Behavioral Sciences and the Law Behav. Sci. Law 22: 167–177 (2015) Published online 14 April 2015 in Wiley Online Library (wileyonlinelibrary.com) DOI: 10.1002/bsl.2178
Guns, Mental Illness, and the Law: Introduction to This Issue Jeffrey W. Swanson, Ph.D.* and Alan R. Felthous, M.D.† Firearm violence is a top-tier public health problem in the U.S., killing 33,563 and injuring an additional 81,396 people in 2012 (Centers for Disease Control and Prevention, CDC, 2015). Given constitutional protection and the cultural entrenchment of private gun ownership in the U.S., it is likely that guns will remain widely accessible – and largely unrestricted – for the foreseeable future. Therefore, most policies and laws intended to reduce firearm violence focus selectively on preventing “dangerous people” from having access to guns. That is a formidable challenge. How do we think productively about guns and mental illness in this context, and about the role of law in lessening the toll of gun violence? Copyright # 2015 John Wiley & Sons, Ltd.
This special issue of Behavioral Sciences and the Law assembles a set of scholarly essays and research articles that take as their common starting point the tragic reality of gun violence in America, as well as the challenging legal and political landscape that constrains broad-based, top-down solutions. While diverse in their methods and disciplinary perspectives, each of the articles brings some evidence or insight to bear in helping to answer one (or more) of three related questions. First, scientifically speaking, how do we identify truly dangerous people who should not have guns? Secondly, practically speaking, how do we actually limit gun access for people identified as dangerous? And thirdly, legally and ethically speaking, how do we appropriately restrict gun access for people at risk without infringing the rights of lawful gun owners, the privacy of psychiatric patients, and the autonomy and judgment of healthcare professionals? Before addressing these critical public safety and policy questions, however, this issue begins with the first printed American Psychiatric Association (APA) resource document and position statement on guns and mental illness. The accompanying essay by Bonnie, Appelbaum, and Pinals (pp. 178–185) provides an historical context for the issue as it traces the evolution of the APA’s pronouncements on guns, from a position of broad gun-control advocacy in the 1990s, to a more nuanced behavioral risk-based approach to firearms restrictions in 2014. The position that has evolved is one that debunks the stigmatizing assumption among the public that persons with mental illness are categorically dangerous, and seeks to advance evidence-based, clinically informed practices and policies to limit access to guns for any individuals at risk (and to restore gun rights when the risk subsides), while acknowledging the new reality of individual gun rights that the Supreme Court’s Heller decision established.
*Correspondence to: Jeffrey Swanson, Ph.D., Department of Psychiatry and Behavioral Sciences, Duke University School of Medicine, DUMC Box 3071, Durham, NC 27710, U.S.A. E-mail: [email protected] † Department of Neurology & Psychiatry, Saint Louis University School of Medicine, Saint Louis, MO
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THE APA’S RESOURCE DOCUMENT AND POSITION STATEMENT ON GUNS AND MENTAL ILLNESS Pinals and colleagues (pp. 186–194) have authored the American Psychiatric Association’s (APA) resource document on guns and mental illness. A position statement from the APA is also included. These documents call for the development and testing of better methods to identify high-risk individuals who should be denied gun access. The research summarized implies that a history of involuntary commitment alone is inadequate to serve as a basis for gun disqualification – especially an enduring disqualification – in the absence of a determination of ongoing risk of violence or suicide, and that there may be better predictors. While stopping short of advocating a complete repeal of commitment-based gun disqualification, the APA documents argue that gun restriction policies should move beyond the narrow context of commitment to incorporate evidenced-based behavioral indicators of contemporaneous risk, as applicable to both the removal and restoration of Second Amendment rights.
WHO IS AT RISK, FOR HOW LONG, AND HOW CAN WE TELL? Previous epidemiological studies have found only a weak association, at the population level, between interpersonal violent behavior and serious mental illnesses such as schizophrenia, bipolar disorder, or major depression. Most people diagnosed with these conditions are never violent towards others, and most violent individuals do not suffer from these major mental disorders (Swanson, McGinty, Fazel, & Mays, 2014). Such findings clearly imply that merely having a diagnosis of a psychiatric disorder cannot provide a valid basis for legal disqualification from firearms. Rather, a more specific criterion is needed – one that ideally would restrict guns only from persons who pose a substantial risk to public safety, and only for the period of time when risk is elevated. This would include ipso facto the small subset of persons with mental illness who are likely to be dangerous, while preserving gun rights for the majority who are not. Nearly a half-century ago, Congress enacted the Gun Control Act of 1968 (USA. Gun Control Act of 1968, 1968), establishing in federal law that the occurrence of involuntary civil commitment would serve as an indicator of a psychiatric patient’s enduring incapacity to safely possess a firearm. The law rested on a putative link between mental illness and violence, which was not scientifically established at the time. But as every state eventually modified its commitment criteria to require “danger to self or others” as determined in a judicial proceeding with due process protections, the seeming legitimacy of linking of gun-rights restrictions to involuntary commitment became entrenched. Today, after deinstitutionalization has run its course and dramatically reduced the ranks of the involuntarily committed, and in an era when there are more mentally ill individuals in jails and prisons than were ever in hospitals, it is perhaps time to re-think some of the premises of the Gun Control Act’s restrictions pertaining to people with mental illness. Several of the articles in the current issue call into question whether the practice of involuntary commitment, as it exists in the 21st century, can do the hard work of sorting truly risky people – those who should not have guns – from those who pose no greater risk than anyone else, though they may suffer from a serious neuropsychiatric illness. Copyright # 2015 John Wiley & Sons, Ltd.
