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Mass Murder: American Unexceptionalism

Clayton E. Cramer^*

Abstract

Is mass murder exceptionally American?  If so, can America’s relatively laissez-faire gun control laws be the explanation?  Would the courts finding increased regulation based on this apparent exceptionalism be consistent with the Second Amendment’s guarantee of a “right to keep and bear arms.”  Could a narrow reading of the Second Amendment qualify as “reasonable” or “rational” because of the social costs of American exceptionalism?

I.                 Brandeis Briefs and “Reasonableness”

Eventual U.S. Supreme Court Associate Justice Louis Brandeis is often remembered for his seminal Brandeis Brief in Muller v. Oregon (1908)[1], in which legal argument was secondary to social science claims and arguments.  His view was that “judges must decide on statutory rather than on constitutional grounds.”[2]  As part of that process, “In a democracy social policy is made by legislatures, not by judges, and the Constitution must be read as requiring the Court to exercise judicial restraint.”[3]  In the absence of clear-cut conflict with the Constitution, social science could inform judges on the “reasonableness” of a statute to solve a specific social problem.

This article exists on the assumption that Brandeis briefs will be submitted arguing that various types of firearms regulation can be considered “reasonable” because the United States is exceptional with respect to both firearms regulation and mass murder, and that there is some connection therefore (a post hoc ergo propter hoc error).  Such reasoning therefore might allow a narrower reading of the Second Amendment’s protections with respect to particular classes of arms in order to reduce a great social evil: mass murder. 

Under existing precedents, this would not be sufficient.  FCC v. Beach Communications (1993) very clearly protects “fundamental constitutional rights” from rational basis scrutiny.[4]  DC v. Heller (2008) appears to have recognized the Second Amendment as protecting a fundamental right.[5]  Nonetheless, precedents are as Mary Poppins described piecrust promises, “Easily made, easily broken.”  This is especially of concern because Heller is a very recent and highly controversial precedent, one that appears to have been largely ignored by most circuits, with little or no apparent interest by the Court in correcting them.[6]  As appellate court judges move up the ladder, this reluctance to apply strict scrutiny to a fundamental human right may well produce a future Court willing to overturn Heller, or narrow its protections with respect to the categories of protected arms.

 This article therefore seeks to demonstrate that the United States is neither exceptional in its firearm mass murder problem, nor exceptional in its mass murder problem for all types of weapons.

II.             The Claim of American Exceptionalism

In 2015, after a mass murder at a church in Charleston, South Carolina President Barack Obama expressed the widely held belief: “At some point, we as a country will have to reckon with the fact that this type of mass violence does not happen in other advanced countries. It doesn't happen in other places with this kind of frequency.”[7]  Almost immediately, critics pointed out that the first sentence was clearly incorrect: “Over the decade and a half studied, the researchers found 23 incidents of mass shootings in the other 10 countries, resulting in 200 dead and 231 wounded. In the United States over the same period, there were 133 incidents that left 487 dead and 505 wounded.”[8]  While the second sentence might be read as correct if looking only at number of incidents instead of the more commonly accepted measure of incidents per 100,000 population or dead per 100,000, even then, the U.S. is only fourth on the list of mass murder incidents per 100,000 (0.15) compared to Finland (0.34), Norway (1.3), and Switzerland (1.7).[9]

III.           Why Rates Matter

The first question that a naïve reader might ask, “Why do population rates matter instead of raw counts of such incidents?”  The reason is that many mass murders (as well as the more ordinary murders) are committed by persons with severe mental illness problems, whose actions are clearly a consequence of those problems.[10]  Some of the recent and widely publicized examples:

·       Russell Eugene Weston, Jr., after shooting two U.S. Capitol police officers to death in 1999, explained his actions to a court-appointed psychiatrist as an attempt to prevent the spread of a disease by cannibals, including the two police officers.[11]  Like many of the schizophrenics who become local, national, or even international headlines, Weston had a long history of mental illness well known to family, mental health workers, and police, but had not been hospitalized for any great length of time.[12]

