Gun Violence Restraining Orders: Alternative or
Adjunct to Mental Health-Based Restrictions on
Firearms?
Shannon Frattaroli, Ph.D., M.P.H.*, Emma E. McGinty, Ph.D., M.S. †, Amy Barnhorst, M.D. ‡ and Sheldon Greenberg, Ph.D. §
The gun violence restraining order (GVRO) is a new tool for preventing gun violence.
Unlike traditional approaches to prohibiting gun purchase and possession, which rely on a high threshold (adjudication by criminal justice or mental health systems) before intervening, the GVRO allows family members and intimate partners who observe a relative’s dangerous behavior and believe it may be a precursor to violence to request a GVRO through the civil justice system. Once issued by the court, a GVRO authorizes law enforcement to remove any guns in the respondent’ s possession and prohibits the respondent from purchasing new guns. In September 2014, California ’s governor signed AB1014 into law, making California the first U.S. state to enact a GVRO law.
This article describes the GVRO and the rationale behind the concept, considers case examples to assess the potential impact of the GVRO as a strategy for preventing gun violence, and reviews the content of the California law. Copyright # 2015 John Wiley & Sons, Ltd.
The current dialogue about mental illness and gun violence is fraught with misconcep- tions about the relationship between these two issues, as has been established by other contributors to this special issue. Underlying the dialogue in the popular press, among government of ficials and around kitchen tables across the country there is a search for explanations as to why violence continues to plague the United States, and perhaps more importantly, how to effectively intervene in what has become an all-too-frequent part of American life.
As with so many persistent social issues, gun violence is a complex problem without a single cause or solution. However, identifying modifiable risk factors for gun violence and developing interventions targeting those specific factors have been shown to measurably reduce gun violence [e.g., prohibiting gun purchase by those convicted of misdemeanor violence (Wintemute, Wright, Drake, & Beaumont, 2001) and respondents to domestic violence restraining orders (Vigdor & Mercy, 2003, 2006; Zeoli & Webster, 2010)]. In *Correspondence to: Shannon Frattaroli, Associate Professor, The Johns Hopkins Bloomberg School of Pub- lic Health, Center for Gun Policy and Research, 624 North Broadway, #545 Baltimore, Maryland 21205, U.S.A. E-mail: [email protected]
†The Johns Hopklins Bloomberg School of Public Health, Center for Gun Policy and Research, Baltimore, Maryland
‡University of California Davis Health System, Department of Psychiatry and Behavioral Sciences, Davis, California
§The Johns Hopkins School of Education, Division of Public Safety Leadership and the Center for Gun Pol- icy and Research, Baltimore, Maryland
Copyright # 2015 John Wiley & Sons, Ltd.
Behavioral Sciences and the Law
Behav. Sci. Law 33: 290–307 (2015)
Published online 19 May 2015 in Wiley Online Library
(wileyonlinelibrary.com) DOI: 10.1002/bsl.2173
Attachment G
order for interventions to be effective and acceptable to the public, the risk factors targeted must be both sensitive and speci fic in their ability to predict gun violence.
Many gun violence prevention policy proposals reflect the common belief that people with mental illness are at increased risk of committing violence. Given that mental illness alone is a poor predictor of violence (Swanson, McGinty, Fazel, & Mays, 2014), more ac- curate indicators of risk are needed. Those indicators can be identi fied through re fined definitions of the specific types of mental illness and clinical encounters targeted by inter- ventions (e.g., initial onset of psychosis, involuntary commitment), and by expanding the risk factors considered beyond mental illness diagnoses. Other contributors to this special issue make the case for greater use of evidence to inform gun purchase and possession el- igibility. This article presents a new tool for intervening in advance of these evidence- based markers of risk of harm to self or others, the gun violence restraining order (GVRO), and considers this tool as both an alternative to mental health diagnoses and an adjunct to other risk factor-based prohibitions on gun purchase and possession.
CHALLENGES AND SHORTCOMINGS OF CURRENT
STRATEGIES
Following the December 2012 mass shooting at Sandy Hook Elementary School, mul- tiple new firearm policies were proposed. The focus of many of these policies, at both the state and federal levels, was on restricting access to guns by people diagnosed with a serious mental illness such as schizophrenia or bipolar disorder – even though the shooter in the Newtown shooting was not known to have been diagnosed with a serious mental illness at the time the policy debates were ongoing (Clark Estes, 2013). Calls for such restrictions came from different groups, including some organizations known to oppose restrictions on gun ownership (McGinty, Webster, Jarlenski, & Barry, 2014b). Such policy proposals re flect the belief that people who are seriously mentally ill are likely to be dangerous, and therefore that restrictions on their ability to purchase guns will lead to reductions in gun violence (McGinty, Webster, & Barry, 2014c).
Under the authority granted by the 1968 Gun Control Act, federal law prohibits from purchasing or possessing guns anyone involuntarily committed to in-patient treat- ment for mental illness, persons found incompetent to stand trial or acquitted because of mental illness, and persons placed under legal conservatorship because of mental ill- ness (Simpson, 2007). In January 2014, President Obama issued an executive order to expand that prohibition to include people involuntarily committed to outpatient treat- ment. As of this writing, the proposal was awaiting final approval (Kennedy, 2015).
Consistent with the fact that mental illness is a poor predictor of future violence, federal mental illness-focused firearm restrictions set a high bar and apply to only a small pro- portion of people with mental illness (Swanson et al., 2014).
Compared with mental illness-focused gun policies, laws that prohibit firearm pur- chase and possession based on criminal history apply to a larger proportion of the U.S. population. Under federal law, people convicted of felony crimes and domestic violence misdemeanors are prohibited from purchasing and possessing guns. Some states have enacted additional prohibitions for other violent misdemeanor crimes (Law Center to Prevent Gun Violence, 2012). Unlike mental illness, the research evidence suggests a clear relationship between history of violent behavior and risk of future violence, and Gun Violence Restraining Orders 291
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studies demonstrate that firearm prohibitions applied to people convicted of violent mis- demeanors are an effective strategy for reducing their involvement in subsequent violent crime (Vigdor & Mercy, 2003, 2006; Wintemute et al., 2001; Zeoli & Webster, 2010).
