Justices say school rightly expelled student who brought handgun to school

By Kyla Asbury | Jun 27, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals upheld a decision to expel a student who possessed a handgun on the campus of Jefferson High School.

In the June 16 memorandum decision, the court wrote that it found no substantial question of law and no prejudicial error.

On May 6, 2016, E.R., then a minor, was a student at JHS and, during class, his teacher detected the faint smell of smoke and suspected that someone in the class was using an electronic cigarette device.

“The teacher asked that the user come forward, but no one did,” the decision states. “Consequently, she announced that there would be a search of the students’ book bags for the purpose of locating the vape device.”

It was at that time that E.R. was observed by the teacher and five other students walking with his book bag from one side of the room to the other, stopping in between two female students and placing something into one of the female student’s bags before he returned to his seat.

The teacher asked the female student to bring her the item that E.R. had placed in her bag, but, instead, she showed the teacher her bag, which contained a .38 caliber six shot revolver that was not loaded and no ammunition was found. The female student denied that the gun belonged to her.

E.R. claimed that he was looking for his lotion in the female student’s bag. After the incident, the female student and E.R. were escorted to the principal’s office, where their parents were contacted, as well as law enforcement.

The school principal and another administrator first met with the female student, her mother and Sgt. Sell of the Jefferson County Sheriff’s Department. She recounted that she had observed E.R. place something in her bag and when she looked, she saw the gun.

When E.R.’s father arrived at the school, he advised that his son would not make a statement without an attorney present. Later, E.R., his father and his attorney met with Sell and the school administrators.

E.R., through his attorney, denied responsibility for the gun. At the conclusion of the meeting, E.R., his father and his attorney were advised that he would be suspended for ten days pending a recommendation of expulsion.

Two weeks later, Bondy Shay Gibson, the superintendent of Jefferson County Schools, advised E.R.’s attorney that the allegation that he possessed a gun on school property is a Level 4 violation of state and local policies and that she would be recommending expulsion for up to 12 months during the board meeting on June 13, 2016.

On July 6, 2016, E.R. and his parents filed a complaint in Jefferson Circuit Court against the board and its members seeking a preliminary injunction and a temporary restraining order to preclude the board and its members from expelling E.R. from school.

The board filed a motion to dismiss and a hearing was held on July 25, 2016. An amended complaint for writ of certiorari to appeal the board’s decision to expel E.R. The petition for writ of certiorari was denied on Aug. 18 and then E.R. appealed.

“Based upon our review of the record and the arguments of the parties, we find no error in the conclusion that the board proved, by a preponderance of the evidence, that E.R. possessed a handgun on school property,” the memorandum decision states. “When E.R.’s teacher announced that she and another administrator would be searching book bags in order to find a vape device, E.R. immediately rose from his chair, walked across the classroom, and stopped in between the chairs of two female students.”

Accordingly, the decision states, the court concluded that the circuit court did not abuse its discretion in affirming the board’s decision to expel E.R.

W.Va. Supreme Court of Appeals case number: 16-0836

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