New Concealed Carry Act Requires School Administrators to Report When a Student Is Determined to Be a Clear and Present Danger
Dec 5, 2013
Inserted within the new Firearm Concealed Carry Act is a law which imposes certain mental health reporting requirements on school administrators. Specifically, pursuant to the new School Administrator Reporting of Mental Health Clear and Present Danger Determinations Law it is now the duty of the principal or chief academic officer of a public or private elementary, secondary or post-secondary school, or his or her designee, to report when a student is determined to pose a “clear and present danger” to himself, herself or others. 430 ILCS 66/100 et seq. The report is to be made to the Illinois Department of State Police within 24 hours of the determination and as provided in Section 6-103.3 of the Mental Health and Developmental Disabilities Code, 405 ILCS 5/6-103.3.
The term “clear and present danger” has the meaning as provided in paragraph two of the definition of “clear and present danger” in Section 1.1 of the Firearm Owners Identification Card Act. 430 ILCS 65/1.1. Thus, for purposes of school administrator reporting, “clear and present danger” means a person who demonstrates threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior as determined by a physician, clinical psychologist, qualified examiner, school administrator, or law enforcement official. 430 ILCS 65/1.1. The main purpose of requiring school administrators and others to make a report to the State Police when a student is determined to be a clear and present danger appears to be for the development of a database to potentially prevent such individuals from receiving a Firearm Owner’s Identification Card in the future. The concern, however, is that schools frequently deal with students who may demonstrate threatening physical or verbal behavior and there is no age limit for a student being reported pursuant to this provision. Thus, it is possible for a school administrator to report a second grade student who has been determined to be a clear and present danger and have such a report affect that student’s ability to possess a firearm more than a decade later.
While the law does not currently provide much guidance to assist school administrators in making a clear and present danger determination, the law does provide the reporter confidentiality and immunity related to the report. Specifically, the identity of the person making the clear and present danger determination and report to the Illinois Department of State Police will not be disclosed to the subject of the report. 405 ILCS 5/6-103.3. Furthermore, the principal or his or her designee will not be held criminally, civilly, or professionally liable for making or not making the clear and present danger notification, unless such rises to the level of willful or wanton misconduct. Id.
We expect the Illinois Department of State Police to promulgate administrative rules providing further guidance on these reporting requirements. Until such time, we have been advised by the State Police that clear and present danger reports should state the date of the incident, the name of the person that is the subject of the report, the subject’s date of birth, if available, and a brief description of the incident. An incident report, if generated, should also be sent to the Department of State Police when the report is made. The Department of State Police has advised us that the report should be faxed to the Illinois Department of State Police at 217-782-9139, Attn: Enforcement.
While this law affords school administrators discretion in making a clear and present danger determination, whether a principal or his or her designee should make a report and what information to disclose to the Department of State Police will depend on the individual circumstances of each case. Therefore, until additional guidance is provided by the Illinois Department of State Police, it is advisable that school administrators consult with legal counsel prior to filing a clear and present danger report pursuant to the School Administrator Reporting of Mental Health Clear and Present Danger Determinations Law to ensure such reporting is consistent with the provisions of the law and does not violate the Illinois School Student Records Act or the Family Educational Rights and Privacy Act.
We will update you as further rules or guidance become available from the Department of State Police. If you have any questions concerning these requirements, please do not hesitate to contact a Robbins Schwartz attorney.