Back From Wonderland: A Linguistic Approach to Duties Arising From Threats of Physical Violence

• Author: A.G. Harmon
• Position: J.D., PH.D.
• Pages: 27-91

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BACK FROM WONDERLAND: A LINGUISTIC APPROACH TO DUTIES ARISING FROM THREATS

OF PHYSICAL VIOLENCE

A.G. HARMON, J.D., PH.D.^*

I. INTRODUCTION

The tragedy of school shootings and violent rampages over the past few years always raises the same grim questions: “How could this have been prevented?” “Didn’t somebody know the person was disturbed?” “Weren’t there some signs in what he said or in the way that he acted?” The recent shootings at Virginia Tech University in the spring of 2007,¹

and at Northern Illinois University in 2008,²are only the latest incidents in a long litany of such events. After studies related to incidents of this nature are completed, undoubtedly some of the violent perpetrators will have been under the care of a therapist; and when that is the case, the law has a forty-year history of determining the therapist’s actionable duties. However, the law has never had a clear perspective on exactly how to determine when an event has triggered a duty towards a threatened individual or society at large.

For example, on October 4, 1989, Dennis Little, who had once absconded across state lines with his infant daughter, and who had a history of arson and assault charges, told his mental health counselor that

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Copyright © 2008, A.G. Harmon, J.D., Ph.D.

* The Columbus School of Law at The Catholic University of America. The author wishes to thank his colleagues, Professors Marin Scordato, Kathryn Kelly, Lisa Everhart, Robert Destro, for their invaluable commentary; Dr. Anca Nemoianu, for her guidance in the field of linguistics; and Drs. David Jobes and Monroe Pointer for their contributions in the area of psychoanalysis. He also wishes to acknowledge the research assistance of Michael S. Mitchell, J.D. 2007, and the editorial assistance of Stephanie M. Holmes, J.D. 2008.

¹Thirty-two people were killed and numerous others wounded before the assailant committed suicide on April 16, 2007. Ian Shapira & Tom Jackman, Gunman Kills 32 at Virginia Tech in Deadliest Shooting in U.S. History, WASH. POST, Apr. 17, 2007, at A1.

²Five people were killed and numerous others wounded before the assailant committed suicide on February 14, 2008. Peter Slevin & Kari Lydersen, Gunman at Illinois College Kills 5 Students, Wounds 16, WASH. POST, Feb. 15, 2008, at A1.

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he “just didn’t think things was [sic] going right.”³Further, he told the counselor that he “was afraid [he] might hurt [his wife],”⁴and that he “was having these stupid thoughts and [felt] like things was [sic] going wrong. [He] described the ‘stupid thoughts’ as ‘when you are depressed and . . . not working, you know, you think about all kinds of stuff, armed robbery, murder, arson [and] . . . suicide.” Little indicated that he had “a lot of those [stupid] thoughts.”⁵

The counselor had known Little for five months, during which time he had expressed homicidal and suicidal desires and was in and out of treatment programs due to mental health problems.⁶But instead of hospitalization, Little was placed in a treatment center, from which he could come and go.⁷One day after being placed in the treatment center, Little appeared at his wife’s home, where his wife found him staring at a butcher’s knife and contemplating suicide.⁸Little’s wife returned him to the treatment center, informing a staff member of the incident and how she feared both for her own safety and that of Little.⁹The next day, Little returned to his wife’s home and attacked her, stabbing her repeatedly.¹⁰

Their minor son was in the house during the attack.¹¹Little’s wife (hereafter “plaintiff”) eventually sued the counseling center¹²claiming that the therapists had breached their duty under the Arizona Duty to Warn statute, which arises whenever “[t]he patient [had] communicated to the mental health provider an explicit threat of imminent serious physical harm or death to a clearly identified or identifiable victim . . . .”¹³

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³Little v. All Phoenix S. Cmty. Mental Health Ctr., Inc., 919 P.2d 1368, 1370 (Ariz. Ct. App. 1995).

⁴Id.

⁵Id.

⁶Id.

⁷Id.

⁸Id. at 1370–71.

⁹Id. at 1371.

¹⁰Id.

¹¹Id.

¹²Id. at 1371. Defendant Phoenix South operated the counseling center, Defendant HDI. Id. at 1370.

