THE ROOT OF AMERICA'S FIREARM PROBLEM

The incident that occurred today (April 2, 2021) at the Capitol was a demonstration that firearms are not the cause of the egregious acts of violence that seem to plague contemporary society. A man rammed his automobile into some Capitol policemen and then got out and began stabbing policemen with a knife. One was killed and another seriously injured before officers armed with firearms put an end to his rampage. In the time immediately after the incident, before anyone involved in the atrocity was identified, the talking heads on a certain 24 hour news station wondered what would cause someone to do something like that. Since only the police deployed firearms, there were no calls to tighten gun control, and I heard no calls for automobile control or knife control. I predicted that the perpetrator would have mental health issues, and as the day wore on, it turned out that his Facebook posts revealed a young man in some form of mental torment who had been spiraling down from bad to worse over a period of years. 

Which brings us to the failure of gun control. It won't stop violence. England has stringent gun control laws, and those laws didn't stop the random acts of violence. The bad guys switched to knives, and now there is an English movement for knife control. If they get the knives under control, the violence prone can switch to axes. When they ban axes, the next weapon of choice might be the claw hammer. 

What causes gun violence? Not guns. I've been around guns all my life and have shot everything from am M79 grenade launcher (which is fun to shoot) to a single shot, rolling block .22 caliber rook rifle (which is also fun to shoot), and no firearm I have ever handled has inspired me to climb a tower and start shooting random passers by. I have never seen or heard tell of a firearm like the one in Terry Pratchett's science fantasy novel Men at Arms, which took control of its possessor and made him commit murder.

I put my finger on the root cause of gun violence in a blog post that I made in the wake of the Sandy Hook shooting back in 2012, SANDY HOOK AND GUN CONTROL. The root cause of gun control is the Supreme Court's decision in O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486 (U.S.Fla. 1975). O'Connor severely limited the states' ability to involuntarily commit the mentally ill. The gist of this opinion was that mentally ill people cannot be locked up unless they are shown to be dangerous. To put it crudely, just acting weird is not enough for involuntary hospitalization. The Supreme Court put it more delicately, but they were saying the same thing: “May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different?” Before 1975 we regularly locked up people who were acting weird but who had never harmed anyone. And I believe at that time we had fewer mass murders. Most of the mass killers of recent vintage ( I’m thinking particularly about the man who ran amok at Virginia Tech) acted weird long before they killed anyone. Under O’Connor, they couldn’t be locked up because they hadn’t harmed anyone, or if they had harmed someone, there was a mental health professional who testified that they were all better now and weren't dangerous any more. I vividly remember one case we had where a man kept committing arsons. He'd get arrested, the doctors would say he was mentally ill, but he didn't need hospitalization, and under O'Connor he'd get put back on the street where--you guessed it, he set something else on fire. He finally "burned out" on his hobby of setting fires, and thankfully he never hurt anyone.

Now, I’m not in favor of locking people up merely because they act weird. Most people who act weird don’t commit mass murders. Just as most people who own guns don’t commit mass murders. 

The relevant Florida standard for involuntary commitment, which is pretty much universal throughout the United States is: 

"There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior." Fla. Stat. 394.463(1)(b)2. 

I was a mental health prosecutor for several years, and here's what happens in a typical involuntary commitment: The patient is held for 72 hours and released. I never felt more like I was spinning my wheels and accomplishing nothing than when handling a case with a a patient who was obviously nutty as a fruitcake and in need of treatment, but was turned loose because there was "[no] substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future...." [emphasis supplied].

We had a man once who took off all his clothes in the middle of the night, got a shotgun, marched naked down the hallway of his parents house into their bedroom, announced that his father was the Devil, and shot him to death as he lay beside his wife. He was found not guilty by reason of insanity and shipped off to the state mental hospital, and six months later the hospital wanted to turn him loose because he was cured and there was no "substantial likelihood" he would kill his father again. We were able to keep that one locked up.

