1 DEFENSE COUNSEL JOURNAL | JULY 2017

Shots Fired—A Rational Assessment of Mass Shootings, The Alleged Participation of the Mentally Ill, and an Impaired Right of Privacy

By: Tamela J. White

Tamela White is a Member of the law firm of Farrell, White & Legg, PLLC, Huntington, West Virginia. She is an honors graduate from both The Ohio State University College of Nursing and from the Salmon P. Chase College of Law, Northern Kentucky University. Ms. White earned a Masters in Public Health with an emphasis on law, policy and economics in May 2011 from the Johns Hopkins Bloomberg School of Public Health. She has extensive health care clinical and administrative experience prior to practicing law.

The author wishes to express her appreciation to Hon. Dan O’Hanlon, Retired Circuit Court Judge, the State of West Virginia; McKenzie Cooley, Graduate Attorney, Farrell, White & Legg, PLLC; Michael J. Farrell, Partner, Former Interim President of Marshall University, Founder and Managing Member of Farrell, White & Legg, PLLC; Terry Fenger, PhD., Director of the Forensic Science Center, Marshall University; Samantha Thomas- Bush, Associate, Farrell, White & Legg, PLLC; Kevin Yingling, M.D., Dean, Marshall University School of Pharmacy, Faculty, Marshall University Joan C. Edwards School of Medicine; and Robert White (aka The Prince), Graduate Student, Political Science and International Policy Division, Virginia Polytechnic Institute.

“Only thing we have to fear is fear itself” 1

1 Franklin D. Roosevelt, Inaugural Address, March 4, 1933, as published in SAMUEL ROSENMAN, ED., THE PUBLIC PAPERS OF FRANKLIN D. ROOSEVELT, VOLUME TWO: THE YEAR OF CRISIS, 1933, 11-16 (New York: Random House, 1938). 2 DEFENSE COUNSEL JOURNAL | JULY 2017

OCIETAL shockwaves from for removal of the barriers mass violence have no preventing data collection and S borders. Sophisticated Paris, analysis particularly in this perilous destination Orlando, rural Virginia time with states abandoning Tech, a midnight movie theater in conceal-carry permit requirements , the Newtown elementary and terroristic murderous migrate school of innocents, a to using cars and alternative means psychiatrist in his Army uniform to accomplish their evil end. and too many more for too long of a The risk of marginalizing and time have been lead stories on the dividing shooters and victims, and nightly news and headlines in Le lawmakers from lawbreakers into Monde, , Dallas stereotypical classification is too Morning News, San Francisco simplistic. No one should seriously Chronicle and every major news conclude that any of those engaging outlet. So much attention, so little in these heinous attacks upon change in access to automatic vulnerable innocents are free from military-grade and other weaponry. mental distress. Mental distress is Such sparsity of data, not opinion or not necessarily mental illness. Most speculation, from which to learn if not all of the offenders were/are root contributors, causes and also vulnerable to the undue design implementation plans. So influence of the affected or much carnage, so little disaffected. This article will provide understanding of root causes. And both a domestic and international now, trains, planes and automobiles platform to review existing enter the equation. opinions, reconsider them and Labeled insanity by some and advocate for scientific-based by others, the result is the conclusions in evaluating the actual same. Human carnage of relationship between mental illness, unspeakable proportion. Domestic, mass violence and the incredible international, regional and local law tolerance for military grade enforcement are faulted for failing weapons being accessible to a to foresee or mitigate these civilian population. Mental illness, tragedies. Finger-pointing and standing alone, is not the sole or cognitive dissonance invites exclusive root cause of such labeling culprits as mentally ill. violence. This article challenges those alternate propositions that place Mass shootings blame on Satan (possessed by understandably create demonry), gun manufacturers, outpourings of public Congress, state legislatures and the horror and outrage . . . mentally ill. This article advocates These tragedies are Shots Fired—A Rational Assessment of Mass Shootings 3

influenced by multiple hospitalization] will be complex factors, many of extremely low yield, which are still poorly un- ineffective, and wasteful of derstood. However, the lay scarce resources. public and the media Perpetrators of mass typically assume that the shootings are unlikely to perpetrator has a mental have a history of illness and that the mental involuntary psychiatric illness is the cause of these hospitalization. Thus, highly violent acts of databases intended to horrific desperation. restrict access to guns and Although some mass established by guns laws shooters are found to have a that broadly target people history of psychiatric illness, with mental illness will not no reliable research has capture this group of suggested that a majority of individuals.2 perpetrators are primarily influenced by serious The laws in the mental illness as opposed to, have been ineffective in addressing for example, psychological the balance between access to turmoil flowing from other weapons and personal consti- sources. As a result, debate tutional rights and privacy. There on how to prevent mass remains a void in understanding the shootings has focused convergence of forces that leads to heavily on issues that are 1) such heinous events and a zealous highly politicized, 2) grossly propaganda campaign that the oversimplified, and 3) solution would deprive Americans unlikely to result in of their guns. productive solutions . . . Privacy is a valued commodity Laws intended to reduce under challenge. The boundaries of that focus on a privacy must be redefined in the population representing modern era of satellites-circling- less than 3% of all gun the-earth communicating with violence [the population of billions of computers at one time. those with certain mental This article approaches a unique illness history and/or of subset issue: the tension in the mental-health related health care provider-patient

2 James L. Knoll and George D. Annas, “Mass Shootings and Mental Illness”, in GUN VIOLENCE AND MENTAL ILLNESS, 81-82 (Liza H. Gold et al. eds. 2016). 4 DEFENSE COUNSEL JOURNAL | JULY 2017

relationship, privacy, access to (“APA”) opposes legislative action weaponry and public health. This that would mandate any health care article advocates for a change in provider to breach this trust by definition of the problem with forcing disclosure of confidences preservation of respect for those on shared by an individual patient that both sides of the gun debate, use of a gun may be perceived as a whether you are an advocate for means to an end.4 The APA calls for near plenary Second Amendment research, data analysis, least- application or a pacifist without any intrusive data-base generation and interest in owning a gun. This data analysis, as well as restrictions article advocates for research and on gun access, as means to address analysis so that a data-driven the real issue: the instrumentality redefinition of the issues, not the of harm: the inherently unsafe fear-driven reactionary response, product -- not the person.5 may be developed. Congress has a long history of Privacy is essential to any banning epidemiologic research by relationship grounded in trust so the Centers and Disease Control and that free and unrestrained Prevention (“CDC”) concerning the communication may occur. In the subject of gun violence. 6 Silently mental health and health care housed within the Patient domain, privacy is a cherished value Protection and Affordable Care Act intended to promote positive health (“ACA”) of 2009 (otherwise outcomes and minimize the risk of referred to as “Obamacare”) is a indiscriminate treatment by others two-edged sword, gun lobby- like profiling, stereotyping and backed provision. A portion of the discrimination.3 The mental health law includes an implicit recognition care provider: patient relationship of the substantial public health must be grounded in trust, and need and the obligation to avoid privacy protection is paramount to gun-access discrimination against establishing trust. To this end, the individual patients based upon gun American Psychiatric Association use and access. However, other

3 Id. resume firearm studies since the Newtown 4 American Psychiatric Association, shooting, WASH. POST (Jan. 14, 2015), Position Statement on Firearms Access, Acts https://www.washingtonpost.com/news/s of Violence and the Relationship to Mental toryline/wp/2015/01/14/why-the-cdc- Illness and Mental Health Services, 33 BEHAV. still-isnt-researching-gun-violence-despite- SCI. LAW 195 (June 2015). the-ban-being-lifted-two-years-ago/?utm_ 5 Id.; see also and generally, Knoll and Annas, term=.d21da39b1065 (last visited June 2, supra note 2. 2017) (noting that 20 years prior, the gun 6 Todd C. Frankel, Why the CDC still isn’t control lobby was successful in threatening researching gun violence despite the ban the funding of the CDC if gun violence being lifted two years ago: Fear and funding research was conducted). shortfalls remain at the agency ordered to Shots Fired—A Rational Assessment of Mass Shootings 5

provisions include express barriers dying each year at the barrel to some forms and means of of a gun in elementary communication and analysis with schools, movie theaters, respect to data collection and data workplaces, houses of assimilation necessary to study this worship, and on live public health crisis.7 These barriers television, the United States prevent sound, evidenced-based faces a public health crisis of analysis and recommendation gun violence . . . An development. The call-for-action by epidemiological analysis of the American Medical Association gun violence is vital so (“AMA”) President Steven Sack, M.D. physicians and other health succinctly announces: providers, law enforcement, and society at large may be [w]ith approximately 30,000 able to prevent injury, death, men, women, and children

