Friday, January 20, 2023

We Need A Model Terroristic Threat Statute

 


Over the past ten years of writing this blog, I hope that I have been clear about a few things. First, violence and aggression are complicated problems. Most of the political arguments out there today focus on peripheral issues like gun violence. In a country of gun extremists – there will always be excuses for why there is so much gun violence.  A common one is that there are mentally ill people with guns.  Some of the gun extremists have gone so far recently to suggest this is due to a crisis of untreated mental illness. Nothing is further from the truth.

Second, people with mental illness can be violent and aggressive. In political arguments where violence and aggression is being attributed to mental illness it is common to deny it. In a Community Psychiatry seminar 40 years ago – my position was “people with mental illness are no more violent than anyone else.”  My 40 years in the field has taught me that looking at violence across large groups is meaningless. In the acute care setting where I worked many if not most of the patients I treated were there for violence against others or self-directed violence.  Some were aggressive toward me and the staff I worked with – with some threats that persisted well after any hospitalization.

Third, violence and aggression can clearly be treated in many if not most cases, especially if it is a manifestation of acute psychiatric illness. Despite that being common knowledge in acute care settings – there is no effort to characterize it as a public health problem like suicide. There are no public service announcements about what to do if you have violent or aggressive thoughts. No hopeful messages that you do not have to act on any of those thoughts and that you can get help to restore your baseline thought patterns.

Fourth, violence and aggression are stigmatized in society. Most people at some point in their lives have been bullied or traumatized by other forms of aggression. In the US, incidents of extreme violence and aggression are commonplace in the daily news. There is a fascination with true crime television and documentaries about serial killers. The media seems preoccupied with discovering a “motive” for these crimes.  Apart from the usual sociopathic motives of intimidating and injuring people to get what one wants – motives are generally lacking. In fact, I would go so far to say that in the homicide cases broadcast on television the limiting factor was the availability of a firearm. In other words – no homicide would have occurred if a firearm was not present. The resulting stigma toward aggression, leads to biases toward patients with psychiatric illnesses who are violent because of those illnesses.

Fifth, there is a limited rational response to violence and aggression even if a public health response is ruled out. This occurs daily. There has been no clinic or hospital where I have worked where I have observed a well thought out plan to respond to these incidents even though aggression toward health care workers is a current epidemic. There are plenty of errors along the way whenever an incident occurs in the community. I have had patients who were in the cross hairs of a police sniper until somebody noticed they were pointing a toy gun at the police. Anyone in my field has had people who assaulted them, threatened them and their families, and in some cases that aggression has resulted in serious injury or death. The rate of intentional injury by another person is five times greater in the healthcare industry than all other industries and that rate is ten times greater in the psychiatric and substance use fields. With a healthcare system run by administrators rather than physicians – it is not clear why there are no functional approaches at the institutional level. In the case of the community and the hospital the usual approach is to send the person to the emergency department to see what they can do and if necessary, hospitalize them on a psychiatric unit.  By that time, it is common to see people who have been escalating for days or weeks and the necessary interventions are riskier than they would have been at an earlier point.

In thinking about a more functional response there are two problems – epidemiology and existing laws.  From an epidemiological standpoint there are many studies documenting specific forms of violence and how that individual may have been victimized in the past.  A joint Department of Justice (DOJ) and Centers for Disease Control (CDC) report from 2000 estimated that physical assault and stalking affected roughly 2.9 million women and 3.5 million men every year.  Intimate partner violence affected 1.3 million women and 835,000 men. Getting to the earliest point in that cycle of violence from an epidemiological standpoint seems to be missing.  At least I cannot locate any data.

From a legal standpoint, intervening before there is any physical danger is a highly problematic threshold. And if the necessary statutes exist, there is wide latitude in their interpretation by law enforcement and the judicial system. There has been some progress over the past 40 years but not much.  For example, in the past if a person was threatened – it was common for law enforcement to say they could not do anything because the threat has not been acted upon. That was clearly a suboptimal approach because threats involving lethal force often result in the precipitous application of lethal force. In many cases the lack of a firm limit on threatening behavior encouraged more of it. Contingency based systems also have the tendency to put the responsibility for action on people who have no relationship to the person making the threats.  Even though there has been substantial progress in domestic violence scenarios, it is common for the person being threatened to need to seek a court order for protection and convince a judge that threats or actual violence have occurred. In the case of threats by patients with known psychiatric illnesses, the Tarasoff decision has placed the treating professionals in the position of law enforcement with a duty to inform the person who is being threatened. A clear terroristic threat statute could address all of these issues and provide a path for early intervention.

Since most of my career was in the State of Minnesota, I will be referring to their statutes.  Preparing for this piece, I also read a paper from the University of Pennsylvania Law Review (2) highlighting some of the confusion in this area.  Minnesota, if a health care professional is threatened it is a good idea to inform the police about the threats and present them with any hard evidence (voice messages, emails, mailings, etc).  Laws enforcement who I have dealt with in these situations may refer to the threat as a “terroristic threat”. That is defined in Minnesota Statutes (3) as:

Threaten violence; intent to terrorize. Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, or in a reckless disregard of the risk of causing such terror or inconvenience may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both.”

