After high-profile mass shootings, calls to focus on mental health — including passing more red flag gun confiscation laws and expanding involuntary commitment statutes — have become as frequent as pushes for increased gun control.
“It’s about mental health” has become a common refrain after shootings.
The mental health component of America’s longstanding debate over guns and its crossroads with high-profile mass and school shootings is dotted with misperceptions and misunderstandings of the issue, what’s already on the books and how red flag and commitment laws are and are not being used to help those in crisis from hurting themselves and others.
There are also civil liberties and constitutional questions regarding allowing the government and/or police to put someone in a mental hospital or take away their guns.
One of the biggest challenges is that mental health action and interventions often start after an emergency 911 call to police when a crisis situation is already happening.
It’s often a police officer rushing to a scene who is the first to deal with someone threatening or already harming themselves or others.
“The de facto response is still law enforcement,” said Lisa Dailey, executive director of the Treatment Advocacy Center, a Virginia-based group focused on civil commitment laws and other mental health issues.
She said the mental health system and approaches have to change that dynamic.
“They are not being implemented to get people the care that they need in the right time frame,” Dailey said.
Despite the talk of increasing mental health resources and putting a dent in long-held societal and family stigmas, Jack McDevitt, a professor of practice emeritus in criminology and criminal justice at Northeastern University in Boston, said a 911 call is still frequently the entry point to law enforcement and other agencies response to a person going through a mental health crisis and potentially harming themselves or others.
Sometimes those police officers have no background information on a person’s mental state or history of mental illness.
McDevitt, who has helped Massachusetts lawmakers with gun policy proposals, said it is important for 911 operators to be able to get information and mental health histories from callers. But that is not always easy in stressful and sometimes violent situations when emergency calls occur.
He sees merits in having counselors and social workers respond to some mental health calls and wellness checks that do not involve violence — with police sometimes in a support role.
That may help diffuse situations.
“They aren’t the ones knocking on the door,” said McDevitt, referring to programs in Florida, Wisconsin, Wyoming and other states.
All U.S. states have some form of involuntary or civil commitment laws that allow for temporary or short-term placements in inpatient mental health settings, including hospitals, when a person shows serious signs of committing suicide or harming or killing others.
The landscape for those state laws is mixed, with some states allowing for court-order holds and commitments related to substance abuse, according to a report by the Treatment Advocacy Center.
Thirty five states — including Florida, California, New York, Wisconsin and Wyoming — allow for 72-hour holds.
Another seven states (such as Georgia and Texas) and the District of Columbia have 48-hour limits on the time someone can be involuntarily committed.
Eight states — including Maryland (30 hours), Delaware (24 hours) and Montana (the next business day) — have shorter time limits, according to TAC.
Some state laws allow for family members to petition for commitments, and there are situations where judges can impose holds related to substance abuse and self-harm.
For example, judges in Colorado can impose 180-days holds for substance abuse treatment.
“Our system is very patchwork,” Dailey said.
Dailey said states need to look at how to better match mental health policies, including commitment laws, to the needs of patients. She said proper mental health treatment programs can take six months — not the 72-hour holds on the books in most states.
DISINCENTIVES AND DIFFICULTIES
That varied and piecemeal approach isn’t just related to varying state laws related to commitments and gun confiscation.
Mental health systems across the country are challenged by lack of inpatient facility capacity and a system where treatment, housing, employment and substance abuse services can be siloed.
“It’s still really difficult to navigate the system,” said Dailey, pointing to the lack of a central agency, information or support source for patients and their families.
That can leave individuals dealing with severe mental illness such as schizophrenia, bipolar and borderline personality disorders to navigate various bureaucracies while trying to overcome stigmas and fears of past and contemporary mistreatment of the “mentally ill.”
“Individuals have often had very bad experiences at inpatient or law enforcement settings,” Dailey said.
Stigmas toward mental health continue, including hospitalizations for patients worried about reactions from their families, friends and employers.
There are pushes in New York and some other states to allow for longer mandated hospitalizations, and to make it easier for police and courts to involuntarily commit seriously mentally ill persons, including homeless people, after a series of high-profile assaults.
Some bioethicists and mental health professionals argue that inpatient hospitalizations are not always the best treatment path for some patients.