7 The ACA contains the following “Gun health insurance: A premium rate Rights” provisions: may not be increased, health (1) Wellness and prevention insurance coverage may not be programs: A wellness and health denied, and a discount, rebate, or promotion activity . . . may not reward offered for participation in a require the disclosure or collection wellness program may not be of any information relating to the reduced or withheld under any presence or storage of a lawfully- health benefit plan issued pursuant possessed firearm or ammunition in to or in accordance with the Patient the residence or on the property of Protection and Affordable Care Act an individual; or the lawful use, or an amendment made by that Act possession, or storage of a firearm or on the basis of, or on reliance upon ammunition by an individual. the lawful ownership or possession (2) Limitation on data collection: of a firearm or ammunition; or the None of the authorities provided to lawful use or storage of a firearm or the Secretary . . . shall be construed ammunition. to authorize or may be used for the (5) Limitation on data collection collection of any information requirements for individuals: No relating to the lawful ownership or individual shall be required to possession of a firearm or disclose any information under any ammunition; the lawful storage of a data collection activity authorized firearm or ammunition. under the Patient Protection and (3) Limitation on databases or Affordable Care Act or an data banks: None of the authorities amendment made by that Act provided to the Secretary . . . shall be relating to the lawful ownership or construed to authorize or may be possession of a firearm or used to maintain records of ammunition; or the lawful use, individual ownership or possession possession, or storage of a firearm or of a firearm or ammunition. ammunition. (4) Limitation on determination 42 U.S.C. § 300 gg-17(c) (2010). of premium rates or eligibility for 6 DEFENSE COUNSEL JOURNAL | JULY 2017

and other harms to society individual privacy and resulting from firearms.8 constitutional rights. A successful example are the HIV-AIDS laws, By allowing permissive, gun- which preserve privacy of infected related disclosure from patients, persons and potentially infected but prohibiting collection and ones while maintaining respect for assimilation of that information constitutional freedom of (volunteered or otherwise) with association. That vulnerable class scrutiny of that data by the has been protected against scientific method, this legislation discrimination, harassment and frustrates the efforts and the mistreatment driven from the “I’ll capacity to develop data-based catch it too” fear where the real public health gun violence instrumentality of harm was, and is, recommendations. The outcome the live virus, not the person. The becomes a self-fulfilling HIV-AIDS legal interventions perpetuation of impotency in gun evolved over time as the issue was violence understanding and studied through clinical trials and intervention. The lack of CDC and research grounded in the scientific research funding is shameful. ACA method. The result is a legal anti-discrimination provisions are framework designed to be narrowly essential, but the over-reaching tailored to address the risk to public data-related prohibitions are not. health, like the risk of a Privacy interests, privacy contaminated blood supply, while rights, civil responsibility, self- balancing private health responsibility and the gun debate information disclosure. Some of intersect. Society has addressed those interventions have included other public health threats and anonymity in testing, establishment health care providers have served of public health data bank registries, integral roles. An interactive and offering free public health interdisciplinary approach should education and privacy-protected be applied in the gun and violent third-party notification of crime domain with adequate unanticipated or known exposure. funding and without over-reaching legislative prohibition. Sensitive and politically charged issues have previously been addressed through legislative interventions that preserved

8 Mark Moran, AMA Calls for End of CDC Ban on Research on Gun Violence, PSYCHIATRIC NEWS, July 2, 2016-July 15, 2016, at 1. 7 DEFENSE COUNSEL JOURNAL | JULY 2017

Other examples include:

Chart A:

Instrumentality Intervention/Mandate Constitutional of Harm and Other Considerations

Child abuse and State law mandatory reporting Life, liberty and neglect obligations by health care pursuit of providers and others with happiness of a qualified immunity and vulnerable declaration of exception to person. HIPAA and privacy laws and protections.9

Adult State law mandatory reporting Life, liberty and protection health care providers and others pursuit of services against of elder abuse and neglect with happiness of a abuse and qualified immunity and vulnerable neglect declaration of exception to person. HIPAA and privacy laws and protections.10

Motor vehicles State mandates for physician Life, liberty and reporting of certain health pursuit of conditions which are considered happiness of third to impair the capacity of a person parties; to operate a vehicle safely. Those Commerce;

9 United States Department of Health and Human Services, Child Welfare Information Gateway, Immunity for Reporters of Child Abuse and Neglect, available at https://childwelfare.gov/pubPDFs/immunity.pdf (last accessed June 3, 2017). 10 Lori Stiegel. and Ellen Klem, Explanation of the “Immunity for Good Faith Reporting Provisions and Citations in Adult Protective Services Laws by State” and “Immunity for Good Faith Reporting; Criteria in Adult Protective Services laws by State” Charts, American Bar Association Commission on Law and Aging and the National Center on Elder Abuse, 2007, available at: https://www.americanbar.org/content/dam/aba/administrative/law_aging/ Immunity_for_Good_Faith_Reporting_Provisions_and_Citations_Chart.authcheckdam.pdf (last accessed June 3, 2017). 8 DEFENSE COUNSEL JOURNAL | JULY 2017

health conditions include, for Freedom of instance, Alzheimer’s, eye movement and disorders and seizure activity.11 migration

Prescription Federal law mandates, through Life, liberty and Medications, the Controlled Substances Act 12 pursuit of Behind-the and Food Drug and Cosmetics happiness of third Counter and, Act, includes a comprehensive parties; Over-the- scheme regulating banned Commerce; Counter substances, substances with Federalism given Medications medicinal value through over- the-counter medications.13

11 Jeffrey T. Berger, Fred Rosner, Pieter Kark, and Alex J. Bennett, Reporting by Physicians of Impaired Drivers and Potentially Impaired Drivers, J. Gen. Med. 2000 Sep. 15(9) 12 21 U.S.C. 812, et seq. 13 21 U.S.C Chapter 9. 9 DEFENSE COUNSEL JOURNAL | JULY 2017

As used in this article, high- white males who ride Harley capacity weaponry is the Davidson® motorcycles and are instrumentality of harm. According Hogs®17 are not members, and to recent Supreme Court precedent, the women who ride with them are high-capacity weapons are not the not bearers of scarlet letters. Yet, a self-protection devices recognized reactionary fear-driven response to by the United States Supreme Court the 2015 Waco, Texas motorcycle as having Second Amendment gang member shootout between the protection. 14 High-capacity Bandidos and Cossacks 18 could weaponry is the category of invite such a conclusion in an products that are implements for uneducated and uninformed mass and war. This article society. analyzes a niche issue relative to the Similarly, it is grossly unfair to unique private relationship label all persons with mental illness between health care providers, or a mental illness health history as their patients and the the cause of mass terrorism. The instrumentality of harm: high- ACA19 and other legal prohibitions capacity weaponry. This author toward discriminatory practices does not attempt to develop or combined with HIPAA and other promote a definition of “high- privacy protections should open capacity weaponry” because and facilitate transparent com- experts need to do that. munication between gun owners Mental illness does not equate and health care providers, not chill to “crazy.” As used in this article, it. With free and open mental illness refers to the communication, research should be continuum of mental health and permitted, funded and completed to includes the 3% of the population better understand contributors to referred to in the opening quote by the ever-frequently occurring mass psychiatric experts.15 instrumentality of harm and related Misclassification and mis- attacks on innocence and a peaceful categorization of mental illness as discourse. the defining causative cause of There exists an evolving violence when high-capacity recognition by the federal courts weapons or guns are used is unfair that high-capacity weaponry is the and unforgivable. 16 For instance, instrumentality of harm, not the

14 McDonald v. City of Chicago, 561 U.S. 747 18 2015 WACO Shootout, WIKIPEDIA, THE FREE (2010); District of Columbia v. Heller, 554 ENCYCLOPEDIA, https://en.wikipedia.org/ U.S. 570 (2008). wiki/2015_Waco_shootout (last visited 15 Knoll and Annas, supra note 2, at 90. June 2, 2017). 16 Id. 19 42 U.S.C. § 300 gg-17(c). 17 “HOG” is the acronym for “Harley Davidson Owners Group”. 10 DEFENSE COUNSEL JOURNAL | JULY 2017

person. This article advocates for profound. This call for action is high-capacity weaponry to be placed into a contextual framework treated the same as other by a brief chronological summary instrumentalities of harm, where and the reader should be cognizant health care providers serve an of the fact that the type of weaponry essential role in promoting public of harm used is not homogenous. health and safety. High-capacity weaponry should not be afforded April 16, 2007: 32 killed, 17 discriminatory favored-product injured: Blacksburg, Va. status under the ruse of a protected Seung-Hui Cho, a 23-year constitutional right; implements of old student, opened fire on warfare wrongly destroy the fabric campus, taking his own life of community and spirit-filled lives. after a second attack on the In a moment’s time, these high- same day; 22 a 9mm capacity devices deprive individual handgun and Walther .22- persons, their families, caliber pistol were used;23 communities and our nation of the undeniable right afforded to every Dec. 5, 2007: 8 killed, 4 person, the right to life, liberty and injured: Omaha, Nebraska the pursuit of happiness.20 Nineteen-year-old Robert Hawkins opened fire in a I. Instrumentality of Harm: busy shopping mall during High-Capacity Weaponry--A the holiday season, leaving Brief Contextual Overview behind suicide notes; 24 an AK-47 semi-automatic was The rate in the United used;25 States is seven times that of other high-income countries.21 Beginning Feb. 14, 2008: 5 killed, 16 with the 2007 injured: Dekalb, Illinois massacre to the present date, the Suicide-murderer, Steven loss of innocence and life has been Kazmierczak, dressed all in

