Florida School Shooting: Gun Legislation, Mental Health, and Prevention

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Lawyer 2 Lawyer – Law News and Legal Topics

Florida School Shooting: Gun Legislation, Mental Health, and Prevention

02/28/2018

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Bob Ambrogi: Hey listeners. This is Bob Ambrogi and I want to let you know there’s a brand new show on the Legal Talk Network about the First Amendment. It’s called Make No Law. Here’s a quick trailer about the show.

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Ken White: News and pop culture are full of controversies about free speech in the First Amendment. We hear terms like hate speech and heckler’s veto in a barrage of coverage about campuses, protests and even wedding cakes, but what does it all mean and how do we get here. That’s exactly what my new show Make No Law: The First Amendment Podcast from Popehat.com will explore.

I am Ken White and I invite you to tune in every month for the history, stories and personalities behind the right to free speech and the most important Supreme Court cases establishing it.

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Bob Ambrogi: You can find Make No Law on  HYPERLINK “http://www.legaltalknetwork.com/”legaltalknetwork.com, iTunes, Google Play or wherever you are listening to this podcast, and now on to Lawyer 2 Lawyer.

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John J. Donohue III: Think about what sort of blog could not even be brought up for a vote that has 97% approval of the population but that’s the position because the NRA does not want universal background checks or anything that would impede gun sales.

Stephen P. Halbrook: So we don’t need to be criminalizing behavior of millions of law-abiding citizens. What we need to do is to focus on these events where has there been a failure of law enforcement, where there has been a failure of the mental health system. But we need to get at those solutions and try to do something meaningful.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from Southern California. I write a legal blog named May it Please the Court and have a book out titled The Sled.

Bob Ambrogi: And this is Bob Ambrogi coming to you from outside of Boston, Massachusetts where I write a blog called LawSites, practice law sometimes and also co-host another Legal Talk Network program called Law Technology Now.

J. Craig Williams: Well Bob before we introduce today’s topic, we would like to take opportunity to thank our sponsor Clio.

Clio’s cloud-based practice management software makes it easy to manage your law firm from intake to invoice. You can try it for free at  HYPERLINK “http://www.Clio.com” clio.com.

Bob Ambrogi: Well Craig, I don’t know — I have lost track of how many times we have done shows here about mass shootings in this country. The latest on February 14th, the shooter opened fire at Marjory Stoneman Douglas High School in Parkland Florida, killing 17 and wounding many others.

We have, as I say, we have covered mass shootings here a number of times on this show from Sandy Hook to Orlando, to most recently to Las Vegas mass shooting, it seems to becoming a new normal. In response to the tragedy in Parkland, gun advocates have voiced their concerns over growing issues of individuals with mental health issues whereas the Anti-Gun Movement is called for stricter regulations and legislation when it comes to purchasing of guns.

J. Craig Williams: And Bob, it’s not just the mass shootings themselves. Today in a nearby town close to where I live, an individual got arrested — high school list of people that he was going to assassinate, loaded guns, AR-15s and pistols and backpacks.

So it’s not just the mass shootings, is it a gun issue, is it a mental health issue. Finally, are we going to see change? Students have spoken up and today on Lawyer 2 Lawyer, we are going to take a look at the recent tragedy in Parkland, Florida and discuss mental health, gun legislation, gun control, what can be done to prevent future mass shootings?

Bob Ambrogi: Well to help us do that we have two guests who are experts in this area. Let us introduce them. Let me start with Attorney Stephen P. Halbrook. Stephen is Senior Fellow at the Independent Institute. He is the author of a number of books including the recent book, ‘The Founders’ Second Amendment, Gun Control in the Third Reich’ and a forthcoming book ‘Gun Control in Nazi Occupied-France’, which will be published in June 2018. He has litigated a number of cases at the Supreme Court at Federal and State Appellate Courts, often representing the NRA.

Welcome to Lawyer 2 Lawyer, Stephen Halbrook.

Stephen P. Halbrook: Excited to be on the show, thank you for having me.

(00:05:01)

J. Craig Williams: And Bob, our next guest is Professor John J. Donohue, III, from Stanford Law School. John has been one of the many leading empirical researchers in the Legal Academy over the past 25 years. He is an economist as well as a lawyer with an expertise in gun policy. And he is well known for his use of empirical analysis to determine the impact of law and public policy in a wide range of areas including crime and criminal justice.

