Terry H. Schwadron
Feb. 18, 2018
From listening to President Trump and the Republican leadership, one would think that mental health systems, not gun control, represent the starting point for any search for better protection of our schools, concerts, church gatherings from errant shooters as more effective than enacting any gun control legislation.
So, it seems useful to look at Florida’s “Baker Act,” which allows for the involuntary confinement and examination of any eligible individual — for 72 hours. Under the law, anyone who may have a mental illness or who is seen as a possible harm to himself or others, can be institutionalized temporarily and subject to a mental health check.
As such, the Baker Act seems exactly the kind of tool that Washington lawmakers have in mind to use to take potential shooters off the playing field — before they act. We’ll never know, since they are so vague as to never identify exactly what the goal of a mental health approach would mean. Apart from questions about the FBI failures here, today’s question is whether in Florida, should law have worked to prevent this horribly fatal shooting?
In Florida, any judge, law enforcement official or physician or mental health professional can make a Baker Act call, and examinations must occur, possibly within 12 hours, in more than 100 Florida Department of Children and Families-designated sites. Once examined, the individual can be released to a community placement, be made eligible for various voluntary placements or, as of 2005, be involuntarily held in an institution. The Florida Mental Health Act of 1971 was named for former Rep. Maxine Baker of Miami, who had a strong interest in mental health issues and served as chair of the relevant state House committee. It has become a verb to “Baker Act” someone believed to be a community danger.
As an explanation, consider Trump’s immigration plans: Upset by MS-13 violence, let’s simply remove all undocumented immigrants and build a Wall for safety by keeping immigrants away. What Trump wants is a way to remove anyone who might be mentally unstable in the name of public safety. In other words, remove the person, not the gun he may hold.
I seriously doubt that Trump and friends want any better actual mental health treatment for individual Americans; they have cut money for health care access.
As Florida’s reasoning goes, if there are sufficient signs of immediate danger, the statute can enable stopping and holding the individual for three days if a professional recognizes that a person is showing a substantial likelihood of doing serious bodily harm in the near future. There must be evidence of recent behavior to justify confinement. Moments or utterances in the past when individuals considered harming themselves or others are said not to qualify for Baker Act examination.
Does that seem clear to you? Human rights officials in Florida don’t see it as an easy call, or rather they see it as too easy a call, and have taken cases to court to protest the definitions involved. Meanwhile, conservatives are upset because the Baker Act only allows 72 hours of confinement. The reason these details matter, of course, is because federal officials are suggesting that if only the state were to use mental health as a means for confinement, there would have been no shooting spree.
From all accounts, the 19-year-old in this case showed many signs of danger. His parents had died, and he had taken to social media, in some cases citing military weapons or threatening to attack unnamed schools. He was an adult, and was able to buy an assault rifle legally at a gun store more than a year before this shooting. Nevertheless, it is not exactly clear to me that the official who expelled him from school, or classmates who found him to be a bit of a jerk, would have qualified as offering a tangible and direct threat required under Banker to result in confinement; they were “in the past.”
In any case, reports about threats from this shooting suspect were pretty general. And they were mostly from people with casual contact. School officials had expelled him for carrying a gun into school, but not for threatening anyone with immediate harm.
My question is even if the shooter had been found in need of counseling, would that have resulted in his confinement? Would it result in authorities taking away his guns and ammo? I doubt it. He is an adult. He was working at a job. He was attending a training program. He was living with supervising adults who had taken him in by choice. He bought a gun legally at a retail store that is licensed. He walked onto the campus despite the presence of armed guards, carrying a semi-automated rifle and lots of ammunition. Someone — he or someone using his name — posted a social media warning that he might carry out some kind of attack on some school somewhere. Years ago, Children’s Services looked at him and said he’d be okay.
Does that series of sentences represent an immediate threat of harm to others? Would those facts prompt a Baker Act examination that would conclude in involuntary confinement for an extended period of time? If not, what is the point of relying on “mental health” improvements as a serious prevention method.
The FBI finds itself under fire for acknowledging that despite the vague social media threat that they heard about a month before the shooting — one of more than 100 a day that FBI office sees — that investigators did not act on the tip. The FBI said it received a tip on Jan. 5 from “a person close to Nikolas Cruz,” who was not identified, reporting concerns about erratic remarks he was making. Such a warning should have been investigated “as a potential threat to life,” triggering investigative efforts in the local FBI field office in Miami, but “these protocols were not followed” and no further inquiries were made, the bureau said.
Had the FBI followed up, they would have relied on criminal rules, not mental health rules, right? But if there were no crime yet — speech is not against the law — how would the FBI remove him as a threat?
So, to review, the school saw him carrying a gun and expelled him to protect students and teachers. A friend reported to authorities that he had erratic social media posts, and an FBI tip line. Even if it had, there was no guarantee that there was a specific credible immediate threat, and therefore it is unclear that there would be pre-shooting confinement with no further legal review.
By contrast with all this, a law that denies sale of automatic rifles to teenagers would be a sure step to prevention. Or consider that 21 states now have laws that bar mental health patients from buying guns. In other words, let’s think of removing the gun rather than the person, the opposite approach from Trump’s.
Not mentioning guns as a major social problem strikes me as a mental health threat.