20 THE DECLARATION OF INDEPENDENCE para 2 2007), http://www.abcnews.go.com/US/ (U.S. 1776). story? id=3048108&page=1 (last visited 21 Erin Grinshteyn and David Hemenway, June 3, 2017). Violet Death Rates: The US Compared With 24 Deadliest U.S. mass shootings, 1984-2016, Other High-Income OECD Countries, 2010, supra note 22. THE AMERICAN JOURNAL OF MEDICINE, March 25 Jeff Zeleny and Maria Newman., Details of 2016, at 266-273. Omaha Shooting Emerge, THE NEW YORK 22 Deadliest U.S. mass shootings, 1984-2016, TIMES (Dec. 6, 2007), www.nytimes.com/ : June 12, 2016. 2007 /12/06/us/06cnd-shoot.html (last 23 Ned Potter, et al., Killer’s Note: x‘You visited June 3, 2017). Caused Me to Do This’, ABC NEWS (April 17, Shots Fired—A Rational Assessment of Mass Shootings 11

black, killed and maimed automatic weapon;31 students in a Northern Illinois University geology Feb. 12, 2010: 3 killed, 3 class;26 a 129-9 mm Glock, 9 wounded: Huntsville, Ala. mm pistol and 0.38 caliber Amy Bishop, a pistol were used;27 neurobiologist and assistant professor shot and killed Apr. 3, 2009: 13 killed, 4 faculty members during a injured: Binghamton, N.Y. meeting; 32 the gun was a Before committing suicide, a Ruger semi-automatic forty-one-year-old shooter weapon;33 killed 13 and injured 4. These events occurred at an August 3, 2010: 8 killed, 2 immigration services injured: Manchester, Conn. A center;28 the guns used were 34-year-old male walked out Berettas;29 of a disciplinary hearing at work and began shooting, Nov. 5, 2009: 13 killed, 32 killing 8 and then himself;34 injured: Ft. Hood, Tex. An the assailant used army psychiatrist opened handguns;35 fire during a rampage at Ft. Hood, having exchanged January 8, 2011: 6 killed, 11 hate-filled emails with injured: Tucson, Ariz. extremists with anti- Congresswoman Gabriel American sentiment; 30 Giffords was among the using an FN Herstel semi- wounded when Jared Lee

26 Deadliest U.S. mass shootings, 1984-2016, 32 Deadliest U.S. mass shootings, 1984-2016, supra note 22. supra note 22. 27 Mike Nizza, Gunman Was Once ‘Revered’ 33 Amy Wallace, What Made This University On Campus, THE NEW YORK TIMES (Feb. 15, Researcher Snap? WIRED (Feb. 28, 2011, 2008), www.nytimes.com/2008/02/15/us 12:00 PM), https://www.wired.com/2011/ /15cnd-shoot.html (last visited June 3, 02/ff_bishop/ (last visited June 3, 2017). 2017). 34 Deadliest U.S. mass shootings, 1984-2016, 28 Deadliest U.S. mass shootings, 1984-2016, supra note 22. supra note 22. 35Emily Friedman, Chilling 911 Tapes from 29 Robert D. McFadden, 13 Shot Dead During Connecticut Shooting Describe Gunman’s a Class on Citizenship THE NEW YORK TIMES Deadly Rampage, ABC NEWS (Aug. 4, 2010), (April 3, 2009), http://www.nytimes. http://abcnews.go.com/US/connecticut- com/2009/04/04/nyregion/04hostage.ht shooter-omar-thornton-chased-victims- ml (last visited June 3, 2017). beer-distributor/story?id=11322281 (last 30 Deadliest U.S. mass shootings, 1984-2016, visited June 3, 2017). supra note 22. 31 McFadden, supra note 29. 12 DEFENSE COUNSEL JOURNAL | JULY 2017

Loughner opened fire at a former student opened fire meet-and-greet social event at a small Christian College. at a supermarket 36 using a Although saying he was Glock 19 9 mm weapon;37 “deeply sorry” for his actions, the murderer killed seven October 12, 2011: 8 killed, innocent people; 40 a 45- 1 injured: Seal Beach, Calif. caliber semiautomatic Enraged by a custody handgun was the weapon of dispute, Scott Dekraai choice;41 entered a hair salon and opened fire. 38 There is a July 20, 2012: 12 killed, 58 dispute as to the weapons injured: Aurora, Colo. At used versus those that were opening night of the highly- available on-site; those anticipated Batman® movie, identified were a 9mm “The Dark Night Rises”, Springfield, a Smith & James Holmes entered a Wesson .44 Magnum, and a packed movie theatre and Heckler & Koch .45 (it was began shooting; 42 the widely reported that only involved weapons included two of these weapons were an AR-15 assault rifle, used, but which two were Remington 12-gauge 870 unidentified in media shotgun and 40-caliber reports);39 Glock handgun;43

April 2, 2012: 7 killed, 3 September 28, 2012: 6 injured: Oakland, Calif. A killed, 2 injured: Minneapolis,

36 Deadliest U.S. mass shootings, 1984-2016, 40 Deadliest U.S. mass shootings, 1984-2016, supra note 22. supra note 22. 37 Susannah Kim, Glock 19: How Did 41 Terry Collins, Cops Find Gun Believed Used Unemployed Jared Loughner Buy Popular, In College Shooting, SAN DIEGO TRIBUNE (April Expensive Pistol?, ABC News, Jan. 11, 2011, 6, 2012, 10:34 AM), http://www.sandiego http://abcnews.go.com/Business/question uniontribune.com/sdut-cops-find-gun- s-remain-jared-loughner-paid-expensive- believed-used-in-ca-college-shooting- firearm/story?id=12585290 (last visited 2012apr06-story.html (last visited June 3, June 3, 2017). 2017). 38 Deadliest U.S. mass shootings, 1984-2016, 42 Deadliest U.S. mass shootings, 1984-2016, supra note 22. supra note 22. 39 Michael Martinez, Prosecutor to Seek 43 Nick Carbone, Colorado Shooter Carried 4 Death Penalty in Salon Shooting, CNN (Oct. Guns, All Obtained Legally, TIME (July 21, 14, 2011, 9:08 PM), http://www.cnn. 2012), http://newsfeed.time.com/2012/ com/2011/10/14/justice/california- 07/21/colorado-theater-shooter-carried- shooting/ (last visited June 3, 2017). 4-guns-all-obtained-legally/ (last visited June 3, 2017). Shots Fired—A Rational Assessment of Mass Shootings 13

Minnesota. A disgruntled gunman, shot his mother at former employee opened the home they shared and fire on his boss and co- then stormed into Sandy workers and then killed Hook Elementary School himself. The company taking the lives of 20 first- specialized in making graders, 6 adults and interior signs that comply himself;48 involved weapons with the Americans with were a Bushmaster AR-15 Disabilities Act. 44 A 9mm rifle, Glock 10mm handgun Glock semiautomatic pistol and Sig Sauer 9mm;49 was used;45 June 7, 2013: 5 killed: Santa October 21, 2012: 3 dead, 4 Monica. A rampage that injured: Brookfield, began at the home of the 23- Wisconsin. A former Marine year-old, unemployed John walked into a salon and spa Zawahri and ended at a in pursuit of his estranged Santa Monica college; 50 two wife, and shot her and others firearms, an AR-15 rifle and before killing himself;46 the a .44 caliber handgun were weapon was a .40-caliber used;51 semiautomatic handgun;47 September 16, 2013: 12 December 14, 2012: 27 killed, 3 injured: Washington, killed, one injured: Newtown D.C. Aaron Alexis, a Navy Connecticut. Adam Lanza, a Contractor and former twenty-year old mentally ill enlisted member of the Navy