¹³Id. at 1371 (citing ARIZ. REV. STAT. ANN. § 36-517.02(A)(1) (2003)). The plaintiff also contended that she had a common law claim that was unconstitutionally abrogated by

(continued)

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In its review of a directed verdict in favor of the defendants,¹⁴the

Arizona Court of Appeals rejected the plaintiff’s claim on the following grounds:

In essence, [plaintiff] argues that, to a mental health professional trained to understand mentally ill patients, “an explicit threat” should not be limited to statements such as “I intend to kill my wife immediately.” Plaintiff further contends that “the rambling discourse of a schizophrenic patient who asks to be put into a mental hospital because he has ‘stupid thoughts’ of armed robbery, murder, arson and suicide” is sufficient to meet the requirements of § 36-517.02(A)(1). We disagree.¹⁵

The court referred to the state supreme court’s view that “reference to established, respected dictionaries is appropriate in determining the commonly accepted meaning of words in a statute.”¹⁶Consulting the American Heritage Dictionary, the court noted that the term explicit is commonly defined as “‘expressed with clarity and precision’ or ‘clearly defined or formulated’”; threat as “an expression of an intention to inflict pain, injury, evil, or punishment”; and imminent as “about to occur; impending.”¹⁷Therefore, the court held the statutory requirement that the threat be explicit excluded “non-verbal threats [and] insinuations.”¹⁸

Aside from the fact that different dictionaries express things differently,¹⁹and that semantic determination itself is often controversial,²⁰the Arizona court’s ruling—and perhaps the statutory drafters before it—

the statute. Id. at 1372. The court agreed and remanded the case to the trial court because the trial court had based its decision on the now-unconstitutional statute. Id. at 1376.

¹⁴Id. at 1369.

¹⁵Id. at 1373.

¹⁶Id. (quoting Sierra Tucson, Inc. v. Pima County, 871 P.2d 762, 767 (Ariz. Ct. App. 1994)).

¹⁷Id. (quoting AMERICAN HERITAGE DICTIONARY 478, 1265, 643 (2d ed. 1991)).

¹⁸Id.

¹⁹See Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use Of Dictionaries, 47 BUFF. L. REV. 227,

242 (1999).

²⁰See DAVID FOSTER WALLACE, Authority and American Usage, in CONSIDER THE LOBSTER AND OTHER ESSAYS, 66, 78–79 (2006).

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overlooks entire dimensions of linguistic reality; for meaning can be conveyed in ways other than through semantics. It is a principle of everyday language use that statements, or “locutions,” can carry clear meaning when expressed in less than direct ways.²¹Indeed, a good portion of everyday conversation is intentionally circuitous,²²adding depth and texture to communication. So what would be the result if the patient in Little had said to his therapist, “My wife might not wake up tomorrow”? That statement too is far less than an “expression of an intention to inflict pain, injury, evil, or punishment,” which the Arizona court required to make a claim under the statute. The statement is not an expression of any intention at all, in fact, and it could be construed as simply pure conjecture or speculation. But in the context of a disturbed and historically violent man, the meaning conveyed would be quite clear. Would such a statement fail to trigger a duty to warn in Arizona? Is such a statement not a “threat” only because it is not expressed in conformity to an arbitrary dictionary definition, randomly selected?

Since the landmark case of Tarasoff v. Regents of University of California,²³which imposed upon mental health professionals an affirmative duty to warn third parties who are the subject of credible threats uttered by their patients,²⁴nearly every jurisdiction has made either a common law or statutory rule to address the circumstance.²⁵These rules range from the mandatory to the discretionary in nature, from the precise to the general, and cover a variety of violent intentions: from third parties, to suicides, to real property.²⁶The initial decision, almost thirty-five years

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²¹C.f. id. at 92.

²²C.f. id. at 110.

²³529 P.2d 553 (Cal. 1974) [hereinafter Tarasoff I], vacated, 551 P.2d 334 (Cal. 1976) [hereinafter Tarasoff II]. The Tarasoff case has been the subject of immense legal commentary from a variety of perspectives. A recent survey of case law dealing with the matter is that of Damon Muir Walcott, Pat Cerundolo, & James C. Beck, Current Analysis of the Tarasoff Duty: An Evolution Towards the Limitation of the Duty to Protect, 19 BEHAV. SCI. & L. 325 (2001). A recent article focusing on practical dimensions of the case, as well as providing philosophical analysis of the opinion, is that of Marin Roger Scordato, Post-Realist Blues: Formalism, Instrumentalism, and the Hybrid Nature of Common Law Jurisprudence, 7 NEV. L.J. 263 (2007).

²⁴Tarasoff II, 551 P.2d at 340.

²⁵See infra Part III.B.

²⁶ See id.

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old, has never ceased to be controversial, though some of the strongest fears that it first elicited have been somewhat assuaged.²⁷Nevertheless, the conflicting duties of the therapist to the patient and to the victim, the policy matters revolving around privileges and public safety, and the expansion of liability on affirmative duty grounds, are still debated.²⁸...