Mass Shootings: What Next?

By Matthew E. Daley

With 5-10 million so-called “assault rifles” and a far larger number of functionally equivalent firearms legally owned in the US, the push to outlaw certain types of firearms is unlikely to deprive aspiring mass shooters of weapons.  Indeed, long guns of all types represent a very small fraction of the weapons used in either homicides or suicides in the US.  We argue below that one of the serious gaps in our system for preventing these terrible events is the absence of a credible and workable system for limiting the access by the small number of seriously mental ill individuals with a history of violence and substance abuse to firearms.

No single solution for mass shootings in the US is at hand, but there are steps that could help ward off future tragedies. Mass shooters fall into three – often overlapping – categories: severely mentally disturbed individuals, domestic terrorists and evil individuals who are neither insane as defined in law nor motivated by political beliefs.

Disrupting future attacks arguably will require departures from current practices of law enforcement and intelligence agencies to monitor social media to identify those who display attributes of extreme hatred or mental instability. This will require new legislation and clear safeguards to prevent abuse. When individuals “of concern” are identified by social media posts or expressions of concern by family, friends or acquaintances, the next step will be searching criminal history databases, a relatively straightforward exercise. However, our criminal justice system routinely bargains away serious charges to avoid trial or to achieve progressive changes to the criminal justice system itself. As a result, potentially dangerous individuals escape identification because their names are not submitted to the FBI’s database as ineligible to possess firearms. 

Separately, one discrete step which may facilitate investigation and prosecution is a new federal statute that would define and criminalize domestic terrorism. This would facilitate law enforcement efforts both prior to and after a mass shooting.

When an individual appears to pose a threat to himself/herself or others and to have the capacity to accomplish that threat, preemptive intervention is appropriate. This is not the normal practice of law enforcement in the United States with the exception of the Secret Service. Techniques employed by the Secret Service are broadly available to other agencies. These can include, depending on the jurisdiction, involuntary referral for psychiatric evaluation or in the case of clearly articulated threats, arrest and prosecution. It’s time to extend this approach to society at large.

An essential task will be a fresh examination of the ethical and legal requirements that apply to mental health professionals. Over half of US states have some sort of guidance derived from the 1976 Tasaroff case and subsequent court decisions that stipulate a “duty to protect” an intended and identifiable victim, but this does not cover a mass shooting scenario. While the absolute number of mass shooters with a mental health diagnosis and/or contact is very small, in 2018, two thirds of the mass shootings (defined by the DHS National Threat Assessment Center as incidents in which three or more persons were harmed) had perpetrators with mental health symptoms (to include suicidal, depressive, and psychotic symptoms).

Tragically, the psychiatrist who treated James Holmes, the Colorado theater shooter who killed twelve people, reportedly decided against placing on a mental health hold on him — despite his expressing homicidal thoughts — because it might inflame him. She testified at trial that although Homes had “obsessive thoughts” about killing people, she did not believe she had the legal authority to place him on a mental-health hold because “he did not specify a target or a plan.” Rectifying such a legal dispensation should not be a matter of partisan debate. A psychologist or psychiatrist should have not only authority, but a clear mandate. When the clinical judgment is on softer ground, the minimum should be to flag the individual in the FBI data base so they cannot legally buy a firearm as Holmes did.

Federal, state and local bureaucracies must be held accountable when they fail to report that someone is not allowed by Federal or state law to buy, borrow or possess firearms. The Virginia Technical University shooter, Seung-Hui Cho was diagnosed with severe anxiety disorder before attending Virginia Tech, but privacy laws precluded the university from accessing that information. While at Virginia Tech, Cho was declared mentally ill by a Virginia special justice and thus under Federal law was not allowed to purchase or possess firearms, but his name was not submitted to the FBI. Citing loopholes in Virginia law, no official was held accountable. Despite strengthening the background investigation system, compliance by individual states is spotty and accountability when officials fail to perform their duties adequately is rare. The Congress and state legislatures should be more diligent in exercising oversight responsibility.

Seventeen states and the District of Columbia have adopted “red flag” laws that enable family members or medical professionals to initiate confiscation of firearms under certain circumstances. Results are mixed; a standard or model law would help clarify both the utility and the safeguards such laws should have. Clearly, due process must be an integral part of such a proceeding.

Finally and importantly, we must avoid needlessly stigmatizing individuals with mental or emotional challenges. People who experience such challenges are no more likely to harm themselves or others than the general population. For example, the 2013 law adopted by Maryland makes any individual who received over thirty days of inpatient mental care ineligible to purchase a firearm. Such inpatient care explains nothing about a given individual’s propensity to commit a violent crime. This and is a prime example of such pointless stigmatization. Our challenge is to focus on those who have severe diagnoses, a history of violent behavior and/or who abuse substances including alcohol. This is the identifiable high-risk population.