Montana Legislature
Law and Justice Interim Committee
National Instant Criminal Background Check System (NICS) and
Mental Health
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 as an expert concerning firearms safety, use of
force, legitimate self defense, and related topics. Mr. Marbut
is an active self defense instructor and has graduated over 5,000
students from curricula concerning Montana laws, and the tactics and
methods of defense. Mr. Marbut was long a member of the
International Association of Law Enforcement Firearms Instructors,
and a follower of the both Force Science Research Center and the
Crime Prevention 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
".. mental health experts and consumer advocates strongly rejected
what they saw as the scapegoating of people with mental
illnesses—the vast majority of whom, epidemiologic data shows, will
never act violently toward others .." "The public perception
of a strong link between mental illness and violence is fueled in
part by news coverage of mass shootings and other violent
events." Annals of Epidemiology: https://www.sciencedirect.com/science/article/pii/S1047279714001471
Also see, American Psychological Association - "Media Contagion" Is
Factor in Mass Shootings, Study Says: “We suggest that the
media cry to cling to ‘the public’s right to know’ covers up a
greedier agenda to keep eyeballs glued to screens, since they know
that frightening homicides are their No. 1 ratings and advertising
boosters.” https://www.apa.org/news/press/releases/2016/08/media-contagion
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, usually SSRIs. 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.(*1) 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 as 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 people 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 Supreme Court 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 background 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.
https://crimeresearch.org/2019/01/new-research-on-red-flag-laws-do-red-flag-laws-save-lives-or-reduce-crime/
10. Aren't predictions far-fetched that large numbers of
people will lose their civil rights because people who obtain
mental health assistance will become deemed ineligible to exercise
their right to keep and bear arms? Absolutely not – not
far-fetched at all. Already, 150,000 returning military
veterans have been stripped of their right to keep and bear arms
because they have undergone counseling for possible PTSD, sometimes
required by military commanders as a part of de-militarization for
personnel. See:
http://gunowners.org/congress1132014.htm
11. Will the prospective loss of civil rights dissuade
possibly needy people from seeing mental health professionals?
Yes. This is one major concern expressed by the
community of mental health professionals. 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.
III. Conclusion
People with mental health issues have no greater rate 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, many
experts assert that the art has not 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, Item # 6)
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” about a media-manufactured crisis. That would be
especially unfortunate and unwise if the “something” were so easily
predictable to be contraindicated.
*1. About SSRIs or psychotropic drugs, probably the most
significant factor is that these are prescription drugs, usually
available only to people under the care of a licensed
professional. That these professionals did not anticipate a
violent patient only underscores what psychologists report about
their profession - that their art is just not sufficiently mature to
provide them with tools or training that allow them to accurately
predict future violence on a case-by-case basis. See item # 4.