Time after time these mass shooters turn out to be people with a history of revolving door mental health issues. The Supreme Court needs to readdress their holding in O'Connor and devise some way to allow the authorities to control the mentally ill who are potentially dangerous. The standard of "substantial likelihood [of causing] serious bodily harm ... in the near future" is too stringent a standard, and it allows dangerous people to go untreated and spiral farther and farther down into the abyss of desire to do violence until they act out and we have another tragedy.

The Justices of the Supreme Court are some of the brightest minds in the legal profession. Surely they can devise some means of protecting the rights of the mentally ill while protecting the public from the mentally ill.

A MODEST PROPOSAL RELATING TO THE PREVENTION OF MASS SHOOTINGS

It’s been a while since I’ve posted anything. Although during my hiatus I have often had the urge to say something about current events, I never felt that I had anything productive that I could add to any discussion. With what has happened in Las Vegas, I believe that I can add something to the conversation. I have previously voiced the opinion that the problem with mass shootings is not gun control but people control, and I traced the origin of the trend toward mass shootings to the United States Supreme Court’s tightening of the requirements for involuntary hospitalization of the mentally ill. O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486 (U.S.Fla. 1975), made it nearly impossible to hold a mentally ill person for more than a few days. After that, the patient was often back out on the street acting strangely and getting into more trouble.

Most with mental health issues do not become mass shooters, but most mass shooters (excluding those with political motivations) have mental health issues. It hasn’t yet come out that Stephen Paddock had mental health issues, and the media have portrayed him as someone who was normal to all outward appearances. Other than the fact that he was a loner, his father was a professional bank robber on the FBI’s Top Ten Most Wanted List, he was a high-stakes gambler, and his brother said he was “not a normal guy”, Paddock was just like anyone else and nobody who knew him could have seen this coming. I don’t buy it. I predict that Paddock will have a history of mental health issues. All that investigators have to do to find out about that history is to penetrate the veil of secrecy thrown up by HIPAA and the patient-psychotherapist privilege.

If Paddock proves to have a perfectly normal mental health history, then there may be something to the Islamic State’s claim that he converted to Islam and carried out the attack “in response to [the Islamic State’s] calls to target coalition countries.” I, however, seriously doubt that the Islamic State’s claims have any truth value whatsoever. If an Islamic State spokesman were to tell me that the sun was shining, I’d go get my umbrella.

It is impossible to 100% completely prevent such incidents as happened in Las Vegas, and O'Connor v. Donaldson makes it even more difficult than it otherwise could be, but I think I know of a way to predict whether someone has a potential for acting out in the way that Paddock did. It will take some explaining. There is a school of thought in the field of statistics called predictive analytics or predictive modeling that employs the use of statistical algorithms to predict future behavior.

My first contact with such predictive algorithms came when I was a Sexually Violent Predator prosecutor. The predictive algorithm (which was called an “instrument”) was called the Rapid Risk Assessment for Sexual Offense Recidivism, or the RRASOR. The psychiatrist or psychologist (hereafter “psych”) simply looked to the RRASOR’s checklist, and checked off the boxes on the list. Each box had a number value. At the end of the checklist the psych added up the numbers for each box checked, and the total score gave a prediction for how likely it was that the sex offender would reoffend. The higher the score, the more likely the person was to reoffend. At that time the RRASOR was touted as being more accurate a predictor of recidivism than a traditional psych evaluation.

Another predictive algorithm that was used in connection with Sexually Violent Predator prosecutions was the Hare Psychopathy Checklist, which is now in a revised second edition (PCL-R). Its mechanics were similar to the RRASOR. The psych goes down a checklist, giving points for each variable, and totals the points at the end. The higher the score the more likely that the patient is a psychopath. The more likely it is that a person is a psychopath, the less likely it is that the person will respond to traditional psychiatric treatment.