Welcome to the show John Donohue.

John J. Donohue III: Thanks for having me.

Bob Ambrogi: Stephen Halbrook, let me start by asking you. As we mentioned earlier on this day that we are recording this, there are hundreds of Florida high school students rallying to urge the Florida Legislature to curb the sale of assault rifles, we are hearing high school students across the country weigh in support of them.

You have represented the NRA over the years and have opposed legislation such as they are asking for. What do you say to them? What’s the answer to this kind of gun violence?

Stephen P. Halbrook: Well first of all, just a disclaimer I am speaking for myself as a scholar and attorney. I am not speaking for the NRA, I am not authorized to do that. I represent NRA and I have represented a number of other party’s criminal and civil cases.

This is such a tragedy and none of us really know what’s going on, and none of us I mean, I guess I am aging myself, but none of this happened when I was growing up. There were certainly plenty of guns around. I remember my high school other guys would have guns in their cars and then after school, they would go duck hunting and Justice Scalia used to tell about how he carried a gun on the subway in New York City because he was on the rifle team but this is such a tragedy.

I think all of us, everybody, no matter where you are on this debate, we just feel so bad that these things are happening and so we all want answers. What I don’t think is that taking a viewpoint just focusing on a piece of metal, the gun, is really not going to solve this problem.

In the Florida case, I mean the Parkland case, we have got such a failure of law enforcement, unfortunately. I mean you had the FBI contacted somebody saw a posting, I want to be a professional school shooter. They could not find the gentleman but a person later identifying him and told about his threat and they did not even refer it to the Miami office.

This could have been stopped. I mean when you look at these cases, look at this one or look at the Texas Church shooter, I mean the Air Force had not reported his criminal conviction to the NIC system, the National Instant Check System and he was allowed to purchase a gun.

So I mean NICS, the National Criminal Instant Background Check System is something that there is legislation proposed about that, it’s called the Fix NICS bill and that’s something I think everybody can get on board, no matter where they are on the gun issue that we need to beef-up on our background check system and make sure we have got all the relevant records.

J. Craig Williams: John Donohue, you have done a lot of research on gun control legislation and on its impact on controlling this kind of violence. What do you say? Is stronger legislation going to curb this kind of mass violence?

John J. Donohue III: Well, we do have constraints in this country that probably impede our ability to address the mass shooting problem as effectively as countries like Australia have done. But there’s lots that could be done and Steve talked about how and its youth that we did not have this problem but of course, we did not have the sort of virulent NRA mythology that is I think compounding the problem in so many ways.

If you go to the NRA website, you can see posters of targets covered with bullet holes and a gun over banners and group therapy. And so this was something that the 19-year-old Florida shooter was very moved by and shared on his Instagram account. And as you see the efforts to promote sales of AR-15s, there’s very much a tendency to try to claim that this is going to restore your manliness and Bushmaster had and had that touted their rifle with the slogan, Consider Your Man Card Reissued.

So there’s been a real effort on the part of the gun industry to try to invigorate sales of these high-powered weapons and we simply did not have that happening years ago and that certainly contributes to the problem. Every country in the world has the same level of underlying mental illness that we have but we have two things that most other modern industrialized nations don’t have, which is access to the most high-powered weaponry, coupled with allowing the citizenry to sort of marinate and these aggressive images of how guns are going to make you manly and they are going to protect you and you need all this firepower.

(00:10:08)

And just the idea that guns are a solution to your daily problems, which again is so much that the mythology the gun industry puts out there is a bad message for people with mental illness to be hearing.

Many other countries including Australia and Canada do not consider self-protection as a valid basis to acquire a weapon, and of course, they make their societies much safer by going down that path. We do have to deal with the Second Amendment which unfortunately is going to build in a higher level of gun violence overall.

J. Craig Williams: Stephen, there’s — I’ll go ahead and date myself along with you, when I was in high school, we had a shooting range in the high school and kids would bring their guns on the school bus. But society has changed and there’s been a lot of blame laid at the feet of video games, and parents, and schools, and society, the victims’ society in general.

