On May 30, 2018, Texas Governor Greg Abbott released his School and Firearm Safety Plan. You can access his plan here.

Some of the Governor’s proposals cause me little or no concern. But ten specific proposals of his are deeply flawed and indicate that Abbott and his team seriously misunderstand principles of liberty and the proper role of government.

Worse, the proposals that might have the greatest positive impact on school safety are neutered to the point of being laughably impotent (see #1 below). Meanwhile, proposals that would further burden law-abiding Texans with more regulations and have little positive impact, are proposed to carry the force of law.

#1: Increase School Marshals — But No Mandate

Abbott’s first proposal seeks to increase the number of armed and trained teachers and staff in each school. This is a step in the right direction. However, Abbott’s proposal falls woefully short. His proposal simply “encourages” each Independent School District (ISD) to allow more teachers and staff to carry firearms and become that critical first line of defense. But there is no requirement that the ISDs take this critical school safety step.

Large and typically quite liberal ISDs have thus far refused to allow trained and qualified teachers and staff to protect students. Abbott should show real leadership and propose legislation that will require each Texas ISD to permit interested and qualified teachers and staff to carry firearms in defense of themselves and their students.

The irony of this “encouragement” to “voluntarily” increase armed teachers and staff is that Abbott’s plan takes exactly the opposite approach when it comes to subjecting law-abiding Texans to more regulations. Abbott’s plan forces law-abiding Texans to comply with more regulations, while only softly encouraging ISDs to better protect students.

On the contrary, each ISD should be mandated by force of law to permit properly qualified teachers and staff to carry firearms. And those proposals (see especially #9 and #10 below) that subject law-abiding Texans to the regulatory force of law should be converted into the sort of soft, voluntary encouragement that Abbott reserves for Texas ISDs.

#2: Active Shooter Training — A Partnership with an Anti-2A Organization

Abbott’s proposal seeks to partner with the I Love U Guys Foundation and implement their Standard Response Protocol.

Unfortunately, this group is no friend to the concept of self-defense and in no form or fashion is a friend to the Second Amendment. One of their board members is the former principal of Columbine High School in Colorado. Frank DeAngelis is now retired but recently spoke out on the protests by young people who are demanding confiscation of guns and massive new gun control measures.

In an April 20, 2018 interview with Denver’s CBS affiliate, DeAngelis said of young people demanding gun control, “I love their passion. I love their heart. I love their desire… They’re an inspiration to all of us. Now the next step … is they need to go to the polls.”

In a March 14, 2018 article, USNews.com reported on the student protests demanding major new gun control and even gun confiscation and said of DeAngelis:

“Frank DeAngelis, who retired as Columbine’s principal in 2004, said he considered the student-led movement ‘phenomenal.’ If the adults won’t do anything about it, they will,”

Remember, this is a board member of the I Love U Guys Foundation that Governor Abbott wants to partner with and rely on for insights about gun safety and school safety in Texas. Clearly, Abbott is either not deeply committed to the Second Amendment or is woefully ill-informed about the leadership of the group that he seeks to partner with in Texas.

But it gets a bit more interesting. DeAngelis actively discourages the idea of armed teachers and staff that can immediately engage an active shooter. In Horry County, South Carolina, Horry County Councilman Johnny Vaught spoke in favor of arming teachers who would be able to defend their students.

A February 2018 editorial explained the difference of views. Vaught spoke in favor of arming teachers by referencing active shooters and the fact that they won’t find victims, but armed and trained teachers who will shoot back,

“They are going somewhere they can find a flock of sheep, not a herd of bulls… They are going in there knowing no one is shooting back.”

The editorial author then explains,

“Frank DeAngelis, retired principal of Columbine High School, site of a shooting rampage that left 12 students and a teacher dead, disagrees. I understand Vaught’s position, but I agree with DeAngelis that arming teachers could present far more problems than it solves. In fact, all kinds of things could go terribly wrong.”

Again, leadership of the I Love U Guys Foundation clearly seeks to perpetuate the ongoing myth that the best response to an active shooter event is to cower in fear and hide until law enforcement arrives on the scene. While Abbott seeks to partner with this kind of organization, this is influence we do not need in Texas.

Instead, a key aspect of school defense must be armed and trained teachers and staff who immediately engage the active shooter while others protect students.