44 Deadliest U.S. mass shootings, 1984-2016, 48 Deadliest U.S. mass shootings, 1984-2016, supra note 22. supra note 22. 45 Doug Stanglin, 6 Dead, Including Gunman 49 Steve Almasy, Newtown shooter’s guns: in Minn. Workplace Shooting, USA TODAY What we know, CNN, Dec. 19, 2012, (Sept. 28, 2012), http://content.usatoday. http://www.cnn.com/2012/12/18/us/con com/communities/ondeadline/post/2012 necticut-lanza-guns/ (last visited June 3, /09/28/minneapolis-gunman-shooting- 2017). workplace-five-dead/70001320/1#. 50 Deadliest U.S. mass shootings, 1984-2016, WOlWKvnysnQ (last visited June 3, 2017). supra note 22. 46 Deadliest U.S. mass shootings, 1984-2016, 51 Andrew Blankstein and Matt Stevens, supra note 22. Santa Monica shooter’s rifle appears to have 47 Dinesh Ramde, Suspect in Wis. salon been pieced together, LOS ANGELES TIMES attack had history of abuse, THE SAN DIEGO (June 12, 2013), http://articles.latimes. UNION-TRIBUNE (Oct. 22, 2012, 5:10 AM), com/2013/jun/12/local/la-me-santa- http://www.sandiegouniontribune.com/sd monica-gun-20130613 (last visited June 3, ut-suspect-in-wis-salon-attack-had- 2017). history-of-abuse-2012oct22-story.html (last visited June 3, 2017). 14 DEFENSE COUNSEL JOURNAL | JULY 2017

shot and killed helpless declaring “Humanity is a unarmed victims. Alexis had disgusting, wretched and a history of unauthorized depraved species;” 56 the military duty absences, weapons involved were Sig insubordination, disorderly Sauer p226 mode handguns conduct and failed and Glock 34;57 inspections; 52 a Remington 870 shotgun was the June 18, 2015: 9 Dead in a weapon;53 Historic Church in Charleston, South Carolina. A April 2, 2014: 3 killed, 16 white supremacist, Dylann injured: Ft. Hood, Texas. A Roof, sat in on a Wednesday gunman victimized the evening prayer service and innocent at this military fired on the innocent facility in a repeat of the welcoming congregation in a 2009 assault;54 the assailant heartless manner; 58 the used a .45-caliber Smith & victims died due to close Wesson handgun;55 range fire from a .45-caliber Glock handgun;59 May 23, 2014: 6 dead, 7 wounded, Isla Vista, July 16, 2015: 5 dead, 3 California. After a year’s wounded, Chattanooga, preparation, Elliott Rodger Tenn. A gunman opened fire went on a shooting rampage killing 4 Marines, 1 Navy after posting a video sailor and himself at two

52 Deadliest U.S. mass shootings, 1984-2016, 57 Rosanna Xia, Kate Mather, and Matt supra note 22. Stevens, Guns used in Isla Vista rampage 53 Pete Hermann and Ann E. Marimow, Navy were legally purchased, registered, LOS Yard shooter Aaron Alexis Driven By ANGELES TIMES (May 24, 2014, 7:21 PM), Delusions, (Sept. 25, http://www.latimes.com/local/lanow/la- 2013), https://www.washingtonpost.com/ me-ln-sla-me-ln-guns-recovered-at- local/crime/fbi-police-detail-shooting- shooting-20140524-story.html (last visited navy-yard-shooting/2013/09/25/ee321 June 3, 2017). abe-2600-11e3-b3e9- d97fb087acd6_story. 58 Deadliest U.S. mass shootings, 1984-2016, html?utm_term=.37d965c5c766 (last supra note 22. visited June 3, 2017). 59 Pete Williams and Mark Potter, 54 Deadliest U.S. mass shootings, 1984-2016, Charleston church massacre: Dylann Roof’s supra note 22. gun bought at local store, MSNBC (June 23, 55 Dana Ford, 4 Dead, Including Shooter, At 2015, 1:56 PM), http://www.msnbc.com/ Fort Hood, CNN (April 3, 2014, 2:23 PM), charleston-church-massacre-dylann- http://www.cnn.com/2014/04/02/us/for roofs-gun-bought-local-store (last visited t-hood-shooting/ (last visited June 3, 2017). June 3, 2017). 56 Deadliest U.S. mass shootings, 1984-2016, supra note 22. Shots Fired—A Rational Assessment of Mass Shootings 15

military centers situate more supremacist leanings and a than seven miles apart; 60 long history of mental illness, multiple weapons were used killed himself, 8 fellow including an AK-47 assault- students and a teacher;64 the type rifle, 12-gauge shotgun, weapons included a 9mm and 9mm pistol;61 Glock pistol, .40-caliber Smith & Wesson, .40-caliber August. 5, 2012: 6 killed, 3 Taurus pistol, .556-caliber injured: Oak Creek, Del-Ton, and two additional Wisconsin. Six people were firearms;65 fatally wounded when Wade Michael Page, a member of a November 29, 2015: 3 dead, white supremacist band with 9 injured: Colorado Springs, a history of having been Colorado. An elderly man demoted and entered a Planned administratively discharged Parenthood Clinic and began from the Army slaughtered shooting while uttering members at a Sikh Temple;62 Christian faith a 9mm semiautomatic affirmations; 66 the assailant handgun was used;63 used an AR-15 rifle, 9mm pistol and .357 revolver;67 October 1, 2015: 9 dead, 9 injured: Roseburg, Oregon. A December 2, 2015: 14 dead, college student, reputed to 22 wounded: San be a “hate-filled” person with Bernardino, California. Two anti-religion, white assailants, found to have

60 Deadliest U.S. mass shootings, 1984-2016, 64 Deadliest U.S. mass shootings, 1984-2016, supra note 22. supra note 22. 61 Erin McClam and Pete Williams, 65 Cole Miller and Chris Woodard, Sheriff: Chattanooga Shooting: Attacker Had Three Umpqua shooter had 13 weapons, KOIN6 Guns, Authorities Say, NBC NEWS (July 17, (Oct. 1, 2015, 4:05 PM), http://koin. 2015), http://www.nbcnews.com/story com/2015/10/01/the-gunman-what-we- line/chattanooga-shooting/chattanooga- know-so-far/ (last visited June 3, 2017). shooting-attacker-had-least-three-guns- 66 Deadliest U.S. mass shootings, 1984-2016, authorities-say-n394046 (last visited June supra note 22. 3, 2017). 67 Stephen Hobbs, Update: What gunman 62 Deadliest U.S. mass shootings, 1984-2016, was armed with in Colorado Springs supra note 22. shooting spree, THE GAZETTE (Nov. 4, 2015, 63 Sihk temple shooting weapon obtained 6:36 PM), http://www.gazette.com/ legally, CBS NEWS (Aug. 6, 2012, 4:21 PM), update-what-gunman-was-armed-with-in- http://www.cbsnews.com/news/sikh- colorado-springs-shooting-spree/ temple-shooting-weapon-obtained-legally/ article/1562591 (last visited June 3, 2017). (last visited June 3, 2017). 16 DEFENSE COUNSEL JOURNAL | JULY 2017

stockpiled an arsenal of British Parliament by a 52-year old ammunition and pipe bombs man nicknamed “the Vampire”, 75 in their home, killed at each and all involved an random;68 and instrumentality of harm: a truck or car (for which licensure to drive is June 12, 2016: 50 killed, 53 required); an airplane (for which injured in Orlando nightclub licensure and specific advanced shooting as a gunman training is required for operation); stormed into a packed gay high-capacity weaponry; and a nightclub in the early military grade, machete-style knife. morning hours;69 a Sig Sauer Unfortunately, the stigma of MCX was used.70 discriminatory stereotyping of the mentally ill is prevalent, as the Other equally reprehensible media and ordinary persons happenings in other countries naturally seek an understanding including the Paris Bataclan that answers the fear that “it could nightclub shooting, 71 the Bastille be me?” Yet, all normal, rational and Day Tragedy, 72 the Suicide Plane stable citizens have engaged in Crash of a Germanwings Flight into inappropriate, rash, impulsive and the French Alps, 73 the Brussels poorly-thought out actions that Airport Massacre of 2016,74 and the have gone unnoticed. In contrast, March 22, 2017, attack on the the APA and its experts/members