The downside of the current risk factor-based approach to gun violence prevention policy is that firearm disqualifications do not go into effect until an extreme event – in- voluntary psychiatric commitment or a disqualifying violent crime – has already oc- curred. Prior to such a disqualifying event, family members, intimate partners, or others often observe a pattern of dangerous behavior. Although the police may be no- tified, of ficers often are limited in their authority and ability to intervene immediately based solely on observed behavior. The identi fication of dangerous behavior by family members, intimate partners, and others presents an opportunity for a more prevention- oriented approach than the current system that ties firearm intervention to adjudication by the criminal justice or mental health systems. Whether these early indicators of dan- gerousness can form the basis for temporary firearm prohibitions in a way that comple- ments current criminal justice and mental health prohibitions and prevents gun violence is the focus of this article.
CONSIDERING TWO CASES: A RETROSPECTIVE VIEW
One way to assess the feasibility and value of using dangerous behaviors as the basis for an intervention is to retrospectively examine cases to determine whether dangerousness was present and identifiable. Two examples from the recent history of mass shootings in the United States reveal details that emphasize the potential for early intervention and the need for new tools to support early intervention efforts. This discussion begins with these well-known cases because they will be familiar to readers, and because opportuni- ties to debate new policies are often more viable following such events. In 2011, Jared Loughner hired a taxi to take him to the shopping center parking lot in Tucson, Arizona, where Congressional Representative Gabrielle Giffords was holding a constituent event.
The crimes he committed following his arrival are part of the well-documented chroni- cle of U.S. mass shootings. What is less of a feature of that documentation are the ac- tions those close to Mr. Loughner took in response to his increasingly troubling behaviors in the days and weeks preceding the shopping center shooting.
Following advice from campus security at the community college where Mr. Loughner was enrolled prior to being expelled for his threatening behaviors, his parents took away his shotgun and advised him to seek clinical help. They also disabled his car at night. Family and school officials noted Mr. Loughner’s troubled behavior and took these steps to keep him from harming himself and others. However, additional systemic intervention was needed to keep him from obtaining and using firearms. In the absence of a criminal act or involuntary commitment, those around Mr. Loughner had limited options to prevent him from committing an act of gun violence. While campus security expressed concern about firearm access to his parents, and his father responded by hiding his gun, neither was able to prevent him from purchasing the gun he used to kill six people in January 2011.
On May 23, 2014 the college town of Isla Vista, California suffered a series of mur- ders that began when Elliot Rodger stabbed three people in his apartment, likely while they slept, and ended after he shot and killed three additional people and himself on the streets of the California community. This case is reviewed in detail elsewhere in this is- sue; the focus in this article is the shooter ’s behaviors leading up to May23 and the 292 S. Frattaroli et al.
Copyright # 2015 John Wiley & Sons, Ltd. Behav. Sci. Law 33: 290–307 (2015) DOI: 10.1002/bsl
family’s response to those behaviors. As was the case with Mr. Loughner, Mr. Rodger was also behaving in ways that caused his family to be concerned, and to intervene.
Weeks before the shooting, his family contacted mental health professionals working with their son, who in turn reached out to law enforcement to express their concern about his threatening behaviors. The local sheriff ’so ffice sent deputies to Mr. Rodger ’s apartment, who spoke with him and concluded they had no legal basis to intervene.
In both cases, those closest to the shooters identified dangerous behaviors, expressed con- cern, and took concrete actions to intervene and address a risk they correctly perceived. Im- portantly, in neither case did the level of dangerousness rise to a point that caused those involved to initiate involuntary commitment procedures, and as a result they were left with few options to intervene and no systematic mechanism to limit gun access. They did what they could with the tools available to them under the law, but were ultimately unable to restrict firearm access by the two young men who went on to commit horrific acts of gun violence.
While the extent to which family members ’ concerns precede gun violence is un- known, these two case examples lend support to the idea that family members are well positioned in some instances to provide an early warning about risk for future violence.
Although both of these cases are of mass shootings, which contribute relatively little to overall firearm mortality, family members may also be uniquely poised to see the warn- ing signs of suicide, which constitutes roughly two-thirds of firearm deaths nationally (Centers for Disease Control and Prevention, 2013). The implementation of a gun- removal law in Indiana (discussed later) resulted in many more guns being removed out of concern for suicide than for violence directed at others (Parker, 2010).
THE CASE FOR GVROS
The question of whether dangerous behaviors can be identi fied by those most likely to recognize a risk before it manifests as a crime has important implications for gun vio- lence prevention. Whether the risky behaviors identi fied can then be assessed fairly and accurately, and form the basis of an intervention to reduce harm, has the potential to offer a new approach to preventing gun violence. This ef ficacy question can be assessed through an examination of similar systems that seek to accomplish such aims.
Whether dangerous behavior can be used to disqualify firearm purchase and posses- sion was one of many questions raised by a group of researchers and practitioners who gathered for a meeting in March of 2013 in Baltimore, Maryland, to examine the evi- dence on mental illness and gun violence (McGinty et al., 2014a). Following a review and discussion of the literature, the consensus among participants (now known as the Consortium for Risk-based Firearm Policy) was that dangerous behaviors associated with violence, and not mental illness diagnoses, are the best predictor available to iden- tify those at risk for committing future gun violence. The group considered two general categories of behaviors: those already captured in existing criminal justice systems (convictions for misdemeanor violence, drinking and driving, and misdemeanor crimes involving controlled substances, as well as respondents to ex parte domestic violence restraining orders) but who do not constitute a prohibiting offense under federal law, and a second group that includes dangerous behaviors that have not yielded a charge or adjudication by criminal justice or mental health authorities. The Consortium went on to recommend an evidence-informed strategy to temporarily restrict firearm access on the basis of dangerous behavior through what it called a “gun violence restraining Gun Violence Restraining Orders 293
Copyright # 2015 John Wiley & Sons, Ltd. Behav. Sci. Law 33: 290–307 (2015) DOI: 10.1002/bsl
order.” The GVRO was then developed from the Consortium ’s review of two existing models of firearm removal, and the available evidence about each.
