Testimony of Amy E. Swearer
Texas House of Representatives
Select Committee on Mass Public Violence and Community Safety
January 9, 2020
Mr. Chairman, members of the Committee, Texans, and fellow Americans,
My name is Amy Swearer, and I am a Senior Legal Policy Analyst at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. One of my primary areas of research is the Second Amendment and firearm-related policy. I have been heavily involved in the Heritage Foundation’s School Safety Initiative, and have authored and co-authored a number of Heritage Legal Memorandum and law review articles on the intersection of untreated serious mental illness and gun violence.
I have been asked to testify today about identifying potential threats of mass public violence. Unfortunately, no one can perfectly predict future violence, especially when it comes to rare events like mass public violence. There are, however, several important common characteristics amongst perpetrators of mass violence. Understanding these factors can generally provide policymakers with meaningful avenues for intervention.
I. Mass Shooters Often Express Their Plans In Advance, Providing Opportunities For Effective Intervention.
Perhaps the most important characteristic of mass public shooters in particular is that they often tell other people that they intend to commit acts of mass violence. The Violence Project recently published its analysis of more than 50 years of data on mass public shooters, and determined that almost half of them exhibited some form of “leakage” of their plans. This is particularly true of mass shooters who perpetrate attacks on K-12 schools. One high-profile example of this type of “leakage” is the 2018 shooting at Marjorie Stoneman Douglas High School in Parkland, Florida, where the shooter posted on social media very clear indications of his desire to commit a school shooting.
The Violence Project analysis is consistent with my own findings. In fact, many imminent mass shootings have been prevented because three things happened: (1) A would-be shooter expressed his intent to someone who took the threat seriously; (2) The person who heard the threat conveyed it to someone in a position of authority; and (3) Those in a position of authority took appropriate action to intervene before lives were lost. In many cases, the difference between successful intervention and high-profile tragedy has been a failure at one of those three links in the chain.
In fact, when talking about cooperation and coordination among different government entities, we actually need to step back and include cooperation and coordination between civilians and those in positions of authority. Shooters rarely express their intent to law enforcement agents. Rather, it is often individuals in the community—friends, family members, teachers—who recognize very serious warning signs or receive indications of planned violence. It is important to empower those individuals to take action.
One very resonant example of this is Utah’s implementation of the SafeUT phone app, which is a confidential 24-hour real-time crisis line for the state’s students. While the 735,000 students with access can use the app for a variety of important things, like reporting bullying or obtaining mental health resources, it essentially ended up crowdsourcing information about potential school threats. Through the app, hundreds of verified threats have been reported and investigated, and only a small percentage have been determined to be “fake or inaccurate.”
These types of “crowdsourcing” strategies can play a very important role in thwarting mass violence. I know Texas has taken some significant steps with regard to threat assessments, but it is important to ensure that the people most likely to perceive the threats are able to easily relay that information.
II. Untreated Serious Mental Illness Plays A Significant Role in Acts of Mass Public Violence.
It has become very controversial in recent years to suggest that mental illness has anything at all to do with gun violence. I suspect that much of the backlash is based on legitimate concerns about unfairly demonizing individuals with mental illness.
Now, let me be perfectly clear—mental illness is not synonymous with violence, and mentally ill individuals are not categorical threats to public safety. The vast majority of mentally ill individuals are not and will never become violent, especially when they receive adequate treatment.
However, untreated serious mental illness plays a significant role in acts of mass public violence. As many as two-thirds of all mass public shooters have clearly exhibited symptoms of serious mental illness in the days, weeks, and months leading up to the shooting. There are also numerous examples of mentally ill individuals carrying out acts of mass public violence without access to firearms. Shockingly, almost none of these individuals were receiving mental health treatment at the time of the shooting or violent attack.
Adopting a mental health-centered approach to mass public violence can serve not only to protect Texans from rare acts of mass public violence, but has broad public health benefits that reach into areas like suicide, which is much more likely to affect individual Texans than mass shootings.
While I am aware of some recent efforts to increase mental health spending, Texas would do well to assess the availability, quality, and allocation of community mental health services, and make residents aware of available resources.
Moreover, since the 1960s and 1970s, well-intentioned but poorly executed policies have resulted in a severe nationwide shortage of public psychiatric beds, which often serve as beds of last resort for those in the midst of mental health crises. Like many states, the number of public psychiatric beds in Texas has plummeted over the decades, and reversing this trend can play an important role in overall efforts to improve mental health in Texas.
III. Most Perpetrators of Mass Public Violence Exhibit Signs of Dangerousness But Are Not Legally Prohibited From Firearm Access.
Mass public shooters often give clear indications that they are a danger to themselves or to the public prior to committing acts of mass violence. At the same time, very few of them have criminal convictions or mental health histories that would disqualify them from legally possessing firearms. Further, not all mass shooters suffer from a diagnosable mental illness, and therefore cannot be disarmed through existing civil commitment procedures even though they are objectively dangerous. In other words, we often encounter this phenomenon where many people recognize that a person is a ticking time bomb, but the law does not yet allow official actions to intervene.