68 Deadliest U.S. mass shootings, 1984-2016, 72 Bastille Day Tragedy: Attack on Nice: Who supra note 22. was Mohamed Lahouaiej-Bouhlel? BBC NEWS 69 Id. (Aug. 19, 2016), http://www.bbc.com/ 70 Thomas Gibbons-Neff, The gun the news/world--36801763 (last visited Orlando shooter used was a Sig Sauer MCX, June 3, 2017). not an AR-15. That doesn’t change much, THE 73 Nicola Clark and Dan Bilefsky, WASHINGTON POST (June 14, 2016), Germanwings Crash in French Alps Kills 150: https://www.washingtonpost.com/news/c Cockpit Voice Recorder is Found, THE NEW heckpoint/wp/2016/06/14/the-gun-the- YORK TIMES (March 24, 2015), orlando-shooter-used-was-not-an-ar-15- https://www.nytimes.com/2015/03/25/ that-doesnt-change- world/europe/germanwings-crash.html much/?utm_term=.3730c286347d (last (last visited June 3, 2017). visited June 3, 2017). 74 Brussels explosion: What we know about 71 Emily Kent Smith, Hannah Roberts, Flora airport and metro attacks BBC NEWS (April 9, Drury, and Fidelma Cook, Is this the ISIS 2016), http://www.bbc.com/news/world- killer stalking the Bataclan venue before his europe-35869985 (last visited June 3, murderous rampage begins? THE DAILY MAIL, 2107). U.K. (November 13, 2015, 8:54 PM), 75 London attack – latest updates. BBC NEWS http://www.dailymail.co.uk/news/article- (March 23, 2017), http://www.bbc.com/ 3317960/They-cutting-one-one- news/live/uk-39355505 (last visited June 3, Terrifying-Facebook-posts-man-trapped- 2017). INSIDE-theatre-Paris-terrorists-taken-100- .html (last visited June 3, 2017). Shots Fired—A Rational Assessment of Mass Shootings 17

warn that it is highly unlikely for a the various competing social person with schizophrenia, interests: multiple personalities and similar major psychiatric illnesses to The history of American possess and/or use weapons of firearms legislation is one mass destruction.76 The issue and of tragedy and discussion should not be driven by [reactionary] response. fear and insecurity, blaming The Act of persons with mental illness as being 1968 . . . was prompted by the “cause” of mass catastrophe. political violence. The The justice system is the place for Brady Handgun Violence criminals to be tried, not in the Prevention Act of 1993, media or by barriers to access to requiring background healthcare. It is society’s obligation checks on prospective to protect those with mental illness buyers via the National and mental sensitivities. The issue Instant Criminal and discussion should concentrate Background Check System upon the real instrumentalities of (“NICS”), arose from and harm. memorialized an attempted presidential II. A Brief Overview of the . The NICS Second Amendment, U.S. Gun Improvement Act of 2007, Control Measures And HIPAA designed to strengthen the background check system, The Second Amendment to the followed the mass United States Constitution states: shooting at Virginia Tech “[a] well-regulated Militia, being University.78 necessary to the security of a Free State, the right of the people to keep With the exception of the ACA, and bear Arms, shall not be Congressional acts have generally infringed.” 77 Reactionary legis- been reactive and not prospective. lative intervention has been Examples include the Gun Control palpably ineffective in addressing Act or Safe Streets Law of 1968,79 this constitutional guarantee and the Firearms’ Owners Protection

76 Id.; see also supra notes 4-5. 79 42 U.S.C. § 3711 (1968) (Congress passed 77 U.S. CONST. Amend. II. this legislation and it was signed into law by 78 Charles G. Kels, Jennifer A. Bernstein, and President Lyndon Johnson. The long title of Y. Tony Yang, Criminal Background Checks – the statute is “An Act to assist State and local Combating Violence Without Inhibiting Care, governments in reducing the incidence of JAMA PSYCHIATRY (August 2016), crime, to increase the effectiveness, fairness doi:10.1001/jamapsychiatry.2016.1485 and coordination of law enforcement and (last visited June 3, 2017). criminal justice systems at all levels of 18 DEFENSE COUNSEL JOURNAL | JULY 2017

Act of 1986,80 the Brady Handgun privacy interest or a political Violence Prevention Act of 1993,81 agenda incepted this provision? the Protection of Lawful Commerce in Arms Act of 2005, 82 The NICS Improvement Amendments Act of A. HIPAA, NICS, the ACA and 2007 (“NICS”). 83 Compare the Florida’s “Docs versus foregoing with the ACA’s Gun Rights ” Law provisions and ask whether a

government and for other purposes.” The 82 Referred to as PLCAA, the Protection of statute addressed interstate sale of Lawful Commerce in Arms Act, provides handguns and other issues such as Miranda civil liability protection for manufacturers, warnings.). distributors, dealers or importers of 80 18 U.S.C. § 921 et seq. (1986) (The firearms or ammunition for civil damages, Firearms’ Owners Protection Act (“FOPA”) injunctive or other relief resulting from was enacted to address abuses by law misuse of products by others. 15 U.S.C. §§ enforcement that had been charged as 7901-7903 (2005). evolving under the Gun Control Act of 1968. 83 P.L. 110-180 amended the Brady Bill with This Act included reforms that loosened respect to the National Instant Criminal restrictions on gun sales across interstate Background Check System (NICS) and the commerce, allowing ammunition to be reporting of mental health orders, rulings shipped through the U.S. Postal service and and other information relating to Federal changing provisions concerning non-armor Firearm Licensure. If a person comes piercing ammunition, among other things.). within a specific category, the FBI issues a 81 Following the assassination attempt upon notice that the Federal Firearms Licensee President Ronald Reagan during which John (FLL) is denied. See https://www.bjs. Hinkley Jr. shot James Brady, Public Law gov/index.cfm?ty=tp&tid=49 (last visited 103-159 was enacted and titled, The Brady June 3, 2017). The Improvements Handgun Violence Prevention Act. 18 U.S.C. Amendments were passed after the Virginia §§ 921-922. This bill requires background Polytechnic Institute and State University checks to be performed on persons before a (Virginia Tech) by Seung Hui firearm may be bought lawfully from a Cho who had been adjudicated previously federally licensed dealer, manufacturer or by a Virginia Court as suffering from a importer, subject to certain specific mental health issue which created a risk of exceptions. The prohibitions apply to a danger to himself. By that adjudication, it person convicted in a Court of a crime; a was unlawful for Cho to lawfully purchase a fugitive; someone who is an unlawful user gun pursuant to the Gun Control Act of 1968. of or addicted to any controlled substance; On February 28, 2017, Congress nullified a person that has been committed to a the rule finalized by the Social Security mental institution; a person unlawfully in Administration that sought to disclose to the United States or who is an illegal alien; a NICS identifying information concerning person dishonorably discharged from the person9s) determined to be mentally United States Armed Forces; a person who incapable of managing firearms). See renounces his/her United States citizenship; https://www.congress.gov/bill/115th- a person subject to a domestic violence congress/house-joint-resolution/40 (last restraining order or petition; a person visited June 3, 2017). convicted of certain domestic violence crimes. 18 U.S.C. § 922(g) (2015). Shots Fired—A Rational Assessment of Mass Shootings 19

The HIPAA privacy rule is a There are also situationally- reflection of the valued public driven duties to third parties. Some policy protection from publication states have laws that impose tort of confidences outside of the liability upon a health care provider physician:patient privileged for foreseeable accidents caused by relationship. It restricts access to the conduct of a patient. 84 private health information (“PHI”) Communication to third party law with noted limited public-policy enforcement or regulators may also based exceptions. Intended to come within this obligation. promote free exchange of Specific to the mental health information between healthcare domain, Tarasoff v. Board of Regents provider and patient, HIPAA of the University of California85 and embraces the fundamental value its progeny require disclosure and referenced at the beginning of this warnings to third parties even if it article: unfettered disclosure and causes the provider to disclose frank communication between patient confidences. 86 There are those in that special relationship. state and federal laws mandating Health care providers have a health care provider publication of duty to warn a patient when his or confidential information when the her illness constitutes harm to the risk of harm to the patient or third person, mentally and/or physically. parties is a real or substantial risk. Health care providers have a duty to In Tarasoff, the Court work to act in their patient’s best recognized that clinicians have the interests, even if the patient duty to warn foreseeable victims disagrees and objects. Tension of about credible dangers imposed by this nature may arise more seriously mentally ill persons as frequently in a mental health well as, possibly, a duty beyond relationship. This distress in the warning, to protect those third relationship may have therapeutic parties. 87 Tarasoff third party value or it may not. Regardless, warning and action obligations these duties are situationally- have had a significant and enduring driven. impact on day-to-day mental health practice.88

84 See, e.g., Marshall B. Kapp, The Physician’s Tarasoff Duties After Newtown, 42 J.L. MED & Responsibility Concerning Firearms and ETHICS 104 (2014). Older Patients, 25 KAN. J. L. & PUB. POL’Y 159 85 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. (2015); Rebeccah Therkelson Raines, Rptr. 14 (Cal. 1976). Evaluating the Inebriated: An Analysis of the 86 See Chart A, infra. HIPAA Privacy Rule and Its Implications for 87 Tarasoff, 17 Cal.3d at 425. Intoxicated Patients in the Hospital 88 Ryan Chaloner Winton Hall and Susan Emergency Department, 40 UNIV. DAYTON L. Hatters Friedman, Guns, Schools, and Mental REV. 479 (2016); Mark A. Rothstein, Illness: Potential Concerns for Physicians and 20 DEFENSE COUNSEL JOURNAL | JULY 2017

