Efforts to Address Gun Violence Should Not Include Increased Surveillance

Students view a memorial at Majory Stoneman Douglas High School on February 25, 2018, in Parkland Florida.

This month marks one year since a gunman opened fire at Marjory Stoneman Douglas High School in Parkland, Florida. The shooter took the lives of 17 people and gravely wounded 17 others. Still reeling from the trauma, Parkland students mobilized swiftly and effectively, connecting with young activists across the country to demand immediate, comprehensive legislation that addresses widespread gun violence.

Also this month—and for the first time in nearly a decade—the House Judiciary Committee held a hearing on gun violence. It is indisputable that gun violence is among the greatest public health crises facing the United States today and that meaningful action is necessary. Yet a familiar and insidious pattern has emerged as the pressure to act increases: the scapegoating of people with mental health disabilities and the use of gun violence as a pretext to increase surveillance of this already marginalized community.

The current legal landscape for people with significant mental illness

Within weeks of the mass shooting at Stoneman Douglas, Florida legislators passed Statute 1006.07, addressing matters of student discipline and school safety. Tucked away in the statute is a clause that functionally creates a statewide registry of students who receive mental health care and students who have juvenile records. This connection cements the discriminatory narrative that a student’s need for mental health services makes them potentially dangerous and criminal. Statute 1006.07(b) requires all students registering for school to disclose any “referrals to mental health services the student has had.”

This month, the Florida Senate stands poised to further expand the criminalization and surveillance of students with mental health disabilities under the guise of making schools safer. The Florida Senate Committee on Education has advanced Senate Proposed Bill 7030, which would arm school resource officers; increase law enforcement collaboration with Florida schools; and deputize students, teachers, and staff to report “threatening or aberrant behavior” exhibited by their peers. This policy will disproportionately harm marginalized students, especially those who may exhibit aberrational behaviors as a result of a disability but who pose no actual threat.

These laws are a result of an obfuscating narrative that does not see mental illness as a neutral medical designation but instead as an expedient scapegoat for violent crime. This narrative persists despite data showing that at the aggregate level, only 4 percent of violence in the United States can be attributed to people with mental health disabilities. Therefore, restricting gun ownership based on mental illness is ineffective. It is also discriminatory, as such laws unduly stigmatize and restrict the constitutional rights of an already marginalized and heavily surveilled class of people due to their disability status.

A long history of institutionalization and surveillance

The surveillance of people with significant mental illness (SMI) is not new. It is a pervasive manifestation of ableism, or the structural and interpersonal oppression of people with disabilities based on their presumed or actual disability status. Ableism, like white supremacy, dictates the bounds of socially normative behaviors and experiences, and the two compound to marginalize those whose behaviors and experiences are perceived as deviant. For people with mental health disabilities, especially people of color, this has historically led to institutionalization in wards that utilized coercive methods to manage patients in their care. Today, people with mental health disabilities are dramatically overrepresented in the carceral system, including federal prison, state and county jails, and immigration detention. Those who have not been swept up in the carceral system face persistently high rates of poverty, homelessness, unemployment, and housing discrimination, as well as stigma that can lead to ostracization and increasing rates of violent victimization.

In 1971, Florida passed the Baker Act, setting the guidelines for involuntary institutionalization. The act sets three criteria for which a person can be involuntarily “examined” and dictates that this process be initiated by taking the individual into police custody. Additionally, law enforcement shall take an individual into custody if they “appear” to fit the guidelines for involuntary institutionalization even if law enforcement did not witness the behavior. Put simply, the Baker Act positions a mental health crisis as a threat that can only be managed through coercive means and the intervention of law enforcement officers. Laws such as these are not uncommon. Increasingly, local jurisdictions are deploying law enforcement officers to respond to mental health crises; this is a major reason why one-quarter of people killed by law enforcement nationally in 2017 were people who presented with a mental illness.

But laws such as the Baker Act are only part of the complex legal web that ensnares people with mental health disabilities in an ever-growing surveillance apparatus. Despite playing a major part in deinstitutionalization, the U.S. Supreme Court’s 1975 ruling in O’Connor v. Donaldson left open the door for the forced institutionalization of people deemed too dangerous or unable to “surviv[e] safely in freedom.” The 1976 California Supreme Court ruling in Tarasoff v. Regents of the University of California established a legal “duty to warn” for mental health providers. This requires mental health providers to warn the identifiable potential victims of their patient and take “reasonable care to protect the intended victim against such danger,” or else face legal penalties or potential loss of license to practice. This ruling entrenched a system that puts people with SMI at constant risk of governmental interference; potentially lethal law enforcement interaction; and, ultimately, institutionalization.

Growing threats to the rights and autonomy of people with SMI

Recently, the federal Office for Civil Rights issued a request for information (RFI) on proposed amendments to the Health Insurance Portability and Accountability Act (HIPAA), with a stated goal of promoting information-sharing between covered entities, family members, and certain business partners. The proposed changes would, among other things, encourage providers to share sensitive mental health and genetic information with patients’ family and friends under the guise of protecting patient safety. However, HIPAA already includes exceptions that allow information-sharing in the event of an emergency. What such amendments will really do is diminish the already perilous security and autonomy of people with SMI. This would not only dissuade people from seeking needed care, but more alarmingly, it would also empower abusive caregivers to become substantially involved in a patient’s health care without the patient’s consent. This is especially dangerous for a community that is already at increased risk of abuse.

In another move to erode the privacy rights of people with SMI, the White House issued a fact sheet in 2018 focused on school safety initiatives. The fact sheet includes a directive to review the Family Educational Rights and Privacy Act (FERPA), which limits the access that outside parties have to students’ sensitive educational and medical information except under limited circumstances. The fact sheet expressly states that any changes to FERPA should “improve coordination between mental health and other healthcare professionals, school officials, and law enforcement personnel.” Increased coordination between law enforcement and medical providers will only reinforce the criminalization of people with SMI and expand the surveillance to which they are disproportionately subjected.

Criminalizing and surveilling people with SMI does not increase public safety

Nationwide, people with mental health disabilities are already battling threats to their freedom and autonomy. The current legal landscape has established numerous mechanisms to track, threaten, and incarcerate those who present with mental health disabilities. When coupled with renewed threats to privacy rights in the proposed changes to HIPAA and FERPA, a system takes shape in which an entire class of people is functionally criminalized based on their mental health status and the presumption of violence with which it has been falsely associated.

The disruption of this punitive cycle will only be possible through recognition of the harms inherent in coercive treatment. Forced institutionalization is a form of medical incarceration. Promoting the freedom, safety, and autonomy of people with SMI will require a fundamental shift in the United States’ approach to mental health care. Law enforcement should never be involved in the delivery of care for people with SMI. Instead, crisis response teams should be comprised of mental health providers and peer supporters whose training and lived experiences best position them to deliver effective care to people with SMI. Expanding surveillance of this community does not increase public safety; instead, it misdirects conversations about gun violence in a way that systemically victimizes individuals with SMI. Breaking this trend will require policymakers to address the needs and rights of people with SMI as a community, instead of using them as scapegoats to avoid enacting meaningful gun violence prevention measures.

Azza Altiraifi is a research associate for the Disability Justice Initiative at the Center for American Progress. Valerie Novack is the 2019 Portlight Fellow for the Disability Justice Initiative.

The authors would like to thank Chelsea Parsons, vice president of Gun Violence Prevention at the Center, and Ashley Jeffrey, policy analyst for K-12 Education at the Center, for their guidance. The authors would also like to thank Donovan Hicks, research associate for the Poverty to Prosperity Program, for his fact-checking assistance.