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

• Author: White, Tamela J.

SOCIETAL Shockwaves from mass violence have no borders. Sophisticated Paris, destination Orlando, rural Virginia Tech, a midnight movie theater in Colorado, the Newtown elementary school massacre of innocents, a psychiatrist in his Army uniform and too many more for too long of a time have been lead stories on the nightly news and headlines in Le Monde, The New York Times, Dallas Morning News, San Francisco Chronicle and every major news outlet. So much attention, so little change in access to automatic military-grade and other weaponry. Such sparsity of data, not opinion or speculation, from which to learn root contributors, causes and design implementation plans. So much carnage, so little understanding of root causes. And now, trains, planes and automobiles enter the equation.

Labeled insanity by some and terrorism by others, the result is the same. Human carnage of unspeakable proportion. Domestic, international, regional and local law enforcement are faulted for failing to foresee or mitigate these tragedies. Finger-pointing and cognitive dissonance invites labeling culprits as mentally ill. This article challenges those alternate propositions that place blame on Satan (possessed by demonry), gun manufacturers, Congress, state legislatures and the mentally ill. This article advocates for removal of the barriers preventing data collection and analysis particularly in this perilous time with states abandoning conceal-carry permit requirements and terroristic murderous migrate to using cars and alternative means to accomplish their evil end.

The risk of marginalizing and dividing shooters and victims, and lawmakers from lawbreakers into stereotypical classification is too simplistic. No one should seriously conclude that any of those engaging in these heinous attacks upon vulnerable innocents are free from mental distress. Mental distress is not necessarily mental illness. Most if not all of the offenders were/are also vulnerable to the undue influence of the affected or disaffected. This article will provide both a domestic and international platform to review existing opinions, reconsider them and advocate for scientific-based conclusions in evaluating the actual relationship between mental illness, mass violence and the incredible tolerance for military grade weapons being accessible to a civilian population. Mental illness, standing alone, is not the sole or exclusive root cause of such violence.

Mass shootings understandably create outpourings of public horror and outrage... These tragedies are influenced by multiple complex factors, many of which are still poorly understood. However, the lay public and the media typically assume that the perpetrator has a mental illness and that the mental illness is the cause of these highly violent acts of horrific desperation. Although some mass shooters are found to have a history of psychiatric illness, no reliable research has suggested that a majority of perpetrators are primarily influenced by serious mental illness as opposed to, for example, psychological turmoil flowing from other sources. As a result, debate on how to prevent mass shootings has focused heavily on issues that are 1) highly politicized, 2) grossly oversimplified, and 3) unlikely to result in productive solutions... Laws intended to reduce gun violence that focus on a population representing less than 3% of all gun violence [the population of those with certain mental illness history and/or of mental-health related hospitalization] will be extremely low yield, ineffective, and wasteful of scarce resources. Perpetrators of mass shootings are unlikely to have a history of involuntary psychiatric hospitalization. Thus, databases intended to restrict access to guns and established by guns laws that broadly target people with mental illness will not capture this group of individuals. (2) The laws in the United States have been ineffective in addressing the balance between access to weapons and personal constitutional rights and privacy. There remains a void in understanding the convergence of forces that leads to such heinous events and a zealous propaganda campaign that the solution would deprive Americans of their guns.

Privacy is a valued commodity under challenge. The boundaries of privacy must be redefined in the modern era of satellites-circling-the-earth communicating with billions of computers at one time. This article approaches a unique subset issue: the tension in the health care provider-patient relationship, privacy, access to weaponry and public health. This article advocates for a change in definition of the problem with preservation of respect for those on both sides of the gun debate, whether you are an advocate for near plenary second Amendment application or a pacifist without any interest in owning a gun. This article advocates for research and analysis so that a data-driven redefinition of the issues, not the fear-driven reactionary response, may be developed.

Privacy is essential to any relationship grounded in trust so that free and unrestrained communication may occur. In the mental health and health care domain, privacy is a cherished value intended to promote positive health outcomes and minimize the risk of indiscriminate treatment by others like profiling, stereotyping and discrimination. (3) The mental health care provider: patient relationship must be grounded in trust, and privacy protection is paramount to establishing trust. To this end, the American Psychiatric Association ("APA") opposes legislative action that would mandate any health care provider to breach this trust by forcing disclosure of confidences shared by an individual patient that use of a gun may be perceived as a means to an end. (4) The APA calls for research, data analysis, least-intrusive data-base generation and data analysis, as well as restrictions on gun access, as means to address the real issue: the instrumentality of harm: the inherently unsafe product--not the person. (5)

Congress has a long history of banning epidemiologic research by the Centers and Disease Control and Prevention ("CDC") concerning the subject of gun violence. (6) silently housed within the Patient Protection and Affordable Care Act ("ACA") of 2009 (otherwise referred to as "Obamacare") is a two-edged sword, gun lobby-backed provision. A portion of the law includes an implicit recognition of the substantial public health need and the obligation to avoid gun-access discrimination against individual patients based upon gun use and access. However, other provisions include express barriers to some forms and means of communication and analysis with respect to data collection and data assimilation necessary to study this public health crisis. (7) These barriers prevent sound, evidenced-based analysis and recommendation development. The call-for-action by the American Medical Association ("AMA") President Steven Sack, M.D. succinctly announces:

[w]ith approximately 30,000 men, women, and children dying each year at the barrel of a gun in elementary schools, movie theaters, workplaces, houses of worship, and on live television, the United States faces a public health crisis of gun violence... An epidemiological analysis of gun violence is vital so physicians and other health providers, law enforcement, and society at large may be able to prevent injury, death, and other harms to society resulting from firearms. (8) By allowing permissive, gun-related disclosure from patients, but prohibiting collection and assimilation of that information (volunteered or otherwise) with scrutiny of that data by the scientific method, this legislation frustrates the efforts and the capacity to develop data-based public health gun violence recommendations. The outcome becomes a self-fulfilling perpetuation of impotency in gun violence understanding and intervention. The lack of CDC and research funding is shameful. ACA anti-discrimination provisions are essential, but the over-reaching data-related prohibitions are not.

Privacy interests, privacy rights, civil responsibility, self-responsibility and the gun debate intersect. Society has addressed other public health threats and health care providers have served integral roles. An interactive and interdisciplinary approach should be applied in the gun and violent crime domain with adequate funding and without over-reaching legislative prohibition.

Sensitive and politically charged issues have previously been addressed through legislative interventions that preserved individual privacy and constitutional rights. A successful example are the HIV-AIDS laws, which preserve privacy of infected persons and potentially infected ones while maintaining respect for constitutional freedom of association. That vulnerable class has been protected against discrimination, harassment and mistreatment driven from the "I'll catch it too" fear where the real instrumentality of harm was, and is, the live virus, not the person. The HIV-AIDS legal interventions evolved over time as the issue was studied through clinical trials and research grounded in the scientific method. The result is a legal framework designed to be narrowly tailored to address the risk to public health, like the risk of a contaminated blood supply, while balancing private health information disclosure. Some of those interventions have included anonymity in testing, establishment of public health data bank registries, offering free public health education and privacy-protected third-party notification of unanticipated or known exposure.

Other examples include:

As used in this article, high-capacity weaponry is the instrumentality of harm. According to recent Supreme Court precedent, high-capacity weapons are not the self-protection devices recognized by the United States Supreme Court as having Second Amendment protection. (14) High-capacity weaponry is the category of products that are implements for mass murder and war. This...