Warning. Long post ahead and some of which I have basically stated before.
Ahem, As I have mentioned before,
We already have models for the due process in red flag type laws that involve judicial decisions whether or not to commit someone to a mental institution involuntarily. Through existing state laws which were affected to a large degree by Supreme Court decisions (Donaldson, Comstock, and Addington) in the 1970's, the current due process for committal requirement in most states is a full evidentiary type due process hearing before a judge that requires representation of the alleged mentally ill person, requires the highest evidentiary standard in civil procedure of clear and convincing evidence, and require the judge to find that the state must provide evidence to meet that burden that a person is an immediate danger to themselves or others at that particular time (aka dangerous standard) before they are committed to a mental institution involuntarily. States also allow temporary emergency "holds" that only meet the probable cause standard but still require a neutral judicial decisionmaker that issues a temporary order to detain someone for diagnosis based on the "danger to themselves or others."
This U.S Govt agency, the Substance Abuse and Mental Services Health Administration (SAMHSA) issues regular reports on mental illness and treatment along with substance abuse which can closely resemble mental illness in impact. This is a useful summary of civil commitment principles affecting the decision to commit.
https://www.samhsa.gov/sites/default/files/civil-commitment-continuum-of-care.pdf
Beginning at page 12 to page 13,
"Procedural Considerations and an Opportunity for Diversion
At least since the reforms of the 1970’s, every state’s inpatient commitment law has provided
procedural protections for persons facing commitment. Proceedings typically may be initiated by
a family member, a mental health provider, a law enforcement officer, or a court official. In 38
states, any adult may petition (or apply) for commitment. In some states, before an individual
may be taken into custody, a court or other judicial official (e.g., magistrate) must approve the
commitment petition, upon a finding of probable cause to believe the individual meets criteria. In
other states, a law enforcement officer, serving as petitioner, or an officer who has received a
petition from certain other authorities, may take the individual into custody directly, without
further authorization, and deliver him or her to a facility for evaluation. In some states, the
individual must be taken first to an emergency facility, where the individual may be medically
“certified” for admission and then transported to a treatment facility for stabilization and
additional evaluation pending further proceedings.
A hearing to adjudicate the individual’s committability typically must be held within some
number of hours or days after commencement of custody. Not every state requires a hearing,
however. In New York, hearings are held only upon request. Individuals who are medically
certified for admission may be held for up to 60 days without any court order, although they are
assigned legal counsel and may request a hearing at any time. Retention beyond 60 days must be
authorized by a court, but no hearing need be held unless requested (NY Mental Hygiene Law,
§9.33).
Individuals facing commitment have the right to notice of hearings; the right to the assistance of
counsel; the right to appear, to testify, and to present witnesses and other evidence contesting
commitment; and the right to confront witnesses appearing “against” them (i.e., in support of
commitment). A judge or other judicial or quasi-judicial official presides and, in most cases,
hears the evidence and decides committability. In some states, individuals may request a jury. In
every state, in accord with the U.S. Supreme Court’s decision in Addington v Texas, the13
individual may be committed only if found to meet commitment criteria by, at a minimum, clear
and convincing evidence.
The period of time in which a candidate for commitment may be held in custody for evaluation,
before further review, ranges from 23 hours (in North Dakota) to 10 days (in New Hampshire
and Rhode Island) and 60 days in New York. The most common period of pre-review hold is 72
hours (in at least 17 states). In three states (Kansas, Nebraska, and West Virginia), no time period
is specified (Hedman, et al, 2016). During this time, the individual may be offered treatment and,
typically, the opportunity to accept a voluntary admission (if appropriate) or other, community-
based services. If it appears that the individual does not require commitment, he or she may be
released, ideally with an “aftercare” plan for services in the community. Mental health systems
may wish to prioritize these individuals for services, if only to avoid the more costly alternative
of commitment.
It is not known how many people placed in a facility for pre-commitment evaluation are diverted
to services voluntarily (or otherwise released), obviating the need for commitment. But anecdotal
reports suggest the numbers may be significant. Indeed, these “emergency holds” may represent
an important gateway to services for many consumers."
In a fair amount of these mass shooting events, the person(s) responsible would be considered, even under the dangerousness standard, as needing civil commitment. Thus, any failures of the society to detect and commit these people represents a challenge to enforcement of civil commitment laws. Statistics vary but severe bi polar problems that result in psychotic breaks and schizophrenia represent a fairly large contributor to violent rampages at least a quarter to one third documented using historical reporting. A better mental health system would identify and treat such folks before they do something.
Then we get to those persons whose anti-social behavior is well documented through frequent involvement of the police, etc. and this is often masked due to juvenile reporting issues. Some are probably not mentally ill enough to trigger involuntary mental commitment under our current laws but would often fit the description of psychopath or sociopath where other people are simply bit players in their personal movie. I suspect for these folks, it is a way to go out of existence with a bang and they may not have specific grudges but rather a generalized hatred for all people. To shoot a bunch of strangers such as the Las Vegas, El Paso, or Gilroy as a vicious murder at festivals or shopping simply because of access to random victims indicates that the poor victims were targeted in order to make the murderers famous in some regard.
