By C.A. “Kip” Crofts, guest columnist
(Former U. S. Attorney, State of Wyoming)
We are in the midst of a rash of mass shootings and, unfortunately the same rash of angry demands for politicians to “do something.” That, in turn, leads to the same list of gun control proposals that we trot out over and over again.
Unfortunately, those proposals are usually unconstitutional, unfair because they infringe upon the rights of millions of law-abiding gun owners who have never and will never harm anyone with their guns, but worst of all, they are unworkable and will not accomplish anything.
The compliant media never asks President Joe Biden, or any other politician or gun control advocate to explain exactly how this or that law will work to accomplish anything. So, we are left with reams of meaningless but angrily spoken words, and a fair amount of irrational hatred toward gun owners, especially those who happen to own the notorious “assault rifles,” but nothing that can possibly work.
I am opposed to and dismissive of most of the proposals made by President Biden in his latest rant listing all of those laws he thinks we should pass that will only apply to and inconvenience people who would obey the law anyway, while doing nothing to resolve the problem. The ban on so-called “assault weapons” that are used in the majority of the mass shootings that make the news has some serious problems with that easy-sounding idea.
The first is that banning this gun, owned by millions of law-abiding Americans who have never and will never use it improperly is almost surely in violation of the Second Amendment that the Supreme Court ruled in the Heller case protected the right of the citizens to own common guns for protection.
I know some Federal Courts of Appeal have ignored the Heller case and turned cartwheels of law and reason to do so, but I won’t take time here to explain why they are wrong. They, and perhaps the Supreme Court too, are clearly terrified of ruling on Monday that the guns are protected, then reading on Tuesday that one more deranged person has killed people with one of the guns.
But that is their job – to read the Constitution and not the opinion page of the New York Times before ruling. They have not hesitated, even during the Democrat/liberal Warren Court years to, for example, let a guilty killer out of his conviction because the police failed to give Miranda warnings before he confessed.
Despite the horror of those mass shootings, and the 24/7 media coverage given to them, the fact remains that it is only a tiny fraction, way less than 1%, of those guns and owners who are ever involved in their criminal use.
More people are killed each year with boots, knives and bats than with “assault rifles.” So, Constitutional or not, how is it logical or fair to ban them from possession by everyone? Cars kill more people than guns, but no one talks about banning cars. Why this obsessive hatred against guns and the people who own them lawfully?
Idealists will ask, “If banning the guns would save even one child wouldn’t you approve of the ban?” Well, yes, I would. But such a ban can’t and won’t work for many reasons, and the word “if” is crucial in that question. In today’s age in which everyone chooses up sides in all arguments and hates the people who think otherwise, I think it unfair and unproductive that people choose to hate all gun owners for daring to even have such an item just because an unhinged few do bad things with that inanimate object. There is a pollyannish idea, promoted by politicians, and a compliant press that if only we lived in a world of milk and honey with no guns nothing like this could ever happen.
Recall that we had a ban in 1994, that President Biden says he single-handedly passed. It did not work and the Department of Justice and others said that. There are millions of these guns owned in America, probably in part because of that 1994 Ban. Americans are a rebellious lot and if the government tells them they can’t have something, they tend to want it.
Remember our country was formed in rebellion by people who did not like an overbearing central government led by a King. They still don’t like that. Millions of people do not accept the fact that Democrats want to tell them they can’t have a gun when they have never and will never, use it improperly. I think President Biden may find to his sorrow that there are many Democrats, like me, do not universally approve of his tough talk and irrational policies about guns.
Everyone lauded New Zealand when they banned most guns after the mass shooting there in the mosques, saying, “Why can’t we do that?’
Well, the Second Amendment is one reason, but more practically it doesn’t work. Last report I read said New Zealand had only collected about 10% of their guns. Does anyone think Americans will participate in some “buyback” program willingly? They will say, “How can the government buy back something it never owned?” There will be civil disobedience, and perhaps some people killed, or sent to prison, only because they chose to ignore what they perceive to be an unjust and meaningless law passed by a tyrannical “King.”
To make the ban effective, will that tyrannical king be willing to try to order mass searches of people, cars and homes looking for guns? The British searched colonists homes, and our Founders wrote a Constitution to prohibit that too. Does anyone think that people who might be most willing to misuse the guns will be at the front of those lines to turn in their property?
