TTAG readers are, I’m sure, familiar with the 2012 active shooter attack on a Colorado theater. The killer, who would want his name to be prominently mentioned here, killed 12 and wounded 70. He used an AR-15 pattern rifle, a Remington 870 shotgun, and a GLOCK 22 handgun (.40 S&W), all legally purchased. The killer has pled not guilty by reason of insanity and his trial is currently underway. Unlike what some might suppose from popular fiction, insanity defenses do not often succeed. In Colorado, the burden of proving a defendant’s sanity is on the prosecution. Even if one is clearly mentally ill, in order to prevail with such a defense, they must be able to get credible mental health professionals to testify they were, at the time of the crime, incapable of telling right from wrong . . .
In this case, that’s going to be difficult at best. The killer not only meticulously planned the murders over a substantial span of time, he sat in the theater for a time after the movie began, left by an emergency door, propped the door open, changed into various items of tactical clothing, including a gas mask, deployed several gas grenades, and carrying three separate weapons, fired in a methodical, planned manner. He also chose the only theater of many near his home that conspicuously posted signs declaring a gun free zone. He was seeing a psychiatrist and mailed a notebook to them prior to the attack. He also demonstrated, in various ways, his knowledge that he was probably going to prison.
Now comes New York attorney Gregory J. Wallance, a board member of Advancing Human Rights, who demonstrates considerable faith in government, and by implication at least, the same mental health profession that was utterly unable to predict or interdict the killer’s attack. Writing in USA Today, Wallance’s brief op-ed piece begins with this assertion:
“A national center assessing the threat can prevent future attacks.”
Wallance agrees that insanity defenses do not often prevail:
“While the degree to which [the killer] suffered from these types of symptoms is in dispute, no one denies that he had a superior intellect (he was a Ph.D. candidate in neuroscience at the University of Colorado), methodically planned the shooting and, afterwards, aided the police in defusing his intricately booby-trapped apartment. The two independent experts who examined [the killer] at the court’s direction found that he was sane.
Even so, it’s not an open-and-shut case. Unlike in many states, in Colorado the prosecutors, who are seeking the death penalty, have the burden of proving that Holmes was sane, meaning that the defense only has to raise a reasonable doubt in the jury’s mind about Holmes’ sanity. The insanity defense is often a battle of experts, and the defense has its own experts who can testify that Holmes was insane. The fact that credentialed experts in a highly technical field disagree alone can raise a reasonable doubt for many jurors.”
So far, so good. The trouble begins—as Mark Twain used to print on posters advertising his lectures—with the idea of a national threat assessment center:
“As important as the outcome of the trial are the lessons learned. A national mass shooter threat assessment center, such as the ones used to assess terrorist threats or threats to the president, is needed to collect and analyze in real time the dots of an emerging mass shooting threat. A 2013 report by the Congressional Research Service concluded that ‘threat assessments may be used to prevent a mass shooting.’ What could such a center have accomplished in Aurora?”
If one doesn’t think about this suggestion too deeply, it might seem to make sense, however, it is rife with practical and constitutional problems. A terrorist threat center, or the Secret Service, analyze actual intelligence of terror groups or people prone to criminal acts, in many cases, actively planning them. Such people are not, for the most part, mentally ill, and the planning and connections necessary for their evil designs are what allow them to be detected and potentially intercepted. Obviously, such efforts require the coordination of multiple federal agencies such as the FBI, NSA, DIA, Secret Service, DHS, and more. Substantial money must be spent and countless personnel assigned. Even so, they must be lucky 100% of the time. Terrorists need only be lucky once. Psychologists may be involved, but as profilers, not diagnosticians or caregivers. This is not Wallance’s intention:
“More than a month before the shooting, Lynne Fenton, one of the professionals who saw Holmes, warned the University of Colorado’s Behavior Evaluation and Threat Assessment team, as she was required to, that [the killer] was dangerous and had homicidal thoughts. The team has no law enforcement authority, and, in response, a campus police officer apparently only deactivated [the killer’s] campus access card. But had Fenton been required to send her warning to a national threat assessment center with investigative powers, her observations of [the killer] could have been matched with his concurrent online purchases of 6,000 rounds of ammunition. Other dots could have been connected, including the fact that just after he failed an important exam, [the killer] reportedly purchased one of his firearms. Authorities could have acted more aggressively, including putting him under surveillance; subject to court approval, civil commitment to a hospital or treatment center, and arrest assuming probable cause, then existed that he had committed a crime.”
