Legal Analysis

Why Trump’s Legal Solution to Mass Shootings Doesn’t Stop Shooters (Including Nikolas Cruz)

A Law&Crime review of Florida mental health laws is raising serious questions about whether President Donald Trump‘s solution to gun violence would be successful without highly complicated legal reforms. Our review reveals a statistical “catch and release” system filled with cracks, gaps, and loopholes which have allowed a number of shooters, including Nikolas Cruz, to leave the state’s mental health system, only to go on to kill people. Cruz, the Parkland school shooter and the very person President Trump said needed mental treatment, admitted killing seventeen people and injuring fifteen others after mental health authorities deemed him not to be a violent threat. Cruz’s case is not alone. Similar cases illustrate how mental health examinations and commitments do not always thwart violence, despite President Trump’s statements which suggest a mental health solution to gun violence. Our review further reveals that mental health professionals say they cannot accurately predict violence in patients, making it more difficult for courts to act in protecting the public.

The President’s Solution

Last Thursday, President Donald Trump delivered a statement about the previous day’s school shooting in Parkland, Florida. He repeated a common theme: “we are committed to working with state and local leaders to help secure our schools and tackle the difficult issue of mental health.” Before the speech, in an early morning Tweet, Trump said people who knew the suspected Florida school shooter should have come forward to report the shooter’s suspected mental health issues:

Trump previously blamed mental health issues for the deadly shooting of two television journalists in Roanoke, Virginia, in an interview at the time with CNN. He also partially blamed mental health for the 2015 San Bernardino shooting in an interview with ABC at the time. The president has repeatedly blamed mass shootings on either (1) victims or their associates for failing to report suspicions to various mental health “authorities,” or (2) on the mental health community for, presumably, not being aggressive enough (hence the need to report “again and again!” in the president’s words).

Florida’s Mental Health Law

In Florida, the so-called Baker Act controls mental health examinations and commitments. Under that law, a person may be brought for an involuntary mental health examination by a medical professional, a court, or a law enforcement officer. After the examination, one of four other processes could follow: (1) voluntary commitment to an institution, (2) involuntary commitment to an institution, (3) outpatient treatment; or (4) the patient could simply be released.

As a threshold inquiry, the law defines “mental illness” — the entire reason for examination and possibly commitment — as “an impairment of the mental or emotional processes that exercise conscious control of one’s actions or of the ability to perceive or understand reality, which impairment substantially interferes with the person’s ability to meet the ordinary demands of living.”

Those who strictly read statutes may question whether that definition would even apply to someone who has made statements about shooting up a school. It’s possible someone could want to commit such an atrocity and still be able to “exercise conscious control” over his actions while fully “understanding reality” and being able to “meet the ordinary demands of living.” In other words, under a strict constructionist’s read, evil words are not necessarily a mental health problem under the black letter of the law. If that interpretation wins the day in court, President Trump’s entire approach at prevention would fall apart.

How the Baker Act Fails to Work in Practice

Mental illness laws, however, are usually “loosely applied,” according to Florida psychologist and attorney Stephen Talmadge, whose practice involves Baker Act hearings. The burden of proof is less than it would be in a criminal trial, and “expressions of violence are sufficient” for involuntary commitment, Talmadge said in an email to Law&Crime:

Just remember, the standard for law enforcement to bring someone in for involuntary examination is “reason to believe.” Most of the time, a person is taken for examination and released before a petition (for commitment) is filed. If the cops are called on a person, or a person is taken to an ER and says anything about being sad, having thoughts of hurting someone, and/or having a psychiatrist, [that person] get[s] Baker Acted.

This leads to a puzzling situation:  mental health examinations are plentiful, but mental health commitments are relatively rare. Statistically, Florida authorities initiated 194,354 examinations in the state’s 2015-2016 fiscal year. That’s an average of 532 examinations each day of the year for a state of about 21 million people. Yet for all those examinations, only 39,926 cases, or 21%, resulted in a petition for further treatment — including commitments. Critics might argue that this catch-and-release pattern could allow an adamant school shooter to be examined, but not committed, thereby slipping through the cracks of the system and rendering President Trump’s solution for gun violence prone to vulnerabilities. Indeed, reports indicate that is precisely what happened with admitted Parkland shooter Nikolas Cruz.

