Editor’s Note: Danny Cevallos is a CNN legal analyst and a criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.
Story highlights
Speaking about the tragic shootings in Oregon, Jeb Bush said that "stuff happens"
Danny Cevallos: The law isn't particularly helpful in identifying and restraining mentally ill people at risk of violence
The latest mass killing at Umpqua Community College in Oregon again raises the question: How do we develop laws that deal adequately with mental illness and gun ownership?
Of course, maybe that question reveals our disconnect: Perhaps it’s pure hubris to believe this is a problem that is even capable of being legislated away.
Under current federal law, anyone who has been “adjudicated as a mental defective” or “committed to a mental institution” is prohibited from shipping, transporting, receiving or possessing any firearm – or ammunition.
Being “adjudicated as a mental defective” encompasses a few categories. Broadly speaking, this is where a court or other lawful authority makes a determination that a person is dangerous, lacks capacity to handle his own affairs or is found to be insane or incompetent to stand trial.
Being “committed to a mental institution” seems pretty straightforward, but it has a major exception. A person falls in this category if formally committed to a mental institution, whether involuntarily or for drug use. The statute explicitly excludes a person in a mental institution, as long as the visit is voluntary – rather than involuntary.
Broadly interpreted, this language could cover a large number of citizens. However, even that group of disqualified citizens would still be a fraction of the overall universe of people with mental illness.
Federal law also mandates, to some degree, background checks for certain purchases of firearms. That system, called NICS, is used by Federal Firearms Licensees, or FFLs, who call in a check to the FBI or other designated agencies before a sale to ensure that each customer isn’t ineligible to make a purchase. About 60% of people with legal guns bought them from these FFLs. Others buy their guns through private sales, or on the black market. The former is not required to conduct background checks, and the latter never will.
Even where the background-check system is employed, the federal government cannot force states to report or contribute to the database, according to a 1997 Supreme Court ruling. The result is a patchwork of reporting laws and background-check procedures.
Moreover, psychiatrists and similar medical providers aren’t legally compelled to report every violent thought of their patients, with laws differing from state to state. After all, federal and state laws such as the Health Insurance Portability and Accountability Act, or HIPAA, reflect the high value society places on the sensitive nature of medical records.
States are also free to develop their own gun laws. It’s another necessary trade-off: States and their legislatures are meant to serve as a laboratory to try novel legal, social and economic experiments. While such experimentation has its benefits, it necessarily results in interstate inconsistency when it comes to things such as gun laws.
For example, a policy recently enacted in California, the Gun Violence Restraining Order, is based on the same principle as a domestic violence restraining order. It would allow family members and/or law enforcement to go before a judge and request that guns be temporarily removed from an individual who is likely to be dangerous toward himself and/or others.
It’s an interesting concept: Instead of placing the onus on the government to ferret out potentially dangerous gun owners, it empowers those closest to the at-risk citizen, such as his family.
Of course, as with any law, there are potential unintended consequences and collateral damage. Any lawyer who has handled restraining orders or “protection from abuse” orders will tell you that a unilateral process such as this can be abused by an angry family member or “frenemy.” The converse of this is that family members might be too intimidated to make a court case against Daddy – the guy with the guns, booze and rage issues who is scaring them in the first place.
Ultimately, there are intrinsic challenges in crafting laws addressing gun ownership and mental illness, including: 1) most mental illnesses are neither reportable or disqualifying under federal firearms law; 2) a background check for mental illness is not even required for certain sales; 3) that background check involves consulting a database that depends on information provided in a patchwork fashion by the states, if at all.
Is the solution to expand the legal definition of ineligible persons to preclude more people with mental illness from obtaining firearms? To answer that question we have to assume that the state and federal governments can maintain a comprehensive database. If not, then the question is purely academic – the database can’t exclude people who aren’t in the database. But assuming it can, disqualifying more people with mental illness might result in less gun sales, but at what cost?
Studies suggest the vast majority of people with mental illness are nonviolent. Automatically disqualifying people for mental health reasons might target wide swaths of people who are statistically unlikely to commit crimes of violence. That could in turn discourage people with undiagnosed mental or emotional issues from seeking treatment.
The problem is this: Expanding the scope of disqualifying conditions would achieve the result of simply reducing the number of lawful buyers, but is that the same as identifying and disqualifying those who are likely to commit mass killings?
That goes to the fundamental limitations of law; it cannot be as surgically accurate as we would like it to be. And maybe it’s not that current law concerning the eligibility of purchasers is inadequate – maybe no law would ever be adequate.
When it comes to the ever-evolving science of mental illness, maybe no law will ever accurately predict gun violence or identify high-risk gun owners. Even if it did, it only takes one statistical outlier, and one errant gun, to result in a mass shooting.
Perhaps, as Jeb Bush recently – if cavalierly – said that “stuff happens.” What if he has a point? What if no set of state and federal laws – even those tailored to mental illness and gun ownership – can ever fully prevent tragedy? Perhaps “stuff” can never fully be prevented – not by mankind, and certainly not by its laws.
All law – state or federal – boils down to a balancing test: Do the potential benefits outweigh the potential risks? When it comes to gun laws and mental health, the obstacle is further compounded by the difficulty of drawing a causal connection between all the different risk factors that make up the increasingly common tragedy of mass shooting.
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