What role do you think that social media, society and upbringing and lack of discipline and all of these kind of social complaints, what role does that have in this debate?

Stephen P. Halbrook: Well, it’s such a complex problem and all of those variables have their effects. We have an alienation in this society that we’ve never had before. You see young kids walking across the street looking at their iPods, they don’t even look to see cars coming. They are texting each other when they’re in the same room, and so you have a — I think a disconnect, a one dimensionality in many ways.

I think people — there’s a certain loneliness here, and we have all the violent movies and violent video games and it’s really a worldwide problem. I mean if you look at what’s happened in France and Germany and Norway, you have some of the worst mass shootings that have taken place in those countries which have very strict gun regulations.

And it’s true that in those countries you cannot give self-defense as a reason to get a gun, it has to be sports, hunting or collecting, but these events occur there as well. I mean I think Norway has the highest number of people murdered in a mass shooting. And another thing is that yeah, we have the Second Amendment, other countries don’t have a Second Amendment and you can look historically at some of the results of that.

Americans overthrew the British monarchy and created an independent country. You haven’t had the right to keep and bear arms recognized in countries such as the National Socialists in Germany in the 30s or Soviet Union and we have mass killings by the millions by governments.

So in this country, we have a Bill of Rights, we have the Second Amendment just like the First Amendment and the Fourth Amendment. Those are the prices that you pay for a free society. People have — they give speech, they print books with sayings in it that would be very controversial that people disagree with. But we don’t live in an authoritarian society, where some elite basically dictates whether you have a right to protect yourself.

So I don’t think that what we’re seeing today has a specific cause obviously. I think there’s some things that we can all gather around and agree on, there’s some other things that that we won’t agree on. I think calling an AR-15 a high-power rifle, well it’s actually an intermediate power rifle, high-power rifle would be like a .30-06 that you use for deer hunting.

And the way that this term assault weapon has been used as a propaganda term is pretty phenomenal. You can take an ordinary rifle and if it has an adjustable shoulder stock, then suddenly it’s called an assault rifle, and it has nothing to do with the ballistics or strength or power of the cartridge that it shoots.

So we don’t need to be criminalizing behavior of millions of law-abiding citizens. What we need to do is to focus on these events where has there been a failure of law enforcement, where there has been a failure of the mental health system. But we need to get at those solutions and try to do something meaningful.

Bob Ambrogi: What about the question of background check. So, there was another poll out yesterday I think it was from Quinnipiac saying that 97% of the American public supports universal background checks and even 97% among gun owner supports universal background checks. Do you both agree that universal background checks are part of the solution here? John, let me put that to you.

John J. Donohue III: Yeah, I mean obviously that’s such a no-brainer, that that should have been done a long time ago and again, it shows a problem that is a more recent vintage that the NRA has played in a unfortunate contribution to which is undermining our very democracy.

(00:15:00)

Think about what sort of law could not even be brought up for a vote that has 97% approval of the population but that’s the position because the NRA doesn’t want universal background checks or anything that would impede gun sales.

So I mean to me, it’s a shocking situation. The Congress is so ruled and Steve talked about ruled by some elite and there’s no elite that’s smaller and as pernicious as the NRA and its influence on the American political system.

So yes, we need background checks and many other measures. It’s also worth noting that many, many countries around the world had a sort of analogue of the Second Amendment and almost every country has abandoned them because they are for an earlier time. And the countries that have retained them, countries like Haiti and Guatemala and the United States are not countries that we think of as bastions of freedom or non-violence.

J. Craig Williams: Stephen, what is the makeup behind the NRA, I mean you hear this amorphous term the NRA and is it really made up of the Joe Hunter that goes out and gets doves and deer on opening season day or is the NRA monetary interest largely influenced by the gun industry?

Stephen P. Halbrook: The gun industry is greatly overrated in terms of both its influence and its money-making ability. Back a few years ago, there were lawsuits filed against gun industry trying to mimic the tobacco lawsuits that resulted in very large judgments. And of course, the gun industry is nothing compared to tobacco. And the NRA gets its strength from its members.

