Santa Barbara shootings: Would a 'gun restraining order' have helped? (+video)

The Santa Barbara shootings show how hard it is to tailor laws to keep guns out of the hands of people who shouldn't have them. But the case is also highlighting the push for a middle ground.

By , Staff writer

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    People hug in front of the IV Deli Mart on Tuesday in the Isla Vista area near Goleta, Calif., where part of Friday night's mass shooting took place.
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In retrospect, there seem to have been plenty of signs that Elliot Rodger was disturbed and perhaps a danger to himself or others.

Nearly a month before Mr. Rodger went on a deadly rampage in Isla Vista, Calif., killing six people and injuring 13 more before taking his own life, his mother was concerned enough by videos Rodger had posted on YouTube, including one titled “Why do girls hate me so much?” that she called the police and asked them to check on her son.

But despite stricter gun-control laws in California than in much of the rest of the country – including greater restrictions for individuals with serious mental illness or those who have been convicted of violent misdemeanors – Rodger was able to legally purchase his three semiautomatic handguns.

Recommended: How much do you know about the Second Amendment? A quiz.

It’s a case, say experts, that points both to the difficulties of keeping guns out of the hands of dangerous individuals as well as the need to do more.

“We had a chance here,” says Robyn Thomas, executive director of the Law Center to Prevent Gun Violence. “This was a case where there was an opportunity and, the way the laws are written, we as a society weren’t able to take advantage of the opportunities.”

Ms. Thomas and others emphasize that it can be complicated identifying who is dangerous – and that zeroing in on mental illness, often the focus of such debates, can be misleading.

“Although mass violence committed by people with mental illness is horrifying and galvanizes public attention, most instances of multiple murder are not perpetrated by people with mental illness, and only around 4 percent of the violence in this country is attributable to mental illness,” says Paul Appelbaum, director of the division of law, ethics, and psychiatry at Columbia University in New York, in an e-mail response to questions.

The vast majority of even those individuals with a serious psychiatric disorder never commit violence of any sort, he adds, and “in the absence of a previous history of violence, which has been true for most of the recent mass shooters, it is almost impossible to determine who will commit violence and who will not.” 

Under federal law, individuals who have been involuntarily committed to a mental institution or “adjudicated as a mental defective” are prohibited from possessing firearms, but relatively few people – including Rodger and the perpetrators of the Sandy Hook and Aurora movie theater shootings – fall into that category.

California law goes further: Individuals are temporarily banned from gun possession if they’re placed on a psychiatric hold or if they’ve made a specific threat to an identifiable person to a therapist, who is then required to report the threat to law enforcement.

But none of those instances applied in the case of the Isla Vista shooting.

And when police went to Rodger’s apartment in late April at the request of his mother, he was calm and polite and offered no indication that he was a danger.

“He just didn’t meet the criteria for any further intervention at that point,” Sheriff Bill Brown told CBS’s “Face the Nation” on Sunday. “He was able to convince the deputies that this was all a misunderstanding.”

In the lengthy manifesto he titled “My Twisted World” that Rodger e-mailed to about a dozen people, including his parents and his therapist, Rodger cited that visit from the police, saying that “I had the striking and devastating fear that someone had somehow discovered what I was planning to do, and reported me for it. If that was the case, the police would have searched my room, found all of my guns and weapons, along with my writings about what I plan to do with them.”

Daniel Webster, director of the Johns Hopkins Center for Gun Policy and Research, says that it’s a mistake, when looking at violence prevention, to focus too much on the details of any one case, but he also says that seeing tragedies like Isla Vista or Sandy Hook as inevitable is a mistake.

The more general problem, says Dr. Webster, is that “there are a lot of people who have access to guns, who don’t meet the current legal prohibiting condition, and yet anyone who knew the person and the circumstances at that time would say it’s prudent for everyone involved that this person not have access to guns.”

As one way of addressing that challenge, Webster advocates a sort of “gun violence restraining order,” modeled after the current system of domestic violence restraining orders, in which a family member could petition the court to temporarily remove firearms from an individual they think poses a credible risk of harm to himself or others.

On Tuesday, two California State Assembly members, Nancy Skinner and Das Williams, announced their plans to introduce a bill creating such a mechanism in California.
 
“When someone is in crisis, the people closest to them are often the first to spot the warning signs but almost nothing can now be done to get back their guns or prevent them from buying more," Assemblymember Skinner said in a statement. “Parents, like the mother who tried to intervene, deserve an effective tool they can act on to help prevent these tragedies."

Such a process was a major recommendation of the Consortium for Risk-Based Firearm Policy, which brought together researchers, legal experts, and clinicians, of which both Webster and Appelbaum were members.

“It’s not as though it’s permanently taking people’s guns away, but recognizing that, as we see in so many of these cases, there are clearly signs that something is amiss, that danger is there, and sometimes there just needs to be enough time to assess the situation and keep firearms from that individual,” says Webster. “To us, it’s a very sensible balance between public safety and individual rights, because of its temporary nature and the ability to go before a judge and argue their case if the person feels they’re not a danger.”

The Consortium also advocates that state laws should be strengthened to temporarily restrict individuals from possessing or purchasing firearms after short-term involuntarily hospitalization, and to enact prohibitions around other risk factors, such as violent misdemeanors, drug or alcohol abuse (linked to DUI convictions or misdemeanors involving a controlled substance), and being the subject of a temporary domestic violence restraining order.

Police also need to be given the power to remove guns from people they think are dangerous, says Appelbaum – something that is currently not the case in most states. He cites Connecticut and Indiana as models for such laws, in which police can act quickly to remove a gun, and the person whose gun was taken can go to court to prove he is not dangerous.

California and Texas also allow (or in the case of California, require) law enforcement to seize firearms when they take a dangerously mentally ill person into custody. And New York and Illinois both enacted laws last year with more stringent reporting requirements for mental health professionals, when they think a patient is likely to cause harm to himself or others. Law enforcement must revoke any handgun license and remove firearms from the person’s possession.

Still, most laws around mental health and gun possession are “underinclusive,” says Adam Winkler, a professor at the University of California at Los Angeles School of Law, and the author of “Gunfight: The Battle over the Right to Bear Arms in America.”  

But efforts to expand such laws risk being overinclusive and infringing on the constitutional rights of too many of the very large – and generally nonviolent – population of people with mental illness.

“Having someone who is a serious threat to others is a strong reason” to curtail those rights, Professor Winkler says. “Having a mental illness is not…. We definitely have to rethink our approach to mental health and guns, but the answer is difficult to know in advance.”

Both Winkler and Ms. Thomas emphasize that even the current, basic rules are riddled with holes. States aren’t required by law to report mental-health data to the federal government, and only a handful provide comprehensive mental health adjudication data, says Winkler.

And about 40 percent of gun sales occur privately and involve no background check at all, says Thomas of the Law Center to Prevent Gun Violence.

Something like a gun violence restraining order might help, says Winkler, as could better data reporting and background checks, and perhaps better law enforcement policies. For instance, the call from Rodger’s mother could have prompted a visit from someone with mental health training or a search of social media.

But he and others also emphasize that preventing every tragedy is going to be impossible.

“We’ve made a decision in this country to allow very easy access to firearms and, as a result, our cities and communities are inundated with firearms,” says Winkler. “People will be able to get their hands on guns.”

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