Under the Baker Act, if examination reveals a patient meets the needs for a mental heath commitment, two types of commitments could legally occur:  voluntary or involuntary. As Talmadge notes, “Florida allows a Baker Act facility psychiatrist to restrict gun rights by filing paperwork with the court in the event a patient becomes voluntary.” Though a few mass casualty plotters might agree to voluntary mental health treatment, most probably would not, so this analysis will focus primarily on involuntary commitment as a possible step toward preventing a massacre.

Focus on Involuntary Commitment

In Florida, involuntary commitment can occur under the following scenarios.

Either:

  1. The person to be committed “has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination,” OR
  2. “The person is unable to determine for himself or herself whether examination is necessary,”

AND either:

  1. The “person is likely to suffer from neglect or refuse to care for himself or herself” under a myriad of scenarios, OR
  2. “There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.”

One of the first two criteria and one of the second two criteria must be met for an involuntary examination. An involuntary commitment could follow, but is not mandatory under Florida law, if a court finds by clear and convincing evidence that the patient both:

  1. Has a mental illness under a similar set of criteria to those above, including:

    “There is substantial likelihood that in the near future he or she will inflict serious bodily harm on himself or herself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm,” AND

  2. Less restrictive treatments have been judged inappropriate.

Courts of Law Struggle with Mental Health Cases

Under Florida law, involuntary commitment procedures are supposed to play out almost like miniature court trials, with the local prosecutor arguing for a patient’s commitment and an attorney for the patient arguing against it. Florida law provides patients with a mental health “bill of rights,” which in turn recognizes a habeas corpus procedure to protect individuals against unconstitutional mental health commitment. However, Talmadge says a “dearth” of appellate review cases involve mental health commitments, since Florida law does allow the state to rake in money for committing people to treatment but does not allow attorney fees for appeals filed against the commitment process. In other words, it’s lucrative to put someone in the system but financially difficult to figure out if the commitment was or remains legally proper. This, advocates of President Trump’s system might argue, is a plus, as it could lead to swift and easy intake for those who truly need treatment and for those from whom society must truly be protected. However, a lack of meaningful appellate guidance may mean local judges are left guessing without comparison cases to examine, which could possibly result in incongruent rulings and, in a worst-case scenario, a violent person slipping through the cracks. According to Talmadge, few people in the legal community are familiar with Baker Act procedures:

Only attorneys from the public defender’s office and the state attorney’s office (prosecutors) who go to Baker Act hearings know much about Baker Acts. Only a very small handful of private attorneys handle Baker Acts. Most judges are also unfamiliar with them.

Talmadge argues that this lack of knowledge, the system’s financial structure, and the statistics behind examinations and commitments are proof that the Baker Act is abused through overuse on the front end. It lacks effectiveness and oversight on the back end, he argues.

The Law Doesn’t Favor Locking People Up

The system contains other gaps. Under Florida law, not all Baker Act examinations need result in a commitment; a public “policy that the least restrictive appropriate treatment be utilized” is in place. A patient could therefore be released to outpatient treatment (in other words, into the care of someone like a family member). In theory, a patient who threatens mass violence could be treated and released under this provision of the law, though Talmadge says outpatient treatment rarely ever happens in practice. Still, that such a legal vehicle exists is another possible gap in the system which could allow someone plotting a mass shooting to slip through the cracks. Cases suggest this does happen, at least sometimes.

The System Fails to Catch Shooters

A 1991 Florida Supreme Court case illustrates the problem. In a unanimous opinion, the court examined the “tragic” case of a defendant with no prior criminal record who “killed his nineteen-year-old daughter in order to spite his estranged wife.” The defendant, Victor Goldie Klokoc, was involuntarily committed for five days under the Baker Act after “ongoing physical violence.” Upon his release, the violence continued, along with a verbal threat by Klokoc to kill his son and, later, his daughter. Eventually, Klokoc carried out the latter threat. The appeals court noted that the defendant suffered from “bipolar affective disorder, manic type with paranoid features, and that his family has a history of suicide, emotional disturbance, and alcoholism” in wiping out a jury’s death sentence and replacing it with a life sentence. Mental health treatment did not save Klokoc’s daughter’s life.

The case of the admitted Parkland school shooter, Nikolas Cruz, further illustrates the problem. Cruz had been examined by mental health authorities under the Baker Act, the Florida Sun-Sentinel and the New York Times reported while Law&Crime was preparing this analysis. At least one Baker Act examination of Cruz was initiated, but it did not result in a commitment. As the New York Times put it, a mental health center “determined that [Cruz] was not . . . a threat. Had Mr. Cruz been involuntarily committed, state law could have prohibited him from buying a firearm.” In other words, President Trump’s proffered solution to gun violence through mental health action did not catch Nikolas Cruz and at least one other person like him. Talmadge blames the psychiatrists at the facility where Cruz was taken for letting him go.

