Colorado’s second-highest court has found Denver school security officials acted lawfully by continuing their daily searches of a student with a prior handgun offense, even when the “safety plan” enabling the searches had no expiration date.

It has been nearly four decades since the U.S. Supreme Court ruled in-school searches do not require probable cause of a crime – only that they be reasonable considering the circumstances – but Thursday’s decision out of the Court of Appeals raised a unique question about the constitutional boundaries of that authority.

“This is the court telegraphing that particularly when it involves schools and firearms, there are no parameters,” said Tristan Gorman, the legislative policy coordinator for the Colorado Criminal Defense Bar. “There’s no check on the school’s power to implement these safety plans and they can do it based on whatever they want. That’s very concerning to me.”

Stan Garnett, the former elected district attorney for Boulder County who also served a school board member, agreed the school’s policy was questionable, but he believed there would likely be further court decisions defining the acceptable parameters of a student’s safety plan.

“Part of what we want to do is protect the privacy of students and don’t overreact to things they did when they were young. On the other hand, we want to identify the kids with a propensity for violence,” Garnett said. “It wouldn’t surprise me if the Colorado Supreme Court wanted to come in and give its own opinion about this.”

In the underlying case, a male student identified as J.G. went before a juvenile court judge in December 2018 for felony menacing and possession of a handgun. The judge adjudicated J.G. delinquent, which is the child equivalent of finding a defendant guilty. 

The following month, the threat appraisal team at J.G.’s Denver high school developed an action and intervention plan, referred to as J.G.’s safety plan. J.G.’s mother, his school’s dean, and school resource officer Johnny Avila were among the adults who participated in creating the safety plan.

Following another law enforcement encounter in February 2019, the threat appraisal team amended J.G.’s safety plan. 

“Student will need to be searched everyday by admin and security,” the document read. Avila testified his understanding of the safety plan was that J.G. would not be allowed to have a backpack, and the plan would remain in effect for the duration of J.G.’s time at the school.

J.G.’s mother attempted to enroll him elsewhere in Denver Public Schools for the 2019-2020 school year but ended up hastily reenrolling him at the same school when he was waitlisted elsewhere. Reportedly, a week before school began, Dean of Students William Thompson told her J.G. would potentially not need a safety plan that year. (Although the school went unnamed in the court’s decision, Thompson works at John F. Kennedy High School in southwest Denver.)

On J.G.’s third day of school in August 2019, campus security requested Avila’s assistance when J.G. refused to comply with a backpack search. Avila and Thompson told J.G. he needed to be searched, but J.G. attempted to walk away from them. Avila then grabbed J.G. and walked him to the security office.

Once there, Avila restrained J.G. while a security officer searched his backpack, finding a loaded handgun. Avila arrested J.G. After court proceedings began, a juvenile judge refused to suppress evidence from the search, rejecting J.G.’s claim that the safety plan did not authorize it. The judge adjudicated him delinquent for possessing a handgun.

The Supreme Court, in its 1985 decision of New Jersey v. T.L.O., acknowledged that while students retain some privacy rights while in school, the need to maintain order “does not require strict adherence to the requirement that searches be based on probable cause.” Consequently, the court found school officials are justified in initiating searches when there is a reasonable belief of uncovering evidence of a legal or rule violation.

A three-judge panel for the Court of Appeals, in reviewing J.G.’s case, noted the Supreme Court’s decision applied to “ordinary circumstances.” Here, J.G. unusually had a safety plan from the prior school year that mandated searches. The primary issue on appeal then was whether that safety plan was still in effect at the time of the search. The panel concluded it was.

“We note that the Safety Plan doesn’t specify a timeframe and that it also doesn’t include an expiration date. Thus, we construe the Safety Plan as remaining effective as long as J.G. attended the same high school,” wrote Judge Craig R. Welling in the June 16 opinion.

Welling acknowledged J.G.’s return to school suffered from lack of communication. There was no reentry meeting prior to the start of the school year, during which officials could have clarified the scope of the safety plan. J.G. had also not been subject to a search until his third day back.

But the panel emphasized any lapses in enforcement did not mean the safety plan had expired.

In examining whether the search was reasonable overall under the Supreme Court’s precedent, the appellate judges rejected J.G.’s argument that school officials searched him based on his past behavior, without any present indication he was committing an infraction.

That reasoning did not apply, Welling wrote, because “the Safety Plan stripped J.G. of a legitimate expectation of privacy in his backpack.”

Gorman, of the criminal defense bar, characterized the decision as enabling school officials to construct plans for searching students indefinitely without needing any suspicion to do so. She called such tactics the “antithesis of the Fourth Amendment,” which prohibits unreasonable searches and seizures.

“Everything I have read about school shootings and firearms in school, it happens among kids who have trauma or feel isolated. I think everything that the school and law enforcement did in this case would exacerbate those problems,” Gorman said.

Garnett, the former prosecutor, agreed that putting aside constitutionality, the school’s policy response appeared excessive.

“It’s very important that our schools become environments where young people can mature, be silly, use bad judgment in a proportionate way,” he said. “What really concerned me was that the schools, in an effort to make sure they have a safe environment, have overreacted and become very strict. What that does is create an environment that’s very difficult for students of color and for young men.”

In a statement, Denver Public Schools said it supported the appellate panel’s decision, adding that the development of safety plans accounts for the “rights and needs of the involved students.”

The case is People in the Interest of J.G.