Human nature. We bewail its effects, demand that something be done to address it, and studiously ignore it in proposing “solutions.”

Legislators looking for an issue that will resonate with voters—pretty much all legislators–inevitably ride the wave emanating from any mass shooting like a sun-bronzed stoner surfer dude. It is as natural as it is predictable. Politicians crave attention and regardless of whether it will help or harm, they write laws. So it is with the Santa Barbara attack that left six dead and 13 wounded, and this time, the call for meaningless legislation that would somehow “fix” our involuntary commitment laws.

The killer, you see, was obviously mentally ill (see Ann Coulter’s take). He had been in treatment since the age of 8 and the police interviewed him a short time before his rampage and he killed people anyway, so something must be wrong with involuntary commitment laws, and therefore different laws can prevent future attacks, right?

Richard A Friedman, psychiatrist and professor of clinical psychiatry isn’t convinced:

MASS killers like Elliot Rodger teach society all the wrong lessons about the connection between violence, mental illness and guns — and what we should do about it. One of the biggest misconceptions, pushed by our commentators and politicians, is that we can prevent these tragedies if we improve our mental health care system. It is a comforting notion, but nothing could be further from the truth.

And although the intense media attention might suggest otherwise, mass killings — when four or more people are killed at once — are very rare events. In 2012, they accounted for only about 0.15 percent of all homicides in the United States. Because of their horrific nature, however, they receive lurid media attention that distorts the public’s perception about the real risk posed by the mentally ill.

Anyone who watched Elliot Rodger’s chilling YouTube video, detailing his plan for murderous vengeance before he killed six people last week near Santa Barbara, Calif., would understandably conflate madness with violence. While it is true that most mass killers have a psychiatric illness, the vast majority of violent people are not mentally ill and most mentally ill people are not violent. Indeed, only about 4 percent of overall violence in the United States can be attributed to those with mental illness. Most homicides in the United States are committed by people without mental illness who use guns.

We know who most of these killer are—or at least we know the profile of those most likely to kill–so can’t we improve the odds of stopping them before they kill?

Mass killers are almost always young men who tend to be angry loners. They are often psychotic, seething with resentment and planning revenge for perceived slights and injuries. As a group, they tend to avoid contact with the mental health care system, so it’s tough to identify and help them. Even when they have received psychiatric evaluation and treatment, as in the case of Mr. Rodger and Adam Lanza, who killed 20 children and seven adults, including his mother, in Connecticut in 2012, we have to acknowledge that our current ability to predict who is likely to be violent is no better than chance.

Large epidemiologic studies show that psychiatric illness is a risk factor for violent behavior, but the risk is small and linked only to a few serious mental disorders. People with schizophrenia, major depression or bipolar disorder were two to three times as likely as those without these disorders to be violent. The actual lifetime prevalence of violence among people with serious mental illness is about 16 percent compared with 7 percent among people who are not mentally ill.

Dr. Friedman echoes what every police officer knows: drugs and alcohol account for a great many chronic societal problems:

What most people don’t know is that drug and alcohol abuse are far more powerful risk factors for violence than other psychiatric illnesses. Individuals who abuse drugs or alcohol but have no other psychiatric disorder are almost seven times more likely than those without substance abuse to act violently.

Involuntary commitment (IC) laws walk a very narrow line between individual liberty and public safety. Step over the line toward excessive concern for public safety and many of the individual liberties in the Bill of Rights are violated. Be too concerned for individual liberty and a potential killer might slip through the cracks.

The basis of all IC laws is the requirement of articulable proof that someone poses an imminent risk of serious harm to oneself or others. Some also include a provision that allows IC if mental illness renders one unable to provide for their basic needs and safety such as food, medical care or shelter. The laws allow medical professionals—usually psychologists, psychiatrists (a psychologist with a medical degree)—and the police to take one into custody for a limited period—usually 48-72 hours—during which they must be assessed by a psychologist and released or taken before a judge who would rule on continued commitment and treatment. In every case and throughout the process, the system is slanted toward freedom and the state must continually and repeatedly prove there are adequate grounds to hold and treat them against their will. In essence, they are always on the verge of being released.

There is a venerable old joke:

Q: How many psychiatrists does it take to change a light bulb?

A: Only one, but the light bulb really has to want to change.

It is certainly reasonable to question the effectiveness of any treatment a patient hasn’t sought and doesn’t want. In fact, there is good reason to believe that even if the Santa Barbara killer were taken into custody and subjected to a short bout of treatment, he would hardly have been cured and his rampage would only have been delayed.

But what if the law allowed the seizure of his guns? He killed three with a knife and injured others with his car. People contemplating mass murder would surely not be deterred from obtaining firearms through illegal channels.

Would shifting the constitutional IC balance in favor of public safety have a positive effect? Dr. Friedman doesn’t think so:

It’s doubtful.

In the wake of these horrific killings, it would be understandable if the public wanted to make it easier to force treatment on patients before a threat is issued. But that might simply discourage other mentally ill people from being candid and drive some of the sickest patients away from the mental health care system.

