Montana Legislature
Law and Justice Interim Committee
National Instant Criminal Background Check System (NICS)
and Mental Health
February 13, 2014
Testimony for Committee, by
Gary Marbut, President
Montana Shooting Sports Association
Will improved mental health evaluations, and data collection and
reporting of mental health information decrease violence, especially
gun-related violence?
I. Qualifications to provide information.
Mr. Marbut is accepted in state and federal courts in civil and
criminal cases concerning firearms safety, use of force, legitimate
self defense, and related topics. Mr. Marbut is an active self
defense instructor and has graduated over 3,800 students from
curriculae concerning Montana laws, and the tactics and methods of
defense. Mr. Marbut is a member of the International
Association of Law Enforcement Firearms Instructors, and a follower
of and sometimes contributor to the Force Science Research Center.
II. Precursor, background issues.
Before the question posed above can be effectively answered, some
foundation issues must be addressed.
1. Are people with mental health issues commonly prone to
future violence? No. A 2009 study found that
individuals with mental health disorders no more likely to commit
acts of violence than the rest of the population; rather, future
violence was indicated by other factors, such as substance abuse and
a prior history of such acts. One explanation is that some
individuals with severe disorders are too disorganized or afraid to
commit crimes. For example, individuals with severe schizophrenia
may have delusions – for instance, a belief that they and others
around them face a danger of attack or threat. This leads some
persons suffering from this form of delusion to seclude themselves
from the outside world and to express extreme caution toward
others...
http://leb.fbi.gov/2014/february/responding-to-persons-with-mental-illness-can-screening-checklists-aid-law-enforcement
2. Is gun-related mass violence by persons with mental
health issues increasing and is it a pressing national problem?
No and no. Despite obsessive media reporting when such
incidents occur, the number of those incidents and the number of
victims claimed in those incidents remain static, this
notwithstanding an increasing population size and increasing levels
of gun ownership.
http://hereandnow.wbur.org/2013/09/23/mass-murder-decline
3. Is there an increased national murder rate that can be
attributed to mental health failures? No. Actually, murder rates in
the US are dramatically down, again despite increasing rates of
firearms ownership, increasing population, and stressful economic
times. Because overall murder rates, including murder rates
with firearms, are in a definite downward trend, there is no
rationale' to claim increases because of people with mental health
problems, or inadequate mental health reporting.
http://www.breitbart.com/Big-Government/2013/12/03/Congressional-Research-Service-More-Guns-Less-Crime
4. Is the state of the art in psychology capable of
correctly identifying people with mental health problems who are
prone to violence. No. This answer only repeats
what many professionals and experts in the field of psychology
insist, that the art of psychology simply does not possess the tools
at this stage in the evolution of the art to accurately predict
violence. Much better predictors of violence include drug use,
and history of violence.
http://www.psychlawjournal.com/2012/08/risk-assessment-how-psychologists.html
http://articles.latimes.com/2012/dec/17/news/la-heb-predicting-violent-behavior-20121217
"Skilled and practiced mental health professionals have gotten a lot
better at predicting short- term dangerousness," said Dr. Steven E.
Pitt, a forensic psychiatrist who consults with the Phoenix Police
Department and directed the Columbine Psychiatric Autopsy Project
after the 1999 school shootings. "But who’s going to commit violence
in some unspecified future? You might as well consult a Ouija
board."
5. Is there any connection at all between mass shootings
and mental health? Yes. Besides that we'd consider
crazy any person who would take the lives of innocents, there is
another connection between mass shootings and mental health.
That connection is psychotropic drugs. All of the mass
shootings in recent memory have been done by people who either were
actively taking prescribed psychotropic drugs, or who were supposed
to be taking psychotropic drugs but quit. In order to obtain
these psychotropic drugs, these people perpetrating mass shootings
were under the care of a mental health practitioner licensed to
prescribe the drugs. See:
http://www.ladailypost.com/content/brief-history-psychotropic-drugs-prescribed-mass-murderers
http://www.naturalnews.com/025826_Antidepressants_school_shootings.html
http://ssristories.org/category/violence/school-or-other-mass-shooting/
6. Base Rate Fallacy. A well defined and
important but little known phenomenon is base rate fallacy. It
has to do as much with statistics than with psychology, but it is
essential for psychology. There is an excellent article on
Base Rate Fallacy in Wikipedia at:
http://en.wikipedia.org/wiki/Base_rate_fallacy
Anyone contemplating the issue of mental health and persistent
mental health records would be wise to learn about and understand
the concept of base rate fallacy.
The essence is this: Any widespread screening for a condition
(e.g., mentally unstable person prone to violence) among the general
population is guaranteed to turn up many more false positives than
true positives, just because of an unavoidable error rate, which
would be especially pronounced in the fuzzy field of
psychology. The false positives would outnumber the true
positives by one or more orders of magnitude. Thus, people not
prone to violence would unavoidably be stigmatized and likely lose
civil rights because of an error rate that cannot be eliminated.