I have highlighted the relevant section of the statute. Minnesota legislation appears to cover both the individual case as well as larger scale incidents that would typically be equated with terrorism.  This statute allows law enforcement to exercise some judgment in dealing with threatening individuals.  For example, they can go to that person and say that if they persist, they will be arrested and charged with making terroristic threats. No other action is required by the person being threatened. In many cases that is a definitive intervention and no further action is required.

The paper by Flanders, et al looks at various scenarios that have occurred in the context of the current COVID-19 pandemic.  Their basic argument is that much of the mayhem created during the pandemic would not reach the legal standard of terroristic threats and if charges were required – they could occur under other statutes such as disorderly conduct or harassment. They are using a standard suggested by the American Law Institute Model Penal Code that includes the following:

A person is guilty of a terroristic threat if he threatens to commit any violent felony with the intent to cause evacuation of a building, place of assembly or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such inconvenience.”  (2)

Note the difference with the Minnesota Statute – there is nothing about threatening with intent to terrorize another.  It is more about violent felonies that disrupt the public.  The authors in this case go on to specify the elements of terroristic threats in their “core case” model as consisting of a credible threat, use of a dangerous weapon, targeting the public or government, and the intention to create a panic or forced evacuation (p. 68).  They illustrate how this model statute has been modified and adapted in other states. I am not a legal scholar but to me – the model statute is missing one of the prime elements of terrorism – the intent to kill and injure people. The way it is written seems to make this implicit and secondary to disrupting the public. The public is disrupted because of their fear of being killed or injured. The Minnesota statute covers both cases by including the element of the individual being threatened.

Whether you are a health care professional or a member of the public, this is the level of protection from threats that is needed. Even then there is no guarantee that there will be a successful intervention by law enforcement. The person making the threats needs to be identified and the police need probable cause to intervene.  I have seen it work well even if no arrests or emergency holds are placed. Most importantly it creates clear boundaries between the police, the person being threatened, and the person who is threatening. The responsibility for action is no longer on the person being threatened.

There are also potential benefits in terms of earlier intervention in the case of psychiatric illnesses associated with threatening behavior.  There is a current awareness that crisis intervention services may be a better early option than the police and that may be a better early intervention.  The epidemiology of threats needs additional work.  My speculation is that there are tens of thousands of people who are trying to live every day with these kinds of threats.  They are a disenfranchised group whose needs have only partially been addressed by domestic violence and civil commitment laws.  A more functional terroristic threat statute like the one in Minnesota could result in early intervention and providing significant relief from that stress.

And finally early intervention can provide relief to many of the people I treated in inpatients settings for 22 years.  They were generally suffering from severe psychiatric disorders and substance use problems. I saw most of them recover to the point that they regretted the aggressive and violent behavior and were appreciative of the treatment they received to resolve that problem. It is easy in our society to view these folks as hopeless and as outcasts – but every acute care psychiatrist knows that is nonsense. The first step in making a societal change is to get the message out that violence and aggression can be treatable problems and earlier treatment generally leads to better outcomes.  More functional and comprehensive laws on aggressive behavior are a part of that.

 

George Dawson, MD, DFAPA

 

Supplementary 1:

A better terrorist threat standard also may also serve to improve the likelihood of early firearms interventions.  Just from news reports the main obstacles seem to be a combination of easy gun access, gun extremist rhetoric, the ability to avoid background checks, legal action to defeat any gun access legislation, and extraordinary efforts necessary by law enforcement to restrict gun access to individuals who are either at high risk or proven risk based on their recent behavior. If a person meets a statutory terroristic threat standard - that could trigger red flag laws or laws to block or remove gun access at the local level by statute.


References:

1:  Tjaden P, Thoennes N.  Prevalence, Incidence, and Consequences of Violence Against Women: Findings From the National Violence Against Women Survey, Research in Brief.  Washington, DC: U.S. Department of Justice, National Institute of Justice, 1998, NCJ 172837.

2:  Chad Flanders, Courtney Federico, Eric Harmon & Lucas

Klein, “Terroristic Threats” and COVID-19: A Guide for the Perplexed, 169 U. PA.

L. REV. ONLINE 63 (2020), http://www.pennlawreview.com/online/169-UPa-

L-Rev-Online-63.pdf

 

3:  Various MN Statutes:

 

609.713 THREATS OF VIOLENCE.

https://www.revisor.mn.gov/statutes/cite/609.713

 

609.79 OBSCENE OR HARASSING TELEPHONE CALLS

https://www.revisor.mn.gov/statutes/cite/609.79

 

609.795 LETTER, TELEGRAM, OR PACKAGE; OPENING; HARASSMENT

https://www.revisor.mn.gov/statutes/cite/609.795

 

609.749 HARASSMENT; STALKING; PENALTIES

https://www.revisor.mn.gov/statutes/2022/cite/609.749

 

Graphics Credit:  Tim McAteer, CC BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0>, via Wikimedia Commons.  Page URL:  https://commons.wikimedia.org/wiki/File:SWAT_team.jpg


1 comment:

  1. I like your perspective. Your experience really shows the importance of some significant adjustments in the present day approach .

    ReplyDelete