The Aurora Shooter: Tarasoff and Public Peril
James Holmes, the accused gunman in last Friday's midnight movie massacre in Colorado, mailed a notebook "full of details about how he was going to kill people" to a University of Colorado psychiatrist before the attack, and the parcel may have sat unopened in a mailroom for up to a week before its discovery Monday, a law enforcement source told FoxNews.com.
"Inside the package was a notebook full of details about how he was going to kill people," the source told FoxNews.com. "There were drawings of what he was going to do in it — drawings and illustrations of the massacre."
News like this can't help but raise thoughts of the 1976 decision, Tarasoff v. Regents, where the California Supreme Court held that mental health professionals had a duty to warn when they had an objective basis to believe that a patient intended to harm another person. The court held that the duty trumped the requirements of confidentiality
The public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.
Following Tarasoff, many states enacted statutes addressing this duty, some of which were permissive (in that they permitted a psychologist to break patient confidentiality which would otherwise be prohibited), while others, like Colorado, were mandatory, emphasizing the affirmative duty to warn.
But Tarasoff addressed the duty with regard to a specific, identifiable victim, rather than the generic desire to spray a public place with bullets. From the 10th Circuit's decision in the Tarasoff aspect of the John Hinckley shooting of President Reagan, Brady v. Hopper.
In Tarasoff, the Court held that "[w]hen a (psychotherapist, psychiatrist, psychologist or therapist, as used interchangeably) determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger." In Thompson, the Court refused to extend the Tarasoff obligation imposed upon a third person in a setting where there was no identifiable victim. The Court instead concluded that there was no duty on the part of a third person where the patient had made generalized threats to kill but no specific threats to specifically identifiable victims. (Citations omitted.)
Here, it appears that the University of Colorado psychiatrist attending to Holmes didn't actually know of the damning notebooks until after the rampage. While that certainly speaks poorly of their diligence and mail distribution system, it also suggests that the psychiatrist may have had no basis to believe that Holmes was a serious threat to anyone.
A predicate to the duty to warn is that the psychiatrist be actually aware of the threat.
The court concluded that absent allegations in a complaint that a psychiatrist is aware of his patient's specific threats to specific victims, there exists no legal duty or obligation on the part of the psychiatrist for harm done by the patient. The court found that "... [t]he legal obstacle to the maintenance of this suit is that there is no relationship between Dr. Hopper and plaintiffs which creates any legal obligation from Dr. Hopper to these plaintiffs." 570 F.Supp. at 1339.
Even though the Colorado psychiatrist may not have seen the notebooks, that doesn't preclude the possibility that Holmes had orally discussed his intentions of slaughtering innocent people in a theater, such that actual awareness of a serious threat existed.
This raises an issue of whether the Tarasoff requirement of the intent to harm a specific, identifiable person extends to a situation where the threat of harm is to a specific, identifiable occurrence. In other words, Holmes may not have intended to kill a particular person, but expressed his intention to walk into a theater on opening night of the new Batman movie and kill whoever happened to be there.
The point of the Tarasoff specificity requirement is that it's insufficient to violate confidentiality, and to create a duty to warn, in the absence of sufficient detail of a particularized harm to have something to warn about. The duty isn't to warn that a person is generally dangerous, but a danger to someone.
However, where the threat of harm is sufficiently specific to pinpoint when and how, if not to whom, the harm will come, it would seem utterly irresponsible not to permit, if not mandate, a warning. While concerns about the need for confidentiality to preserve the viability of mental health treatment are clearly significant, those concerns fall short when the psychiatrist has an objectively founded belief that their patient will engage in murder, whether against an identified individual or at an identified time and place.
Based on the limited information available, it's impossible to know whether a ripe Tarasoff issue arises in this case, whether because the psychiatrist lacked actual knowledge of the threat or because the information possessed was too vague to give rise to the duty. But that there are serious questions of mental illness involved, and that this may have provided a means to prevent this horrific shooting from having occurred, is no shocker.