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Swanson and colleagues (pp. 199–212) present new analyses from the National Comorbidity Survey-Replication (NCS-R) and estimate that nearly 1 in 10 adults in the United States has access to firearms and also has a problem with anger and impulsive aggressive behavior. A number of common mental health conditions – including personality disorders, post-traumatic stress disorder, and alcohol use disorder – tend to be associated with this risky mix of pathological anger with gun access. However, only a small proportion of angry people with guns has ever been hospitalized for a mental health problem – voluntarily or involuntarily – and thus most would not be prohibited from firearms under the involuntary commitment exclusion. The NCS-R data thus provide timely empirical evidence that the existing mental health-related criteria for gun disqualification are under-inclusive and perhaps in need of reform. The authors suggest that persons who pose a danger to others due to a pattern of impulsive angry behavior might be more effectively deterred by a policy of extending gun restrictions to persons convicted of certain crimes that correlate with violence risk, or by a preemptive gun seizure law that applies to “dangerous persons,” such as the laws enacted in Connecticut (Conn. Gen. Stat. § 29-38c) and Indiana (Indiana Code § 35-47-14-3) or the “gun violence restraining order” (GVRO) law that California has recently adopted (Cal. Penal Code § 18155(b)). In an uncontrolled but richly descriptive study of episodic dyscontrol syndrome wherein subjects treated with phenytoin showed a decrease in violent behavior, Maletsky (1973) noted that 14 out of 22 subjects had seriously injured a victim and five committed homicide. Most (17) owned hunting knives or guns, and 14 used these in assaulting at least one of their victims. Maletsky asked whether, among other protective measures, such individuals should be permitted to have weapons. Today, such individuals might be diagnosed with intermittent explosive disorder (APA, 2013) or impulsive aggression (Felthous & Barratt, 2003). Since Maletsky’s study 45 years ago, drug trials of improved quality (Felthous, Lake, Rundle, & Stanford, 2013) have demonstrated efficacy with several agents including phenytoin, raising the possibility that some extremely recurrently aggressive individuals, were they to have their right to possess firearms removed, could qualify to have their gun rights restored once they obtained effective pharmacotherapy or other evidence-based treatment for their aggressive-prone condition. Despite relatively high rates of homicide and suicide in the United States population, and despite the 9/11 terrorist attacks that killed nearly 3,000 people in 2001, it is the home-grown mass shootings by disturbed individuals that continue to shock communities and the nation and most compel protective action with respect to gun violence. In the decades since Charles Whitman’s highly publicized sniper attack from the University of Texas Tower on August 1, 1966 (Lavergne, 1997), the nation has witnessed an increasing incidence of mass-casualty shootings. Such cases remain statistically infrequent from a population perspective, and the violent perpetrators of these senseless acts are highly atypical of most people with mental illness. And yet the sensationalized media coverage that such incidents invariably attract has reinforced the public perception of a strong link between mental illness and violence, and has instilled a generalized fear of persons with mental illness (Barry, McGinty, Vernick, & Webster, 2013; McGinty, Webster, & Barry, 2013). It is this fear that seems to animate a prevailing social narrative around gun violence that would seek to address the problem mainly by restricting firearms from mentally ill persons thought to be dangerous. Arguably as a result of these dynamics, there has been a dramatic increase in states’ reporting of gun-disqualifying mental health records to the background check database Copyright # 2015 John Wiley & Sons, Ltd.
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for gun purchasers – specifically, a 10-fold increase from 2007 to 2013 in the number of mental health records in the NICS index (Swanson et al., 2014). Still, it is unclear that an improved background check system would have deterred the perpetrators of recent mass-casualty shootings. Although no one would argue that they were not deeply psychologically disturbed, the fact is that killers including Jared Loughner, James Holmes, Aaron Alexis, and Elliot Rodger had never been involuntarily committed and could thus legally purchase firearms. Two types of mass killings that involve firearms have been particularly traumatizing to the local communities and the nation: lone wolf terrorists and pseudo-commando mass killers (Dietz, 1986; Douglas, Burgess, Burgess, & Kessler, 1992). If ever there were individuals who should not have firearms, it would be these perpetrators of mass killings. There have been attempts to profile the lone wolf terrorist and the pseudocommando mass killer, but these invite the question of what characteristics are specific enough and what justification is strong enough to intercede with coercive measures such as firearm restriction, when no crime has yet been committed and there is no gun-disqualifying history of a previous mental health adjudication. Consider the type of case in which police are summoned out of concern for mental illness and dangerousness, but an initial inquiry produces insufficient evidence to support emergency detention. Indeed, this is the scenario that occurred in the case of Elliot Rodger prior to the 2014 shooting incident in Isla Vista, California. However, if we suppose that California had had a preemptive gun seizure law in effect at the time, such as the laws in Connecticut and Indiana or the GVRO statute that California later passed, it is possible that the tragedy could have been averted. If concern had persisted, police would have been able to obtain a search warrant and look for guns. If they had done so, they might have found Rodger’s cache of ready-to-use weapons and ammunition. At that point, the weapons could have been seized and the individual transported to an emergency healthcare facility for more complete assessment. The discovery of an unusual array of firearms when dangerousness is already a concern adds support for the concern. While attempting to be vigilant and not miss the rare instance when a person who is planning a violent attack should happen to come to their attention, clinicians should not overlook the possibility of combined homicide-suicide (Marzuk, Tardiff, & Hirsch, 1992). Mass killers, especially pseudo-commando mass killers (Felthous & Hempel, 1995) and lone wolf terrorists (Meloy & Yakeley, 2014; Post, McGinnis, & Moody, 2014), are at high risk for suicide, either by taking their own lives in connection with mass killing or by positioning themselves to be killed by others. Mental conditions that are not uncommonly reported in mass killers are depression, sociopathy, psychosis, alcohol abuse and intoxication, jealousy, and paranoia, and they often experience some disturbance in their closest relationships. Thus, clinically it is important not to compartmentalize suicide and homicide risk potential, but to consider the possibility of combined homicide and suicide risk in certain individuals for whom hospitalization and perhaps firearm restriction, depending on jurisdictional law, might be more appropriate than restriction of other large categories of persons with mental disorders. Meloy and colleagues (pp. 213–237) use the framework of psychoanalytic theory and clinical case descriptions to elucidate a special type of extremely dangerous behavior that also may evade detection until it is too late: psychological “identification” with previous mass shooters or assassins. These authors provide compelling examples of disturbed young men who became mass killers, who had previously engaged in pseudoCopyright # 2015 John Wiley & Sons, Ltd.
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commando behavior, were involved with weapons, desired to imitate previous famous attackers, and were motivated by delusional beliefs about their own importance and agency. Again, given existing criteria for gun restriction based on meeting the threshold of involuntary commitment, such individuals may “fly under the radar” undetected and undeterred from obtaining firearms. Meloy and colleagues elaborate on ways in which “identification” behavior can be incorporated into prospective threat assessment. In some states, physicians are called upon to assess whether their patients are able to safely operate handguns. In North Carolina, for example, a physician may receive a letter from a local county sheriff asking whether a particular named patient who is applying for a concealed-carry permit suffers from “any physical or mental infirmity that prevents the safe handling of a handgun” (N.C. Gen. Stat. § 14-415.11). While this may provide an opportunity for physicians to prevent handgun access for certain high-risk patients, it also raises the question as to whether physicians are qualified to determine a person’s capacity to operate a handgun – what kinds of health conditions should be disqualifying, and what does it actually mean to assert that an individual possesses, or does not possess, the capacity to safely operate a handgun? Limited empirical information has been available about physicians’ assessments of firearm qualification. Goldstein and colleagues (pp. 238–245) present results from their survey of North Carolina physicians in different specialties, in which they assess doctors’ beliefs about physical and mental competency of patients applying for concealed weapons permits. Goldstein et al. find that physicians have “quite disparate views on competency and little confidence to guide decisions.” These authors call for the development of more objective criteria and training for physicians, if doctors are to be expected to make these kinds of assessments of their patients, and thus to assist law enforcement in deciding who should have access to handguns. While evidence is lacking to guide clinicians and policymakers about whether certain physical health conditions should disqualify a person from accessing firearms, there is good evidence that many persons who are experiencing a mental health crisis are indeed at elevated risk of harming themselves or others. Insofar as emergency involuntary commitment coincides with such potentially dangerous crises, emergency commitment would seem to provide a valid criterion for at least temporary restriction from firearms (Swanson et al., 2014). California’s law and policy with respect to short-term emergency commitments provide an instructive example of using commitments to identify dangerous individuals and remove firearms from them. Section 5150 of the California Welfare and Institutions Code, with provenance in the 1967 Lanterman–Petris–Short Act (LPS), authorizes law enforcement officers to transport a risky person to a mental health treatment facility, where the individual may be held for up to 72 hours for a psychiatric evaluation. During this evaluation, it is determined whether the person has a mental disorder, and whether the person’s condition warrants a petition for a longerterm in-patient civil commitment – one that would require a full judicial commitment hearing unless waived. (All states have similar provisions – e.g., “temporary detention orders” in Virginia, “emergency petitions” in Pennsylvania, “physician’s emergency certificate” in Connecticut.) What is unique about California’s 5150 law is that if the petition records any threatening, aggressive, violent, or self-injurious behavior in the respondent, then the 5150 becomes a virtual warrant for police to go and seize all firearms from the person and home of the respondent. This can involve removing firearms that do not even belong to the patient, if they are stored in a residence shared with the patient. Thus, Copyright # 2015 John Wiley & Sons, Ltd.