Domestic Violence Restraining Orders
The GVRO concept was directly informed by the domestic violence restraining order (DVRO; also known as a “protection order” and an “order of protection”) system. Do- mestic violence victims and advocates have long used DVROs as a tool for intervening in family violence. DVROs provide victims with access to a judge who decides whether their case warrants court intervention and the terms of that intervention. In most lo- cales, court access is immediate, in recognition of the importance of intervention when domestic violence has reached a crisis point and the court ’s help is needed. All 50 states have systems in place to support DVRO petitions (Everytown for Gun Safety, 2014).
While the terms of those laws vary somewhat across the states, all must comply with a federal law prohibiting respondents to DVROs from purchasing and possessing guns (18 United States Code Annotated § 922 Unlawful Acts (G)).
The evidence concerning the impact of state laws that prohibit DVRO respondents from purchasing and possessing guns is unequivocal. These laws closely mirror the fed- eral prohibition, and are generally associated with state systems that are more likely to in- clude DVRO respondents in the background check system than states without state-level DVRO prohibitions (Vigdor & Mercy, 2006). Three studies (one is an updated and ex- panded reanalysis) demonstrate statistically signi ficant associations between state laws that prohibit DVRO respondents from purchasing and possessing guns and intimate part- ner violence (Vigdor & Mercy, 2003, 2006; Zeoli & Webster, 2010). Zeoli and Webster’s (2010) analysis of intimate partner homicides in 46 of the largest U.S. cities demonstrated a 19% reduction in intimate partner homicides, compared with cities in states without such a law, and an even larger reduction (25%) in intimate partner gun homicides. Impor- tantly, these declines are likely an effect of the purchase prohibitions (as opposed to the possession restrictions that are believed to be largely unenforced in most jurisdictions), suggesting that even more of an effect would be realized through implementation and en- forcement of the possession prohibition of these laws (Zeoli & Frattaroli, 2013). As of 2014, 23 states and the District of Columbia had laws prohibiting respondents to DVROs from purchasing and possessing guns (Everytown for Gun Safety, 2014).
Domestic violence restraining order laws empower victims to initiate court interven- tion to address abuse in their relationships. This path recognizes that the violence being perpetrated often occurs in private (and without witnesses) and that there may be dis- incentives to pursuing criminal charges against an intimate partner (e.g., loss of a job and the associated financial consequences for the petitioner, desire to continue the re- lationship). The civil DVRO system also provides an opportunity for systemic interven- tion before more serious violence occurs, by providing a mechanism whereby the person closest to the problem, the victim, can take concrete steps to intervene and ad- dress the violence even in the absence of a crime.
Law Enforcement Statutory Authority to Remove Guns in Response to Dangerous Behavior
The GVRO concept was also informed by several state laws that give law enforcement of- ficers the authority to remove guns in response to someone behaving dangerously. Law 294 S. Frattaroli et al.
Copyright # 2015 John Wiley & Sons, Ltd. Behav. Sci. Law 33: 290–307 (2015) DOI: 10.1002/bsl
enforcement officers encounter people behaving in dangerous ways on a daily basis, and may be called on by family members who need assistance in dealing with a violent or un- predictable relative who has been resistant to offers of help. As of October 2014, three states have enacted laws that authorize law enforcement to temporarily remove guns from an individual who meets the dangerousness criteria specified under each state’sl a w .C o n - necticut was the first state to pass such a law. Under Connecticut law, which took effect in 1999, two police officers or a state’s attorney may request a warrant from the court to re- move all guns from an individual who poses an imminent risk of harm to self or others.
The requesting officers or state’s attorney must establish that probable cause for the im- minent risk of harm exists and that no reasonable alternative to removing guns would ad- dress the risk (Conn. Gen. Stat. § 29-38c). The law provides criteria for assessing both probable cause (recent threat of violence or a violent act) and imminent risk of harm (reckless gun behaviors, history of violence, prior involuntary psychiatric commitment, or a history of alcohol abuse or illegal drug use in these cases). When a warrant is issued, a full hearing on the subject must occur within 14 days in order to determine whether to return the guns or maintain the prohibition for up to 1 year. Data from Connecticut sug- gest that the law is being used (274 cases in thefirst 10 years that the law was in effect) and objections to its enforcement are rare (Rose & Cummings, 2009).
Indiana law, in effect since 2006, authorizes law enforcement of ficers to remove guns from any individual they determine to be dangerous. A dangerous individual under In- diana law is someone who “presents an imminent present risk or possible future risk and who has not consistently taken medication to control a mental illness that may be con- trolled by medications ” or “has a history to support a reasonable belief that the person has a propensity for violent or emotionally unstable conduct ” (Ind. Code Ann. § 35- 47-14). Unlike Connecticut, Indiana authorizes law enforcement of ficers to remove guns without a warrant. However, a hearing to determine whether the decision to re- move guns should stand must follow any decision to remove guns under this provision of the law (Ind. Code Ann. § 35-47-14). The court may extend the decision to remove guns for up to 1 year. Analyses of court data from Indiana suggest that law enforcement use of the law is limited to one county, and within that county implementation practices are inconsistent. During the first 2 years the law was in effect, the court upheld most gun removals; later data indicate that the court returned guns in most cases (Parker, 2010).
Early implementation data show that firearm removals occurred most frequently in sce- narios where families were concerned about a loved one ’s risk of suicide (Parker, 2010).
