Paul Stern, a former attorney with the Justice Department, served as lead counsel in the civil actions stemming from the mass shootings at Marjory Stoneman Douglas High School in Parkland, Fla., and the First Baptist Church in Sutherland Springs, Tex. The views in this column are the author’s alone.
By Paul Stern
This question has plagued federal law enforcement for years. It was at the heart of the civil actions stemming from the Marjory Stoneman Douglas High School shooting in Parkland, Fla., and it remains an issue after last week’s shooting at Apalachee High School in Winder, Ga., after it was revealed that the FBI had received a tip about the 14-year-old assailant before the fact.
The answer is sobering. As lead counsel for the Justice Department in two mass shooting cases, I learned that we need to be honest about the FBI and its ability to prevent these tragedies.
While numerous studies have shown that most mass shooters reveal insights into their plans prior to committing the act (often referred to as “leakage”), and the federal government continues to promote “see something, say something,” in reality, the FBI has limited authority to take concrete preventive action when it receives tips about a potential shooting.
The FBI is not a national police force. For the bureau to investigate, there must be a potential federal crime or threat to national security. While school shootings are heinous acts, they are not inherently federal crimes. Federal agencies therefore typically forward such tips to state and local authorities or otherwise share them with their joint task force partners.
The FBI can monitor social media accounts and, in certain circumstances, may even interview the subject. But there are scores of instances when an individual is interviewed by law enforcement but remains undeterred. The FBI interviewed the Orlando nightclub shooter twice before he acted. Law enforcement interacted with the Parkland shooter and his brother 43 times over several years. The Winder student was interviewed by law enforcement one year before the shooting. Some experts have concluded that interviewing the subject not only fails to prevent violence but can act as an accelerant if an offender thinks law enforcement is closing in.
There is a federal criminal statute pertaining to online threats to kidnap or injure another. Law enforcement can use this statute when addressing true threats of violence. But what constitutes a true threat is not easily discernible. In the Supreme Court case Elonis v. United States, a man posted self-styled rap lyrics on Facebook that contained threatening language and graphic imagery of brutal violence aimed at his estranged wife and his co-workers. He posted about committing a school shooting at a kindergarten: “I’m checking out and making a name for myself … Enough elementary schools in a ten mile radius … to initiate the most heinous school shooting ever imagined … And hell hath no fury like a crazy man in a Kindergarten class …” He was eventually reported to the FBI, which monitored his account before visiting his house. The interaction only seemed to embolden the man, who then aimed his posts toward the female FBI agent.
The Supreme Court ruled that, under the federal statute, it was not enough for the government to prove that the defendant intentionally made a statement that a reasonable person would interpret as a threat. Rather, the government needed to prove that the man had some level of criminal intent when making the online statements. (In Counterman v. Colorado, the court later clarified that the First Amendment requires proof that a defendant had some subjective intent to threaten violence, but the mental state of recklessness is sufficient to protect speech.) This requirement had a chilling effect on law enforcement, as agents believed the Elonis decision made it harder to obtain a warrant or make an arrest in circumstances like the hypothetical posed above.
The FBI’s limitations do not end there. Earlier this year, the Justice Department launched the National Extreme Risk Protection Order (ERPO) Resource Center, which will provide training and technical assistance to state and local law enforcement on implementing ERPOs, also known as “red flag” laws. These are laws that create a civil process for law enforcement to seek a judicial order ruling that a person is a danger to themselves or others and should temporarily lose the ability to purchase and possess firearms. Ironically, while the Justice Department will provide the training and assistance to its local partners, its agencies do not possess the authority to use this process themselves.
So where does this leave federal law enforcement?
The time has come for Congress to categorize mass school shootings as a federal crime. The FBI has made significant strides in handling tips about potential mass shootings since Parkland, including establishing the National Threat Operations Center. Still, making mass school shootings a federal crime will allow agents to conduct investigations into whether an individual is planning to perpetrate one. It also prevents law enforcement from having to shoehorn such offenses into imperfect federal paradigms, such as domestic terrorism or hate crimes. While the FBI cannot initiate investigations based solely on First Amendment-protected speech, it can cite a comment as a potential threat to justify retaining preliminary jurisdiction of the matter. Then, depending on how the federal statute is written and where the evidence leads, the federal government may be able to bring cases for so-called inchoate offenses, such as attempt, conspiracy, aiding and abetting and being an accessory, or attempted material support. Given that many would-be shooters are minors, and that the law should hesitate to use the full force of the criminal justice system when the crime in question has not been completed, the statute should look to use intervention and rehabilitative strategies in juvenile facilities to provide off-ramps.
Additionally, because leakage and threats do not always rise to the level of criminality yet are proven indicators, red-flag laws should be seen not as an intrusion on an individual’s Second Amendment rights, but as a preservation of our collective First Amendment freedoms. According to the Supreme Court, tolerating some foreshadowing speech is the price we must pay to prevent the chill of our First Amendment rights. Our aim should be not to criminally prosecute based on protected speech, but to use all available civil remedies to protect both the First Amendment right to express oneself and our children’s fundamental right to learn safely in the classroom. To do so, we need a national red-flag law that empowers federal agents to obtain civil orders against individuals who pose a risk of imminent danger, even in states that have yet to adopt red-flag laws.
In my time handling mass shooting cases for the Justice Department, I met numerous federal agents who were desperate to protect their communities and prevent these horrific killings. These agents live in these neighborhoods and send their children to these schools. They’ve taken an oath and have spent their careers trying to protect their fellow Americans, yet often feel powerless to combat this uniquely American epidemic. We are long overdue for a candid conversation about our current limitations on preventing mass school shootings — and the steps we can take to empower our federal agents without upending constitutional safeguards.