Civil libertarians worry expanding forced hospitalizations can lead to discriminatory treatment by courts and police of some classes of patients. There is plenty of history in the U.S. and other countries of political, religious and ethnic minorities, as well as women, being disproportionately “put away” by government authorities and mental health practitioners.
“Involuntary hospitalization is a serious deprivation of liberty that can be justified only in the narrow circumstance where there is mental illness and an imminent physical danger to the person to be committed or to others, evidenced by observed behavior, and where there is no less restrictive alternative. In such cases, strong procedural safeguards must be in place throughout to ensure that the due process rights of the individual are protected,” said the New York Civil Liberties Union in response to state and local efforts to expand civil commitments.
But even if police and courts are more aggressive in pursuing forced hospitalizations, many states and regions lack the number of mental inpatient beds needed to accommodate such a push.
Police officers have to go through a number of legal and bureaucratic hoops to gain temporary and short-term holds.
“It’s a big challenge,” said Dailey, noting that officers can spend several hours going through the inpatient mental health process.
Some states require specific staffing to transport an individual to a mental health hospital or another inpatient facility. And even then, police will find facilities completely full.
“It’s much easier to bring them in and book them,” she said.
The U.S. has seen a contemporary decline in the number of mental hospitals and institutionalized patients.
In 1955, when state mental asylums and short and long-term commitments were more common, there were more than 500,000 beds nationally, according to the American Psychiatric Association.
In 1963, there were 800,000 mentally ill and developmentally disabled persons kept in institutional settings — often at overcrowded and toxic mental hospitals, according to the Kennedy administration, which pushed for systematic changes away from asylums.
As many as 1.5 million people were treated annually at those sanatoriums in the early 1960s.
A study last year by the National Association of State Mental Health Program Directors Research Institute Inc. showed there were still close to 471,500 patients at government-run, private and other mental hospitals in 1970. That number stands at just 121,300 in 2020, the most recent data available.
Moves toward de-institutionalization and U.S. health care business models focused away from inpatient settings have driven that trend.
Shootings in Maine in October that killed 18 people and injured 13 and at the University of Nevada Las Vegas Dec. 6 that killed three persons have sparked new looks at mental health approaches and red flag gun laws — especially after details of the New England killings by U.S. Army firearms instructor Robert Card emerged.
Twenty-one states have so-called red flag laws on the books, allowing for court and law enforcement to temporarily seize guns from individuals deemed likely to harm others or themselves.
Those states include Nevada, Washington, Oregon, California, Florida, Maryland, Delaware, Illinois and New York, according to Everytown for Gun Safety, which supports increased gun control laws.
“Red flag laws are a tool law enforcement and others can use when somebody is clearly at high risk of doing something with a firearm, but they can’t be arrested because no crime has been committed and they don’t appear to need a mental health hold or qualify for one,” said Amy Barnhorst, a psychiatrist at University of California, Davis, Health and a violence prevention expert in an analysis of the issue earlier this year.
Maine’s gun confiscation law requires an extra step of those states of having the individual question go through a mental health evaluation.
McDevitt said most of the time gun confiscations are done in response to concerns about potential suicide attempts, and firearms are usually returned to their owners.
“It can save some people from hurting themselves,” said McDevitt, citing research showing for the laws can help reduce suicides.
There were 26,933 suicides committed with firearms in 2022, compared to with 19,592 homicides, according to the U.S. Centers for Disease Control.
Suicides by firearms made up 56.9% of all gun deaths and 54.4% of all suicides last year, according to CDC figures. McDevitt said owners often get guns back after anywhere between 30 days and six months, depending on the state statute.
Pushes for additional red flag laws in other states face resistance from gun rights advocates. The National Rifle Association’s Institute for Legislative Action worries red flag gun laws could be used by the government to take guns from critics and political opponents.
Despite their increased advocacy, McDevitt said gun confiscation proceedings are rare.
“There aren’t thousands and thousands of these things. They are pretty rarely used,” he said.
A 2022 analysis by the Associated Press said red flag laws have been little used due to lack of awareness and resistance from some sheriff’s offices and police departments to such policies on Second Amendment grounds.
Part of that also stems from families being reluctant to broach the issue, McDevitt said. “That’s a very difficult conversation to have. Most people don’t want to do that,” he said.