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

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Shots Fired—A Rational Assessment of Mass Shootings, the Alleged Participation of the Mentally Ill, and an Impaired Right of Privacy 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 Colorado, the Newtown elementary and terroristic murderous migrate school massacre 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, The New York Times, 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 terrorism 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 United States 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 gun violence 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
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