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California’s 5150 law imposes time-limited restriction and removal of firearms from atrisk individuals who are detained in a short-term emergency psychiatric hold; other states have sought to follow California’s example in this regard. However, the article by Barnhorst (pp. 246–256) illustrates both the advantages and shortcomings of the 5150 regime with respect to gun restriction. In practice, as Barnhorst explains, the criteria fail to apply to many people who actually are dangerous but cannot be certified because, upon evaluation, they fail to meet the criteria for mental illness. The APA’s evolving position would seek to base firearms restriction on evidence of dangerousness, rather than linking it to mental illness as the 5150 law has traditionally done. The APA’s position seems consistent as well with recent word from the Sixth Circuit Court of Appeals in Tyler v. Hillsdale County Sheriff’s Department et al. (2014). That case involved a plaintiff in Michigan who was prohibited from purchasing or possessing firearms due to a single involuntary commitment that had occurred 28 years earlier following a devastating divorce. Although the plaintiff later remained free of mental illness and posed no demonstrable risk of violence, Michigan offered no avenue for him to seek relief from the ongoing restriction of his Second Amendment rights. In its decision, the appeals court agreed with the plaintiff that the absence of a means of restoration of gun rights for a person with a commitment-based prohibition who was no longer dangerous raised Second Amendment concerns. In its opinion, the court stated: “This case presents an important issue of first impression in the federal courts: whether a prohibition on the possession of firearms by a person ‘who has been committed to a mental institution,’ 18 U.S.C. § 922(g)(4), violates the Second Amendment. Because Tyler’s complaint validly states a violation of the Second Amendment, we reverse and remand.” Whereas most of the attention paid to gun-disqualifying mental health adjudications has been focused on involuntary civil commitment, federal and state laws also prohibit firearms from persons in several other legal categories, including persons with mental illness who have been found incompetent to stand trial (IST) in a criminal matter. There has been little research examining the offense characteristics and firearm involvement of IST defendants. Schreiber and colleagues (pp. 257–278) report on the results of a study in which they examined characteristics of IST defendants charged with violent offenses and compared them with other defendants. Schreiber et al. paint a grim clinical picture of these incompetent pretrial defendants: they were frequently diagnosed with a comorbid substance use disorder, were often homeless and unemployed, and had extensive histories of psychiatric hospitalizations and prior arrests at the time of their alleged offenses. Such results, on the face of it, would appear to justify the longstanding legal restriction of guns from such defendants, and also suggest the need for comprehensive discharge planning and services for such defendants at the interface between the forensic mental health and criminal justice systems – particularly at the point they may be restored to capacity and discharged into the community.
HOW CAN WE KEEP GUNS FROM DANGEROUS PEOPLE? Even if we can know, in principle, who should not have access to a gun due to a substantial risk of harming self or others, there is the practical matter of how to actually keep guns from such people; this is an enduring challenge. Requiring a background check for all gun purchases, and not just purchases from licensed dealers as the current Copyright # 2015 John Wiley & Sons, Ltd.
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federal law requires, is one part of the solution that has been widely advocated by experts in gun violence prevention (Webster & Vernick, 2013). However, there are two major challenges to the effectiveness of this policy, even if we assume that a requirement for universal background checks is in place. First, a background check is only as good as the data that are available to document that a prospective gun purchaser is a prohibited person. Silver and colleagues (pp. 279–289), provide a state case study of evolving policies and procedures in Massachusetts that are intended to ensure that law enforcement authorities charged with issuing gun permits can actually find out when an applicant has a gun-disqualifying mental health adjudication record. The key policy in Massachusetts has been for local chiefs of police to inquire of the Department of Mental Health (DMH) to determine whether any prospective gun purchaser has a record of involuntary commitment. Notwithstanding the large and burdensome volume of such inquiries that are processed daily by the DMH, the inquiries systematically fail to identify many prohibited persons. The problem is that the locus of involuntary commitment in Massachusetts, as in many states, has largely shifted to private facilities outside the reporting purview of the state mental health authorities – and the DMH only knows about their own patients. Silver et al. describe a hopeful solution in Massachusetts: the recent enactment of a law that requires all hospitals with involuntary psychiatric admissions to report to a common database all gundisqualifying commitments. The second problem with background checks is that, even if they work perfectly, they do not address the problem of existing guns to which a dangerous person may have ready access. The aforementioned California policy of removing guns from persons detained in a short-term psychiatric hold represents one state’s attempted solution to this problem, with the limitations that Barnhorst has noted. But what about dangerous people with guns who do not meet California’s, or any state’s, threshold criteria to be detained and evaluated for commitment? The case of Elliott Rodger and the Isla Vista shootings in 2014 provides a telling and tragic example: Rodger’s family had been sufficiently concerned about his disturbing behavior that they informed the police, who paid a social welfare visit to Rodger, but determined that he did not meet 5150 criteria for detention. Meanwhile, Rodger remained legally in possession of the firearms and ammunition he used to kill six individuals and injure 13 in a mass shooting. In the aftermath of the Isla Vista shooting, the California legislature enacted, and Gov. Jerry Brown signed in to law, the nation’s first GVRO statute. Frattaroli et al. (pp. 290–307) explain that the GVRO is an innovative type of law that is based on the structure of domestic violence orders of protection, which every state and the District of Columbia already have. The GVRO gives families and law enforcement officers a means to ask a judge to order the removal of firearms from a person deemed to be at risk of harming others or self, whether or not the person is mentally ill, and even if he or she would not meet criteria for involuntary commitment and is not accused of a crime. The article by Parker (pp. 308–322) describes another example of a preemptive gun removal law, Indiana’s “dangerous persons” gun seizure statute. There has been very limited experience with preemptive gun seizure policies at the state level, and almost no evaluations of their implementation and effectiveness. Until California’s enactment of a GVRO law, Connecticut and Indiana were the only two states with “dangerous persons” gun-seizure provisions that can be invoked for persons deemed at risk of violence or suicide irrespective of whether they have a mental illness or may be experiencing a mental health crisis. Connecticut’s law requires police to obtain a warrant Copyright # 2015 John Wiley & Sons, Ltd.
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preceding gun seizure. Indiana’s law permits police to seize guns with or without a warrant pending a judicial hearing. Indiana’s law was enacted following a highly publicized shooting of police officers by a disturbed individual and was intended to reduce the risk of interpersonal gun violence. As implemented in practice, however, as shown by Parker’s analysis, two-thirds of the gun seizures in Marion County since 2006 have involved persons with suicide concerns. Parker finds that firearms were retained by the court in 64% of these gun seizure cases – most respondents did not appear to reclaim their guns – and that the law functioned as a months-long “cooling-off period” for those who did seek return of their guns. Further research on the effectiveness of these promising gun-seizure laws and policies is needed.