The Mexican cartels have made tons of money smuggling people and drugs across our Southern Border, and we can’t stop them. Even if we were able, legally and practically, to ban guns here, don’t you think they’d be willing to smuggle some in?
The Kalashnikov, AK-47, a gun that fits the definition of “assault rifle” written by Congress, is present in the millions all over the world, supplied by various communist bloc countries for 60 years for Communist revolutions.
When I was in Baghdad in 2005 I saw a warehouse where several thousand of them, seized from an arms dealer trying to smuggle them into Iraq, were stored, stacked like piles of tree branches, forty feet high. So how would it make sense to ban guns made in America only to encourage smuggling of guns from Mexico by the best smugglers in the history of the world?
I think President Biden and the other politicians who say loud and angry things like, “Hell, yes. We’re coming for your AR-15s,” or “We can take them because we have nukes,” are not serious people capable of leading a free people. They are promoting rebellion and resistance, asking for trouble from decent and law-abiding Americans, many of whom are or have been the first to volunteer to defend our country in war.
All of these politicians criticized President Donald Trump for stirring up rebellion about the election. I don’t think what we’re hearing now is much different, and those “leaders” need to learn to speak more respectfully to and about law-abiding citizens about an issue they take very seriously.
Politicians think they have to “talk tough” to impress their base, their voters, are only politicians looking for votes and are not responsible people capable of leading a free nation. They want to be “king” or all powerful autocrats. But American people don’t like autocrats, whether they be King George or executive order signing Joe Biden.
But even a broken clock is correct twice each day. And President Biden said some things in his April 6 press conference that I think deserve some serious consideration because they might actually work to reduce mass killings. I’m not foolish enough to say they will eliminate them – because I’m not a politician looking for votes. But they might help. I think we ought to stop trying to find some easy way to regulate and ban guns, that never kill anyone unless a human is in control, and instead concentrate on identifying, managing, and stopping the human actors, the criminals, who do these horrible things. That direct approach is more honest and fair to those who have done nothing wrong, and has a better chance of actually working.
Almost all of the mass shooters have given some warning of their intentions. Probably the worst example was the young man who killed seventeen at Marjory Stoneman Douglas High School in Parkland, Florida in February, 2018. After that tragic killing it was disclosed that he had a long history of threats and violence including very specific threats on social media that he “planned to shoot up a school.” Police, and the FBI had been notified. And they did nothing that prevented the massacre. That is not because they are uncaring bad people.
It is because police, and our whole system of justice, is reactive, not proactive. It is designed to find, investigate and prosecute people who have already committed a crime. It is not designed to identify and stop them before the crime is committed. Generally, a person who is simply showing dangerous or deranged behavior and thought has committed no crime. So the police say, “There is nothing we can do,” and close the file. We need to create tools that can be used before the killing occurs, and make sure those tools are used.
Many states do have processes for civilly committing people to a mental health facility who have committed no crime. And this, “Commitment to a mental institution” or “adjudicating someone a mental defective” are sufficient to bar a person from buying a gun from a gun dealer by the National Instant Check system (NICS), but there are some huge deficiencies in that. First, that commitment or adjudication needs to be reported to NICS. There have been improvements in that lately, but it’s far from perfect.
But more important, it does not necessarily reach the right targets. Too often this process is only applied to people that mental health professionals have examined and found to be suffering from a diagnosable mental disease pursuant to specific criteria used by that profession. There is no diagnosis that fits the obsolete term “mental defective,” that is in the Statute. We layman feel that anyone who would shoot up a school and kill seventeen people is obviously “crazy” but he may well not fit that more restrictive criteria used by psychiatrists and other professionals.
More likely he may only be filled with anger, resentment, and feelings of vengeance against other people, other groups by race or religion, or even just an institution like a school, or a former employer, that he perceives to have “wronged” him in his life. And, in our modern world that values “celebrities” no matter what gained them attention, he may just want to be famous for a day. He may want to be a martyr and go out in a blaze of glory. Even if there is a formal finding of mental disease and sale is barred by NICS, that also does not prevent the person from getting a gun from other sources. The young killer at Sandy Hook killed his mother and stole her gun. These people are not so mentally ill that they are incapable of planning and executing these awful attacks.
