AILSA CHANG, HOST:
Lawmakers are trying to figure out if there is a way to prevent the next mass shooting, and part of that challenge lies with the mental health system. Yesterday we spoke to psychiatrist Jonathan Metzl from Vanderbilt.
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JONATHAN METZL: Psychiatric diagnosis is itself not a predictive science. In other words, there's nothing in psychiatric diagnosis that's going to tell you how somebody is going to act in one week or one year. And in that sense, putting psychiatrists in the position of having to predict something in the future is really at odds with their expertise.
CHANG: We wanted to look at the legal side of the prevention puzzle. If a judge commits someone to a mental hospital, their name can be added to a list that would show up on a background check for buying a new gun. The law varies from state to state, but Miami-Dade County Judge Steve Leifman says in his state of Florida, the bar is very high.
STEVE LEIFMAN: What we're looking at in order to meet the criteria for actual involuntary commitment is they have to be imminently dangerous to self for others, meaning that they have to basically have a gun to their head or someone else's head. And anything short of that, they don't generally meet that criteria anyway.
CHANG: I asked Judge Leifman how he makes these assessments about someone's mental state even though he's not a clinician.
LEIFMAN: You know, the reality is most judges, particularly on the criminal bench, see more people in a week with serious mental illnesses than a psychiatrist may see in a month. I mean, that's - the bigger story here is that we have this horrific, fragmented, under-resourced mental health system that does not provide the resources that people need for recovery.
And so the default system for people with serious mental illnesses is a criminal system, even more than this probate system, that looks at people that have gone to a hospital, that are deemed dangerous to self for others. Or they're self-neglecting so bad that they're putting their own life at risk.
CHANG: When you're deciding whether they meet that criteria, as you say, are you thinking to yourself at some point that you could be taking away someone's Second Amendment rights, so you have to be very careful? Does that weigh on you as you're trying to make your assessment?
LEIFMAN: Honestly I think the primary concern of the court is not necessarily at the moment thinking about what their Second Amendment right is. And it's not that we're diminishing that. But the immediate concern is that they may be in a state where they could kill themselves or they could kill somebody else. And so it's less about, at that moment, what their Second Amendment right is and more about making sure that they are safe and secure and that the public is safe and secure.
CHANG: As we heard, the psychiatrist we spoke to was pretty adamant that there is no crystal ball out there for knowing when someone is going to be dangerous. And yet both psychiatrists and judges are put in the position of trying to anticipate violence. How do you feel about being put in that position?
LEIFMAN: It's difficult. The doctor is absolutely correct. There are no screening tools out there that can predict dangerousness. We have very good screening tools that can predict future criminality, and we use those in our criminal system with our mental health program here. But there is no crystal ball. And so...
CHANG: Does that make you uncomfortable, that you are put in the position to make hard judgment calls but there is no crystal ball?
LEIFMAN: I don't think judges feel uncomfortable. I mean, we make difficult decisions every day. And what you do is you just rely on the evidence that's in front of you, and you apply it to the law. I think where judges might get in trouble is if they start trying to guess what may happen. And so as long as you stay focused on what the evidence is and what the law requires, you're usually in a pretty good position.
CHANG: Yesterday at the White House, President Trump said it should be simpler to take guns away from people who pose a threat. Let me play some of the tape for you.
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PRESIDENT DONALD TRUMP: I like taking the guns early, like in this crazy man's case that just took place in Florida. He had a lot of firearms. They saw everything. To go to court would have taken a long time. So you could do exactly what you're saying but take the guns first; go through due process second.
CHANG: Take the guns first; go through due process second. As a judge, what do you think about that?
LEIFMAN: Well, I don't think any judge likes to hear putting due process in the backseat. Due process is required in any situation. Now, there are some states that have these red-flag types law...
CHANG: Yeah.
LEIFMAN: ...That actually allow you to go to court first similarly to what we do for injunctions on domestic violence. The judge signs the order very quick as long as there is some evidence that the person meets whatever the criteria is under the law, and then law enforcement should then be able to take the weapon. But I think you're going to probably run in some - to some constitutional issues if you just start seizing property from people without some kind of due process.
CHANG: When we think about legislative options to limit rights such as the Second Amendment, can you tell us a little bit about what we should be weighing?
LEIFMAN: You know, there are limits on most, if not all constitutional protection. The First Amendment, which comes before the Second Amendment, also has limitations. You cannot go into a movie theater and yell fire. Even though that's free speech, it clearly could cause a danger to public safety. So there are limits to all fundamental rights. They can't be abused. And so I think people can be foolish sometimes when they say they are absolute rights because they just aren't. You have to always be able to weigh these against the public safety.
Look; we don't allow convicted felons to own firearms. We don't allow people that have been convicted of domestic violence to own firearms. And so I don't think anyone that may be exhibiting at a particular moment a very serious situation should probably be able to hold onto their firearm. That doesn't mean that there shouldn't be some kind of due process to make sure that happens, but I do think a lot of what we do is balancing rights against protecting the public.
CHANG: What more authority would you want as a judge that you don't have right now to try to play a greater role in preventing mass shootings or gun violence?
LEIFMAN: So in Florida, we do not have the authority to take guns away from people that may have been found dangerous to self or others. We only have authority to put them on a list to stop the purchase of the firearm. But if they already own a gun, there's nothing we can do, which makes no sense at all.
And I think that it's hard for us to just think that if we point fingers at people with mental illnesses, we're going to fix this horrible problem of, you know, gun violence at schools or mass shootings. It's bigger than that. And people with mental illnesses are only a small part of the problem. And so it's about fixing the broader issues.
And I think one of the laws that the legislatures are contemplating around the country is not just removing firearms for people that may have a mental illness. But if someone is acting dangerous period, the police would have the authority to remove the firearm at that point. Just to single just people with mental illnesses out is not going to fix the problem.
CHANG: Judge Steve Leifman chairs the Florida Supreme Court Task Force on Mental Health. Thank you very much.
LEIFMAN: Thank you. Transcript provided by NPR, Copyright NPR.