HOW DO WE LIMIT GUN ACCESS FROM DANGEROUS PERSONS WITHOUT UNDULY INFRINGING ON RIGHTS, PRIVACY AND THERAPEUTIC PRACTICE? Scholars and policymakers have increasingly recognized that efforts to broadly implement, or even to expand, the criteria for gun disqualification must be balanced with a timely and fair process for restoration of Second Amendment rights to prohibited persons who no longer pose a risk to public safety or to themselves. When should people who have lost their gun rights be given the opportunity to recover those rights, and what is the best process for making such a decision in a way that will strike the right balance between individual and public interest? In 2007, the mass shooting at Virginia Tech motivated Congress to swiftly pass the National Instant Check System Improvement Act (NICSA). The NICSA used Department of Justice grants to incentivize states to report their gun-disqualifying mental health records to the NICS. It also required states receiving the grants to institute FBI-approved “relief from disabilities” programs for restoring gun rights to nondangerous persons whose rights have been rescinded due to a disqualifying mental health record. Two articles in the current issue, by Follansbee and Bloom (pp. 323–333) and by Fisher and colleagues (pp. 334–345), examine gun-rights restoration programs, in Oregon and New York, respectively. The issue of gun rights restoration – and the potential for ostensibly dangerous people to recover their rights with insufficient scrutiny – received national attention in 2011 when the New York Times published an investigative story focused on Virginia’s judicial process for restoring gun rights to persons with mental illness who had been prohibited from firearms (Luo, 2011). The Times story detailed several cases in which Virginia judges appeared to have granted restoration of Second Amendment rights in perfunctory proceedings – with little or no consideration of clinical expert opinion – to persons who clearly continued to pose a risk of violence. A different model of gun rights restoration is provided in New York and Oregon, two states with variations on an approach that relies heavily on mental health professionals to determine a person’s mental fitness for gun rights restoration. New York uses a clinical determination by the public mental health authority, and Oregon uses an administrative procedure with a “Psychiatric Security Review Board” (PRSB). Follansbee and Bloom examine Oregon’s gun relief program for adjudicated mentally ill persons, Copyright # 2015 John Wiley & Sons, Ltd.
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and describe the functioning of the PSRB’s administrative approach to gun restoration. The gun restoration program began in 2010, but to date has only received three completed petitions requesting restoration of firearm rights. Fisher et al. describe the gun rights restoration process in New York, a model in which psychiatrists participate in the process of assessing whether an individual’s firearm rights can be restored. These authors discuss the legislative background of the regulations, the specific policies and procedures governing the restoration process, and clinical considerations for the forensic evaluation. Fisher et al.’s article evokes the question of how risk assessments may depend on context and purpose. The standard "substantial danger to himself or the public" Washington State Revised Code (1994.) is essentially the same standard as civil commitment, and yet the issue in restoration is gun possession, not total deprivation of freedom. There is also the question of using demographic factors – such as socioeconomic status, age, sex, and even race – in assessing risk, and whether these can be separated from judgments based on cultural norms. Many clinical risk assessments are focused on the short term and relate directly to acute mental disorder, and are thus less reliant on demographic factors. For long-term predictions, however, there may be a tension between the value of scientific accuracy and the bias that attends profiling, from which science is not immune. In any event, more research is needed to inform the difficult task of deciding who should have gun rights restored and what is the best model to ensure due process, incorporating clinical information most relevant to public safety. In many ways, it appears that physicians and mental healthcare professionals are becoming more involved in assessments and decisions about when to limit gun access to potentially dangerous persons – through risk assessment and reporting of patients at risk, the rendering of clinical opinions about restoration of rights, or the diagnosis of gun-disqualifying health conditions in handgun permit seekers. The question then arises: what effect might all these entanglements have on the therapeutic process, the assurance of patient confidentiality, and the process of informed consent upon which the patient–doctor relationship has long depended? The APA position statement (Pinals et al., pp. 195–198) recommends against policies that mandate psychiatrists and other professionals to report risky patients to law enforcement authorities for consideration of firearms restriction, cautioning that such regimes may have a chilling effect on patients’ help-seeking and disclosures. Candilis and colleagues (pp. 346–355) discuss informed consent in the context of physicians’ potential obligations to report risk of gun violence in their patients. In communities divided over the politics of gun control, the traditional model of informed consent that balances the psychiatrist’s competing obligations to patient and community may succumb to increasing pressures on confidentiality. Candilis et al. propose an alternative model of robust consent that is informed by different perspectives, with the explicit goal of protecting patients as well as the community. Finally, Horwitz, Grilley, and Kennedy (pp. 356–365) present a case study of how research evidence on gun violence prevention can be integrated into the policymaking process, and how gun violence researchers themselves can be engaged to overcome the “communication gap” with policymakers. Focusing on the recent activities of the Consortium for Risk-Based Firearm Policy, Horwitz and colleagues describe a process of building interdisciplinary consensus, in which experts identify common goals and join their voices and their collective authority in formal policy recommendations. This consensus process is paired with a communication strategy in which the researchers Copyright # 2015 John Wiley & Sons, Ltd.
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engage directly with key stakeholders and policymakers in public forums where there are particular opportunities for state legislative reform; the enactment of California’s GVRO law is highlighted as a prime example of how the strategy can work. Ultimately, separating guns from dangerous people will remain an inherently difficult task, because seriously violent behavior is infrequent in the population and caused by many different things. The major risk factors for violence – being young, male, disadvantaged, and misusing substances, for example – are largely non-specific, which means that these risk factors are shared by many more people who are not violent than who are. Each individual carries a different set of protective and risk factors that may combine, interact in complex ways, and fluctuate over time. Mental illness per se explains very little of why people intentionally harm others with guns; it provides a somewhat better, if still incomplete, answer to the question of why people harm themselves. Emerging evidence is beginning to shed light on these complex nuances and to point the way towards long-term solutions that will be both effective and fair. Taken together, the articles in this special issue provide an excellent overview of the complexities of the problem of gun violence at the intersection with mental illness, as well as an exploration of new ways and opportunities to implement more effective interventions, policies, and laws to reduce the tragic toll of gun violence, as it may relate to persons with mental health problems.
ACKNOWLEDGMENTS Many thanks to Paul Appelbaum for his useful comments in improving and finalizing this introductory essay.