Most recently (2013) Texas Governor Perry signed a bill into law authorizing law en- forcement to remove guns from a person being arrested if the of ficer believes the person has a mental illness and poses “substantial risk of serious harm to the person or others unless the person is immediately restrained ” (Texas Health and Safety Code Title 7, subtitle C, §573.001). The Texas law conditions gun removal on the of ficer’s belief that in addition to posing a substantial risk of harm, the person is mentally ill, and ties gun removal to arrest. Because of these two criteria, the Texas example is less relevant to the GVRO which is not conditioned on a judgment about the respondent ’s mental health and seeks to intervene independent of behaviors that would warrant arrest. The Texas law is included here to provide readers with a review of the range of existing non-clinical policies of gun removal based on dangerousness. As of this writing, no pub- lished information about the implementation or impact of the Texas law was available.
The three states offer three different approaches to authorizing law enforcement officers to remove guns from people who meet standards of dangerousness, as de fined by each Gun Violence Restraining Orders 295
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state’s law. These laws, in combination with the DVRO laws previously described, provide guidance for operationalizing the gun violence restraining order concept at the state level.
Building on Experience: the GVRO
As recommended by the Consortium, the GVRO is a tool that should be available to fam- ily members and intimate partners who believe their relative’s dangerous behavior is a pre- cursor to violence. By expanding the DVRO concept to allow family members to petition the court for help before a family member ’s risk of violence becomes real violence, the GVRO offers a new opportunity for intervention. Much like a DVRO, a state GVRO sys- tem would allow family members and intimate partners (and any other group the state specifies) to petition the court to prohibit the respondent from purchasing and possessing firearms for a defined period of time (the Consortium recommends 1 year). The GVRO would reduce the respondent’s ability to harm him/herself or someone else in two ways.
First, a court-issued GVRO would disqualify the respondent from purchasing any new guns. GVRO respondents would be identi fied through the National Instant Criminal Background Check System (NICS), and any attempt to purchase a gun through a feder- ally licensed firearm dealer would be blocked for the duration of the order. This is the same process that occurs when a court issues a DVRO. Secondly, the GVRO would au- thorize law enforcement to remove any guns in the respondent’s possession for the dura- tion of the order. While the gun removal provision of the DVRO is believed to be under-enforced, demonstration projects establish the efficacy of the strategy and provide guidance as to how law enforcement can engage in efforts to support these laws (Wintemute et al., 2013). Applying lessons from DVRO experiences to GVRO imple- mentation will increase the potential of this intervention approach to reduce gun-related morbidity and mortality. Importantly, this temporary prohibition will allow petitioners to continue with positive intervention efforts without the threat of ready access to firearms.
APPLICATION OF THE GVRO CONCEPT: CONSIDER-
ATION OF CASE EXAMPLES
The two case examples described at the beginning of this article offer one type of sce- nario in which the current system is ill-equipped to respond to indicators of dangerous- ness, even when family members are in contact with authorities and intervene to minimize the potential for harm. In both the Tucson and Isla Vista cases, a GVRO would have provided families with another intervention option. Whether a GVRO would have been suf ficient to prevent the multiple murders is unknown.
While the GVRO is one approach to intervening with individuals who may be at risk for committing a mass shooting, it is a tool with broader applicability. The GVRO has the potential to address some of the gun violence that occurs every day in communities throughout the United States, and its greatest potential impact rests within these sce- narios. Table 1 presents three hypothetical case scenarios of individuals who are engag- ing in dangerous behaviors and an analysis of each case. Each case analysis concludes with a summary of the tools available under current law and a consideration of how a GVRO could be used to address the threat associated with the behaviors described. 296 S. Frattaroli et al.
Copyright # 2015 John Wiley & Sons, Ltd. Behav. Sci. Law 33: 290–307 (2015) DOI: 10.1002/bsl
Table 1. Dangerous behaviors in context: a case-based analysis Case presentation Case analysis
Case #1: Bob. Police respond to the apartment of a 58-year-old male whose girlfriend called 911 because she was worried about him. They had a fight, and he had been drinking heavily. She had talked about leaving him, at which point, he said that he might as well kill himself since she would rather he were dead anyway.
He then locked her out of his house, and did not answer repeated phone calls. She reports that he has made such statements when drinking, though never when sober, and that she has found him holding his gun contemplatively on a few such occasions. Despite frequently making such statements, he has never attempted suicide or been hospitalized psychiatrically. He has been arrested for multiple DUIs, though never for a violent offense. Though she believes suicide is something he only considers when he is drinking, it worries her because he has a gun in the home.
Person observing dangerous behavior : Intimate partner.
Law enforcement involved : Yes.
Clinical provider involved : No.
History of dangerous behavior : Yes, prior suicide threats; prior drinking and driving arrests.
Current dangerous behavior : Threatened suicide, excessive alcohol use, gun access.
Tools available under current law : Federal law prohibits people who are “unlawful users of or addicted to any controlled substance ” from purchasing or owning firearms 18 United States Code Annotated §922 Unlawful Acts (G).
However, the law provides no criteria to identify addicts or unlawful users and report them to NICS. Bob would retain his firearms and the ability to buy new firearms.
What would a GVRO add :B o b’s girlfriend would have the option of petitioning the court for a GVRO. If issued, the GVRO would authorize law enforcement to remove Bob ’s guns and prohibit him from purchasing new guns for the duration of the order. The GVRO would limit Bob ’s access to
lethal means, and provide his girlfriend and others with time to address Bob ’s suicidal tendencies without worrying about his access to guns.
Case #2: Rex. A 60-year-old woman caring for her husband of 40 years who has been diagnosed with Parkinson ’s disease periodically deals with his violent hallucinations, which are a side-effect of the medications prescribed to address his many ailments (including anxiety and dementia). His clinical team tries to address this side-effect, with some success, but his medication regimen changes often and the hallucinations reoccur. Rex has no criminal record, and no history of psychiatric hospitalization. Rex is a gun enthusiast and has an extensive gun collection he keeps in the home where he and his wife live, and where his grandchildren frequently visit. Rex ’s wife and children are concerned that his violent hallucinations, combined with his access to firearms will end in tragedy for the family. They have hidden his guns, but fear he will find them or buy a new gun without their knowledge.
Person observing dangerous behavior : Spouse.
Law enforcement involved :N o .
Clinical provider involved : Yes.
