing statutes” if necessary “in [her]
judgment, for the welfare of the people of Alabama.” Ala. Code § 36-13-9. So, for
example, the Sentry Memo qualifies as an executive order insofar as it directs ALEA
Secretary Hal Taylor to implement the Sentry Program—such as developing a training
program or a list of approved firearms. Labeling this executive action a
“memorandum,” rather than an “order,” does not change its underlying function.

Having said that, much of the Sentry Memo is not an executive “order,” given the
nature of the Sentry Program as described at the outset of this memo. Recall that the
Sentry Program primarily relies on existing authorities under which local officials may
already authorize school administrators to possess a firearm on campus. Nothing about
the Sentry Program purports to order the State Superintendent or local officials to take
any particular action under these authorities. In these circumstances, no executive order
is required or desirable.

9. “Does the State Superintendent have the authority to implement this program
without State Board approval?”

The Sentry Program does not require or even contemplate any particular action by the
State Superintendent or State Board of Education to implement any aspect of the
program. At its core, the program merely lays out a framework under which local
school boards, in cooperation with the sheriff’s office, may revise their school safety
plans to include this additional level of protection. Consistent with his statutory
authority, the State Superintendent may consult with local school officials about how
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best to do this. See Ala. Code § 16-4-6. At the same time, by consulting with officials
who are responsible for implementing the Sentry Program (e.g., the ALEA Secretary, the
Finance Director, local school board members, etc.), the State Superintendent can
provide unique insight on behalf of the entire education community to maximize the
Sentry Program’s likelihood of success. We are not aware of any statute or
administrative rule that would preclude participation by the Superintendent in this
manner.

* * *

In responding to the foregoing questions, two disclaimers are in order. First, we do not
purport to answer all conceivable questions about the legality of the Sentry Program.
Instead, as noted, we have endeavored only to answer those questions we have received
thus far. If other questions come to light, please let us know, and we will be happy to
respond to them as appropriate.

Second, we do not purport to provide every conceivable answer to even the limited
questions addressed in this memo. Additional legal authorities may provide support for
the Sentry Program, and we reserve the right of the Governor and all other Sentry
Program participants to invoke those authorities if and when appropriate.

We hope these responses prove helpful. If we can be of further assistance, please let us
know.