March 15th, 2011

Arizona shootings raise legal reporting issues

On Saturday, Jan. 8, there was a horrific event in Tucson, Arizona where it is alleged that Jared Loughner shot into a crowd of people who met in a supermarket shopping area to meet and listen to the local U.S. Congresswoman Gabrielle Giffords. She was shot in the head. It is expected that she will survive the attack. However, six others, including a U.S. District Court judge and a nine-year-old girl, were killed.

Similarities exist between this incident and previous ones at Columbine and Virginia Tech. The violent and intentional nature of the acts makes us all feel vulnerable. Each of these events included guns and rifles. A person using the gun can inflict deadly harm before the victim can respond or understand the situation. And, each of these occurrences had an issue beyond the violence regarding a school’s possible duty toward others in society.

In the aftermath, many questions have been raised regarding access to weapons and gun control. Presently, in some states a person can purchase a weapon with limited background checks and little or no waiting period. Many people in the U.S. believe that the Constitution’s second amendment allows for the “right” to bear arms which may mean to some that this “right” is unrestricted and includes carrying concealed weapons or automatic or semi-automatic weapons.

This interpretation of the second amendment is disputed historically, but there are now few limitations on gun ownership in many areas of the U.S. Additionally, there are private sales of weapons and, probably, an available “black market” in available weapons. The issue here concerns the alleged perpetrator, Jared Longhner, and the myriad of legal and psychological issues raised by the alleged facts.

The first question is similar to one raised in the Virginia Tech incident. When there is a student who displays behavior that seems outside the “norm,” what is the duty of the school to protect the public? In the Virginia Tech incident, there was an enrolled student who may have been previously identified as showing behavior that appeared to concern members of the university community. The discussion there revolved around dorm residents, university employees and having a means of providing mental health services for the identified student and then providing protection and safety for the community if there appeared to be an imminent threat.

The incident in Arizona had a person, Jared Longhner, who had been taking classes at a school and was identified by members of the community as engaging in behavior that was outside the “norm” and which felt threatening to community members.

The school’s response was to remove him from the campus and not permit him to continue taking classes there. This is a private remedy. The remedy was imposed using school procedures. Additionally, it does not appear to be the case that this school provided the services needed to evaluate Jared Loughner or support him with any services. Did the school do enough? Should there be a law which deals with students under these circumstances?

If the school reports nothing and does not provide mental health services and does not refer the removed student for services, then there is no record for authorities to apply to a “gun control” law, even if such a law existed. Did Jared Loughner need to have committed an overt act of threat or violence before the initiation of any public process? If the school believed that there was enough evidence to remove him from continuing at that school, then there probably should be enough evidence to establish, at the least, that he is a threat to himself or to others. Therefore, the school should have referred him for an evaluation by competent professionals. This action would require an expansion of “reporting” statutes.

Presently, there are reporting statutes for child abuse and elder abuse in most jurisdictions. There are remedies short of removal from a school. In those cases, the student could be given a choice to have a voluntary evaluation and/or to get mental health services. Refusing the interim remedies could lead to automatic reporting.

No one idea will ensure that the next such incident will not occur. However, identifying a person with these issues and doing nothing seems unacceptable for both society and future Jared Loughners. Schools will not like a potential new liability, so, as with mandatory reporting, some protections should be available for the reporter.

The legal issues now confronting this case will revolve around Jared Loughner’s competency to stand trial and the insanity defense.

By Edward Stern J.D.

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