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McGinty, E. E., Webster, D. W., & Barry, C. L. (2013). Effects of news media messages about mass shootings on attitudes toward persons with serious mental illness and public support for gun policies. American Journal of Psychiatry, 170, 494–501. Meloy, J. R., & Yakeley, J. (2014). The violent true believer as a “lone wolf” – psychoanalytic perspectives on terrorism. Behavioral Sciences and the Law, 32(3), 347–365. Post, J. M., McGinnis, C., & Moody, K. (2014). The changing face of terrorism in the 21st century: The communications revolution and the virtual community of hatred. Behavioral Sciences and the Law, 32(3), 306–334. Swanson, J.W., McGinty, E. E., Fazel, S. & Mays, V. M. (2014). Mental illness and reduction of gun violence and suicide: bringing epidemiologic research to policy. Annals of Epidemiology, Epub ahead of print, DOI: 10.1016/j.annepidem.2014.03.004 Tyler v. Hillsdale Cnty. Sheriff’s Dep’t, et al. (2014)No. 13-1876, File Name: 14a0296p.6 Slip Opinion th (6 Circ., December 18. USA. Gun Control Act of 1968. (1968) Public Law 90-618, Title 18, United States Code-Firearms; Chapter 44 (Section 101). Washington DC: Congress of the United States. Webster, D. W., Vernick, J. S. (Eds.). (2013). Reducing gun violence in America: informing policy with evidence and analysis. Baltimore: Johns Hopkins University Press.
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Guns, Mental Illness, and the Law: Introduction to This Issue Jeffrey W. Swanson, Ph.D.* and Alan R. Felthous, M.D.† Firearm violence is a top-tier public health problem in the U.S., killing 33,563 and injuring an additional 81,396 people in 2012 (Centers for Disease Control and Prevention, CDC, 2015). Given constitutional protection and the cultural entrenchment of private gun ownership in the U.S., it is likely that guns will remain widely accessible – and largely unrestricted – for the foreseeable future. Therefore, most policies and laws intended to reduce firearm violence focus selectively on preventing “dangerous people” from having access to guns. That is a formidable challenge. How do we think productively about guns and mental illness in this context, and about the role of law in lessening the toll of gun violence? Copyright # 2015 John Wiley & Sons, Ltd.
This special issue of Behavioral Sciences and the Law assembles a set of scholarly essays and research articles that take as their common starting point the tragic reality of gun violence in America, as well as the challenging legal and political landscape that constrains broad-based, top-down solutions. While diverse in their methods and disciplinary perspectives, each of the articles brings some evidence or insight to bear in helping to answer one (or more) of three related questions. First, scientifically speaking, how do we identify truly dangerous people who should not have guns? Secondly, practically speaking, how do we actually limit gun access for people identified as dangerous? And thirdly, legally and ethically speaking, how do we appropriately restrict gun access for people at risk without infringing the rights of lawful gun owners, the privacy of psychiatric patients, and the autonomy and judgment of healthcare professionals? Before addressing these critical public safety and policy questions, however, this issue begins with the first printed American Psychiatric Association (APA) resource document and position statement on guns and mental illness. The accompanying essay by Bonnie, Appelbaum, and Pinals (pp. 178–185) provides an historical context for the issue as it traces the evolution of the APA’s pronouncements on guns, from a position of broad gun-control advocacy in the 1990s, to a more nuanced behavioral risk-based approach to firearms restrictions in 2014. The position that has evolved is one that debunks the stigmatizing assumption among the public that persons with mental illness are categorically dangerous, and seeks to advance evidence-based, clinically informed practices and policies to limit access to guns for any individuals at risk (and to restore gun rights when the risk subsides), while acknowledging the new reality of individual gun rights that the Supreme Court’s Heller decision established.
*Correspondence to: Jeffrey Swanson, Ph.D., Department of Psychiatry and Behavioral Sciences, Duke University School of Medicine, DUMC Box 3071, Durham, NC 27710, U.S.A. E-mail: [email protected] † Department of Neurology & Psychiatry, Saint Louis University School of Medicine, Saint Louis, MO
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THE APA’S RESOURCE DOCUMENT AND POSITION STATEMENT ON GUNS AND MENTAL ILLNESS Pinals and colleagues (pp. 186–194) have authored the American Psychiatric Association’s (APA) resource document on guns and mental illness. A position statement from the APA is also included. These documents call for the development and testing of better methods to identify high-risk individuals who should be denied gun access. The research summarized implies that a history of involuntary commitment alone is inadequate to serve as a basis for gun disqualification – especially an enduring disqualification – in the absence of a determination of ongoing risk of violence or suicide, and that there may be better predictors. While stopping short of advocating a complete repeal of commitment-based gun disqualification, the APA documents argue that gun restriction policies should move beyond the narrow context of commitment to incorporate evidenced-based behavioral indicators of contemporaneous risk, as applicable to both the removal and restoration of Second Amendment rights.
WHO IS AT RISK, FOR HOW LONG, AND HOW CAN WE TELL? Previous epidemiological studies have found only a weak association, at the population level, between interpersonal violent behavior and serious mental illnesses such as schizophrenia, bipolar disorder, or major depression. Most people diagnosed with these conditions are never violent towards others, and most violent individuals do not suffer from these major mental disorders (Swanson, McGinty, Fazel, & Mays, 2014). Such findings clearly imply that merely having a diagnosis of a psychiatric disorder cannot provide a valid basis for legal disqualification from firearms. Rather, a more specific criterion is needed – one that ideally would restrict guns only from persons who pose a substantial risk to public safety, and only for the period of time when risk is elevated. This would include ipso facto the small subset of persons with mental illness who are likely to be dangerous, while preserving gun rights for the majority who are not. Nearly a half-century ago, Congress enacted the Gun Control Act of 1968 (USA. Gun Control Act of 1968, 1968), establishing in federal law that the occurrence of involuntary civil commitment would serve as an indicator of a psychiatric patient’s enduring incapacity to safely possess a firearm. The law rested on a putative link between mental illness and violence, which was not scientifically established at the time. But as every state eventually modified its commitment criteria to require “danger to self or others” as determined in a judicial proceeding with due process protections, the seeming legitimacy of linking of gun-rights restrictions to involuntary commitment became entrenched. Today, after deinstitutionalization has run its course and dramatically reduced the ranks of the involuntarily committed, and in an era when there are more mentally ill individuals in jails and prisons than were ever in hospitals, it is perhaps time to re-think some of the premises of the Gun Control Act’s restrictions pertaining to people with mental illness. Several of the articles in the current issue call into question whether the practice of involuntary commitment, as it exists in the 21st century, can do the hard work of sorting truly risky people – those who should not have guns – from those who pose no greater risk than anyone else, though they may suffer from a serious neuropsychiatric illness. Copyright # 2015 John Wiley & Sons, Ltd.