The 2016 amendment to the reason of insanity was rendered; or Privacy Rule and NICS mandating (4) persons “otherwise determined certain disclosures for federal data by a Court, board, commission or collection (but not scientific other lawful authority to be a research analysis) purposes differs danger to themselves or others or from compelled common law or unable to manage their own affairs, statutory public health threat as a result of marked subnormal disclosures that I have just intelligence, or mental illness, discussed.89 On February 5, 2016, incompetency, condition or the Department of Health and disease” 93 . This Privacy Rule Human Services (“DHHS”) amended modification mandates disclosure HIPAA 90 and NICS 91 to authorize to NICS identifying demographic (and mandate) certain limited information, although DSM and covered entity and health care diagnostic information is not to be provider disclosures. These published.94 disclosures include information Some of this disclosed NICS deemed necessary to populate information would otherwise be the national gun access data base.92 available in the public domain or Understanding that the national clearinghouses. Regardless, there gun access data lacked integrity, the exists a legitimate concern that the NICS/HIPAA change imposes a information could be used for mandatory reporting obligation individual profiling of those upon providers (covered entities). persons who come within the less It obligates them to identify and than 3 percent of gun violence disclose categories of persons: (1) offenders where such “[l]aws those who have been involuntarily intended to reduce gun violence that committed to a mental institution focus on a population representing for reasons such as mental illness or less than 3% of all gun violence will drug use; (2) those who have been be extremely low yield, ineffective, found to be incompetent to stand and wasteful of scarce resources.”95 trial; (3) those who have gone to On a risk/benefit analysis, this trial and a verdict of not guilty by means of limited data-sharing has

Mental Health Professionals, 88 MAYO CLINIC 92 45 C.F.R § 164 (2016) Health Insurance PROC. 1272, 1273-1274 (2013). Portability and Accountability Act (HIPAA) 89 See Knoll and Annas, supra note 2. Privacy Rule and National Instant Criminal 90 See Pub. L. 104-191, 110 (1996). Background Check System (NICS), 91 See Brady Law (P.L. 103-159, Title I; 107 Department of Health and Human Services, Stat. 1536); 1968 Gun Control Act as Office of Secretary amended by the Brady Law, 18 U.S.C. 93 Id. Chapter 44, 18 U.S.C. § 922(g)(1)-(9) and (n) 94 45 C.F.R § 164.318 (2016). and Lautenberg Amendment, 18 U.S.C. §922 95 Knoll and Annas, supra note 2, 90. (g)(9). Shots Fired—A Rational Assessment of Mass Shootings 21

been considered to be a minimally health care provider/patient intrusive step to accomplish and relationship. FOPA deemed certain address the gun violence crisis. communications between health Time may tell whether or not this care providers and patients about targeted results/outcome defined guns and weapons to be completely disclosure meets its goal. The impermissible. Referred to as “Docs amendment likely will have versus Glocks” law, it obligated ultimately no impact because it health care providers to omit misses the target: access to patient firearm ownership/access weapons of war in high- data from medical record energy/high-stress situations and documentation and to refrain from the consequences from that “harassing” patients about firearm cocktail.96 ownership. 98 Harassment being in In contrast, the 2011 Florida the eye of the beholder, it is readily Firearms’ Owners Protection Act apparent how this law undermined (“FOPA”) adopted a dramatically basic privacy principles, free speech, different change to the health care competing legal obligations such as provider/patient relationship by those imposed by Tarasoff and establishing a barrier between mandatory child and adult certain communications con- protective agency disclosures and cerning guns, gun access, gun use other basic duties of care. and use intent. 97 FOPA conflicts Following an intense legal with, frustrates and undermines the challenge in the United States HIPAA privacy rule, the NICS District Court that had first granted reporting amendment, Tarasoff and a preliminary injunction in 2017,99 other fundamental aspects of the the Court of Appeals for the

96 Id. the home, but not whether the patient owns 97 FLA. STAT. § 790.338 (2011). a firearm.”) (“This law chills practitioners' 98 FLA. STAT. § 790.338 (2011). speech in a way that impairs the provision 99 Wollschlaeger v. Farmer, 880 F.Supp.2d of medical care and may ultimately harm 1251, 1261, 1267 (S.D. Fla. 2012) (“The the patient. Cf. Velazquez, 531 U.S. at 546, Firearm Owners' Privacy Act imposes 121 S.Ct. 1043. A physician may ask in an content-based restrictions on practitioners' initial questionnaire about lifestyle choices speech. It purports to regulate or high-risk activities even though the practitioners' inquiries, record-keeping, physician does not, at that time, have a good discrimination, and harassment with faith belief that the information is relevant respect to one subject matter only—firearm to that patient's medical care. The purpose ownership and possession. Under this law, of the inquiry is so that the practitioner can for example, physicians may ask a new determine what subject matters require patient complaining of a stomachache to fill further follow-up in the practice of out an initial intake questionnaire that preventive medicine. The restrictions at includes questions regarding household issue here are especially problematic chemicals, risky recreational activities, because, as Plaintiffs note, there may be sexual conduct, or drugs and alcohol kept in cases where, unless the practitioner makes 22 DEFENSE COUNSEL JOURNAL | JULY 2017

Eleventh Circuit made its final Pei, or general contractors decision very recently concerning that they cannot suggest FOPA and the constitutional issues the use of cheaper foreign it raised. In Wollschlaeger v. steel in construction Governor, 100 the Eleventh Circuit projects, or accountants concluded that FOPA’s anti- that they cannot discuss harassment, anti-documentation legal tax avoidance and anti-discussion provisions techniques, and so on and were unconstitutional, content- so on.102 based speech restrictions and hence, unlawful.101 Recognizing the The APA’s gun access intrusive and chilling nature such restrictions/prohibitions may restrictions would have upon ultimately have a similar chilling medical decision-making, the Court impact as it may interfere with basic stated: information exchange and documentation. It does interfere, We do not think it is like FOPA, with data and appropriate to subject information collection for analysis, content-based restrictions study and empiric research. on speech by those Without data, there is no knowledge; engaged in a certain there is only speculation and a fear- profession to mere driven, reactionary, impotent and rational basis review. If often, irrational response. rationality were the standard, the government B. High-Capacity Weaponry: could — based on its Instrumentalities of disagreement with the Harm Warranting Public message being conveyed Policy Intervention — easily tell architects that they cannot propose The United States’ Supreme buildings in the style of I.M. Court’s decisions in McDonald v.

an initial inquiry about firearms (albeit with potential for the exercise of [governmental no good faith basis, at the time of the censorial power] casts a chill, a chill the questioning, that it is relevant), the patient First Amendment cannot permit if free may not know to raise the issue herself and speech, thought, and discourse are to may not receive appropriate, possibly life- remain a foundation of our freedom.” saving, information about firearm safety. Alvarez, 132 S.Ct. at 2548 (Kennedy, J., These considerations persuade me that the opinion)”). balance of interests tip significantly in favor 100 848 F.3d 1293, 1300-1302 (11th Cir. of safeguarding practitioners' ability to 2017). speak freely to their patients. As the 101 Id. Supreme Court recently stated: “The mere 102 Id. at 1311. Shots Fired—A Rational Assessment of Mass Shootings 23

City of Chicago 103 and Heller 104 ‘the most preferred assist both originalists and non- firearm in the nation to originalist pragmatists to advocate ‘keep’ and use for for a least restrictive, non- protection of one’s home discriminatory framework for the and family’ . . . this right is public health and safety “deeply rooted in this intervention advocated for in this Nation’s history and note. tradition.’ . . . it is clear McDonald v. City of Chicago105 is that the Framers and the decision in which the United ratifiers of the Fourteenth States Supreme Court addressed an Amendment counted the Illinois state-law concerning right to keep and bear handguns. Its analysis, in contrast arms [and specifically with the previous Heller decision, handguns] among those concentrated upon whether the fundamental rights Federal Constitution applies to necessary to our system of states in the gun/Second ordered liberty.107 Amendment debate. In confirming that Heller’s handgun rights Heller clearly distinguished protection applies to individual handguns from high-capacity states, 106 Justice Samuel Alito, weaponry as weaponry and writing for the plurality majority, associated handguns as those stated: inherently unsafe products that are Constitutionally-protected armory Self-defense is a basic right, for the protection of the home, the recognized by many legal family and self-defense.108 Writing systems from ancient for the majority, originalist Justice times to the present day . . . Antonin Scalia announced: individual self-defense is ‘the central component’ of There seems to us no the Second Amendment doubt, on the basis of both right . . . Explaining that text and history, that the ‘the need for defense of self, Second Amendment family, and property is conferred an individual most acute’ in the home . . . right to keep and bear this right applies to arms. Of course, the right handguns because they are was not unlimited, just as