History of dangerous behavior : No.
Current dangerous behavior: Violent hallucinations that lead to him “defending himself” against anyone in the vicinity.
Tools available under current law : Rex has no criminal record and has never been psychiatrically hospitalized. He is a legal gun owner. There is no current law to remove the guns he currently possesses or to prohibit him from purchasing new guns.
What would a GVRO add ? Rex’s family could petition the court for a GVRO. If issued, law enforcement would remove any guns in his possession and prohibit gun purchases for the duration of the order, thus providing Rex ’s family with the ability to continue to care for him at home without the fear that his guns will be used against a family member or visitor during one of Rex ’s hallucinations. (Continues)
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Table 1.(Continued)
Case presentation Case analysis
Case #3: Tim. A 32-year-old male who works as a security guard at a pharmacy has become increasingly suspicious that two of the pharmacists are monitoring him.
Tim has noticed that the store ’s security cameras are trained on him. He has been hearing helicopters lately, and believes that other co-workers are sending helicopters based on his cell phone GPS. Last month he acquired two handguns for protection, and started sleeping with them at his bedside. Tim liveswith his brother, who has become increasingly concerned by the stories he hears from Tim about his co-workers ’ plots. He became angry at his store manager when he would not explain what wasgoing on, handcuffed him to the cashier ’s counter and pepper sprayed him. At this point, the police were called. Tim has no history of violence, but feels scared enough to “do whatever I need to do to protect myself. ” Person observing dangerous behavior : Co-workers, brother.
Law enforcement involved : Yes.
Clinical provider involved : No.
History of dangerous behavior :N o .
Current dangerous behavior : Assault of a co-worker, delusions and paranoia, which are leading him to act in increasingly violent ways.
Tools available under current law : This case illustrates a potentially dangerous situation where the mental health system is poised to intervene. Tim ’s psychotic symptoms would likely qualify him for admission to a psychiatric hospital.
Proper treatment could reduce his future potential for violence. Given the severity and longevity of his symptoms, his psychiatric commitment would likely be judicially certi fied, and the threshold for federal firearm prohibition met. If Tim faces criminal charges for assaulting his manager, he may be found incompetent to stand trial. If he is able to proceed with a trial, he may be found not guilty by reason of insanity. In either case, he would meet another federal firearm disquali fication based on mental illness: adjudication as mentally incompetent. 18 United States Code Annotated §922 Unlawful Acts (G).
What would a GVRO add ? Because of Tim ’s likely engagement with the mental health system, he will probably be prohibited from purchasing and possessing firearms under federal law. The GVRO would complement these interventions by providing Tim ’s brother with the option of pursuing a GVRO to reduce Tim ’s access to firearms while the mental health and criminal justice systems are proceeding with his case by engaging law enforcement to remove any guns in his possession.
NICS, National Instant Criminal Background Check System; GVRO, gun violence restraining order. 298 S. Frattaroli et al.
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In each case, the dangerous behaviors are apparent to those who know the individ- uals intimately. Whether the dangerous behaviors gradually escalated and accumulated over time, as in case 1, or appeared suddenly, as with cases 2 and 3, those who spend time with the individuals recognize a risk. This recognition occurs prior to the involve- ment of law enforcement or clinical professionals, and before the individuals engage in any violence that results in injury or death. For cases 1 and 2, involuntary commitment is not a likely option. Bob would be sober for his evaluation and his talk of suicide would likely fade. Rex ’s medication side-effects are beyond the scope of psychiatric treatment. The GVRO provides a harm reduction option that is responsive to the risk.
For case 3, the GVRO provides an adjunct to a scenario that would likely result in an involuntary commitment and psychiatric care.
Identifying Dangerousness
Importantly, each case includes anecdotal evidence that would likely meet generally agreed upon criteria of what is an unacceptable level of dangerousness in the context of firearm access. Whether it is the history of threatened suicide and drinking and driv- ing arrests described in case 1, the altered reality of a chronically ill man whose violent visions are caused by medications prescribed to ease the symptoms of disease (case 2), or the delusional paranoia associated with emerging psychosis (case 3), these examples provide a reasonable starting point for discussion of what could constitute a threshold for dangerousness beyond which gun access is deemed too risky.
In de fining the criteria for dangerousness in this context, there is some precedent.
Both the DVRO laws and the three state laws previously discussed that authorize law enforcement to remove guns from people they encounter behaving dangerously provide some guidance with regard to standards to assess when intervention is appropriate. In addition, more general law enforcement standards of practice are also instructive.
Law enforcement of ficers draw their authority from the law. The application of this authority is in fluenced by numerous factors, including of ficers’ understanding of the scope of power granted to them; the nature, urgency, or seriousness of situations to which they are exposed; agency leaders ’ commitment; agency policy and norms; per- ceived prosecutorial and judicial support; peer acceptance; and of ficer skill and experi- ence. All of these factors will influence the interpretation and implementation of the law.
Like the long-standing DVRO, an individual’s initial connection to the GVRO will often occur when a concern or perceived threat results in a call to the police. If the patrol officer, deputy, or trooper who responds is unable to take immediate action to resolve the situation, the availability of a GVRO provides another option for the officer in advising family mem- bers and intimate partners about finding an acceptable resolution to their situation.
The public ’s acceptance of the GVRO law and people ’s willingness to follow po- lice of ficers’ guidance to pursue their prerogatives under the new law will be based, in great part, on their perception or judgment of past police practice and trust in of- ficers’ exercise of authority (Sunshine & Tyler, 2003; Tyler, 2004; Tyler & Faga, 2008). If they perceive that police of ficers act in a procedurally just manner by dem- onstrating neutral and fair action, showing dignity and respect, and displaying gen- uine concern, people will view the police as legitimate and will be more likely to accept their authority and the guidance they provide to pursue the options offered by the GVRO (Mazerolle, Antrobus, Bennett, & Tyler, 2013).