The FBI’s most recent report on active shooter events that occurred in 2016 and 2017 acknowledges the vital role armed civilians play in stopping such violence:

Armed and unarmed citizens engaged the shooter in 10 incidents [out of 50 total events in 2016–2017 — dw]. They safely and successfully ended the shootings in eight of those incidents [80% of the cases where armed or unarmed civilians engaged, they stopped the active shooter — dw]. Their selfless actions likely saved many lives. The enhanced threat posed by active shooters and the swiftness with which active shooter events unfold support the importance of preparation by law enforcement and citizens alike.

Ironically, the very thing that demonstrably ended 20% of all active shooter events in 2016–2017 (an immediate response by armed and unarmed civilians to confront the active shooter) receives only the mildest of voluntary encouragement from Abbott’s proposal (see #1 above).

For Abbott to propose partnering with this particular group whose mantra is “hide and cower” is folly and runs counter to Texans’ native understanding of how to protect the innocent.

#3: More Funds for School Safety — and More Federal Dependence

Unfortunately, Abbott seeks to rely on more and more federal dollars in pursuit of school safety. There are at least two key problems with this.

First, Texas should be seeking ways to be more and more financially independent of federal dollars and not more and more dependent on federal dollars. Accordingly to 2016 numbers from the Texas Comptroller, an astounding 35.5% of Texas’ net revenue comes from the Federal government.

Second, federal dollars always have strings attached. As federal policies turn more and more against the values of the Second Amendment and general principles of liberty, we can expect the federal strings that are attached to such dollars to further erode our Texas values. As we become more and more dependent on federal dollars, Texas politicians will be more and more willing to erode our Texas values in the interest of clinging to federal money.

Simply put, there’s no school safety problem in Texas that needs Washington D.C.’s help.

#4: Statewide Tip Program to Identify Threats — With Massive Abuse Potential

Abbott seeks to rely on more use of the iWatch Texas tip program. This program encourages Texans to report perceived threats under completely anonymous conditions.

Unfortunately, Abbott’s plan makes zero reference to the need for strong penalties for fraudulent use of such anonymous tip systems. Such systems are easily abused by individuals with minor or frivolous grievances against another person.

Indeed, Texas Child Protective Services (CPS) also utilizes a similar anonymous tip-based reporting system. And the agency that oversees CPS acknowledged that 75% of their cases contained allegations with no supporting evidence.

Furthermore, the widespread and extremely dangerous practice of “swatting” (where false “tips” are phoned in to 911 and result in SWAT teams storming innocent households) indicates the type of problems that can and do occur. This sort of practice occurs even in Texas again and again.

Abbott’s proposal to rely more and more on iWatch is deeply troublesome.

#5: Social Media Data Mining — Massively Increasing Government Surveillance of Law-Abiding Texans

Abbott proposes to increase the use of Texas “fusion” centers with increased abilities to conduct social media data mining. The theory is that this will allow authorities to identify dangerous people before they can commit their crimes. This smacks of the sort of law enforcement fantasy depicted in the 2002 movie, Minority Report. This sort of data mining also includes data mining of “open source” data on law-abiding Texans.

This represents a massive and broad increase in government surveillance not completely dissimilar in philosophy to the kind of data mining and data capture that is used by the NSA to spy on law-abiding Americans.

While proponents argue that Abbot’s plan seeks to data mine only those information sources that are public, and not private data sources, the government regularly expands its ability to capture and store data that citizens would ordinarily consider to be private. For example, the NSA sought to target 40 people with surveillance and in the process collected more than 500 million phone call records of Americans.

The point is simple: Americans would be surprised to learn how much data we citizens believe is private, but the government believes is public.

Case in point: Police have argued they can use your cell phone to track your movements and that your movements are not protected private data and instead are public data. Will such data be mined by Texas fusion centers?

Courts have ruled that phone call data is not private data. Government captures and stores a tremendous amount of data on each of us, data that the government determines is not protected private data, but public data, eligible for all variety of analysis and snooping.

Cities and municipalities use automatic license plate scanners to track your movements, recording your GPS location, date, time, and an image of your license plate. This data is available for mining by government agencies.

Courts have ruled that your prescription records are not private. Will Abbott’s “fusion centers” data mine your prescription records and determine that you or your child have received some medication that might warrant a “red flag” petition to seize your firearms? This much is certain: Once granted such powers, government will use their powers against liberty to the maximum extent possible.

My point is this. While Abbott seeks to mine “public” data — what you and I think of as public data is not what government defines as public data. To the government almost everything about you is public data.