Legislatures in Florida and in other states may need to strengthen the availability of mental health services, give authorities broader leeway to act, and concomitantly examine or strengthen due process and appeals rights to protect against unnecessary or unreasonable commitments. The president’s speech Thursday provided no specifics on the fine points of this message, but President Trump did say he planned to begin the conversation soon with officials in multiple levels of government.

The Governor Punts the Issue

One official who could be part of the conversation is Florida Governor Rick Scott, who was asked about mental health issues by a reporter not long after the shooting. Scott said, “there is a time to continue to have these conversations about how, through law enforcement, how through mental illness funding, to keep people safe, and we’ll continue to do that.” Scott, a Republican, has an A+ rating from the National Rifle Association, NBC News is reporting.

Trump:  Gun Control Not the Solution

If past actions are an indicator of future performance, it is clear from Trump’s response to this and previous shootings that limiting access to firearms is not part of his agenda, even as part of a mental health package. Almost exactly one year ago, Trump wiped away Obama-era mental health-related restrictions on firearms purchases. Trump has said that gun control measures run contrary to the rights of Americans to purchase and use weapons under the Second Amendment. It seems, then, that the solution, at least in the president’s mind, is for people to sound the alarm loudly when they hear or see something suspicious and for the government to lock up an individual for treatment based on that alarm.

Mental Health Experts Disagree

This places a burden on the mental health community that the mental health community seems to think it can barely solve. Indeed, in a 2013 report by a blue-ribbon panel of psychologists, the American Psychological Association stated bluntly that mental health professionals possess only a “moderate ability” to predict a patient’s propensity for violence:

The prediction of an individual’s propensity for violence is a complex and challenging task for mental health professionals, who often are called upon by courts, correctional authorities, schools, and others to assess the risk of an individual’s violence. Mental health professionals are expected to take action to protect potential victims when they judge that their patient or client poses a danger to others. However, decades of research have established that there is only a moderate ability to identify individuals likely to commit serious acts of violence. Much depends on the kind of violence and the time frame for prediction. For example, there are specialized instruments for the assessment of violence risk among sex offenders, civilly committed psychiatric patients, and domestic violence offenders. However, the time frame and focus for these predictions often are broadly concerned with long-term predictions that someone will ever be violent with anyone rather than whether a person will commit a particular act of targeted violence.

Not surprisingly, the American Psychological Association on Friday issued another in a series of denouncements of the president’s approach to gun violence:

“It is important to remember that only a very small percentage of violent acts are committed by people who are diagnosed with, or in treatment for, mental illness. Framing the conversation about gun violence in the context of mental illness does a disservice to the victims of violence and unfairly stigmatizes the many others with mental illness.”

The APA itself advocates for “policies that reduce access to firearms by youth and individuals who are at risk of harming themselves or others.” That policy puts the mental health community at odds with the president’s policy preferences.

Conclusion:  Trump’s Solution Not Foolproof

As Florida law exemplifies, the solution proposed by President Trump is not legally foolproof. The law requires a finding that “behavior” which threatens harm “in the near future” is necessary in order for involuntary commitment to occur or continue. The statute puts courts in the uncomfortable position of looking into the crystal ball and trying to predict whether, and when, harm could occur. Words are apparently enough to trigger at least an assessment, but even mental health professionals admit they struggle to predict violence, which in turn makes it difficult for courts to order involuntary commitments. A commitment which stretches the language of the law too far could easily be attacked through a habeas corpus petition as improper. The lack of clear language and the lack of meaningful appellate guidance may mean local judges are left sailing adrift through uncharted waters. Legally, that can result in disparate or unfortunate outcomes and a system which has been documented as allowing people to slip through the cracks. Because people have slipped through the cracks, the president’s mental health solution to gun violence isn’t an iron-clad solution under current law, and for numerous reasons.

That’s just in Florida. Each state has its own system in place which would need a critical examination. Many legal questions need to be answered for the president’s solution for gun violence to work. The people who need to answer the questions are the president, his associates, and those with whom he continues to involve in conversations surrounding reform.

[Image via Win McNamee/Getty Images.]

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