In a similar fashion, there are some folks who are become fixated on violent revenge on specific targets for whatever perceived wrongs done to them aka going postal was the old term. The French used the term idee fixe or a fixation. Often these sorts end up on a death rampage resulting in suicide by themselves or by forcing police to shoot them. It is usually discovered that these sorts of person has made a long line of threats to others, often skirting the edges of the law to do so, has a long line of "creepy" type behavior. You will usually find that these folks target specific targets that have "done them wrong" and their rationales resemble terrorists more than anything--to wit, "they have done me wrong and now they must pay" suggesting an emotional response to something "they" did to cause failures in the murderers' life. Often family members or specific acquaintances are targeted and then any bystanders around them are at risk until the killer is put down or captured.
The difficulties involved with the second or third group is that a lot of these folks never quite reach the standard of an immediate threat to themselves or others until they decide to act. So conventional mental illness standards will not remove these folks from circulation. To some degree this is what red flag laws are designed to do and what various restrictions on weapon type, magazine limits, delays in purchases, background checks, etc. are purportedly designed to frustrate potential mass murderers that want to kill people by shooting them. But, a lot of the proposed and enacted red flag laws more closely resemble the due process procedures used in civil forfeitures of property rather than those restricting liberty interests. That means effectively the firearm is treated as the criminal to be locked up and the person retains their liberty more or less.
While this allows police to more rapidly "seize" firearms from "dangerous" people, it risks more injustices as there is not necessarily a right to a hearing prior to the order being given, the evidentiary standard is probable cause and I have seen enough warrant applications to know that this process is often abused, and there is no right to legal representation at the state's expense to fight unjust actions along with general compensation for wrongful actions by the state. Given the court's doctrines on immunity for government officials, it makes remedy for an injustice committed difficult to achieve as effectively the incentive for the state is to maximize such seizures whether or not justified as it costs the state little compared with using the mental health commitment due process model.
Politically, the pressure on politicians to "do something" on these mass rampages is building whether we like it or not. Average Joe or Josephine in the street cares more about results than abstract rights. This worked in our favor for the firearm community to keep handguns largely free from bans despite them being used for most murders committed with a firearm as Average Joe or Josephine could see that banning handguns might affect their personal safety in a crime ridden world. Not so much for AR's, AK's, etc. or any other EBR (Evil Black Rifle) and scary "hi capacity" magazines and "hi powered rifles".
Average Joe or Josephine simply does not really imagine the degree of societal breakdown necessary for these to become std. accompaniments like in places such as Iraq, Afghanistan, or even New Orleans during Katrina, etc. and the idea of substitutes such as the ready availability of "safe" old trustworthy shotguns, lever actions, etc. seem downright homey and more useful to Average Joe than an EBR. These folks, and there are a lot of them, simply cannot imagine the need and will outright dismiss claims that "I can own it because I want it" or "infringe" means any actions to restrict firepower by legislation is out of bounds. Many of these folks, including some gun owners, are ready to support palliative actions such as delays in purchases, limits on the number, magazine limits, universal background checks, and perhaps even bans such as in California. Right now, 2A advocates are losing the rhetorical battle with anti-gunners for the mushy middle on EBR's and often that means losing the political battle as well. I personally believe that one of the reasons that the original AWB sunsetted was that 9/11 caused Average Joe to start to ponder whether terrorism would happen in their backyard and thus an AR might be useful at home--as these terroristic threats by the "other" have receded and most massacres recently have been of the home grown variety, Average Joe voter appears to be reevaluating whether or not additional restrictions might curb these shootings. In truth, they will do little to prevent this situation just as the pervasive monitoring of people and social media has done little to curb terrorism in specific instances but Average Joe wants something done and "red flag" laws appear to them to make intuitive sense just as under Bloomberg, stop and frisk everyone in a group, was viewed as desirable to prevent street crime.
In general, my own preference is for individual based restrictions that rest on a specific individual's actions rather than broad general restrictions. For example, a waiting period might adversely affect folks that desperately need a firearm on short notice such as domestic violence or threats by stalkers etc. Restrictions on types of weapons such as EBR's etc. can adversely affect folks that might need this for home self defense as many of these AR carbines work quite well to quell criminal assaults in the home and the elderly, the weak, etc. might not be able to operate nor train with the old standard shotgun for various reasons.
Red Flag type laws are one such restriction that is in theory based on the individual in question but in practice, such as profiling, can go horribly wrong. If procedural safeguards exist, then these laws could act to quell some potential mass murderers, not all but some. The downside is the risk for being used in vengeful actions by some or misuse by the state to terminate rights unjustly and individual due process protections should be addressed in any such legislation. Requirement that the state pay for legal representation for the individuals and any costs such as diminished value of firearms etc. should be part of the package as well as the strict clear and convincing std. rather than probable cause. There should also be a crime including incarceration and a fine for false reporting on these red flag issues just as there is for falsely reporting a crime. IN any such laws, the incentives have to be for the state to protect rights of the accused while allowing action in dire cases.
Thus, in the current situation, we, the 2A community can either participate in drawing up such laws to reduce the prospect of injustices which some of folks will no doubt view as collaboration with the enemy or we can hunker down and hope the storm abates.