Furthermore, the algorithms used to conduct such data mining, to join disparate data sources together, and make analytical conclusions about who may be about to commit a crime are not made transparent to citizens. Details on exactly who can search the database, and on what basis they can search the database are often murky. Will such searches be limited to mere suspicion? Will probable cause be the threshold for database searches? Or will these fusion centers conduct perpetual searches in an effort to live out the totalitarian dream of being able to predict who might be about to commit a crime?

Finally, law enforcement organizations have proven themselves at times to be intensely dishonest in these matters. There is a device that is colloquially referred to as a StingRay device. These devices allow law enforcement to use a person’s cell phone to spy on citizens without a warrant. Outrageously, Federal law enforcement organizations have instructed local law enforcement organizations to lie to courts about the use of such devices.

Clearly the potential for abuse is substantial.

Abbott’s proposal to increase data mining activities is a foolish expansion of government surveillance on law-abiding Texans.

#6: Remove Dangerous Students From the Classroom — But Where’s Due Process?

On the surface, the desire to remove dangerous students from the classroom sounds like a good idea. But the Constitutional rights of due process must be respected. Unfortunately, Abbott’s proposal does not even make a nod toward an accused child’s due process rights.

Under Abbott’s proposal, a child who is charged with vaguely defined offenses (including such things as “stalking” or “cruelty to animals”) can be immediately removed from the classroom. Note: such removal is not merely after a conviction, but can occur after merely a charge has been filed.

Abbott’s plan fails to recognize that even students are innocent until proven guilty. Students should not be removed from a classroom based only on a charge except in the most rare and extreme of circumstances.

#7: Red Flag Petitions — Seizing Firearms Without Respecting the Second Amendment

Abbott follows the lead of very liberal states in proposing the ability for law enforcement, family members, school employees, or District Attorneys to file a Red Flag petition with a court.

Such petitions would allege that a person is a danger to themselves or to others. If a judge grants a Red Flag petition, firearms are to be seized immediately and a person’s Second Amendment right will be terminated.

Note, Abbott’s proposal does not require a jury of one’s peers to render a verdict and strip a person of their Second Amendment rights, but only one fallible judge. Abbott could have proposed strong safety mechanisms (such as a jury of one’s peers) as a protection against abuses. After all, each Texas county maintains a standing grand jury of your peers which is tasked with such abilities.

Unfortunately, Abbott’s plan fails to acknowledge the tremendous potential for abuse in this sort of plan. School employees would have the ability on the thinnest of suspicion to create a massive and intrusive legal burden for law-abiding Texas families — with a mere petition filing.

Similar to the iWatch Texas plan above, interpersonal disputes between school employees and parents can escalate into a legal nightmare whereby a school employee files a Red Flag petition with the court to seize a parent’s firearms and terminate their Second Amendment rights. Inter-family squabbles can quickly escalate into false Red Flag petitions. In either case, the mere threat that disagreements can escalate into a Red Flag petition will have a chilling and divisive impact on communities and families.

Proponents of such a Red Flag system will argue that a court will reject such abuses. However, Abbott’s plan also ignores the reality that courts do not always do the right thing. And, as noted above, sometimes those we rely on the most (law enforcement officers, public officials, etc.) deliberately lie to judges.

Furthermore, Abbott’s plan ignores the reality that the subject of a Red Flag petition will incur many thousands of dollars of legal expenses to defend themselves against false and spurious charges. Even when their innocence is proven, legal bills may be substantial.

Abbott’s plan also fails to mandate that the burden of proof is on the state to prove its case against a law-abiding Texan. While we assume normal judicial evidential rules would apply, and the accused would be innocent until proven guilty, it is not hard to imagine that out of some sense of “imminent danger” judges may be willing to quickly sweep away someone’s Second Amendment rights without just cause.

Abbott’s proposal in this regard also fails to seek reasonable limits on the power of the state. Abbott’s proposal seeks to assure us that there must be a clear path back to full Second Amendment rights. However, once firearms are seized and a person’s Second Amendment rights are terminated, the burden of proof undoubtedly shifts back to the person to prove themselves once again worthy of their Second Amendment rights.

Instead, if such Red Flag petitions were ever to be considered, they must be done with strict time-limits that automatically expire unless the government, bearing the burden of proof, again proves its case. In the same way government feels compelled to set automatic expiration dates for important privileges of citizenship (e.g. Passport, driver’s license, etc.) so likewise a Red Flag order should expire after a very brief period of time.