More recently, relatives of the young man who shot people in the grocery store in Boulder, Colorado, said he had mental health issues, and the young man who killed at the Fedex building in Indianapolis had some problems obvious to others, and had also been contacted previously by police and the FBI who were able to do nothing to prevent that attack.
His mother had told them he might attempt something called “suicide by cop,” in which a person deliberately provokes the police into killing him. Apparently they took a shotgun away from him, but he was able to buy more guns, and escape any kind of continuing surveillance or follow up on this very troubling report by his mother. even though Indiana is a state that has a “red flag law.”
When I was a federal prosecutor, I served for years on something called a “Child Protection Team.” Sometimes they are called “Multi-Disciplinary Teams.” They consist of representatives of police, social workers, prosecutors, school counselors, nurses or doctors, mental health professionals, and virtually anyone who can bring any insight to the table.
We met periodically to discuss specific children who for one reason or another had come to our attention, and try to work out a plan that would prevent injury, sexual abuse, family neglect, or whatever particular problem had been identified. We were very proactive – there was no sitting around saying there was nothing that could be done before a crime was already committed. Teams I am suggesting also need a representative from the Public Defender’s office to protect the rights of the targeted person.
So why could not each community form a similar Multi-Disciplinary Team to look for people with indicators they might be planning a violent act like we see too often in the news and do something to interrupt that dynamic?
Great care would have to be taken – you can’t target some parent who at a Little League game shouts, “Kill the ref.” And I know that some kid might post something about shooting up a school as a joke. But if such a kid thinks that is funny, then he may well deserve some “intervention” anyway. In many of these cases, there have been significant warnings that were not acted upon.
Some adjustment might need to be made to state laws that allow civil commitment of those with only a mental disease diagnosis. The criteria has to be whether or not evidence, including observations of friends, relatives, employers, etc. – not just mental health professionals – shows that there is a significant chance he is a danger to himself or others.
And there needs to be a wide range of options for dealing with him. If it is found that he cannot be immediately arrested for some inchoate crime, he must not be abandoned to his own fantasies until he gets around to doing that terrible crime that we see too often.
In some cases, he needs to be confined. Congress made that difficult by passing such laws as the Protection and Advocacy for Individuals with Mental Illness Act of 1986. That Act served to close many “insane asylums” and other such facilities. No doubt Congress meant well, and no doubt many of those were not well run and inmates were not well-treated.
But the effect was that most communities no longer have a place to confine truly dangerous people. There was a theory that mentally ill people would be treated in the community without confinement. And that’s no doubt true for most, but some truly dangerous people may need to be confined at least for a time in order to gain control of them. Community Mental Health Centers are pleasant places, where, if you have insurance or Medicaid coverage, you can go and talk to a counselor. But generally, there is no authority for confinement, nor a facility for that.
President Biden laid the groundwork for this kind of proactive approach. He suggested we should have “evidence based community violence intervention.” He listed a number of existing federal programs that he said could be used for funding of various grants to accomplish these local intervention teams. The only one of those that I’m familiar with is one called “Project Safe Neighborhood,” that existed in the Department of Justice when I was a federal prosecutor. It generally encouraged federal and local officers to work together to identify illegal guns and get them off the streets. For example, if a local police agency arrested a person for drugs or assault who was in possession of a gun when arrested, they’d be encouraged to talk to Federal authorities to see if he could also be charged for some federal gun crime.
I have no objection to that program, and it worked. But I still think there should be a team looking at people rather than just potential gun crimes. Getting guns off the street and away from criminals is useful, but does not prevent crimes committed by people who usually do not have a criminal record. The awful crime they commit is all too often both their first and last.
President Biden also separately advocated the creation of a “national red flag law,” to be applied in federal jurisdictions and used as a model for states to adopt that don’t already have one. I think a modified version of those laws can serve to give authority to Community Intervention Teams in order to effectively interrupt the plans of deranged people heading for a mass shooting. There are a number of states that already have these laws, although there is some difference in how they work.
But generally, they all are targeted at guns, not people. If police or family notify a court that a person has a gun and may be a danger, the court can order the police to seize the gun, and the order will provide that he cannot lawfully buy another, by providing notice to the NICS system.