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Swanson and colleagues (pp. 199–212) present new analyses from the National Comorbidity Survey-Replication (NCS-R) and estimate that nearly 1 in 10 adults in the United States has access to firearms and also has a problem with anger and impulsive aggressive behavior. A number of common mental health conditions – including personality disorders, post-traumatic stress disorder, and alcohol use disorder – tend to be associated with this risky mix of pathological anger with gun access. However, only a small proportion of angry people with guns has ever been hospitalized for a mental health problem – voluntarily or involuntarily – and thus most would not be prohibited from firearms under the involuntary commitment exclusion. The NCS-R data thus provide timely empirical evidence that the existing mental health-related criteria for gun disqualification are under-inclusive and perhaps in need of reform. The authors suggest that persons who pose a danger to others due to a pattern of impulsive angry behavior might be more effectively deterred by a policy of extending gun restrictions to persons convicted of certain crimes that correlate with violence risk, or by a preemptive gun seizure law that applies to “dangerous persons,” such as the laws enacted in Connecticut (Conn. Gen. Stat. § 29-38c) and Indiana (Indiana Code § 35-47-14-3) or the “gun violence restraining order” (GVRO) law that California has recently adopted (Cal. Penal Code § 18155(b)). In an uncontrolled but richly descriptive study of episodic dyscontrol syndrome wherein subjects treated with phenytoin showed a decrease in violent behavior, Maletsky (1973) noted that 14 out of 22 subjects had seriously injured a victim and five committed homicide. Most (17) owned hunting knives or guns, and 14 used these in assaulting at least one of their victims. Maletsky asked whether, among other protective measures, such individuals should be permitted to have weapons. Today, such individuals might be diagnosed with intermittent explosive disorder (APA, 2013) or impulsive aggression (Felthous & Barratt, 2003). Since Maletsky’s study 45 years ago, drug trials of improved quality (Felthous, Lake, Rundle, & Stanford, 2013) have demonstrated efficacy with several agents including phenytoin, raising the possibility that some extremely recurrently aggressive individuals, were they to have their right to possess firearms removed, could qualify to have their gun rights restored once they obtained effective pharmacotherapy or other evidence-based treatment for their aggressive-prone condition. Despite relatively high rates of homicide and suicide in the United States population, and despite the 9/11 terrorist attacks that killed nearly 3,000 people in 2001, it is the home-grown mass shootings by disturbed individuals that continue to shock communities and the nation and most compel protective action with respect to gun violence. In the decades since Charles Whitman’s highly publicized sniper attack from the University of Texas Tower on August 1, 1966 (Lavergne, 1997), the nation has witnessed an increasing incidence of mass-casualty shootings. Such cases remain statistically infrequent from a population perspective, and the violent perpetrators of these senseless acts are highly atypical of most people with mental illness. And yet the sensationalized media coverage that such incidents invariably attract has reinforced the public perception of a strong link between mental illness and violence, and has instilled a generalized fear of persons with mental illness (Barry, McGinty, Vernick, & Webster, 2013; McGinty, Webster, & Barry, 2013). It is this fear that seems to animate a prevailing social narrative around gun violence that would seek to address the problem mainly by restricting firearms from mentally ill persons thought to be dangerous. Arguably as a result of these dynamics, there has been a dramatic increase in states’ reporting of gun-disqualifying mental health records to the background check database Copyright # 2015 John Wiley & Sons, Ltd.
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for gun purchasers – specifically, a 10-fold increase from 2007 to 2013 in the number of mental health records in the NICS index (Swanson et al., 2014). Still, it is unclear that an improved background check system would have deterred the perpetrators of recent mass-casualty shootings. Although no one would argue that they were not deeply psychologically disturbed, the fact is that killers including Jared Loughner, James Holmes, Aaron Alexis, and Elliot Rodger had never been involuntarily committed and could thus legally purchase firearms. Two types of mass killings that involve firearms have been particularly traumatizing to the local communities and the nation: lone wolf terrorists and pseudo-commando mass killers (Dietz, 1986; Douglas, Burgess, Burgess, & Kessler, 1992). If ever there were individuals who should not have firearms, it would be these perpetrators of mass killings. There have been attempts to profile the lone wolf terrorist and the pseudocommando mass killer, but these invite the question of what characteristics are specific enough and what justification is strong enough to intercede with coercive measures such as firearm restriction, when no crime has yet been committed and there is no gun-disqualifying history of a previous mental health adjudication. Consider the type of case in which police are summoned out of concern for mental illness and dangerousness, but an initial inquiry produces insufficient evidence to support emergency detention. Indeed, this is the scenario that occurred in the case of Elliot Rodger prior to the 2014 shooting incident in Isla Vista, California. However, if we suppose that California had had a preemptive gun seizure law in effect at the time, such as the laws in Connecticut and Indiana or the GVRO statute that California later passed, it is possible that the tragedy could have been averted. If concern had persisted, police would have been able to obtain a search warrant and look for guns. If they had done so, they might have found Rodger’s cache of ready-to-use weapons and ammunition. At that point, the weapons could have been seized and the individual transported to an emergency healthcare facility for more complete assessment. The discovery of an unusual array of firearms when dangerousness is already a concern adds support for the concern. While attempting to be vigilant and not miss the rare instance when a person who is planning a violent attack should happen to come to their attention, clinicians should not overlook the possibility of combined homicide-suicide (Marzuk, Tardiff, & Hirsch, 1992). Mass killers, especially pseudo-commando mass killers (Felthous & Hempel, 1995) and lone wolf terrorists (Meloy & Yakeley, 2014; Post, McGinnis, & Moody, 2014), are at high risk for suicide, either by taking their own lives in connection with mass killing or by positioning themselves to be killed by others. Mental conditions that are not uncommonly reported in mass killers are depression, sociopathy, psychosis, alcohol abuse and intoxication, jealousy, and paranoia, and they often experience some disturbance in their closest relationships. Thus, clinically it is important not to compartmentalize suicide and homicide risk potential, but to consider the possibility of combined homicide and suicide risk in certain individuals for whom hospitalization and perhaps firearm restriction, depending on jurisdictional law, might be more appropriate than restriction of other large categories of persons with mental disorders. Meloy and colleagues (pp. 213–237) use the framework of psychoanalytic theory and clinical case descriptions to elucidate a special type of extremely dangerous behavior that also may evade detection until it is too late: psychological “identification” with previous mass shooters or assassins. These authors provide compelling examples of disturbed young men who became mass killers, who had previously engaged in pseudoCopyright # 2015 John Wiley & Sons, Ltd.
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commando behavior, were involved with weapons, desired to imitate previous famous attackers, and were motivated by delusional beliefs about their own importance and agency. Again, given existing criteria for gun restriction based on meeting the threshold of involuntary commitment, such individuals may “fly under the radar” undetected and undeterred from obtaining firearms. Meloy and colleagues elaborate on ways in which “identification” behavior can be incorporated into prospective threat assessment. In some states, physicians are called upon to assess whether their patients are able to safely operate handguns. In North Carolina, for example, a physician may receive a letter from a local county sheriff asking whether a particular named patient who is applying for a concealed-carry permit suffers from “any physical or mental infirmity that prevents the safe handling of a handgun” (N.C. Gen. Stat. § 14-415.11). While this may provide an opportunity for physicians to prevent handgun access for certain high-risk patients, it also raises the question as to whether physicians are qualified to determine a person’s capacity to operate a handgun – what kinds of health conditions should be disqualifying, and what does it actually mean to assert that an individual possesses, or does not possess, the capacity to safely operate a handgun? Limited empirical information has been available about physicians’ assessments of firearm qualification. Goldstein and colleagues (pp. 238–245) present results from their survey of North Carolina physicians in different specialties, in which they assess doctors’ beliefs about physical and mental competency of patients applying for concealed weapons permits. Goldstein et al. find that physicians have “quite disparate views on competency and little confidence to guide decisions.” These authors call for the development of more objective criteria and training for physicians, if doctors are to be expected to make these kinds of assessments of their patients, and thus to assist law enforcement in deciding who should have access to handguns. While evidence is lacking to guide clinicians and policymakers about whether certain physical health conditions should disqualify a person from accessing firearms, there is good evidence that many persons who are experiencing a mental health crisis are indeed at elevated risk of harming themselves or others. Insofar as emergency involuntary commitment coincides with such potentially dangerous crises, emergency commitment would seem to provide a valid criterion for at least temporary restriction from firearms (Swanson et al., 2014). California’s law and policy with respect to short-term emergency commitments provide an instructive example of using commitments to identify dangerous individuals and remove firearms from them. Section 5150 of the California Welfare and Institutions Code, with provenance in the 1967 Lanterman–Petris–Short Act (LPS), authorizes law enforcement officers to transport a risky person to a mental health treatment facility, where the individual may be held for up to 72 hours for a psychiatric evaluation. During this evaluation, it is determined whether the person has a mental disorder, and whether the person’s condition warrants a petition for a longerterm in-patient civil commitment – one that would require a full judicial commitment hearing unless waived. (All states have similar provisions – e.g., “temporary detention orders” in Virginia, “emergency petitions” in Pennsylvania, “physician’s emergency certificate” in Connecticut.) What is unique about California’s 5150 law is that if the petition records any threatening, aggressive, violent, or self-injurious behavior in the respondent, then the 5150 becomes a virtual warrant for police to go and seize all firearms from the person and home of the respondent. This can involve removing firearms that do not even belong to the patient, if they are stored in a residence shared with the patient. Thus, Copyright # 2015 John Wiley & Sons, Ltd.