·       An employee of the Postal Service, Jennifer Sanmarco, was removed from her Goleta, California workplace in 2003 because she was acting strangely, and placed on psychological disability. She moved to Milan, New Mexico, where her neighbors described her as “crazy as a loon.” “A Milan businessman said he sometimes had to pick her up and bring her inside from the cold because she would kneel down and pray, as if in a trance, for hours.” She returned to the Goleta mail sorting facility in January 2006—and murdered five employees, before taking her own life.[13]

·       In October of 2005, the family of David W. Logsdon of Kansas City, Missouri, contacted police over Logsdon’s deteriorating mental condition.  (Logsdon had a history of mental illness and alcoholism.) The police took Logsdon to a mental hospital for treatment, concerned that he was suicidal. He was released six hours later.  In April of 2007, Logsdon beat to death a neighbor, and stole her late husband’s rifle. At a nearby shopping mall, he shot and killed two people at random, wounding four others.[14]  The remarkable and fortunate early arrival of police, who shot Logsdon to death, prevented a larger massacre.[15]

·       That same month, Seung-Hui Cho murdered thirty-two students and faculty before taking his own life.  That something was not right was apparent to at least some of his professors, and he was briefly hospitalized after a stalking incident. The special judge who determined whether Seung-Hui should be involuntarily committed concluded that he was a danger to himself.  The next day, Seung-Hui left the hospital, and soon he was back on campus, living in a world of paranoid schizophrenia.  Because he was not involuntarily committed to a hospital, Seung-Hui’s name did not appear on the FBI’s firearms background check list, and he was able to legally purchase handguns that he used in the largest gun mass murder in U.S. history.[16]

·       In April 2009, Jiverly Wong murdered thirteen people at a Binghamton, New York immigrant-assistance center. Letters by Wong to local news media demonstrated what “Dr. Vatsal Thakkar, assistant professor of psychiatry at NYU’s Langone Medical Center” described as “major mental illness, quite possibly paranoid schizophrenia.”[17]

·       In January 2011, Jared Lee Loughner opened fire on a crowd at a town hall meeting of Rep. Gabrielle Giffords and her constituents, killing six and injuring thirteen.  Loughner had a history of police contacts involving death threats, and was expelled from college for bizarre actions that clearly established that he was mentally ill.  In spite of his frightening behavior, he was never hospitalized, even for observation – until he made himself nationally famous.[18]  A series of disturbing web postings and YouTube videos also confirmed that Loughner’s grasp on reality was severely impaired.[19]  Court-ordered psychiatric evaluations concluded that Loughner was suffering from schizophrenia, and was incompetent to stand trial.[20]

·       Certainly the most disturbing of these recent mass murders was in Newtown, Connecticut.  Adam Lanza had some sort of psychiatric disorder, but his childhood diagnosis of Asperger’s Syndrome is not typically associated with mass murder.[21]  Some reports describe Lanza as suffering from sensory integration disorder (SID), where sensory inputs overwhelm the brain.[22]  There is sizable overlap between the description of SID and the sensory problems that appear to be part of schizophrenia,[23] enough to wonder if Lanza was edging into schizophrenia, or if Lanza’s psychiatrist was reluctant to give this devastating diagnosis until he was certain.  Early reports indicate that Lanza’s mother was attempting to have him hospitalized, and his discovery of this may have provoked the crime.[24]

The mental illness often present in these tragedies, schizophrenia, is a genetic disease affecting about 1% of the population.[25] A nation of one million people will therefore have ten times more schizophrenics than a nation of 100,000.  A measure relative to population, as with most measures of criminal behavior, is clearly the only sensible evaluative method. 

Obviously, not all mass murders fit into the mental illness category.  Some are acts of terrorism.  The recent mass murder in Las Vegas seems to be a Black Swan crime: a multimillionaire who engaged in meticulous planning with devastating loss of life (although lower than at least four U.S. mass murders in the last three decades).[26]

IV.           Non-Firearm Mass Murders

For many people, it is a surprise to find out that there are many mass murders committed with weapons other than firearms.  USA Today gathered data on mass murders (“defined [as] killing four or more victims”) committed in the U.S. from 2006 through 2010. “A third of mass killings didn't involve guns at all. In 15 incidents, the victims died in a fire. In 20 others, the killer used a knife or a blunt object.”[27] 

Other countries, with more restrictive gun control laws, also have non-firearm mass murders, such as the five stabbed to death in Calgary, Alberta in 2013.[28]  Unsurprisingly, Matthew de Grood was found not criminally responsible because of “a mental disorder,”[29] 