There’s about I think six million NRA members, there’s many, many others who think their members or their members of the same families and they would have no influence whatever without the vote. It all goes down to their ability to inform their members of what’s happening and to take measures.

If you think about it, if you had a concerted movement against a large number of people trying to criminalize what they do when they’re law-abiding people and we have a vast over-criminalization of the law in every respect, both at the Federal and State levels, especially the Federal level. There are so many felonies.

I mean just using so called universal background checks as an example, it’s already the law that every sale of a gun from a licensed dealer and that’s the way every gun gets in the commerce in the first instance. There’s a background check for it.

And in fact the so-called Brady Law, the permanent provision of the Brady Law that was the NRA’s idea was to have an instant criminal background check so that there could be a no commitment records, felony records and other things online and the dealer can quickly find out whether the person was eligible to get a gun.

In terms of making every single transaction or every single gift of a gun from one person to another involving just private parties a crime, why do we want to make it a crime for let’s say me to give my son a gun for Christmas without doing some background check.

I know him and most criminals don’t get their guns from sales in the marketplace, they get them through theft and they get them through the black market, but they’re not about to do background checks. One thing Americans have always been opposed is a universal registration of firearms.

Bob Ambrogi: But isn’t that correct that several of the mass shooters, so like three or four of the mass shooters would not have purchased their guns legally but would not have been able to purchase them, had there not been flaws in the background check system.

In other words, information that should have been reported to that system about them was not reported and therefore they were able to purchase guns?

Stephen P. Halbrook: That’s the case. I mean that was the Texas Church shooter. The young man in the Florida incident, he should have had a criminal record and he should have flunked the background check. He wondered why he wasn’t prosecuted for terroristic threats or for shooting at the neighbors, animals, chickens or whatever it was.

I mean this guy, the police were called to his home 29 times. There’s no reason why he shouldn’t have been prosecuted for these various things. The assault at school, you just wonder, what’s going on with a person who is that involved in trouble and making all of these statements and nobody does anything about it.

Bob Ambrogi: Well, let’s talk more about that but we need to take a short break, so stay with us. We’re going to be back in just a moment to continue our discussion of the Florida shootings and what can be done about it.

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(00:20:09)

Bob Ambrogi: And welcome back to Lawyer 2 Lawyer, this is Bob Ambrogi and joining my co-host J. Craig Williams and I today to talk about the Florida shootings and gun violence is attorney Stephen P. Halbrook; senior fellow at the Independent Institute and Professor John J. Donohue, III, from Stanford Law School.

John, one of the topics that we’ve been hitting on here and that comes up a lot is this question of whether we should be doing more to identify people with mental illnesses and prevent them from having guns. What is your research show about that? Is that an effective way to curb this kind of gun violence?

John J. Donohue III: It’s a tricky issue. Obviously, when you’re talking about mass shootings, they are relatively rare events. So you’re trying to pick out the needle in a haystack and keep the gun away from that person, which is a challenge for law enforcement.

But a sort of standard NRA response to a mass shooting as always a mental health problem, it’s not a gun problem. And again, you see that, that is a little bit of a charade because the Obama administration did identify 75,000 people who under current Federal Law should not have access to weaponry and put them into the background check system.

And the Trump administration with encouragement from the NRA overturned that regulation. So those 75,000 mentally disabled people who have no right to possess firearms under Federal Law are not in the background check system. So there’s so much that needs to be done, and unfortunately, the NRA is constantly on the wrong side of all of these issues.

J. Craig Williams: How do you view this reaction from the students? I mean this is one of the first times we’ve seen a groundswell from the students themselves. It didn’t happen in Columbine, probably couldn’t have happened in Sandy Hook, the children were so young, but now it seems that the students have become a little bit more effective.

Stephen, what do you think we can expect to hear, will there be a reaction to the students? Have we finally gotten to the point where this will be the tipping point?

Stephen P. Halbrook: Well obviously everybody has the right to be heard and I’m glad that these students are making ways and they’re demanding to be heard. And the real issue though is what would be effective in curbing what’s been going on. What would have helped prevent the kind of thing that happened in Parkland, and that’s a more complex question, and it’s just going back to the mental health issue.

J. Craig Williams: Let me jump in there for a second, do you think we need to start putting metal detectors and essentially a version of the TSA at schools?