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California’s 5150 law imposes time-limited restriction and removal of firearms from atrisk individuals who are detained in a short-term emergency psychiatric hold; other states have sought to follow California’s example in this regard. However, the article by Barnhorst (pp. 246–256) illustrates both the advantages and shortcomings of the 5150 regime with respect to gun restriction. In practice, as Barnhorst explains, the criteria fail to apply to many people who actually are dangerous but cannot be certified because, upon evaluation, they fail to meet the criteria for mental illness. The APA’s evolving position would seek to base firearms restriction on evidence of dangerousness, rather than linking it to mental illness as the 5150 law has traditionally done. The APA’s position seems consistent as well with recent word from the Sixth Circuit Court of Appeals in Tyler v. Hillsdale County Sheriff’s Department et al. (2014). That case involved a plaintiff in Michigan who was prohibited from purchasing or possessing firearms due to a single involuntary commitment that had occurred 28 years earlier following a devastating divorce. Although the plaintiff later remained free of mental illness and posed no demonstrable risk of violence, Michigan offered no avenue for him to seek relief from the ongoing restriction of his Second Amendment rights. In its decision, the appeals court agreed with the plaintiff that the absence of a means of restoration of gun rights for a person with a commitment-based prohibition who was no longer dangerous raised Second Amendment concerns. In its opinion, the court stated: “This case presents an important issue of first impression in the federal courts: whether a prohibition on the possession of firearms by a person ‘who has been committed to a mental institution,’ 18 U.S.C. § 922(g)(4), violates the Second Amendment. Because Tyler’s complaint validly states a violation of the Second Amendment, we reverse and remand.” Whereas most of the attention paid to gun-disqualifying mental health adjudications has been focused on involuntary civil commitment, federal and state laws also prohibit firearms from persons in several other legal categories, including persons with mental illness who have been found incompetent to stand trial (IST) in a criminal matter. There has been little research examining the offense characteristics and firearm involvement of IST defendants. Schreiber and colleagues (pp. 257–278) report on the results of a study in which they examined characteristics of IST defendants charged with violent offenses and compared them with other defendants. Schreiber et al. paint a grim clinical picture of these incompetent pretrial defendants: they were frequently diagnosed with a comorbid substance use disorder, were often homeless and unemployed, and had extensive histories of psychiatric hospitalizations and prior arrests at the time of their alleged offenses. Such results, on the face of it, would appear to justify the longstanding legal restriction of guns from such defendants, and also suggest the need for comprehensive discharge planning and services for such defendants at the interface between the forensic mental health and criminal justice systems – particularly at the point they may be restored to capacity and discharged into the community.
HOW CAN WE KEEP GUNS FROM DANGEROUS PEOPLE? Even if we can know, in principle, who should not have access to a gun due to a substantial risk of harming self or others, there is the practical matter of how to actually keep guns from such people; this is an enduring challenge. Requiring a background check for all gun purchases, and not just purchases from licensed dealers as the current Copyright # 2015 John Wiley & Sons, Ltd.
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federal law requires, is one part of the solution that has been widely advocated by experts in gun violence prevention (Webster & Vernick, 2013). However, there are two major challenges to the effectiveness of this policy, even if we assume that a requirement for universal background checks is in place. First, a background check is only as good as the data that are available to document that a prospective gun purchaser is a prohibited person. Silver and colleagues (pp. 279–289), provide a state case study of evolving policies and procedures in Massachusetts that are intended to ensure that law enforcement authorities charged with issuing gun permits can actually find out when an applicant has a gun-disqualifying mental health adjudication record. The key policy in Massachusetts has been for local chiefs of police to inquire of the Department of Mental Health (DMH) to determine whether any prospective gun purchaser has a record of involuntary commitment. Notwithstanding the large and burdensome volume of such inquiries that are processed daily by the DMH, the inquiries systematically fail to identify many prohibited persons. The problem is that the locus of involuntary commitment in Massachusetts, as in many states, has largely shifted to private facilities outside the reporting purview of the state mental health authorities – and the DMH only knows about their own patients. Silver et al. describe a hopeful solution in Massachusetts: the recent enactment of a law that requires all hospitals with involuntary psychiatric admissions to report to a common database all gundisqualifying commitments. The second problem with background checks is that, even if they work perfectly, they do not address the problem of existing guns to which a dangerous person may have ready access. The aforementioned California policy of removing guns from persons detained in a short-term psychiatric hold represents one state’s attempted solution to this problem, with the limitations that Barnhorst has noted. But what about dangerous people with guns who do not meet California’s, or any state’s, threshold criteria to be detained and evaluated for commitment? The case of Elliott Rodger and the Isla Vista shootings in 2014 provides a telling and tragic example: Rodger’s family had been sufficiently concerned about his disturbing behavior that they informed the police, who paid a social welfare visit to Rodger, but determined that he did not meet 5150 criteria for detention. Meanwhile, Rodger remained legally in possession of the firearms and ammunition he used to kill six individuals and injure 13 in a mass shooting. In the aftermath of the Isla Vista shooting, the California legislature enacted, and Gov. Jerry Brown signed in to law, the nation’s first GVRO statute. Frattaroli et al. (pp. 290–307) explain that the GVRO is an innovative type of law that is based on the structure of domestic violence orders of protection, which every state and the District of Columbia already have. The GVRO gives families and law enforcement officers a means to ask a judge to order the removal of firearms from a person deemed to be at risk of harming others or self, whether or not the person is mentally ill, and even if he or she would not meet criteria for involuntary commitment and is not accused of a crime. The article by Parker (pp. 308–322) describes another example of a preemptive gun removal law, Indiana’s “dangerous persons” gun seizure statute. There has been very limited experience with preemptive gun seizure policies at the state level, and almost no evaluations of their implementation and effectiveness. Until California’s enactment of a GVRO law, Connecticut and Indiana were the only two states with “dangerous persons” gun-seizure provisions that can be invoked for persons deemed at risk of violence or suicide irrespective of whether they have a mental illness or may be experiencing a mental health crisis. Connecticut’s law requires police to obtain a warrant Copyright # 2015 John Wiley & Sons, Ltd.