Australia is sometimes given as an example of the effectiveness of gun control for preventing mass murders such as the 1996 Port Bryant mass murder.[30]  But Australia still has mass murders, such as the mass stabbing that killed eight siblings in Queensland, Australia,[31] and blunt object mass murders such as one used to murder five people in Sydney in 2009.[32]  Mass murders by arson are also a problem in such countries, as they are in the U.S.  Childers, Queensland’s Palace Backpackers Hostel was intentionally burned in 2000, killing 15.[33]  The 2011 Quakers Hill Nursing Home fire killed eleven, set by a nurse after police questioned him about drug abuse.[34]

V.             Firearms Mass Murders Outside the U.S.

Christian Dornier, 31, under treatment for “nervous depression,” murdered fourteen people in three villages in eastern France.[35]  He was later found innocent by reason of insanity.[36]  Eric Borel, 16, murdered his family with a hammer and a baseball bat, and then went on a shooting rampage in the nearby town of Cuers, France in September, 1995.  He killed twelve in total beside himself.[37]  In March 2002, Richard Durn murdered eight local city officials and wounded nineteen others in Nanterre, a suburb of Paris.  Durn had a master’s degree in political science and “a long history of psychological problems.”  After his arrest, he was described as “calm but largely incoherent,” but then leaped to his death through a window.  He was chronically unemployed.[38]

In April 2002, 19-year old Robert Steinhaeuser went into a school from which he had been expelled in Erfurt, Germany and murdered eighteen people before killing himself.[39]  In April of 2011, Wellington Menezes de Oliveira went into a school in Rio De Janeiro, Brazil, murdering twelve children, before killing himself.  His suicide note was unclear, but a police officer described de Oliveira as a “hallucinating person.”[40]  Later the same month, Tristan van der Vlis went into a shopping mall in Alphen aan der Rijn, the Netherlands, and shot six people to death.  The Netherlands has very strict gun licensing laws; nonetheless van der Vlis had a gun license in spite of a history of brief mental illness hospitalization and suicide attempts.[41]

III.  Summary

As the preceding sections demonstrate, there is nothing exceptionally American about U.S. mass murder or even firearms mass murder.  While our rates of firearms mass murder are higher than most other developed nations, we are not at the top of the list.  Including non-firearms mass murders might move us further down the list.

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[1] Muller v. Oregon, 208 U.S. 412 (1908)(“The statute of Oregon of 1903 providing that no female shall work in certain establishments more than ten hour a day is not unconstitutional so far as respects laundries.”)

[2] Philippa Strum, Brandeis and the Living Constitution, Nelson L Dawson, Brandeis and America (1989), 121.

[3] Id., at 121.

[4] FCC v. Beach Communications, 508 U.S. 307, 313 (1993) (“In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”); For an explanation of the continuing debate about the limits of rational basis scrutiny, see Dandridge v. Williams, 397 U.S. 471, 520 (1970)  (Douglas, J., diss.) (“The extremes to which the Court has gone in dreaming up rational bases for state regulation in that area may in many instances be ascribed to a healthy revulsion from the Court's earlier excesses in using the Constitution to protect interests that have more than enough power to protect themselves in the legislative halls.”)

[5] D.C. v. Heller, 128 S.Ct. 2783, 2798 (“By the time of the founding, the right to have arms had become fundamental for English subjects….  Blackstone… cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.”)

[6] Nelson Lund, The Right to Keep and Bear Arms in the Roberts Court, American Federalism and Public Policy (ed. Christopher P. Banks, forthcoming) (“In the years since Heller and McDonald were decided, most federal circuit court decisions have had more in common with Breyer’s Heller dissent than with Scalia’s majority opinion.”)

[7].Kevin Liptak and Brenna Williams, Watch Obama React to Mass U.S. Shootings, CNN, Jun. 12, 2016.

[8]  Keeley Herring and Louis Jacobson, Is Barack Obama Correct That Mass Killings Don't Happen in Other Countries? ,Politifact, Jun. 11, 2015.

[9] Id.