Wallance asserts that more have been killed by “mass shooters” than by Islamic terrorists. Assuming this assertion is accurate, how many successful terrorist attacks would it take before the mass shooter crown would be indisputably awarded to Islamists?
Wallance’s surmise about the killer is seriously flawed. Indeed, psychologists should, if they reasonably believe a patient to be a danger to self or others, take action, however, in virtually every state medical professionals, and police officers, under the circumstances represented by Wallance, cause people to be involuntarily taken into custody for a mental health evaluation. If they are determined to be a danger to themselves or others, the courts can order them held for treatment until they no longer present a danger. Obviously, that was not done, and making a report to the “University of Colorado’s Behavior Evaluation and Threat Assessment team” obviously wasn’t effective in forcing treatment on the killer or in preventing his attack.
Wallance’s solution is to establish a national threat assessment agency. Imagine how large such a federal agency would have to be to credibly analyze the sheer number of potential threats. Imagine all of the personnel necessary to conduct surveillance of even a single person. Imagine too the role that gun ownership would play in bringing otherwise innocent and harmless citizens to the attention of such an agency.
All of this is unnecessary by Wallance’s own suggestion. The states already possess the means to commit people for involuntary treatment, but often, as was the case in Colorado, fail to use that tool. Because of his final sentence, it’s hard to imagine what Wallance was thinking. In such cases, there will almost never be probable cause until after an attack; only then are crimes obvious because they’ve already been committed. That’s why we have involuntary commitment laws.
Notice the big brother thinking involved. The purchase of several thousand rounds of ammunition would be reported to a massive federal threat assessment agency. And whenever a college student fails “an important exam,” that would raise a federal flag such that a concurrent purchase of a firearm could trigger a massive federal investigation?
Notice too the fictional thinking. Wallance blithely suggests the killer could have been “put under surveillance.” Such attention, despite what Hollywood portrays, requires enormous expenditures of men, money and technology. Imagine the size and unrestrained power of a federal bureaucracy—with secret police powers—necessary to conduct surveillance on all of the people that would be swept up in its net.
Even if we assume another federal bureaucracy with police powers, armed with military weapons and given the mandate to investigate what amounts to present thought crime and/or potential future crime is a good idea, what is the track record of the mental health profession in identifying future threats? That’s a topic I explored in Sandy Hook: Gun Control Goes Full Mental.
That article focused on the report of a Connecticut commission established in response to the Sandy Hook killings:
“As Part III of my original Sandy Hook series at SMM noted, there were no warning signs that would have allowed anyone to predict or interdict the attack at Sandy Hook Elementary. The killer was diagnosed and treated by many mental health professionals over many years, and not one saw any sign of danger, let alone predicted or feared he might attack a school. This was actually reflected in the commission’s report, not that that recognition prevented it from making entirely predictable recommendations:
‘While discerning no clear answers to the question of what role A.L.‘s [the killer’s] behavioral health challenges played in the violence he ultimately inflicted, the Commission nonetheless turns its attention to what we have learned about the role of mental disorder in violent events [p. 8].’
However, once the attack began, the killer could have been driven off or eliminated at many points during the attack if teachers and staff had been armed. No one had to die except the killer, At Sandy Hook and at every school in America.
The report, on pages 5-6, makes clear its true purpose: It is an anti-gun hit job from beginning to end, but a hit job that is careful to exonerate the mental health profession. In fact, the largest part of the report focuses on mental health issues, and states, again and again, that the mental health establishment cannot identify or predict who will commit violence in the future, nor can it be held responsible for that lack of ability. Even so, it recommends enormous expenditures for the establishment of massive bureaucracies, and, of course, the destruction of liberty.”
In short, honest mental health professionals admit that they cannot reliably identify those that will commit future mass killings, however, many simultaneously argue for even more gun control measures that will do nothing whatever to stop mass killers or terrorists.
I’ve no doubt Wallance is well intentioned, but involuntary commitment laws are already ubiquitous. Some may need improvement, but establishing massive new federal bureaucracies with the power to imprison Americans for potential future crimes is obscenely dangerous and deranged while filing to address the problem.
The only sure way to stop mass killers remains deterring them with the knowledge that there are no victim disarmament zones, and if they are foolish enough to attack anyway, there will be more than enough armed citizens to stop them, once and for all.
Mike’s Home blog is Stately McDaniel Manor.