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The experience of clinical providers also offers guidance for identifying dangerous behavior. The concept of a “credible” threat of violence is used as a standard for inter- vention in different contexts involving gun restrictions. If a person communicates to a licensed therapist a credible threat of violence towards an identi fiable target, the thera- pist is required to break con fidentiality and report the threat to the potential victim and the authorities under “duty to warn and protect ” statutes. In some states, this action will trigger a state-level firearm prohibition (Herbert, 2002). In the context of involun- tary commitments to psychiatric care, which disqualify individuals from firearm pur- chase and possession under federal law, psychiatrists must determine whether an individual poses a serious risk of harming themselves or others.
Guidance for de fining criteria to identify dangerous behaviors exists in several for- mats. Whether it be in the form of statutory de finitions or practice, there is an established set of knowledge that lawmakers can draw from in formulating GVRO legislation.
FROM RECOMMENDATIONS TO POLICY: CONSIDER-
ATIONS FOR POLICYMAKERS AND PRACTITIONERS
The GVRO is based on an expansion of civil law that will allow for a more prevention- oriented response to dangerous behaviors than currently exists. While future violence cannot be predicted with a high level of certainty at the individual level, there are situa- tions in which a person ’s dangerous behaviors lead friends and family to conclude that violence is a likely part of the trajectory of behaviors for the individual. Intervening along that trajectory to reduce the harm that may come from a violent event, and possibly pre- vent the violent event from occurring is the motivation behind the GVRO. The interven- tion is temporary, does not restrict one ’s movement or actions, and is commensurate with the fact that, at the time a GVRO is issued, the respondent has not committed a crime. Whether this tool will be available, who will be authorized to request it, and the criteria for deciding the merits of the request will depend on dialogue about this policy initiative and the responses of policymakers in state legislatures around the country.
The Consortium outlined the GVRO concept and provided general parameters for how it could be operationalized (Consortium for Risk Based Firearm Policy, 2013).
Since that report was issued, discussions about the application of the GVRO have evolved to include a more expansive debate about the nuances of GVRO policy with re- gard to who should be authorized to request a GVRO, what standards for evaluating those requests should apply, and the process for returning guns at the conclusion of the order.
Who Should Have the Authority to Petition the Court?
The original Consortium recommendation identi fied family members, intimate part- ners, and law enforcement of ficers as GVRO petitioners. Family and intimate partners, by nature of their relationships, are those often in fear and best positioned to observe dangerous behaviors and to know when they may be a precursor to violence. Law en- forcement is the authority often called to help family address dangerous behaviors.
The nature of their relationships (family and intimate partners) and their professional 300 S. Frattaroli et al.
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role (law enforcement of ficers) place these groups in a position to observe dangerous behaviors, assess them in the context of the individuals ’ past behaviors, and determine if court intervention is warranted.
Whether other professional groups should be included among those authorized to pe- tition the court for a GVRO has been a topic of discussion since the release of the Con- sortium’s report. College counselors, coaches, teachers, and clinicians have all been suggested as groups who, by nature of their professional relationships, are in a position to observe and assess when an individual in their charge is acting in ways that may fore- shadow future violence. Of these groups, discussion about clinicians ’ roles has progressed the furthest, with particular interest from emergency medicine physicians (Barsotti, 2015). Support for including emergency medicine physicians as eligible peti- tioners for a GVRO is likely driven in part by the nature of emergency care, which is of- ten sought and provided during moments of crisis for the patients. These crisis points are sometimes referred to as teachable moments and may offer an opportune time to ob- serve the types of dangerous behaviors that are part of a larger trajectory of escalating vi- olence and intervene. Furthermore, the fact that many emergency departments outside of large metropolitan areas do not have ready access to psychiatric care leaves clinicians with fewer tools to address the more complex issues that underlie the immediate care needs of their patients in need of emergency treatment. For patients with a history of dangerous behaviors that suggest escalating violence, many emergency medicine physi- cians are providing care without the bene fit of mental health colleagues to evaluate the risk, and with few tools to address the violence concern (Barsotti, 2015).
Restrictions related to clinical providers ’ ability to share information, which are rel- evant for GVRO implementation, may vary under the Health Insurance Portability and Accountability Act (HIPAA) (Public Law 104-191). Clinical providers engaged in a therapeutic relationship, which de fines all relationships between mental health pro- viders and their patients, could risk violating con fidentiality under HIPAA by disclos- ing a general threat of violence toward self and others made by a patient to law enforcement authorities or others. (Their obligation to disclose threats of violence ap- plies to those cases where the patient names a speci fic, identifiable target.) Whether the relationship between an emergency room physician, for example, and a patient falls within the bounds of a “therapeutic relationship ” is less clear. Clinicians who do not specialize in mental health may be in a stronger legal position to initiate a GVRO peti- tion. State statutory authority may provide a mechanism for clarifying a physician ’s ob- ligations under HIPAA if a GVRO system is in place. With regard to reporting mental health records to the NICS background check system, a 2012 Government Account- ability Of fice report documented that state of ficials’ willingness to report records to NICS is in fluenced by state law authorizing the release of such records (Government Accountability Of fice, 2012).
Federal authorities appear to recognize a role for clinical judgment concerning HIPAA privacy rules when public safety is a concern. In the aftermath of the Sandy Hook school shooting, the Department of Health and Human Services weighed in on therapists’“duty to warn,” HIPAA protections of patient privacy generally, and the therapeutic relation- ship in particular. In an open letter to “Our Nation’sH e a l t h c a r eP r o v i d e r s” the agency offered an interpretation of the HIPAA Privacy Rule that emphasized the importance of balancing the privacy of patients ’ health information against public health and safety (Rodriguez, 2013). Additional guidance is needed to inform clinicians ’ understanding of the permissible disclosures under HIPAA, particularly in relation to the GVRO Gun Violence Restraining Orders 301
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concept. The need to reconsider HIPAA protections was also discussed at the Summits on Multiple Casualty Violence, sponsored by the Department of Justice, Department of Homeland Security, and Johns Hopkins University. The Summits brought together a cross-section of stakeholders from a variety of disciplines, including law enforcement, health care, law, social sciences, education, and academia, for the purpose of improving the nation’s ability to prevent such incidents (Bratburd, 2014).