For example, consider that a Red Flag order should be effective only for 7 days and then it automatically expires, firearms are returned, and full Second Amendment rights are restored, unless and until the government again proves its case against the accused.

As noted above, such Red Flag petition determinations should also not rest with a single judge. Rather, a timely determination by the county’s standing grand jury of the accused’s peers and a verdict by a minimum panel of five judges would provide far stronger protections against abuse.

Finally, extremely strong civil and criminal penalties must exist in any such Red Flag petition system for false and malicious reports by any individual, whether law enforcement, school employees, family members, or district attorneys. No immunity for false claims must be permitted by any citizen or government official.

#8: 48 Hour Red Flag Seizures — Without Respect of Appeal

A person’s Second Amendment rights should be terminated only under the most stringent and severe of legal hurdles. See #7 above. But in Abbott’s proposal, once a judge determines to seize a person’s firearms and terminate their Second Amendment rights, the seizure would take place within 48 hours.

This allows no reasonable opportunity for the accused to appeal the Red Flag petition and creates a very low bar for terminating a person’s Second Amendment rights.

In essence, under Abbott’s proposal, a school employee can file a petition with a court. A single judge can quickly rule against the target of the Red Flag petition, out of some sense of urgency to protect the public, and a law-abiding Texan’s firearms will have been seized and their Second Amendment rights will have been terminated before any appeals or reconsideration is possible.

Proponents of this scenario will argue that such Red Flag seizures will be rare. But evidence indicates states will not be hesitant to rely on these new powers.

The potential for appeal before being stripped of one’s firearms and Second Amendment rights is critically important.

#9: Stronger Firearm Storage Laws — And More Regulations on Law-Abiding Texans

Abbott’s proposal massively expands the definition of a “readily dischargeable firearm” to include any firearm whether loaded or unloaded. This extremely broad definition mimics the definition used by the most liberal states including California, Illinois, and New York. In plain language, even if a gun is in a house without any ammunition being present, and even if no ammunition is available within a one mile radius, the firearm is still deemed legally to be “readily dischargeable.”

This is important because Abbott’s proposal does the following:

If your gun is stolen and used to harm or kill someone, and if the government believes you did not store your “readily dischargeable firearm” properly, you will be charged with a 3rd degree felony.

In simple terms: You may never have committed so much as a misdemeanor in your entire life, but if your gun is stolen and used to hurt or kill others, and the state thinks you didn’t store it properly, you may now become a convicted felon, losing your right to vote and your right to keep and bear arms.

Abbott’s proposal is an expansion of state power in the worst tradition of California, Illinois, and New York. Texas must do better. Texas must remain a bastion of liberty.

Furthermore, Texas law permits law-abiding citizens to carry a firearm in their car at all times without license or permission. Many Texans do this. And the law permits them to store that firearm in a locked vehicle when they step away from the vehicle.

Under Abbott’s proposal, if such a gun is stolen from your car and used to harm or kill someone, a local district attorney may be of the opinion that you did not properly store your firearm, and you may now be charged with a 3rd degree felony.

#10: Mandatory Reporting of Stolen or Lost Guns — and Legal Jeopardy for Law-Abiding Texans

Abbott’s plan adds more regulatory burdens on the shoulders of law-abiding Texans. If you believe your gun has been stolen or lost, you will have a very limited period of time to notify law enforcement of the loss.

It is not a stretch to rightly conclude that when you notify law enforcement that your gun was stolen, law enforcement will want to know how that gun was secured. If, in their judgment, your gun was not secured in an appropriate fashion, and that gun eventually is used to injure or kill a person, you will be charged with a 3rd degree Felony as Abbott’s plan proposes. See #9 above.

Abbot’s plan is foolish. The government must not intrude in our lives and our liberty in this fashion, and in so doing, potentially force law-abiding citizens to become complicit in their own felony conviction.

Summary:

Abbott’s plan fails in the simplest and most effective regard: The most effective thing we can do to provide safety for students is to arm more qualified teachers and staff to carry a firearm on campus and serve as the first line of defense against an active shooter situation. In this regard, Abbott’s plan ineptly downgrades this effective solution to a mere voluntary suggestion that liberal districts can and will disregard.

But law-abiding citizens are granted no similar soft touch of voluntary suggestions. Rather, for the law-abiding citizen, Abbott’s plan seeks to massively expand government surveillance, reliance on unsubstantiated tips and data mining, and new regulatory burdens.

Texas can and must do better.