7. Persistent records/improper records non-correction.
There are not good, affordable or comprehensive mechanisms in place
or available to get persistent records corrected if a person is
incorrectly identified as prone to violence, or if the person gets
treatment and is cured of any tendency towards violence. This
is especially true of the National Instant Check System
(NICS). People who are marked on NICS as ineligible for
firearms transfer find it difficult or impossible to get records
corrected.
Summery of a Texas legal case is in order here (US v. Bean, 537 U.S.
77(2002) ). After attending a gun show in Texas, Thomas Bean
drove to Mexico. When Mexican officials stopped his vehicle at the
border, they found ammunition, and Bean was subsequently convicted
in a Mexican court of importing ammunition. Because of his felony
conviction, 18 USC section 922(g)(1) prohibited Bean from
possessing, distributing, or receiving firearms or ammunition. Bean
applied to the Bureau of Alcohol, Tobacco, and Firearms (ATF) for
relief from his firearms disabilities, but the ATF returned the
application unprocessed, explaining that its annual appropriations
law forbade it from expending any funds to investigate or act upon
applications such as Bean's. Bean then filed suit, asking the
District Court to conduct its own inquiry into his fitness to
possess a gun and grant relief from his inability to possess,
distribute, or receive firearms or ammunition.
In a unanimous opinion delivered by Justice Clarence Thomas, the
Court held that the absence of an actual denial of Bean's petition
by ATF precludes judicial review. Because Bean's application for
relief from the firearms disabilities was not considered due to
appropriation provisions, Justice Thomas reasoned that the court
could not grant relief since the statute only permitted judicial
review of an affirmative denial of an application.
Thus, Bean could not get his rights restored, notwithstanding that
what he was convicted of in Mexico is not a crime in the US, simply
because Congress had not funded the BATF's process to correct
records swept in from other countries, and restore Bean's
rights. Not only was Bean, a competitive trapshooter, unable
to purchase new firearms, he was ineligible for life to possess any
firearms he had previously purchased legally.
http://www.oyez.org/cases/2000-2009/2002/2002_01_704
8. Barking up the wrong tree; “Gun free zones.”
Besides psychotropic drugs, the other common denominator for mass
shootings in schools, theaters, and other places, is that they ALL
happen in purported “gun free zones.” These alleged “gun free
zones,” of course, are NEVER “gun free,” but only gun free for the
victims. People bent on mayhem never respect “gun free
zones.” In fact. perpetrators of mass violence seek out
disarmed victim zones, for obvious reasons. Only those who
respect the law and have no murderous intent comply with such silly
zone rules and are thereby rendered defenseless. Thus,
“alleged “gun free zones” are demonstrated to be very dangerous
places, places where deranged perpetrators are assured of a
resistance free killing field. Collection and sharing of
mental health records will do nothing to address this glaring
problem.
9. Will a system-reported mental health deficiency prevent
deranged people from acquiring guns? No.
Almost universally, those who have committed mass shootings have
acquired the guns they used through means that would not be
interdicted by a NICS check. A mental health disqualification
for firearm purchase will only affect those who obtain guns through
legal channels. That is, mental health evaluation and
disqualification would have zero effect on the class of people
intended for interdiction, perpetrators of mass shootings.
10. Will the prospective loss of civil rights dissuade
possibly needy people from seeing mental health professionals?
Yes. This is a presseing concern expressed by the mental
health community. If there are people who need psychological
intervention, the expected loss of their civil rights via data
sharing will certainly persuade many of them to avoid any contact
with the mental health community. See:
http://gunowners.org/congress1132014.htm
Conclusion
People with mental health issues have no greater incidence of
violence than the public at large. Any mental health search
for violent people would assuredly turn up far more false positives
than true positives (base rate fallacy). These people tagged
because of false positives would likely be stripped of their civil
rights for life, with no practical way to get their records cleared
or revised following treatment. Within the arena of
psychology, experts disagree about whether the art has evolved
sufficiently to provide tools allowing practitioners to correctly
predict an individual's future violence. Even if the
violent people could be identified and documented through mental
health screenings, and disqualified from firearms purchase, that
would not interdict the ability of such individuals to obtain guns
and commit mayhem. Integrating mental health treatment with
civil rights denial systems will persuade many people who may need
treatment to avoid treatment. Nor would any such system
address the dominant twin problems with mass shootings of
psychotropic drugs and the low-hanging fruit for violent people of
“gun free zones.”
Finally, there will be those who will respond with some version of,
“... but if it saves just one life ...” Criminologist
professor Gary Kleck estimates that 2.5 million people in the US
defend themselves every year with a firearm. In most cases the
mere display of a firearm is sufficient to make assailants go away
and save the defender, since Kleck says shots are fired in only 9%
of these cases. Causing a significant percentage of these 2.5
million people to be disarmed (revisit base rate fallacy) would
certainly end up costing far more lives than might be saved through
the fuzzy and problematic process of mental health screening and
records sharing.
Will improved mental health evaluations, and data collection and
reporting of mental health information decrease violence, especially
gun-related violence? No. But it can destroy the civil
rights of too many innocent people in a fruitless quest to “do
something.” That would be especially unfortunate and unwise if
the “something” were so easily predictable to be contraindicated.