[10] See Clayton E. Cramer, Mental Illness and the Second Amendment, 46 Conn. L.R. 4:1301, 1310-1314 (2014) for a list of recent high-profile mass murders clearly caused by severe mental illness; Id., at 1303-1310 collecting studies on mental illness and murder correlations...

[11] Bill Miller, Capitol Shooter’s Mind-Set Detailed, Wash. Post, Apr. 23, 1999.

[12] See Clayton Cramer, Madness, Deinstitutionalization & Murder, 13:1 Engage (Mar. 2012) for a detailed list of such murders.

[13] Martin Kasindorf, Woman Kills 5, Self at Postal Plant, USA Today, Feb. 1, 2006; Jim Maniaci, “Crazy as a Loon,” Gallup [N.M.] Indep., Feb. 2, 2006.

[14] Maria Sudekum Fisher, Mall Shooter Used Dead Woman’s Home While She Was Still Inside, Topeka [Kans.] Capital-Journal, May 3, 2007.

[15] Maria Sudekum Fisher, Mall Gunman Planned to “Cause Havoc,” Houston Chron., May 1, 2007.

[16] Close the Loophole Cho Sneaked Through, Hampton Roads Virginian-Pilot, Apr. 25, 2007; Dr. Michael Welner, Cho Likely Schizophrenic, Evidence Suggests, ABC News, Apr. 17, 2007.

[17] Austin Fenner, Kirsten Fleming & Dan Mangan, “I Am Shooting—Have a Nice Day,” N.Y. Post, Apr. 7, 2009.

[18] Tim Steller, Man Linked to Giffords Shooting Rampage Called “Very Disturbed,” Ariz. Daily Star, Jan. 8, 2011 (Loughner had previously made death threats and been contacted by police); College Asked ATF About Loughner Before Rampage, CBS News, May 20, 2011 (September 15, 2013) http://www.cbsnews.com/2100-201_162-20064455.html (behavior described by school administrators as “bizarre” and “intimidating”; laughing and ranting inappropriately; ordered by the college to get a mental health evaluation before returning to campus).

[19] David A. Fahrenthold and Clarence Williams, Tucson Shooting Suspect Jared Loughner Appears To Have Posted Bizarre Messages, Wash. Post, Jan. 9, 2011 (September 15, 2013) http://www.washingtonpost.com/wp-dyn/content/article/2011/01/08/AR2011010803961.html (Loughner left “a series of postings and homemade videos that laid out a fervent, though largely incoherent, set of political views.”  One quote from Loughner: “I can’t trust the current government because of the ratifications: the government is implying mind control and brainwash on the people by controlling grammar.”)  Some of Loughner videos are still available: Introduction: Jared Loughner (http://www.youtube.com/watch?v=nHoaZaLbqB4, Sep. 21, 2013).

[20] Craig Harris & Michael Kiefer, Judge Finds Jared Loughner Incompetent to Stand Trial, Ariz. Star, May 25, 2011.

[21] Daniel C. Murrie, Janet I. Warren, Marianne Kristiansson, and Park E. Dietz, Asperger’s Syndrome in Forensic Settings, 1 Int’l J. Forensic Med. 60-61 (2002) (reviews existing studies which argue whether Asperger’s patients are disproportionately violent, but points to one study that suggests such violence is not premeditated); Barbara G. Haskins and J. Arturo Silva, Asperger’s Disorder and Criminal Behavior: Forensic-Psychiatric Considerations, 34 J. Am. Acad. Psy. & Law 376-378 (2006) (the debate about disproportionate violence remained active, but again argues that violence by Asperger’s patients was the result of inability to read social cues and narrowly focused interests).

[22] Adam Clark Estes, Revelations About Adam Lanza’s Mental Health Still Don’t Explain the Violence, Atlantic Wire, Feb. 19, 2013 (August 24, 2013),  http://www.theatlanticwire.com/national/2013/02/revelations-about-adam-lanzas-mental-health-still-dont-explain-violence/62317/.

[23] Peter Falkai, Andrea Schmitt, and Tyrone D. Cannon, Pathophysiology of Schizophrenia, 42, in Schizophrenia: Current Science and Clinical Practice (Wolfgang Gaebel, ed., 2011) (discussing dysfunction “of the cortico-cerebellar-thalamic-cortical neuronal circuit” and its role in filtering sensory information);  Anthony J. Rissling and Gregory A. Light, Neurophysical Measures of Sensory Registration, Stimulus Discrimination, and Selection in Schizophrenia Patients 284-6, in Behavioral Neurobiology of Schizophrenia and Its Treatment (Neal R. Swerdlow, ed., 2010) (discussing the relationship between sensory input processing and schizophrenia).