Unfortunately, Friedman falls prey to legislator think:

The sobering fact is that there is little we can do to predict or change human behavior, particularly violence; it is a lot easier to control its expression, and to limit deadly means of self-expression. In every state, we should prevent individuals with a known history of serious psychiatric illness or substance abuse, both of which predict increased risk of violence, from owning or purchasing guns.

And how, exactly, do we control the expression of violence? Register fists and feet? We already register cars, but imagine the cost and overreach of a bureaucracy for the registration and control of knives. And how would we go about preventing people with known “serious psychiatric illness or substance abuse” from owning guns? Considering that the overwhelming majority of even the mentally ill and substance abusers never engage in orgies of violence, would such prohibition be for life? No appeal? Who decides what “serious” means, or what “substance abuse” is? Do we seize the firearms of people taking powerful drugs for chronic pain or other chronic conditions? How about recovering addicts? What about recovering addicts clean for years?  Who bears the burden of proof? The state or the individual?

Even contemporary IC laws often fail due to nothing more complex than human nature. Mental health professionals are often loath to have an active hand in incarcerating anyone. They are, after all, conditioned toward voluntary treatment, a complete diagnosis taking months, even years, and treatment stretching for years. For many, the very idea of making a snap judgment, throwing someone into a cell and forcing treatment on them, is repugnant. They are also very sensitive to the idea of “stigmatizing” anyone that might be mentally ill, fearing that unwarranted, unwanted attention will encourage the mentally ill to avoid treatment. As a result, some psychologists will simply refuse to participate, others will be very hesitant to render an opinion, and others will turn the decision over to the police.

This has many advantages. When the police drop someone off at a treatment facility, having made the IC decision themselves, there is no legal, preofessional or social risk to the psychologist. And if the person is not mentally ill, or at least not sufficiently crazy to require more lengthy internment and treatment, they can blame the police for being well-intentioned but over-zealous. Often, they omit the well-intentioned part.  What do cops know anyway?  They’re not qualified.

Police officers—at least honest, professional officers—absolutely hate to be wrong. They hate to make mistakes. While they’re used to making split second decisions, they’re only comfortable doing that in familiar circumstances, situations where they have a high probability of being right.

As a result, they tend to stick with what they know, making arrests only for the violation of laws with which they were familiar. Most are not at all familiar with IC laws, and many actively avoid having to deal with them. Being able to explain why someone violated the necessary elements of a burglary statute is familiar, even easy, but having to articulate why someone might be a danger to themselves or others as a result of what may be mental illness–or maybe they’re just a really screwy person; the police deal with them all the time–in the near future is something else.

This sort of decision is easier where a potential suicide is involved. Someone found hanging over the ledge of a tall building working up the courage to do a Superman is easy to take into custody as a potential suicide, but someone who has posted a violent Internet fantasy of the kind one can find in a thousand novels in any bookstore, on TV or at the local cineplex, is a much more demanding case. Particularly if they present themselves as calm and firmly grounded in reality and have no real history of arrest or violence, where are the grounds for an IC? Police officers aren’t psychologists and while they have to use psychology every day in dealing with the public, they generally draw the line at diagnoses that put people behind bars.

Caught with stolen goods? You’re under arrest. Behaving oddly and might be contemplating violence of some kind, maybe soon, maybe not? Have a nice day and keep your next shrink appointment, OK? 

Police officers, particularly patrol officers—it is virtually always patrol officers that have to deal with IC situations—are conditioned and required to work fast. Their job is to handle any situation quickly and to move on to the next call. For that reason alone, many don’t like IC situations, which commonly take a very long time indeed. They are also unfamiliar paperwork averse. Patrol officers carry a profusion of different forms, all of which must be perfectly filled out. ICs require highly specific and unfamiliar forms and language. Most officers simply don’t want to bother with it, and as a result, don’t have the necessary forms, don’t know where to get them, and don’t care to know.

Professional officers are careful about violating people’s rights, not because they might get in legal trouble, but because it’s unethical. They take their jobs seriously and deal with issues of constitutional law every day. They know that the power to arrest is the power to destroy.  Well-intentioned legislators may craft a law that goes too far in taking individual liberties and police officers will commonly nullify the law by refusing to enforce it. They won’t announce their refusal, but they’re very busy, have a great deal of discretion, and it’s not hard to simply fail to find that last one percent of probable cause necessary to make an IC, or to avoid them altogether. Tragically, unethical officers don’t care and are happy to scoop up even the innocent. Let the shrinks and the courts sort ‘em out.

The truth is that virtually every state has an IC law that is adequate to the task, but only to the task of doing as well as human beings can do with other complex human beings whose behavior cannot be predicted from second to second. The very same human nature that makes us unpredictable and difficult to understand often ironically protects us from the excesses of good intentions or an over-reaching government.

Despite our best intentions, most potential mass killers won’t be detected and stopped.  It’s the price–and the benefit–of being human, and of liberty.

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