Today's column is prompted by the latest school shooting
in Florida and devoted to why prevention is so difficult as well as to what
could make it easier.
Prevention is first of all complicated by the freedom of
speech guaranteed by the first amendment.
Although efforts to suppress so-called "hate speech" on
college campuses and elsewhere show that our reverence for free speech is
fading, the fact remains that offensive speech is fully protected by the first
amendment, to include a statement such as the message posted on social media by
the latest school shooter nearly five months prior to his shooting rampage,
to-wit: "I'm going to be a professional school shooter".
Certainly there are crimes predicated in part on speech,
but every such crime requires proof of something more, some contemporaneous
conduct that is cumulatively or immediately threatening. Examples of such
crimes which have survived first amendment scrutiny include stalking and ethnic
intimidation, but the legislature has yet to produce a definition of bullying
that passes constitutional muster such that schools remain tasked with its
There are even crimes based wholly on speech, such as the
making of false bomb threats and real threats to commit acts of terrorism, but
much depends on their specificity, how/where they are communicated and whether
they are time sensitive, e.g., telling social media followers that you're "going
to be a professional school shooter" is much different than telling a real
person that you're "going to shoot up a school in Munising tomorrow".
The bottom line is that this young man committed no crime
by announcing his future ambition (to be a school shooter) and, had his message
landed on some prosecutor's desk, there wouldn't have been a darn thing he/she
could have done about it.
This is not to say that citizens shouldn't report or police
shouldn't investigate such speech because this process spreads awareness of
risks posed by the individuals being investigated and such awareness absolutely
has prevention value, however, in the vast majority of situations where law
enforcement was presented with "red flags" prior to a mass shooting they were
powerless to "do something" because the individual had neither committed a crime
nor met the criteria for involuntary commitment to a psychiatric hospital.
The most promising approach to prevention, in my mind, lies
in the legislative creation of gun violence restraining orders (GVROs), also
known as "red flag" laws. Five states (CA,CT,IN,OR,WA) have already enacted
such laws and the process resembles that associated with personal protection
orders excepting that it is law enforcement (and in some states family members)
who may file petitions to have individuals temporarily prohibited from
possessing/purchasing firearms when their words and/or actions, while not
criminal or supportive of involuntary commitment, telegraph a propensity to harm
themselves or others. Because the petitions are aimed at public safety, no
specific victim need be targeted or named.
GVRO proceedings are civil, so the burden of proof is low,
but the individual against whom such a petition is filed is afforded due process
sufficient to prevent such laws from being abused.
Virtually everyone who works in law enforcement, including
myself, has in the back of their head a short list of people in their
communities who seem capable of random acts of violence; few people on such
lists have any criminal or mental health history to be revealed by a background
check, and although a precious few have been denied concealed carry permits due
to non-criminal "red flags", they all own guns. GVROs would give law
enforcement what they currently lack - a tool with which to address behaviors
that are deeply disturbing but cannot be addressed by either the criminal
justice or mental health system. And, everyone should be able to support such
legislation because its not gun control - its gun owner control that is evidence
based and subject to change based upon mitigation of risk, possibly through
psychiatric evaluation but such details would obviously have to be worked out by
each state's legislature.
Some wonder if this kind of intervention would backfire,
either by further antagonizing people who may be contemplating random acts of
violence and/or by driving them fully underground, so that they make more of an
effort to conceal their aberrant thoughts and behavior from others. The fact
that "normal" people would resent such intervention doesn't mean we should
expect that reaction from people who have left normality behind, however, and as
far as I'm concerned the GVRO concept has real merit.