103 561 U.S. 747, 130 S.Ct. 3020 (2010). 106 Id. at 749. 104 554 U.S. at 595, 626-628 (emphasis 107 Id. at 767-768, 778 (internal citations added). and quotations omitted). 105 561 U.S. 747. 108 554 U.S. at 628. 24 DEFENSE COUNSEL JOURNAL | JULY 2017

the First Amendment's longstanding right of free speech was prohibitions on the not. Thus, we do not read possession of firearms by the Second Amendment to felons and the mentally ill, protect the right of citizens or laws forbidding the to carry arms for any sort carrying of firearms in of confrontation, just as we sensitive places such as do not read the First schools and government Amendment to protect the buildings, or laws right of citizens to speak imposing conditions and for any purpose . . . qualifications on the commercial sale of arms. From Blackstone through the 19th-century cases, We also recognize another commentators and courts important limitation on routinely explained that the right to keep and carry the right was not a right arms. Miller said, as we to keep and carry any have explained, that the weapon whatsoever in sorts of weapons any manner whatsoever protected were those ‘in and for whatever purpose. common use at the time.’ For example, the majority We think that limitation is of the 19th-century courts fairly supported by the to consider the question historical tradition of held that prohibitions on prohibiting the carrying of carrying concealed ‘dangerous and unusual weapons were lawful weapons.109 under the Second Amendment or state Since Heller and McDonald, two analogues. Although we do (2) state-based military-grade not undertake an weaponry statutory bans have been exhaustive historical enacted, signed into law and analysis today of the full survived constitutional scrutiny. scope of the Second Those decisions are discussed next: Amendment, nothing in Friedman v. City of Highland Park110 our opinion should be (2016), certiorari denied, and the taken to cast doubt on 2017 case of Kolbe v. Hogan.111

109 Id. at 570, 595, 626-628 (emphasis nom. Friedman v. City of Highland Park, 136 added, internal citations omitted). S.Ct. 447, 193 L.Ed.2d 483 (2015). 110 Friedman v. City of Highland Park, 784 111 849 F.3d 114 (4th Cir. 2017). F.3d 406 (7th. Cir. 2015), cert. denied sub Shots Fired—A Rational Assessment of Mass Shootings 25

C. Friedman v. City of and how it works . . . [W]e think it Highland Park112 better to ask whether a regulation bans weapons that were common at The City of Highland Park, the time of ratification [of the Illinois adopted ordinance Sec. Constitution] or those that have 136.005 which prohibits ‘some reasonable relationship to possession of assault weapons or the preservation or efficiency of a large-capacity magazines within its well-regulated militia’ . . . and city limits.113 The law includes a ban whether law-abiding citizens retain applicable to certain semi- adequate means of self-defense.”117 automatic guns that accept a large- Thus, with an originalist’s eye, the capacity magazine with one of five Court upheld the law, other features or components: a acknowledging: pistol grip without a stock; a folding, telescoping, or thumbhole stock; a [t]rue enough, assault grip for the non-trigger hand; a weapons can be beneficial barrel shroud; or a muzzle brake or for self-defense because compensator.114 The law prohibits they are lighter than many certain automatic weapons by rifles and less dangerous name (AR-15s and AK-47s).115 per shot than large-caliber The legal constitutionality pistols or revolvers. challenge was on Second and Householders too Fourteenth Amendment grounds. frightened or infirm to aim In finding that the law survives carefully may be able to constitutional scrutiny, the Seventh wield them more Circuit concluded, in reliance upon effectively than the pistols Heller, that an individual’s Second James Bond preferred. But Amendment rights are not violated assault weapons with by laws regulating military-grade large-capacity magazines weaponry and implements of mass can fire more shots, faster, destruction, 116 even if a person and thus can be more purportedly desires to possess the dangerous in aggregate. product for self-defense. The Court Why else are they the defined the issue as not what “‘level’ weapons of choice in mass of [due process] scrutiny applies, shootings? A ban on

112 784 F.3d 406. 116 Id. at 409-410 (citing and quoting Heller, 113 Id. 554 U.S. at 626-627, n. 26, 128 S.Ct. 2783; 114 Id. McDonald, 561 U.S. at 786). 115 Id. 117 Id. at 410 (citing Heller, at 622-625, 128 S.Ct 2783; Miller 307 U.S. 178-179, 59 S.Ct. 816). 26 DEFENSE COUNSEL JOURNAL | JULY 2017

assault weapons and large- the end a question for capacity magazines might the[se] Justices.119 not prevent shootings in Highland Park (where they D. Kolbe v. Hogan120 are already rare), but it may reduce the carnage if a In February 2017, the Fourth mass shooting occurs.118 Circuit Court of Appeals upheld a statewide Maryland legislative ban To honor states’ rights, the panel on military-grade weaponry. The went further and said: plaintiffs, as in Friedman, sought to own banned military-grade The Constitution weaponry for purposes of self- establish[ing] a federal defense. The Maryland statute, republic where local known as the “Firearms Safety Act” differences are cherished (“FSA”), prohibits a person from as elements of liberty, “transport[ing]121 an assault weapon rather than eliminated in a into the State” or “possess[ing], search for national sell[ing], offer[ing] to sell, transfer, uniformity. McDonald purchase, or receive an assault circumscribes the scope of weapon.”122 It also provides that “[a] permissible person may not manufacture, sell, experimentation by state offer for sale, purchase, receive, or and local governments, but transfer a detachable magazine that it does not foreclose all has a capacity of more than 10 possibility of rounds of ammunition for a experimentation. Within firearm.”123 Similar to the Highland the limits established by Park statute, certain named- the Justices in Heller and products are restricted by name, McDonald, federalism and examples being the “Colt AR-15”, diversity still have a claim. “Bushmaster semi-auto rifle” and Whether those limits “AK-47”.124 should be extended is in Framing its analysis by Heller, 125 the traditionally con-

118 Id. at 411. long guns and copycat weapons. Id. at § 4- 119 Id. 301(d); see also MD. CODE ANN., CRIM. LAW § 4- 120 849 F.3d 114 (4th Cir. 2017). 301(e)(1)(2). 121 Discussion of Commerce Clause and/or 123 MD. CODE ANN., CRIM. LAW § 4-303(b). other potential Constitutional Challenges to 124 MD. CODE ANN., CRIM. LAW § 4-301(b); MD. the FSA or any state law discussed is beyond CODE ANN., PUB. SAFETY § 5-101(r)(2). the scope of this article. 125 Heller, 554 U.S. at 577. 122 MD. CODE ANN., CRIM. LAW § 4-303(a) (2013); Banned weapons include assault Shots Fired—A Rational Assessment of Mass Shootings 27

servative Fourth Circuit noted that was applied, then as now, the Second Amendment has both a to weapons that were not prefatory clause (“A well-regulated specifically designed for Militia, being necessary to the military use and were not security of a free State . . .”) and an employed in a military operative clause (“. . . the right of the capacity. 128 people to keep and bear Arms, shall not be infringed.”).126 Appreciating As with Heller, the court that individual rights to possess recognized that military-grade handguns are to be zealously weaponry (high-capacity weaponry) protected, these rights are not has one purpose: and without limitation, with examples mass casualties in war, a fact including bans on firearm inherent in the design of these possession by felons and the products. 129 The Kolbe Court mentally ill, and forbidding guns in concluded that the defense of sensitive places like schools and “hearth and home” is not government buildings.127 The court boundariless and does not translate stated: to a “right to keep and carry any weapon whatsoever in any manner The 18th-century meaning whatsoever and for whatever is no different from the purpose”. 130 Acknowledging that meaning today. The 1773 the Heller’s Scalia majority stated edition of Samuel affirmatively, “the Second Johnson’s dictionary Amendment does not protect those defined “arms” as weapons not typically possessed by “[w]eapons of offence, or law-abiding citizens for lawful armor of defense.” purposes,” including “short-barreled Timothy Cunningham’s shotguns” and “machine guns,” those important 1771 legal being protected are those “in dictionary defined “arms” common use at that time” with such as “anything that a man limitation being “fairly supported by wears for his defense, or the historical tradition of prohibiting takes into his hands, or the carrying of dangerous and useth in wrath to cast at or unusual weapons.” 131 To contend strike another.” The term that today’s military-grade