One measure that many states have considered as a type of “gap filler” to disarm these types of dangerous individuals is that of the extreme risk protection order or “red flag law.” The general goal of these laws is to allow non-state actors to request court hearings to determine whether someone close to them is so dangerous that he should be temporarily disarmed, even if he has not yet committed a crime or tried to harm himself. This is a highly contentious and controversial measure, in large part because so many of these laws have been so poorly designed and implemented, presenting very real constitutional concerns.
I share many of these concerns, including for some bills that have recently been considered by the Texas House and Senate. However, the basic idea of identifying and disarming objectively dangerous individuals through court-ordered interventions before they commit acts of violence is one worth pursuing. When properly constructed, red flag laws may provide an important mechanism for intervening with would-be mass public shooters.
Importantly, because these laws involve restrictions on fundamental constitutional rights, they should only be pursued in a way that respects due process and protects against abuse or misuse. Among other considerations, red flag laws should use narrow definitions of dangerousness, and refrain from broad criteria that cast lawful gun ownership as inherently suspect or that could result in disarmament because of disfavored, vulgar, or politically incorrect speech. Ex-parte orders should be not be the norm, but should instead be limited only to extraordinary cases where there is substantial evidence of serious danger in the near future. Moreover, these laws should not disarm people for the sake of disarmament alone. Rather, they should provide clear avenues for the restoration of rights, be integrated with existing mental health treatment and addiction systems, and provide appropriate resources to those who have been deemed dangerous.
IV. Texas-Specific Examples of Missed Opportunities
One the things that has stuck out to me as unique about several recent mass shootings in this state is how many of them arguably involved serious failures by local, state, or federal authorities to properly or effectively use existing protocols with respect to clearly dangerous people who then went on to commit mass shootings. I think there is a lot of room to learn from these failures.
The most shocking example of this is the Sutherland Springs shooter in 2017, who was able to pass a background check despite a criminal history that disqualified him from lawful gun ownership. Clearly, that was an error on the part of the military, which failed to forward information about these disqualifying records to the National Instant Criminal Background Check (NICS) system. It does serve as an important reminder as to why states should regularly review their processes for sharing disqualifying histories with the NICS system, and ensure that relevant agencies are doing so in a timely and effective manner.
Another relevant example of missed opportunities for intervention under existing laws is that of the Odessa-Midlands shooter, who was a prohibited person and had already failed a background check during an attempted gun purchase in 2014. Yet, when a neighbor called local law enforcement to report that this individual had threatened her with a firearm, it appears no meaningful action was taken. Did local law enforcement know that the subject of a firearms-related call was a prohibited person? If so, why did they not intently pursue that case? If they did not have access to this information, why not? Prohibited status would seem to be a very important piece of information for law enforcement officers to know on firearms-related calls. That sort of information accessibility can be critical for effectively combating illegal gun ownership, which presents a very real threat to overall public safety.
Finally, while the recent shooting at a church in White Settlement does not meet the technical definition of a mass shooting, it was certainly an attempted mass shooting that could have been far more horrific if not for the quick actions of an armed civilian. There is still quite a bit of uncertainty about the circumstances under which this man obtained his gun, but one thing is very clear to me—that man should still have been in a New Jersey prison.
He was arrested in 2016 in New Jersey while in illegal possession of a shotgun. At the time of his arrest, the shooter had an active arrest warrant in Oklahoma stemming from serious assault charges and had a lengthy, multi-state criminal and mental health history. And yet, records indicate that the shooter was allowed to plead to a lesser charge of criminal trespass and was released after being sentenced to time served—less than one year in jail compared to the 3-to-5 year sentence he would have faced for the original charge. He made his way back to Texas and two years later attempted to murder hundreds of innocent parishioners.
State and local authorities must take the illegal possession of firearms seriously, especially when the people in illegal possession of firearms have histories of violence or mental instability. Even though most mass shooters obtain their firearms legally, it is still critical that these types of opportunities for intervention are not missed.
At the end of the day, we will never have a “Pre-Crime Unit” that can perfectly determine which individuals are going to commit acts of mass public violence. That does not mean we are left without any means of assessing threats, or that we throw up our hands and say, “so be it, these are rare events and we cannot do anything about them.” Nor are we left with a false choice between doing nothing and resorting to extreme gun control measures that broadly infringe on the rights of law-abiding citizens who will never present a danger to themselves or others. Policymakers can and should pursue these areas for targeted and timely intervention with specific individuals who meet very specific criteria. We cannot reasonably expect to eradicate acts of mass public violence. But we can and should expect that we learn from past tragedies and successfully intervene to stop more of them.
Amy E. Swearer is Senior Legal Policy Analyst in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation.
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