Stephen P. Halbrook: Metal detectors, I’m not sure about but I do think there should be armed security and it could be part-time police or off-duty police or it could be teachers who have had training and have concealed weapon permits. It would be good if an intruder comes in and doesn’t know whether a person might be armed or not, an adult perhaps a teacher; that would be one way to do that.

And there are so many issues here, if I can just return to the mental health issue just for a second. Federal Law says that you cannot buy a gun if you’ve ever been committed to a mental institution or you’ve been adjudicated as a mental incompetent.

And what the Obama administration did was to veterans and Social Security recipients who had trouble arranging their financial affairs, put them into the system where they could not buy guns as if they had been committed to a mental institution or otherwise had a legal disability.

And that’s what President Trump reversed was that policy that these people if you have trouble managing financial affairs, it doesn’t mean that you were in the same category as a person who has been committed to a mental institution. And we need to study the mental health issue.

One thing that happened I guess back starting in the ‘60s was it used to be a lot easier to commit people to mental institutions. And overtime, they got due process rights and it became very difficult, but I think we lost something in the meantime and if you look around in the city streets, you mean you see a lot of people who probably should be institutionalized.

But these are just some more variables here as to what we’re talking about, again reducing all of this to the Great Satan of the NRA that doesn’t really get us anywhere. I mean there’s millions of people in this country who are law-abiding gun owners, they have kids in schools and they feels for the victims here just as much as anybody else and it doesn’t really facilitate the dialogue to demonize them.

(00:25:01)

Bob Ambrogi: So what should be done? I mean if you had a magic wand and you could enact one piece of legislation tomorrow to address this issue, what would you do legislatively, Steve?

Stephen P. Halbrook: Well you know that’s a really difficult question because I’m not sure how much of this can be solved with legislation. There’s always been evil in the world and I think we can do a lot more in terms of more efficient law enforcement, in terms of different agencies communicating with each other.

The Boston Marathon guys they were on the FBI’s radar and then they drop the ball. There’s just so many more things that we can do to promote mental health in this country. But lot of this is out of the government’s control and it’s not something necessarily should be subject to government control.

I’m talking about First Amendment protected activity which involves a lot of bad ideas and just as an example, a lot of these are copycat murders. These people — I can be famous, even though, I can be infamous, I can get on TV, my name will be remembered and that’s what seems to be motivating some of these people.

Well we can’t ban TV from covering these incidents but when you combine all of these things and the breakdown of the family and so many other variables, there’s only so much government can do.

Bob Ambrogi: Can I just ask John that same question.

John J. Donohue III: A lot depends on the problem that you’re trying to deal with. As we said Australia solved their mass shooting problem by getting rid of the weapons that are most desirable to the mass shooters.

Steve mentioned the Norway mass shooting and he the shooter in Norway managed to get his high-capacity magazines from the US, complaining how horrible the European gun laws were that kept him from getting the weaponry that he needed to accomplish his goals.

So right away, ban on high-capacity magazines, ban on assault weapons. It’s a tragedy that the country gave up its Assault Weapon Ban and the only problem of the Assault Weapon Ban was it was much too porous, should have been far more encompassing.

Steve mentioned the AR-15, I was just reading the 1962 Defense Department report that recommended using the AR-15 in Vietnam because of its massive killing power. The report noted one episode where the Rangers had shot some Việt Cộng and they said, one wound was a back wound that caused the thoracic cavity to explode, another one is a buttock wound that destroyed all tissue of both buttocks.

And finally a heel wound to where the projectile entered the bottom of the right foot, causing the leg to split from the foot to the hip. All the deaths were instantaneous according to the report except the buttock wound, he lived approximately five minutes.

So these are weapons that were designed for war, have no place in American civilian society and so get rid of them, get to universal background checks, improve the quality of the background check system, expand the people. I mean the idea that people who are so mentally disabled that they are on the government payroll and cannot manage their own affairs should be having full access to whatever weapon of war, the gun merchants can put before the public is literally insane.

So there’s so much that needs to be done and more efforts should be made to contradict the misinformation that is constantly being spread by the NRA. Again, the notion that guns are going to — in the United States are going to protect against tyranny, I’d be much more concerned about the groups that are adamant about using guns to protect against tyranny, being on the side of the tyrant rather than on the side of the American people.

