Alger County Prosecutor's Office
101 Court Street Munising Michigan 49862
(906) 387-2117

Karen A. Bahrman Prosecutor

Today's column is prompted by the latest school shooting in Florida and devoted to why prevention is so difficult as well as to what could make it easier.

Prevention is first of all complicated by the freedom of speech guaranteed by the first amendment.

Although efforts to suppress so-called "hate speech" on college campuses and elsewhere show that our reverence for free speech is fading, the fact remains that offensive speech is fully protected by the first amendment, to include a statement such as the message posted on social media by the latest school shooter nearly five months prior to his shooting rampage, to-wit: "I'm going to be a professional school shooter".

Certainly there are crimes predicated in part on speech, but every such crime requires proof of something more, some contemporaneous conduct that is cumulatively or immediately threatening.  Examples of such crimes which have survived first amendment scrutiny include stalking and ethnic intimidation, but the legislature has yet to produce a definition of bullying that passes constitutional muster such that schools remain tasked with its prevention.

There are even crimes based wholly on speech, such as the making of false bomb threats and real threats to commit acts of terrorism, but much depends on their specificity, how/where they are communicated and whether they are time sensitive, e.g., telling social media followers that you're "going to be a professional school shooter" is much different than telling a real person that you're "going to shoot up a school in Munising tomorrow".

The bottom line is that this young man committed no crime by announcing his future ambition (to be a school shooter) and, had his message landed on some prosecutor's desk, there wouldn't have been a darn thing he/she could have done about it.

This is not to say that citizens shouldn't report or police shouldn't investigate such speech because this process spreads awareness of risks posed by the individuals being investigated and such awareness absolutely has prevention value, however, in the vast majority of situations where law enforcement was presented with "red flags" prior to a mass shooting they were powerless to "do something" because the individual had neither committed a crime nor met the criteria for involuntary commitment to a psychiatric hospital.

The most promising approach to prevention, in my mind, lies in the legislative creation of gun violence restraining orders (GVROs), also known as "red flag" laws.  Five states (CA,CT,IN,OR,WA) have already enacted such laws and the process resembles that associated with personal protection orders excepting that it is law enforcement (and in some states family members) who may file petitions to have individuals temporarily prohibited from possessing/purchasing firearms when their words and/or actions, while not criminal or supportive of involuntary commitment, telegraph a propensity to harm themselves or others.  Because the petitions are aimed at public safety, no specific victim need be targeted or named.

GVRO proceedings are civil, so the burden of proof is low, but the individual against whom such a petition is filed is afforded due process sufficient to prevent such laws from being abused.

Virtually everyone who works in law enforcement, including myself, has in the back of their head a short list of people in their communities who seem capable of random acts of violence; few people on such lists have any criminal or mental health history to be revealed by a background check, and although a precious few have been denied concealed carry permits due to non-criminal "red flags", they all own guns.  GVROs would give law enforcement what they currently lack - a tool with which to address behaviors that are deeply disturbing but cannot be addressed by either the criminal justice or mental health system.  And, everyone should be able to support such legislation because its not gun control - its gun owner control that is evidence based and subject to change based upon mitigation of risk, possibly through psychiatric evaluation but such details would obviously have to be worked out by each state's legislature.

Some wonder if this kind of intervention would backfire, either by further antagonizing people who may be contemplating random acts of violence and/or by driving them fully underground, so that they make more of an effort to conceal their aberrant thoughts and behavior from others.  The fact that "normal" people would resent such intervention doesn't mean we should expect that reaction from people who have left normality behind, however, and as far as I'm concerned the GVRO concept has real merit.