Steven D. Levitt and Stephen J. Dubner, in their book Super Freakonomics: Global Cooling, Patriotic Prostitutes, and Why Suicide Bombers Should Buy Life Insurance, describe how the UK’s antiterrorism agencies used such an algorithm to thwart terrorist attacks. They come across a person who looks suspicious, run him through the algorithm, and the algorithm tells them how likely it is that the person is going to make a terrorist attack. Go down the list, check off the boxes, and add up the points, and the higher the score, the more likely the person is to make a terrorist attack. One of the criteria was whether or not the person had any life insurance. Life insurance policies are not going to pay off if the insured kills himself in a suicide attack, so why buy life insurance? The only reason to do so would be to lower your score on the terrorism algorithm.

Now, we’ve got enough data on enough mass shooters to look into their backgrounds and find the common characteristics that all or most mass shooters possess. Assemble a checklist like the RRASOR or the PCL-R, run the questionable individual through the checklist, and if the individual scores high on the algorithm, that person bears watching. We could call the algorithm the Gun Violence Assessment of Risk (GunVAR).

How would you apply it? Use a methodology similar to that used in Sexually Violent Predator prosecutions (See Fla.Stat. §§ 394.910-394.932). When a sex offender is released from prison, the offender is examined and a determination made as to how likely that person is to reoffend. If it is determined that the person has a high likelihood of reoffending, then a Sexually Violent Predator commitment proceeding is initiated. The flaw of Sexually Violent Predator commitment, is that the individual can be committed with no real prospects of being cured and consequently no real hope of release. I would propose a different protocol for proceedings relating to risk of gun violence.

When an individual has been involuntarily committed for mental health issues, upon his release, he will be assessed using the GunVAR. If he scores high enough on the GunVAR, then the psych has a duty to report this fact to the authorities. Proceedings can then be instituted to insure that the person is placed under a form of probationary supervision, he receives outpatient therapy to curb his violent tendencies, and maximum efforts are made to keep him separated from guns (including periodic unannounced inventories of his living quarters to make sure he hasn’t acquired any guns). When a psych certifies that he has a clean bill of mental health, then a judge can release him from supervision.

As I said at the outset, there is no 100% foolproof method of preventing mass killings. A truly determined killer doesn’t need a gun—a pressure cooker and some home-made explosives or a rented van loaded with ammonium nitrate and fuel oil will work just as well. But I do think a procedure similar to that described in the Sexually Violent Predator laws would cut down on such violence.

THOUGHTS ON THE FORT LAUDERDALE SHOOTING

The BBC described the recent shooting in the Fort Lauderdale airport as “the latest in a series of mass shootings in the US in recent years,carried out by people who had easy access to weapons under US gun laws,”  demonstrating that they completely missed the real issue, which is not gun control but people control.

Esteban Santiago had mental problems. He was hearing voices and thought he was the subject of mind control by a US intelligence agency. He went to the FBI for help. They took his gun away and sent him for mental health evaluation. He got a “clean bill of [mental] health,” was released from custody, and was given his gun back. CNN senior law enforcement analyst Tom Fuentes explains this mind-boggling series of events by saying "He hadn't been adjudicated a felon and he hadn't been adjudicated mentally ill." Santiago’s family says his “mind was not right.” I’m going to go with Santiago’s family on this call.

Ironically, on the issue of whether someone should be confined in a mental institution, the courts of our land are not concerned about whether a person is merely "mentally ill." Before someone can be confined, that person has to be "mentally ill" AND dangerous; and in this area the courts have a very restrictive definition of what is dangerous.

Based on the few known facts, Santiago was mentally ill, but he was not mentally ill to the point that he could be confined in a mental health facility. How could this happen? I wrote about this issue some years ago in a blog post which discussed O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486 (U.S.Fla. 1975), in which the US Supreme Court ruled that you couldn’t confine a mentally ill person in a treatment facility unless the person was likely to harm himself or others. This led to a vicious cycle that I saw repeated time and again when I was a prosecutor—(1) a mentally ill person would get off his medication, decompensate, and act out violently; (2) he would be briefly confined and gotten back on his meds; (3) the doctors would proclaim that he was no longer likely to harm himself or others, and he would be let out; (4) the three-step cycle would repeat again and again.