So again these notions to me are very alien, there are many obvious steps that all of our competitor nations have taken. They have much, much lower rates of gun violence and suicide.

We need to look to our competitor nations and try to drown out the unhelpful messages that the NRA and the gun merchants propagate.

J. Craig Williams: Gentlemen, we’ve reached the end of our show and it’s time to invite you both to share your final thoughts, along with your contact information if you’d like our listeners to reach out to you. So Stephen, we’ll toss it to you to finish up.

Stephen P. Halbrook: Well, thank you very much. It’s been a real pleasure to engage in this dialogue and thank you for having me on this show. I have a website stephenhalbrook.com, and it has information on some of my books and some of the cases that I’ve litigated, if anybody in the audience is interested.

I’ll just make one more comment about the substance of our debate if I might, the description that we just heard by John of the wounds that took place in the Vietnam War, what the wounding has to do with is the cartridge not the gun.

(00:30:05)

There are lots of sporting rifles of various kinds that shoot the .223 cartridge that’s what the AR-15 shoots, that has nothing to do with the configuration of the gun, it’s all in the cartridge, and so if you want to — that’s an intermediate cartridge, it’s not even powerful enough that you’re allowed to hunt deer with it. Game Commissions in the various states don’t allow hunting with a .223 cartridge of deer, because it’s not powerful enough.

So the purpose in war of guns in terms of the ballistics is to wound the enemy, not necessarily to kill them, because if you have a wounded person, then it takes up other people’s time to get them off the battlefield, but look, the various positions in this debate these are not evil people on either side, everybody here is well intended and to attribute some kind of as I said before Great Satan attitude toward people that you disagree with doesn’t really — it’s not really productive in this debate, but I hope we can move forward, nobody likes what’s going on, we all want solutions and we would really need to think of some policies that actually work.

J. Craig Williams: Well, thank you very much Stephen. We appreciate that. And John, we’ll throw it back to you to sum up and your contact information if you’d like to offer?

John J Donohue III: Yes. I’m a professor at Stanford Law School, so John Donohue Stanford Law School on Google will bring up my webpage. Again, I would sort of close with a comment that I think underscores some of the major difference I have with Steve and NRA groups in general.

As soon as I hear somebody talk about law-abiding citizens should be able to have whatever arsenal they want, I shudder, because unfortunately almost all of the mass shooters in the U.S. from Columbine, Sandy Hook, Aurora, Fort Hood, Washington Navy Shipyard, Orlando Nightclub, Las Vegas to this latest disaster, met the definition of a law-abiding citizen, because the NRA considers anyone who hasn’t been convicted of a felony to be “a law-abiding citizen” allowed to buy whatever weaponry they want.

Now all of those people were law-abiding citizens until they became mass killers. So, we really have to get away from the NRA rhetoric again and the notion that the only thing that stops a bad guy with a gun is a good guy with a gun. No. Police stop bad guys and many more bad guys are stopped by unarmed individuals and are stopped by civilians with guns.

If you just look at the best research it shows that when citizens are allowed to carry concealed handguns violent crime goes up rather than down. So at every stage pretty much whatever the NRA messages I think is the wrong recipe for dealing with both mass shootings overall gun violence and suicides and of course accidents.

Bob Ambrogi: Well thanks a lot to both of you. We’ve been talking with Stephen P. Halbrook, senior fellow at the Independent Institute and Professor John J. Donohue, the III from Stanford Law School about the recent school shootings in Parkland, Florida. Thanks very much to both of you for taking the time to be with us, we really appreciate it.

Stephen P. Halbrook: Thank you.

John J. Donohue III: So glad to be with you.

J. Craig Williams: Hey, well Bob that brings us to the end of our show. If you like what you hear today, you can please rate us in Apple Podcasts.

Bob Ambrogi: And you can also visit us at  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com where you can leave a comment on today’s show and sign up for our newsletter. This is Bob Ambrogi on behalf of everybody at the Legal Talk Network. Thanks a lot for listening today. Join us next time for another great legal topic when you want legal, think Lawyer 2 Lawyer.

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