It is widely reported that the shooter in our latest school shooting was a classic rotten kid: in constant disciplinary trouble in school, getting into fights, getting expelled, killing small animals, boasting about his gun collection, joining a racist militia group, and posting on social media about his violent intentions. His schoolmates even joked that he was the kid most likely to shoot up the school. In the clear light of hindsight, it is argued that somebody should have done something. But what? The would-be shooter in Florida had as yet committed no crime. He truthfully checked all the boxes on the federal background check form—he had neither been indicted nor convicted of a felony, nor been in a mental institution, nor, so far as has been reported, used drugs. The criminal law has only a limited reach to forestall crimes that may or may not ever be committed.
One possible recourse is to make threats themselves criminal, even if unaccompanied by action. It has long been a crime to threaten the president, or to falsely threaten to bomb an aircraft. The rationale of such statutes is that the need to respond to the potential for real injury is itself a burden on society. As a practical matter, this kind of criminal statute allows the police to intervene and to get the threatener into some kind of imprisonment, psychiatric or otherwise. The Model Penal Code criminalizes “terroristic threats,” those made with the intent to intimidate another, to cause evacuation of a public place, or to cause public inconvenience. N.J.S.A. 2C:12-3 enacts the Model Penal Code provision, and our New Jersey statute already makes terroristic threats a crime of strict liability when there is a state of declared national or state emergency. The Legislature should consider a similar broadening of the required mens rea to include threats against schools and workplaces, which must now all be taken seriously. Query, though, whether the kind of “someday I’d like to” boast that was involved in the Florida case amounts to a criminal threat. At some point, particularly in the political context, the First Amendment imposes a requirement that the threat be imminent.
Another possibility that has come to light is what are called “red flag” statutes. Connecticut and four other states have statutes that allow law enforcement and/or family members to petition the courts to declare an individual an imminent threat to himself or others, place him under a restraining order, and temporarily confiscate any guns he has. A bill to enact a similar statute, A-1217, is currently pending in our Legislature. It would provide for ex parte restraining order and seizure warrant proceedings at the suit of “any person,” followed by a post-seizure hearing within 14 days at which the state has the burden of proving by clear and convincing evidence that the individual poses “a significant risk of personal injury to himself or others by owning or possessing the firearm.” If the burden is met, the court can prohibit possession of firearms for up to one year. It is debatable how effective such laws have been, but we urge the Legislature promptly to examine the issue and consider A-1217.
A third possibility, which New Jersey already has in the field of child abuse, is to impose a legal duty to inform the police of suspected dangerous individuals and enforce that duty by civil or criminal liability. There is a distinction, though, between reporting acts that have already taken place and reporting suspicions of what might happen in the future. We think the cultivation of preemptive informers resembles too much the old Soviet penal code, which made it a crime to hear anti-Soviet statements and not report them.
Such measures, unfortunately, are both overbroad and too narrow. The country has always been full of ill-adjusted, angry, resentful individuals who posture, boast and make generalized threats but who never act. If most of them weren’t restrained by some combination of incapacity, conscience and cowardice, we would have a tragedy like this last one every week. But that doesn’t happen. Social media has turned these powerless, solitary basement brooders into self-advertisers, and for many that turns out to be sufficient release. Both an expanded criminal law of threats and “red flag” laws are likely to burden the police and the courts with false positives—men who exhibit signs of danger but who will never actually do anything. Red flag proceedings could also trigger into desperate action some who would have contented themselves with fantasy. They are also an open invitation to the kind of envious, spiteful or fearful people who have always abused the power to inform.
Perfect preventive foresight like “Minority Report” is still in the realm of science fiction. Here and now it would be safer to live in a society where brooders like the Florida shooter couldn’t just go out and buy a semiautomatic rifle with a detachable magazine, a paramilitary weapon with no sporting use. While past experience counsels pessimism, the upsurge of public opinion after the Florida shooting gives grounds for hope.
Meanwhile, Bill O’Reilly has called these tragedies “the price of freedom.” Although he didn’t mean it that way, O’Reilly is perfectly correct that they are the natural and inevitable consequence of the widely held belief that any adult who hasn’t been in a jail or mental hospital should have the unlimited right to arm himself for protection against whatever terrors his imagination holds. As long as that remains the case, more invasive surveillance of our children, our neighbors, our colleagues and our school fellows is the poor second best we can hope to attain. The next victims won’t deserve what befalls them. Our society does.