What are the Appropriate Standards for Evaluating GVRO Petitions? As a civil intervention, the GVRO does not involve a determination of guilt or inno- cence. Rather, civil court offers a mechanism to correct a wrong between two individ- uals. As such, the threshold for intervention is lower than in a criminal case. A petitioner seeking a GVRO would not need to meet a “beyond a reasonable doubt” stan- dard that is typical in a criminal case, but instead would be held to a “preponderance of evidence” or “clear and convincing” standard more often used in civil proceedings. Be- yond the strength of the case, there is the issue of which behaviors constitute dangerous- ness for the purpose of issuing a GVRO. On this matter, the Consortium suggests that the court consider the “petitioner’s account of the threat; the respondent ’s history of threatening or dangerous behavior, history of or current use of controlled substances, history of or current abuse of alcohol, and history of adherence to prescribed psychiatric medications. These factors may include threats of suicide. Prior involuntary commit- ment to psychiatric care may also be considered, if such information is available ” (Con- sortium for Risk Based Firearm Policy, 2013). This approach is consistent with recommendations made in the forensic psychiatry literature (Gold, 2013; Pinals et al., 2014). Consideration of how future GVRO proposals align with state involuntary com- mitment standards and practices is also important in ensuring that new GVRO laws complement available tools and maximize the potential of the GVRO approach.
What is the Process for Returning Removed Guns and Restoring Pur- chase Rights at the Conclusion of a GVRO?
The Consortium recommendations specify the GVRO as a time-limited prohibition.
As such, at the conclusion of the order, if the respondent is not otherwise prohibited from purchasing and possessing guns, all guns removed or surrendered in response to the order should be returned, and their ability to purchase guns restored (Consor- tium for Risk Based Firearm Policy, 2013). The speci fic process through which this happens will likely vary among states.
California lawmakers considered these issues in 2014 as they drafted and debated a bill to establish a GVRO system. The California experience provides some insight into these questions, and raises new ones as well.
CALIFORNIA’S GVRO LAW: AN EXAMINATION OF ONE
STATE’S APPROACH
On September 30, 2014, California Governor Jerry Brown signed into law AB 1014. With the Governor’s signature, California became the first state in the country to establish a 302 S. Frattaroli et al.
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GVRO system. The bill, introduced by Assembly Member Nancy Skinner in the aftermath of the Isla Vista shootings, will take effect on January 1, 2016 (Cal. Penal Code § 18100).
Under California law, immediate family members, including some intimate partners (specified later in this section), and law enforcement of ficers may request a GVRO from the court (Cal. Penal Code § 18100). An early version of the bill would have allowed any person to petition the court for a GVRO. The eligible petitioners were scaled back as legislators and advocates weighed in on the speci fics of the bill.
California’s law includes information about how the GVRO will be operationalized, and is instructive for other state lawmakers interested in pursuing similar legislation.
The state offers three types of GVROs that mirror the options available with DVROs.
Law enforcement officers have the option of requesting an emergency GVRO when they encounter an “immediate and present danger of injury to self or others as a result of hav- ing a gun” and the requesting officer concludes that an emergency order is needed to ef- fectively intervene. This order can be requested from the field and issued verbally by a judge for up to 21 days, and may be extended through a subsequent hearing.
An ex parte GVRO is available to both law enforcement and the immediate family of the respondent to the order, and generally occurs in the absence of the respondent. Immedi- ate family includes “any spouse, whether by marriage or not, domestic partner, parent, child, any person related by consanguinity or af finity within the second degree, or any other person who regularly resides in the household”(Cal. Penal Code §422.4). The court may issue an ex parte GVRO when there is a “substantial likelihood” that the respondent “poses a significant danger of harm to self or others in the near future by having access to a firearm.” There is an expectation established by the law that the court will decide ex parte GVRO petitions on the same day they arefiled (Cal. Penal Code § 18150(d)). If issued, an ex parte GVRO may be in effect for up to 21 days, which may be extended through a GVRO issued after notice and hearing in which the respondent is present. The GVRO is- sued after notice and hearing is the third type of order available under California law, and is subject to “clear and convincing evidence that the respondent poses a significant danger of injury to self or others,” and may be issued for up to 1 year (Cal. Penal Code § 18170).
In California, when evaluating GVRO petitions, the court is to consider several indi- cators of dangerousness, as speci fied under the law, including recent threats or acts of violence toward self or others, violations of protection orders, a pattern of violence or threatened violence within the past 12 months, and a conviction for any crimes that pro- hibit an individual from purchasing and possessing firearms under California law (Cal.
Penal Code § 18155(b)). In addition, the court may consider reckless firearm behaviors, history of threatened or actual physical force against another person, prior arrest for a felony offense, records demonstrating abuse of alcohol or controlled substances, and whether the respondent has acquired guns or other deadly weapons within the 6 months prior to the petition (Cal. Penal Code § 18155(b)). This guidance from legislators relies on recent indicators of dangerousness and a longer history of risky behaviors to assess whether a GVRO is an appropriate intervention for the petition under consideration.
On the topic of returning removed guns and restoring purchase rights, the California GVRO law references existing statute governing the return of guns in custody, which includes a request to the California Department of Justice to determine whether the former GVRO respondent is eligible to possess firearms (Cal. Penal Code § 33850).
The amount of time to verify eligibility through a standard background check is set at a maximum of 30 days. There is a fee for processing the application. Once the former respondent is determined to be a legal gun purchaser, all guns in custody can be Gun Violence Restraining Orders 303
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returned and the individual is able to purchase new guns. There is no clinical assess- ment associated with this review process.
