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Guns, Violence Risk, and Constitutional Rights

March 3, 2018

 

Our society is one that (thankfully) affords our citizens significant constitutional rights, which can not be removed without due process.  There are times in which rights are stripped away. Some of these rights include the right to be the guardian of one’s person, the right to be the guardian of one’s finances, the right to parent, the right to live freely, the right to vote, and the right to possess or own a firearm.  In our country, Felons are not legally allowed to possess or own a firearm.  What about someone is dangerous or potentially dangerous?

 

Our society is currently facing a complex situation in which we value the right to bear arms, yet we also value the ability to live without fear, particularly in regard to sending our children to school.  While the risk of being gunned down at school is still far less than the risk of being killed while riding in a car, the recent school shooting in Florida raises many psychological and legal questions, most all based around, “What could have been done?” 

 

From news accounts, multiple individuals notified multiple law enforcement agencies that Cruz was an extreme risk for committing mass violence, specifically a school shooting.  Yet Cruz was allowed to legally purchase and own a firearm.  Individuals across party lines read the overwhelming number of concerns and red-flags, yet legally, there was nothing that could have been done to affect his ability to engage in the action of purchasing and using his weapons against the students.  There was no specific, immediate, direct threat documented anywhere. Yet there was a lot of leakage and many, many red-flags.

 

But how can that change and not strip individuals of constructional rights without due process?  

 

In the past few years there has been discussion as to whether anyone on psychotropic medication should be ineligible for purchasing or possessing a gun.  There have been calls for guns to be banned, outright.  There have been requests for treating providers to inform reporting agencies of someone’s mental instability and potential for violence.  All tend to agree that something must be done, but what can we competently and legally do?

 

Treating providers, teachers, social workers, coworkers, and loved ones have the ability to notify proper authorities if someone is an imminent risk to self or others.  That imminent risk often results in involuntary hospitalization.  That hospitalization, more often than not, occurs at a local psychiatric facility, and typically last 72 hours.  What do we do when someone appears to be increasing in potential to commit violence, but there is no immediate or direct threat?  

 

I propose that a process, similar to that of making a Child or Adult Protective Services Report, be considered.  When someone is concerned or has reason to believe that a child or disabled adult is being abused or neglected, a report is made to an appropriate agency for screening.  That agency screens in or screens out the report based on intake criteria.  When a case is screened-in, and investigation occurs in order to determine whether or not abuse or neglect is present, and if so, what plan can aid in keeping the child or the disabled adult safe.  If abuse or neglect is not present, the family may still have services recommended.  Another option for no indication of abuse or neglect, is for the case to be closed without services recommended.

 

Would not a similar process work for individuals who are very concerned about someone who may be planning or plotting mass violence, regardless of the means?  We talk often about guns, but knives, cars, and bombs are also utilized to commit mass violence.  While restricting access to guns may be helpful in reducing mass violence, address the risk level and the intent is likely to be helpful in overall reduction of violence. 

 

We do not have the science to predict who will and who will not commit acts of mass violence.  We do have the ability to assign risk categories for general violence and for specific threats.  Assessing the threat and creating a threat management plan would likely lesson the threat becoming an act of violence.  We have criteria for who can purchase particular types of weapons and who can obtain a concealed carry permit.  I argue we should broaden that criteria to address those with many red-flags that point to escalation for violence.  

 

A proposed process is as follows:

 

1.  Concerned person makes a call to report concerns - similar to what happened in Florida

2.  Report is screened in or out, based on a standard criteria 

3.  If screened in, an assessment is conducted by an objective individual or team of individuals 

4.  A case decision is made 

5.  If case is closed, no further engagement 

6.  If case is recommended for services or other disposition (such as inability to purchase or possess weapons, requirements for treatment, community support engagement) the case is heard in a court of law where the Subject is afforded to right to due process (or an immediate actions taken with a 7-day hearing to follow).  A review hearing can occur every 6-12 months, as needed. 

 

Clearly there is much work to be done in the area of addressing these complex issues, but we must start somewhere.  We must determine where the threshold is for removing someone’s rights.  I suggest the standard of preponderance of evidence that someone keeping those rights intact would likely lead to a violence situation.  Keeping individual rights and freedoms intact is extremely important.  Also important is balancing freedoms with societal protections.  In cases such as Cruz, we all come together and say, “Something should have been done!”  Yet, under our current legal system, nothing could have been done.  

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Amy James, PsyD PLLC