These laws are well-intended but have some serious problems. Some allow family members or citizens to initiate the process without going through the police. That is dangerous, allowing vindictive angry wives or girl friends to abuse the system to punish a man they hate. Any such allegation needs to be vetted and corroborated by police before any court order is sought.
And there is no due process at the beginning of the process. It is sort of like a court issuing a search warrant for evidence of a crime that has not yet occurred. The gun owner is not notified or entitled to a hearing before the order is issued to tell his side of the story. He likely only learns about it when the police arrive to take his gun. They will likely treat this as a high risk situation because of the allegations that have been made, and will execute the order very aggressively, perhaps with a SWAT team. That makes the risk high that someone will get hurt – the police or the target.
At the very least, the person, already feeling angry and aggrieved, will only be even more angry after the police rifle through his house, dumping things out of his dresser drawers, looking for a gun that could be hidden anywhere. Even if they find a gun and take it, it’s easy enough for him to get another – or for the police to miss one. So it’s likely this may make things worse – not better.
So once again, I say this process should be targeted against the person – not just the gun. It should be a part of the Violence Intervention Team the President advocates, and I support above – not some separate process. The targeted person needs to be afforded a hearing where he has a lawyer, appointed if necessary, before any ruling is made concerning him or any gun he may own.
Significant Constitutional rights are being affected, and he needs due process. A court order made by a judge based on uncorroborated allegations made by anyone are inconsistent with our judicial system. The court needs wide options to be available to fashion some plan that is likely to interrupt the march to tragedy the person may be upon. It may be that just knowing people are watching and concerned will accomplish some deterrence.
As a last resort, the court needs authority to detain the person, and must be required to re-visit the case periodically to make sure grounds for detention continue. This is not a fixed sentence for some crime of conviction. The court may still order that guns be surrendered and NICS be notified, but that is only part of the problem, and part of the solution. But no one should just walk away from one of these cases, after only taking a gun from a person, and tell themselves, “This is over. Case closed.”
Family and friends need to be convinced they should “say something if they see something.” And they need to be convinced this will be handled well if they do report. There are far too many police officers who think an uncooperative or non-compliant person is dangerous and may be shot.
Then the family is left feeling guilty forever that they called the police because their loved family member was in acute distress. Families who call 911 can get a fire fighter, an EMT, or a police officer, but they never get a qualified mental health person. Disturbed people are by definition, belligerent and non-compliant, and police need more training (perhaps by these community intervention teams) to distinguish between that and real threat of danger.
In an ideal world, mental health people from the Team would accompany police to a call involving a person under the scrutiny of the Team, or who should be under its scrutiny. It is not possible to keep dangerous sounding people under surveillance all the time, but the Team needs to stay in touch with him, or at least with his family, and work hard to see when trouble is coming. When people fall through the cracks, as they certainly will, the Team and everyone in the community needs to evaluate why. This is a never-ending process. This work will never be finished.
There has been controversy in the past about whether or not Congress should fund medical research about gun violence. Some of that “research” has not been medical, but rather has seen medical people using their scientific credibility to take a political stand on gun control issues, and I think the criticism of that has been valid.
But medical researchers should be encouraged to do far more actual medical (psychiatric) research on what kind of people commit these crimes, why they do it, and what can be in done in advance to identify possible killers and to prevent or stop them. I have read that many of these killers had been on psychotropic drugs of some kind – if true that needs to be researched carefully to see if it is relevant. All of the past killers, even those who died, need to have their medical and behavioral past studied insofar as possible looking for clues as to why they did what the did.
This will never prevent all of these tragic events. But I think it has a far greater chance of preventing someone from killing us than all of this pugnacious talk about seizing guns, putting serial numbers on pieces of metal that are not yet guns (the “ghost guns” President Biden talked about), and other laws that are obeyed only by the law-abiding. President Biden covered the whole litany of these tired old ideas in his speech, with generous portions of outrage, designed to inflame his base to action.
But I think he needs to understand that there are also decent law-abiding Democrats in this country who know that what he is saying is nonsense, and who themselves own guns, even “assault rifles.” We don’t need to ban guns – and only stir up more conflict in out country that accomplishes nothing.
We need to do what is possible to prevent deadly behavior by mostly young men with grievances. Let’s keep our eye on the ball, and not be distracted by meaningless political rhetoric.