Considering Implementation
In response to concerns that individuals would misuse the GVRO, California law- makers included a provision in the GVRO bill establishing that anyone who falsely files a GVRO petition is guilty of a misdemeanor crime (Cal. Penal Code § 18200). They also included language that will likely improve implementation of the law. By specifying the terms under which a search warrant can be used to assure guns are removed, and clarifying the process of surrender (to local law enforcement and including all firearms and ammunition), the law provides guidance for those responsible for serving GVROs and removing guns from newly prohibited possessors. To further encourage compli- ance, the law also speci fies that any respondent who fails to comply with the terms of a GVRO will be subject to a 5-year prohibition on gun purchase and possession (Cal.
Penal Code § 18205).
Passage of GVRO legislation does not imply widespread, consistent, or rapid appli- cation of the law by police agencies or front-line of ficers. Despite increased attention to meeting the needs of vulnerable populations, including people with mental illness, homeless and street people, and others, shifts in the culture of police service take time.
Officers tend to rely on long-standing tools and behaviors (Loftus, 2010).
The scant literature from Connecticut and Indiana about law enforcement use of their gun removal authority is instructive (Parker, 2010; Rose & Cummings, 2009), as are the lessons from the experience of implementing the DVRO gun prohibition (Wintemute et al., 2013). The law enforcement field is highly fragmented and, in most states, including California, there is no central authority that imposes policy or stan- dards of practice. There are 462 state and local law enforcement agencies in California, staffed by 76,773 sworn of ficers (Federal Bureau of Investigation, 2013).
As in California, the majority of police of ficers in the United States work in agencies of 25 or fewer people. Patrol of ficers in smaller municipalities and counties tend to be more familiar with people and neighborhoods and engage in a higher degree of commu- nity policing than their counterparts in large urban environments (Falcone et al., 2002).
They are more apt to engage in problem-solving, make referrals, and follow up to ensure the needed action has occurred. As such, they may be more receptive to taking the time to educate people about laws similar to the GVRO (Payne, Berg, & Sun, 2005).
Regardless of the type or size of the jurisdiction, the culture of policing is changing.
The role and duties of patrol of ficers are becoming increasingly diverse. Today ’s patrol officers, particularly those newer to the profession, are more receptive to alternatives to traditional approaches to resolving problems (Paoline, 2003; Robinson, 2000). In recent years, changes to the police culture have been seen in the use of social media, reliance on evidence, information sharing, intervention in domestic violence, alterna- tives to arrest, and race-based pro filing (Warren & Tomaskovic-Devey, 2009). Of ficers become amenable to change partly as a result of conversation and learning from their peers. As a small subgroup of of ficers receptive to innovation and alternative approaches use laws such as the GVRO and convey the value of their efforts to peers, others may become receptive and apply the new tool as well (Lundin & Nuldén, 2007).
For implementation of the GVRO to be effective and for of ficers to fully understand and embrace their legal authority, agency policy should be clear-cut and supported by 304 S. Frattaroli et al.
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training (Schultz, 2010). For front-line of ficers, training should go beyond basic orientation to the GVRO law and agency policy to include real-world scenarios that reflect the complex and challenging situations that of ficers face when assessing dangerousness (e.g., homelessness, substance use, anger management, non-compliance with psychiatric medications), including scripted messages on conveying information to intimate partners and family members, and discussion of intended and potential outcomes. Consideration of varied officer roles (e.g., patrol, investigation, crisis intervention), the different policing cultures across agencies, and agencies ’ relationships with the communities they serve is also important in assessing how law enforcement can most effectively use this new author- ity. Officers who are well trained and who have the support and opportunity to apply new tools tend to be more positive toward the intent of a program or law than those who are not (Morabito, Watson, & Draine, 2013). It is equally important for supervisors to be trained in their role with regard to guiding, incentivizing, and monitoring implementation of the GVRO law (Famega, Frank, & Mazerolle, 2005). Ensuring that of ficers are confi- dent about their use of this new authority and supported by leadership in its application will also likely affect the implementation and ultimate impact of the law.
Law enforcement is one petitioner authorized under California ’s new GVRO law:
immediate family members are the other. Assuring that the public is aware of the law and knowledgeable about when it applies and how to initiate a petition will be essential for translating the law from concept into practice. Consideration should be given to the strategic avenues for disseminating information about the GVRO. Clinical venues (e.g., emergency departments, primary care settings, mental health support settings), em- ployee assistance programs, legal service providers, and law enforcement are some in- stitutions that regularly interact with the public and could serve as an information source about the GVRO. Dissemination through websites is also an avenue that should be explored.
The authors also note the important role of the background check system in implementing and enforcing of GVROs issued under California ’s new law and in any other state that enacts a GVRO policy. Federal law requires background checks for all guns purchased through federally licensed firearm dealers (FFLs). Sales by FFLs represent one component of the gun market; non-licensed seller or private party sales constitute another source for gun buyers. While the size of the private party market is difficult to assess, a commonly referenced estimate is that approximately 40% of all gun sales occur through non-licensed dealers (Cook, Molliconi, & Cole, 1995). A uni- versal background check policy would require private party sellers to check if a potential buyer is eligible to purchase guns prior to completing a sale (Consortium for Risk Based Firearm Policy, 2013).
CONCLUSION: ALTERNATIVE AND ADJUNCT
The GVRO represents an important step towards limiting access to firearms by those who are at an acutely elevated risk of committing acts of violence. The historical legis- lative focus on mental illness belies a weak link between mental illness and violence.
However, there has been success in reducing violence with legislation that focuses on groups, such as respondents to DVROs and violent misdemeanants, with an elevated risk for violence that is supported by evidence. The DVRO removes the focus of vio- lence prevention legislation from people with mental illness and focuses it on people Gun Violence Restraining Orders 305
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who are at an acutely elevated risk for a myriad factors. In addition, it puts a tool in the hands of the people most poised to recognize that escalating risk of danger because of their unique position: law enforcement and immediate family. It addresses a gap in the current legislation, which does not provide many alternatives when thresholds have not been met for mental health adjudication or criminal conviction. In two recent cases of public shootings, a DVRO may have empowered concerned family members to take more action than was available to them at the time. In the future, it may provide a valu- able tool for prevention of both homicides and suicides when danger signs are present but other options are not available.
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