126 Kolbe, 849 F.3d at 130 (quoting U.S. 129 Kolbe, 849 F.3d at 127; see also Heller, CONST. Amend. II); see also Heller, 554 U.S. 554 U.S. at 628. 570. 130 Kolbe, 849 F.3d at 131 (quoting Heller, 127 Heller, 554 U.S. at 595, 626-28. 554 U.S. at 626). 128 Heller, 554 U.S. at 582 (emphasis added; 131 Id. (quoting Heller, 554 U.S. at 624-625, internal citations omitted). 627 (internal quotation marks omitted) 28 DEFENSE COUNSEL JOURNAL | JULY 2017

weaponry is or was embodied at the • “Are the banned assault time of the ratification of the Second weapons and large- Amendment distorts reality as those capacity magazines ‘like’ weapons did not exist prior to World ‘M-16 rifles,’ i.e., ‘weapons War I. 132 Any debate to this that are most useful in conclusion may be easily put to rest, military service,’ and thus particularly in today’s high-spirited outside the ambit of the economic and jobs debate with Second Amendment?” mechanization having displaced Answer: Yes.135 workers with the Industrial Revolution that began about a • Does Heller create a “bright century ago. line” between automatic Kolbe further analyzed the level of and semiautomatic due process scrutiny applicable if firearms? Answer: No. The the alternative conclusion were issue is not automatic reached that FSA infringes upon versus semiautomatic Second Amendment’s guarantees. firearms; the issue is those FSA, under a Fourteenth whether the regulated Amendment challenge then, was items constitute “weapons determined to be subject to that are most useful in intermediate scrutiny because the military service.”136 law “is reasonably adapted to a substantial governmental • In the alternative, if a ban interest”133 and “the least intrusive upon assault weapons and means of achieving the relevant large-capacity magazines government objective” even if it is entitled to Second would not be a perfect solution or Amendment protection, fit. 134 The Court’s questions and intermediate scrutiny answers were direct and to the point: applies and as such, because its prohibitions are reasonably adapted to

(citing, inter alia, 4 Blackstone 148-49 objective.” (internal quotation marks (1769)). omitted). 132 Id. at 124. 134 Kolbe, 849 F.3d at 133 (quoting 133 Id. at 133 (quoting United States v. Masciandaro, 638 F.3d at 474); see also Masciandaro, 638 F.3d 458, 471 (4th Cir. Woollard v. Gallagher, 712 F.3d 865, 878 2011)); see also United States v. Chester, (4th Cir. 2013) (quoting United States v. 628 F.3d 673, 683 (4th Cir. 2010) (“[T]he Carter, 669 F.3d 411, 417 (4th Cir. 2012). government must demonstrate under the 135 Kolbe, 849 F.3d. at 122 (citing Heller, 554 intermediate scrutiny standard that there is U.S. at 627, 128 S.Ct. 2783). a reasonable fit between the challenged 136 Id. at 136 (citing Heller, 554 U.S. 570, 128 regulation and a substantial governmental S.Ct. 2783). Shots Fired—A Rational Assessment of Mass Shootings 29

a substantial stop those weapons governmental interest in from being used promoting public safety, again and again to the ban is not perpetrate mass unconstitutional, 137 the slaughters. We Court stated: simply cannot agree.138 We are confident that our approach III. An Opportunity for Inter- here is entirely vention: HIPAA and Non- faithful to the Heller Discriminatory Patient Care decision and and High-Capacity Weaponry appropriately Versus Other Constitutionally protective of the core Protected Firearms Classi- Second Amendment fication and Regulation right. In contrast, our dissenting Instrumentalities of harm colleagues would threatening the fabric of society and expand that then public health are the framework for decree that strict data-based legislative and social scrutiny is applicable intervention. The examples of to any prohibition public-health crisis for which against the minimally intrusive and yet possession of those comprehensive, data-based or other protected interventions have occurred weapons in the home. include the HIV-AIDS crisis At bottom, the intervention and some of those in dissent concludes Chart A. A model for consideration that the so-called with the gun violence epidemic popularity of the pronounced by leading experts, banned assault including AMA President Slack 139 , weapons—which may be taken from the Prescription were owned by less Medication Model to which this than 1% of discussion now turns. Americans as Since 1902 with the enactment of recently as 2013— the Biologics Control Act and 1906’s inhibits any efforts Pure Food and Drug Act, 140 the by the other 99% to has,

137 Id. at 121. 140 United States Food and Drug 138 Id. at 139–141. Administration, Milestones and Significant 139 Mark Moran, supra note 8, at 1. Dates in U.S. Food and Drug Administration 30 DEFENSE COUNSEL JOURNAL | JULY 2017

addressed prescription drug abuse health action taken with methadone, and misuse with the intended the Breaking Bad 142 phenomenon purpose of protection of the public, and the bath salts crisis. 143 As a rather than a single individual result of those social drug-culture person. The Controlled Substances events, there are now behind-the- Act (“CSA”) categorizes and classifies counter and over-the-counter medications and chemicals medication controls for the base according to recognized medicinal chemicals that lead to the use, benefit and risk141. development of those products, and The well-accepted five (5) there are also distribution quantity schedules of prescription restrictions. medications, Class I-V, is intended to A real opportunity exists for serve as a closed system for meaningful, non-discriminatory and distribution, use and consumption of least-intrusive evaluation and chemical substances along this intervention by differentiating, continuum. C-I (Class I) drugs have classifying, and addressing the no medicinal or therapeutic benefit difference between Constitutionally- and are banned. Examples include protected self-protection weapons heroin, LSD, amphetamines and versus implements of war such as cocaine. C-II (Class II) have high-capacity weaponry. Just as substantial addictive potential but, a Schedule C-I drugs are banned medicinal benefit for which under completely, high-capacity weaponry, the right clinical circumstances, with an expert and data-based access may be appropriate. legislative definition, should become Examples include OxyContin and be treated similarly in our civilized hydrocodone. The continuum democracy. advances through C-V (Class V) As stated at the outset, this medications in a sliding scale fashion article does not advocate to infringe as the risk for addiction and adverse upon Second Amendment rights, consequences reduce while the nor does it advocate for health care products continue to have a bona providers to somehow become fide therapeutic benefit. The fluidity involved in a person’s election to and metamorphic quality of this own a firearm or not. Rather, it is to model is demonstrated by the public call attention to other successful

History, https://www.fda.gov/AboutFDA/ 143 See e.g., Diane Wieland, Psychoactive WhatWeDo/History/Milestones/ucm1283 Bath Salts, An Emerging Crisis, 10 NURSING 05.htm (last visited June 3, 2017). CRITICAL CARE 22 (May 2015), 141 21 U.S.C. § 801 et seq. (1970). http://journals.lww.com/nursingcriticalca 142 Breaking Bad, WIKIPEDIA, THE FREE re/Fulltext/2015/05000/Psychoactive_bat ENCYCLOPEDIA, https://en.wikipedia.org/ h_salts__An_emerging_crisis.6.aspx last wiki/Breaking_Bad (last visited June 3, visited April 4, 2017). 2017). Shots Fired—A Rational Assessment of Mass Shootings 31

models and examples of stigmatized manner. Mental health governmental and social must be respected and treated the intervention that, when confronted same as physical disruptions in with a public health crisis, are health and wellness. minimally intrusive upon individual In conclusion, this article is not rights, yet targeted to promote a intended to be a comprehensive stable and healthy society. The time survey of gun rights and gun control to act is now. The wheel does not debate issues. Its purpose is to need to be recreated. Originalists advocate for a rational approach to use history to support a broad berth obtaining the information of gun rights, and they should be necessary to understand the gun and are entitled to that advocacy and violent crime crisis. Another and preservation of First and purpose is to advocate for the Second Amendment Rights. Non- support of the Kolbe and Hogan Originalists use pragmatism to decisions and to encourage apply the Constitution. Pragmatism rationality in this debate, an mandates uniformity in control for originalist’s perspective, and not an C-I weaponry and a framework for inflammatory, fear-driven response. any additional classifications and The last, and most significant classification controls based upon purpose of this article as it applies science and data and a clearer to the International Association of understanding of why these Defense Counsel’s Privacy Project, instrumentalities of harm are being is to remind all that privacy is used in the manner they are. invaluable and stereotypical Social scientists may develop, assignment of blame to the stigma modify and adapt similar modeling of mental health as the “problem” is and assessment based upon data, wrong, misplaced and demands provided that the ACA’s ban on data correction and attention. collection, the CDC’s ban on research and other misinformed A man of courage is also full of faith barriers are eliminated. An ~~ Marcus Tullius Cicero essential component of this research must include mental Let us all have courage and live illness, emotional and situational our faith by respecting others and triggers for mass violence, cultural protecting them and their privacy. influences as triggers for mass violence, the privacy rights of persons with mental stress, mental distress, mental illness as well as psychiatric disorders. Mental health should be not defined in a