[24] Jana Winter, Fear Of Being Committed May Have Caused Connecticut Gunman To Snap, Fox News, December 18, 2012 (September 15, 2013), http://www.foxnews.com/us/2012/12/18/fear-being-committed-may-have-caused-connecticut-madman-to-snap/ (An acquaintance of the family reported that Adam Lanza had found out about his mother’s “petitioning the court for conservatorship and (her) plans to have him committed” and that this set him off; “[a] senior law enforcement official involved in the investigation” confirmed that Lanza’s anger over these plans was being looked at “as a possible motive.”)

[25] International Schizophrenia Consortium, Common polygenic variation contributes to risk of schizophrenia and bipolar disorder, 460 Nature 748-52 (discusses research demonstrating the location of the genes responsible for schizophrenia.)

[26] September 11th Terror Attacks Fast Facts, CNN, Aug. 24, 2017 (2977 dead); Joan Mower, Associated Press, Dupont Plaza Fire Survivors Still Trying to Come to Terms With Tragedy, Los Angeles Times, Mar. 8, 1987 (96 dead); Larry Celona, Stuart Marques, Eddie Borges, et al., Fire kills 87 people at the Happy Land Social Club in the Bronx in 1990, New York Daily News, Mar. 17, 2015 (87 dead); Jayson Blair, A Nation Challenged: Oklahoma City Bombing, New York Times, Mar. 25, 2002 (168 dead).

[27] Meaghan Hoyer and Brad Heath, Mass Killings Occur in USA Once Every Two Weeks, USA Today, Dec. 19, 2012.

[28] Jason Van Rassel, Police officer's son charged in city's worst mass murder, Calgary [Alberta] Herald, Apr. 17, 2014.

[29] Matthew de Grood found not criminally responsible for stabbing five people to death at Calgary party, National [Canada] Post, May 26, 2016.

[30] Will Oremus, How Many Shootings Will It Take for America to Control Its Guns?, Slate, Dec. 16, 2012.

[31] Jonathan Pearlman, Eight Children Murdered In Mass Stabbing In Australia, [U.K.]Telegraph, Dec. 19, 2014.

[32] Jamelle Wells, Robert Xie Trial: Lin Family 'Murdered With Hammer Bought From $2 Shop, ABC [Australia], May 12, 2014.

[33] A Decade On, Childers Remembers Hostel Fire Tragedy, Brisbane [Australia] Times, Jun. 23, 2010.

[34] Candace Sutton, Man Who Murdered 11 People in Nursing Home Fire 'Frothed At The Mouth' From Drugs And 'Put Nails In Tyres And Poured Paint' Over Boss's Car, Inquest Hears, [U.K.] Daily Mail, Sep. 8, 2014.

[35] “Gunman’s Rampage in France Leaves 14 Dead,” Los Angeles Times, Jul. 13, 1989.

[36] David Lester, Mass Murder: The Scourge of the 21^st Century (Hauppage, N.Y.: Nova Science Publishers, 2004), 106.

[37] “Teen-Age Gunman Kills Himself and 12 Others in France,” New York Times, Sep. 25, 1995

[38] James Graff, “Politics Under the Gun,” Time, Mar. 31, 2002.

[39] Nick Caistor, “Profile of a Teenage Killer,” BBC News, Apr. 28, 2002, ; “18 Dead in German School Shooting,” BBC News, Apr. 26, 2002.

[40] “Brazil School Shooting: Twelfth Child Dies,” SkyNews, Apr., 8, 2011.

[41] “Safety council to investigate gun laws,” DutchNews.nl, Apr. 12, 2011, http://www.dutchnews.nl/news/archives/2011/04/safety_council_to_investigate.php, last accessed May 21, 2011; “Schutter was al eerder suicidaal,” NOS Nieuws. Apr. 10, 2011, http://nos.nl/artikel/232127-schutter-was-al-eerder-suicidaal.html, last accessed May 21, 2011.