We once had an arsonist who kept setting buildings on fire. He would get arrested and jailed. The psychiatrists would proclaim him incompetent, and the charges would go away. The psychiatrists would say he was unlikely to harm himself or others, and the judge would be unable to confine him in a mental health facility. He would set something else on fire. The process would repeat itself.  

The US Supreme Court needs to revisit the issue of confining the mentally ill. They need to adopt a more expansive interpretation of “likely to harm himself or others”—one which at a bare minimum includes “likely to harm himself or others if he gets off his medication.” If they think confinement is too severe, then perhaps they would approve some sort of supervision similar to probation or community control for people who are “not likely to harm themselves or others so long as they stay on their medication.” If, when Santiago went to the FBI, he had been committed to a mental health facility for an extended stay, then the Fort Lauderdale tragedy would not have happened. If Santiago had been on some sort of outpatient supervision similar to community control or probation, the Fort Lauderdale tragedy might very well have been averted.

SANDY HOOK AND GUN CONTROL

Let's perform a thought experiment. You want to kill as many people as possible with very little chance of being stopped. Do you go to (a) a gun range; (b) a police station; (c) a hunting camp; (d) a place where people are forbidden to carry weapons? One of the common denominators of recent mass murders is that the killer has gone to a place where weapons are forbidden. This suggests one preventive measure that is relatively easy to take to reduce these types of crimes. Have highly visible armed guards at weapons-free locations.

  

We don't really need more gun control laws. Stringent gun control laws are like Prohibition. They may make the self-righteous feel better, but they do nothing to stop the illegal traffic in the prohibited item. Many factors contribute to the tragedy of mass murder, and I'm no smart enough name them all or know what to do about them if I could. I do, however, think I see two largely overlooked contributing factors to the enabling of such tragedies. One contributing factor can be solved relatively easily. The second contributing factor is built into the case law interpreting our Constitution.

 

CONTRIBUTING FACTOR # 1: It may sound counterintuitive, and it certainly isn't politically correct to say this, but gun control laws actually enable mass murders. If the law says "don't have a gun," then most people won't. But people who want to kill people will arm themselves despite the law. Gun control laws simply produce large gun-free zones where a mass murderer can run amok and kill large numbers of people before law enforcement can respond. If we are going to disarm people and make them vulnerable, then we must do something proactive to protect them. We can counteract this contributing factor easily. Place highly visible armed guards in these gun-free zones, and we will reduce the number of mass murders. Don't arm them with Uzi's, M-16's or AK-47's. Arm them with pump shotguns. These mass murders appear to me to be committed at close range, usually by people who couldn't hit the broad side of a barn at any distance. Shotguns have the range to deal with such people, and they don't have the distant lethality of a high powered rifle. You're not going to miss and accidentally kill someone 300 yards away with a shotgun.

 

 

CONTRIBUTING FACTOR # 2: Now for another politically incorrect statement. Mass murders are facilitated by a Supreme Court decision: O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486 (U.S.Fla. 1975). O'Connor severely limited the states' ability to involuntarily commit the mentally ill. The gist of this opinion was that mentally ill people cannot be locked up unless they are shown to be dangerous. To put it crudely, just acting weird is not enough for involuntary hospitalization. The Supreme Court put it more delicately, but they were saying the same thing: “May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different?” Before 1975 we regularly locked up people who were acting weird but who had never harmed anyone. And I believe at that time we had fewer mass murders. Most of the mass killers of recent vintage ( I’m thinking particularly about the man who ran amok at Virginia Tech) acted weird long before they killed anyone. Under O’Connor, they couldn’t be locked up because they hadn’t harmed anyone, or if they had harmed someone, there was a mental health professional who testified that they were all better now and weren't dangerous any more. I vividly remember one case we had where a man kept committing arsons. He'd get arrested, the doctors would say he was mentally ill, but he didn't need hospitalization, and under O'Connor he'd get put back on the street where--you guessed it, he set something else on fire. He finally "burned out" on his hobby of setting fires, and thankfully he never hurt anyone.

 

 

Now, I’m not in favor of locking people up merely because they act weird. Most people who act weird don’t commit mass murders. Just as most people who own guns don’t commit mass murders.