Spree Violence and Mental Health: the Tension between Civil Liberties and Public Safety
By Anna Critz
“We have a federal system more interested in protecting people’s rights to be sick than their rights to be well.” –Congressman Tim Murphy, October 2, 2015 to CNN New Day
On October 1, 2015, Christopher Harper-Mercer, a twenty-six year old student, went to the quiet Umpqua Community College campus in Roseburg, Oregon, with body armor, ammunition, and six guns. In an act of spree violence, he murdered nine people and left nine others injured before ending his life. Some sources have reported that Harper-Mercer may have had mental health issues. This hindsight dissection of a spree killer’s mental health is an all too familiar narrative after tragedies like this occur. Jared Lee Loughner, the Tuscon shooter who killed six people and wounded many others including former Congresswoman Gabby Giffords, exhibited signs of mental illness in the classroom long before he committed his spree killing. Elliot Rodger, the Isla Vista shooter whose rampage was partially fueled by his hatred of women, received years of mental health treatment as an adolescent and refused the anti-psychotic prescribed him as an adult. In the month before his attack, his mother had called the authorities, concerned after viewing one of his online video rants.
When senseless violence like this happens, people often wonder what, if any, preventative measures could have been taken. Many attribute the root of the problem to the accessibility and prevalence of guns in America. Others, including gun rights advocates, prefer to reframe the issue as a solely mental health issue. But if there is a mental health issue at play here: why is it an issue? And can mental health reform potentially prevent future acts of spree violence?
The issue is from the tension between a mentally ill person’s civil rights under the Due Process Clause and the public’s right to be safe from people sincerely desiring to commit acts of violence. The Due Process Clause bars the government from taking or restraining one’s life, liberty, or property without due process of law. In the mental health context, the Due Process Clause prevents a person from being committed involuntarily (be it through in-patient or out-patient mental health treatment) without a showing that the person is mentally ill and a danger to herself or others. Many state statutes have refined this to require that the mentally ill person be an “imminent danger.” Further, the Supreme Court requires the government prove dangerousness by clear and convincing evidence for civil commitment to satisfy the requirements of due process.
Under this framework, it is extremely difficult to commit a person involuntarily. Elliot Rodger had only to assure the police officers responding to his mother’s concerns that he was well and not suicidal to withstand commitment. In Rodger’s own manifesto, he described how the officers could have averted his murderous plans entirely if they had extended their visit to his room and found his guns and writings.
Perhaps then, a plan that more closely examines the requirements of involuntary commitment and lowers them in particular cases is key to mental health reform. Congressman Tim Murphy of Pennsylvania seems to thinks so. Congressman Murphy has sponsored H.R. 2646, the Helping Families in Mental Health Crisis Act, an expansive piece of mental health reform legislation. Crucially, the bill would, if passed, hinge some federal health funding to states on the states’ compliance with changes to commitment standards. To receive the extra funding, states must have statutes authorizing court-ordered out-patient mental health treatment on their books. Furthermore, only states that adopt a looser “need for treatment” standard of involuntary commitment (rather than “imminent danger”) would be eligible to receive the health funding. The “need for treatment” standard, according to the bill, would affect a mentally ill person who “is a danger to self, is a danger to others, is persistently or acutely disabled, or is gravely disabled and in need of treatment, and is either unwilling or unable to accept voluntary treatment.”
Adopting mandatory out-patient programs and a lower standard for involuntary commitment could quite possibly catch a mentally ill person plotting spree violence before the event occurs. Had this law been in place at the time, it might have been used to force Rodger to undergo treatment and take his anti-psychotic as prescribed. However, the questions of whether lowering the commitment bar would survive Due Process scrutiny and whether the American people would approve of the new restraint on their civil liberties remain open.
 See Murphy on CNN: Families ‘Need Action Now’ on H.R. 2646, Homepage for Congressman Tim Murphy (Oct. 2, 2015), http://murphy.house.gov/latest-news/murphy-on-cnn-families-need-action-now-on-hr-2646/.
 Oregon Shooting: Medical Examiner Rules Gunman Killed Self, Sheriff Says, CNN.com (Oct. 4, 2015, 10:17 AM), http://www.cnn.com/2015/10/03/us/oregon-umpqua-community-college-shooting/index.html.
 See Oregon Shooting: Gunman was Student in Class Where He Killed 9, CNN.com (Oct. 2, 2015, 10:40 PM), http://www.cnn.com/2015/10/02/us/oregon-umpqua-community-college-shooting/; Oregon Shooting: Medical Examiner Rules Gunman Killed Self, Sheriff Says, CNN.com (Oct. 4, 2015, 10:17 AM), http://www.cnn.com/2015/10/03/us/oregon-umpqua-community-college-shooting/index.html.
 See e.g., Nancy Dillon, ‘I’ll be Joining You Soon,’: Oregon College Shooter Planned Suicide After Gunning Down Students and Instructor, Survivor Says, New York Daily News (Oct. 3, 2015, 11:20 PM), http://www.nydailynews.com/news/national/christopher-harper-mercer-planned-kill-witness-article-1.2384171; Jack Healy & Ian Lovett, Oregon Killer Described as Man of Few Words, Except on Topic of Guns, N.Y. Times (Oct. 2, 2015), http://www.nytimes.com/2015/10/03/us/chris-harper-mercer-umpqua-community-college-shooting.html?_r=0&module=ArrowsNav&contentCollection=U.S.&action=keypress®ion=FixedLeft&pgtype=article.
 Kate Pickert & John Cloud, If You Think Someone is Mentally Ill: Loughner’s Six Warning Signs, TIME (Jan. 11, 2011), http://content.time.com/time/nation/article/0,8599,2041733-1,00.html.
 See Elliot Rodger’s Family Tried to Intervene at Time of Rampage, CBSNEWS (May 26, 2014), http://www.cbsnews.com/news/elliot-rodgers-family-was-en-route-to-intervene-at-time-of-rampage/.
 Adam Edelman, Mark Kelly, Donald Trump Weigh in on Gun Control Debate Following Oregon Shooting, New York Daily News (Oct. 4, 2015, 1:55 PM), http://www.nydailynews.com/news/politics/mark-kelly-donald-trump-weigh-gun-control-debate-article-1.2384850.
 U.S. Const. amend. XIV, § 2.
 See Foucha v. Louisiana, 504 U.S. 71, 80 (1992).
 See e.g., Ark. Code Ann. § 20-47-210; Haw. Rev. Stat. § 334-60.2; Colo. Rev. Stat. Ann. § 27-65-105; Mont. Code Ann. § 53-21-129.
 Addington v. Texas, 441 U.S. 418 (1979).
 Holly Yan, Steve Almasy, & Sara Sidner, California Mass Killer Thought Plan was over During Visit by Deputies, CNN.com (May 27, 2014, 10:30 PM), http://www.cnn.com/2014/05/25/justice/california-shooting-deaths/
 See Murphy’s Mental Health Bill Headlines News in FL, RI, Homepage for Congressman Tim Murphy (Aug. 25, 2015), http://murphy.house.gov/latest-news/murphys-mental-health-bill-headlines-news-in-fl-ri/.
 Helping Families in Mental Health Crisis Act of 2015, H.R. 2646, 114th Cong., § 206 (2015).
 Detailed Summary of The Helping Families In Mental Health Crisis Act (H.R. 2646), Homepage for Congressman Tim Murphy, 6, http://murphy.house.gov/uploads/2646-Section-By-Section1.pdf.
 Helping Families in Mental Health Crisis Act of 2015, H.R. 2646, 114th Cong., § 206(f)(1)(A) (2015).