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preceding gun seizure. Indiana’s law permits police to seize guns with or without a warrant pending a judicial hearing. Indiana’s law was enacted following a highly publicized shooting of police officers by a disturbed individual and was intended to reduce the risk of interpersonal gun violence. As implemented in practice, however, as shown by Parker’s analysis, two-thirds of the gun seizures in Marion County since 2006 have involved persons with suicide concerns. Parker finds that firearms were retained by the court in 64% of these gun seizure cases – most respondents did not appear to reclaim their guns – and that the law functioned as a months-long “cooling-off period” for those who did seek return of their guns. Further research on the effectiveness of these promising gun-seizure laws and policies is needed.
HOW DO WE LIMIT GUN ACCESS FROM DANGEROUS PERSONS WITHOUT UNDULY INFRINGING ON RIGHTS, PRIVACY AND THERAPEUTIC PRACTICE? Scholars and policymakers have increasingly recognized that efforts to broadly implement, or even to expand, the criteria for gun disqualification must be balanced with a timely and fair process for restoration of Second Amendment rights to prohibited persons who no longer pose a risk to public safety or to themselves. When should people who have lost their gun rights be given the opportunity to recover those rights, and what is the best process for making such a decision in a way that will strike the right balance between individual and public interest? In 2007, the mass shooting at Virginia Tech motivated Congress to swiftly pass the National Instant Check System Improvement Act (NICSA). The NICSA used Department of Justice grants to incentivize states to report their gun-disqualifying mental health records to the NICS. It also required states receiving the grants to institute FBI-approved “relief from disabilities” programs for restoring gun rights to nondangerous persons whose rights have been rescinded due to a disqualifying mental health record. Two articles in the current issue, by Follansbee and Bloom (pp. 323–333) and by Fisher and colleagues (pp. 334–345), examine gun-rights restoration programs, in Oregon and New York, respectively. The issue of gun rights restoration – and the potential for ostensibly dangerous people to recover their rights with insufficient scrutiny – received national attention in 2011 when the New York Times published an investigative story focused on Virginia’s judicial process for restoring gun rights to persons with mental illness who had been prohibited from firearms (Luo, 2011). The Times story detailed several cases in which Virginia judges appeared to have granted restoration of Second Amendment rights in perfunctory proceedings – with little or no consideration of clinical expert opinion – to persons who clearly continued to pose a risk of violence. A different model of gun rights restoration is provided in New York and Oregon, two states with variations on an approach that relies heavily on mental health professionals to determine a person’s mental fitness for gun rights restoration. New York uses a clinical determination by the public mental health authority, and Oregon uses an administrative procedure with a “Psychiatric Security Review Board” (PRSB). Follansbee and Bloom examine Oregon’s gun relief program for adjudicated mentally ill persons, Copyright # 2015 John Wiley & Sons, Ltd.
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and describe the functioning of the PSRB’s administrative approach to gun restoration. The gun restoration program began in 2010, but to date has only received three completed petitions requesting restoration of firearm rights. Fisher et al. describe the gun rights restoration process in New York, a model in which psychiatrists participate in the process of assessing whether an individual’s firearm rights can be restored. These authors discuss the legislative background of the regulations, the specific policies and procedures governing the restoration process, and clinical considerations for the forensic evaluation. Fisher et al.’s article evokes the question of how risk assessments may depend on context and purpose. The standard "substantial danger to himself or the public" Washington State Revised Code (1994.) is essentially the same standard as civil commitment, and yet the issue in restoration is gun possession, not total deprivation of freedom. There is also the question of using demographic factors – such as socioeconomic status, age, sex, and even race – in assessing risk, and whether these can be separated from judgments based on cultural norms. Many clinical risk assessments are focused on the short term and relate directly to acute mental disorder, and are thus less reliant on demographic factors. For long-term predictions, however, there may be a tension between the value of scientific accuracy and the bias that attends profiling, from which science is not immune. In any event, more research is needed to inform the difficult task of deciding who should have gun rights restored and what is the best model to ensure due process, incorporating clinical information most relevant to public safety. In many ways, it appears that physicians and mental healthcare professionals are becoming more involved in assessments and decisions about when to limit gun access to potentially dangerous persons – through risk assessment and reporting of patients at risk, the rendering of clinical opinions about restoration of rights, or the diagnosis of gun-disqualifying health conditions in handgun permit seekers. The question then arises: what effect might all these entanglements have on the therapeutic process, the assurance of patient confidentiality, and the process of informed consent upon which the patient–doctor relationship has long depended? The APA position statement (Pinals et al., pp. 195–198) recommends against policies that mandate psychiatrists and other professionals to report risky patients to law enforcement authorities for consideration of firearms restriction, cautioning that such regimes may have a chilling effect on patients’ help-seeking and disclosures. Candilis and colleagues (pp. 346–355) discuss informed consent in the context of physicians’ potential obligations to report risk of gun violence in their patients. In communities divided over the politics of gun control, the traditional model of informed consent that balances the psychiatrist’s competing obligations to patient and community may succumb to increasing pressures on confidentiality. Candilis et al. propose an alternative model of robust consent that is informed by different perspectives, with the explicit goal of protecting patients as well as the community. Finally, Horwitz, Grilley, and Kennedy (pp. 356–365) present a case study of how research evidence on gun violence prevention can be integrated into the policymaking process, and how gun violence researchers themselves can be engaged to overcome the “communication gap” with policymakers. Focusing on the recent activities of the Consortium for Risk-Based Firearm Policy, Horwitz and colleagues describe a process of building interdisciplinary consensus, in which experts identify common goals and join their voices and their collective authority in formal policy recommendations. This consensus process is paired with a communication strategy in which the researchers Copyright # 2015 John Wiley & Sons, Ltd.
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engage directly with key stakeholders and policymakers in public forums where there are particular opportunities for state legislative reform; the enactment of California’s GVRO law is highlighted as a prime example of how the strategy can work. Ultimately, separating guns from dangerous people will remain an inherently difficult task, because seriously violent behavior is infrequent in the population and caused by many different things. The major risk factors for violence – being young, male, disadvantaged, and misusing substances, for example – are largely non-specific, which means that these risk factors are shared by many more people who are not violent than who are. Each individual carries a different set of protective and risk factors that may combine, interact in complex ways, and fluctuate over time. Mental illness per se explains very little of why people intentionally harm others with guns; it provides a somewhat better, if still incomplete, answer to the question of why people harm themselves. Emerging evidence is beginning to shed light on these complex nuances and to point the way towards long-term solutions that will be both effective and fair. Taken together, the articles in this special issue provide an excellent overview of the complexities of the problem of gun violence at the intersection with mental illness, as well as an exploration of new ways and opportunities to implement more effective interventions, policies, and laws to reduce the tragic toll of gun violence, as it may relate to persons with mental health problems.
ACKNOWLEDGMENTS Many thanks to Paul Appelbaum for his useful comments in improving and finalizing this introductory essay.
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