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Wednesday, October 07, 2015

Should the Umpqua shooter's mother be liable?

Chris Harper-Mercer was 26 years old when he killed 9 people last week. He was a troubled young man living at home, who should not have had access to guns. And yet he had access to 14 of them. http://www.nytimes.com/2015/10/06/us/mother-of-oregon-gunman-wrote-of-keeping-firearms.html?_r=0

Chris lived with his mother, Laurel Harper. Laurel bragged about keeping fully loaded magazines for her AR-15 and AK-47 semiautomatic rifles in easy access in her house. Laurel also knew that Chris had emotional problems. Should Laurel, and other parents of mass shooters, be held liable for the actions of their adult children?

Professor Shaundra Lewis, (Thurgood Marshall School of Law), asks this question in her timely piece, The Cost of Raising a Killer--Parental Liability for the Parents of Adult Mass Murderers, 61 Villanova L. Rev. 1 (forthcoming 2015). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2669869 As she explains in her abstract:

[T]he shooter’s parents almost always knew their offspring were seriously mentally ill beforehand . . .  Despite knowing her son was severely mentally unstable, Nancy [Lanza] left her son home unsupervised with unfettered access to her arsenal of weapons while she went on vacation.  This provided her son with the perfect opportunity to make a practice run to Sandy Hook Elementary School, where he later used her firearms to shoot and kill kindergartners and first-graders.  

Using Nancy Lanza’s case and other notorious mass shooting cases as examples, this article [explores] if, and under what circumstances, a parent can be held civilly liable for their adult child’s mass shooting pursuant to general common law negligence jurisprudence [particularly] parental negligence law. [It first] address[es] whether there can be parental liability for parents of adult mass shooters based upon a special relationship under current law.  [Then it analyzes] negligence [doctrines] in general and its complexities, as well as explores whether a duty to protect or warn can be established in mass shooting cases.  [Next it] examines whether the parents in the real-life examples referenced above breached a duty to protect or warn [and] whether those parents’ breaches caused the shooting victims’ injuries or deaths.  [The Article] concludes that in some circumstances parents can, and should, be held liable for their misfeasance or nonfeasance that leads to their child’s mass killing.  It further posits that the . . . possibility of parents being subjected to financial liability for their child’s mass shooting will not only incentivize parents to take more aggressive measures to keep firearms out of their mentally unstable child’s hands but to obtain the mental health assistance their child so desperately needs—measures that in the end will make everyone (including their child) safer.  [The Article concludes with] advice to parents for dealing with significantly mentally ill, adult offspring residing in their home.   

Although I agree that financial liability would incentive parents to limit access to guns, I wonder whether it might also encourage parents to cut ties with their adult children precisely when they need the most support. Nonetheless, Lewis’s article shines a light on the sadly recurring question of whether parents should be responsible for the preventable actions of their adult children.

I’m Andy Kim, Assistant Professor at Concordia University School of Law. My own research focuses on criminal law and empirical analysis of the law. I’ll be guest blogging for the month. Hope you enjoy!


Posted by Andrew Chongseh Kim on October 7, 2015 at 11:25 AM in Article Spotlight, Blogging, Criminal Law, Current Affairs, Law and Politics | Permalink


Joe's comment highlights what strikes me as odd about this whole discussion: why the focus on parents of adult children and on mental illness? Maybe we should impose tort liability on a gun owner who allows another person access to a gun despite some level of awareness that that person might use the gun to kill others. Maybe we shouldn't. Maybe the answer depends on what level of awareness, how likely the criminal conduct, etc. But however we analyze those issues, why should we analyze them differently based on the parent/adult child relationship and the adult child's mental illness? Shouldn't the approach be the same if, e.g., the gun owner had a roommate who'd shown an interest in terrorism?

Posted by: RQA | Oct 9, 2015 12:10:35 PM

clueless' comments are appreciated but how about the specific case at hand here? Move past the problems with the parent providing treatment and similar problems. Does clueless think a parent has any legal duty to not provide ready access to weapons to their potentially dangerous children?

Posted by: Joe | Oct 9, 2015 10:30:11 AM

I wonder if Prof. Lewis has actually had any experience with serious mental illness. As a family member of several people with serious mental illness, I find her suggestion of holding parents liable for the actions of their mentally ill ADULT children both offensive and bad from a policy perspective.

Prof. Lewis suggests parents are able to control their ADULT mentally ill children, that they can determine whether or not their son or daughter receives medical treatment or is held in a hospital when they need it. Thus, under her formulation, if parents know that their adult child is hearing voices, having delusions, and is potentially violent, they should just make sure they get medicated! Duh! The parents of the mentally ill must just be falling down on their responsibilities by CHOOSING not to get treatment for their ADULT child.

This is so far from the truth it is not even funny.

The laws around involuntary commitment in this country are so stringent that it is almost IMPOSSIBLE to have someone with mental illness held against their will. The standard is generally that they must be a danger to themselves or others. So, just hearing voices, or having delusions, or even saying and doing irrational things, is in no way enough. The laws, coupled with the costs and lack of availability of services, make PREVENTION of harm impossible with mental illness. Harm has to be made manifest (or be just a whisker from there) before we will hold someone involuntarily. I.e., even if I know that my family member is a danger to others because she is hallucinating and insists on driving, I cannot force her to be treated, and cannot even legally deprive her of her keys or her car, as they are her property.

Having been thwarted by these laws time and again, and having tried harder than I have ever tried in my life on ANYTHING to get medical treatment for my seriously mentally ill family members, it is clear to me that there is no true control exercised by a family member of a seriously mentally ill person. You don't have the legal right to stop them from doing things. If a mentally ill person owns a car, she can sue me if I disable it or take her keys, or come after me physically.

One of Lon Fuller's "principles of legality" for good governance is that the rules must not be impossible to obey. It may well be impossible for parents to meet the duty of care that Prof. Lewis suggests as they are prevented from doing so by existing laws. If a premise of negligence liability is that it is fair to hold a person liable because they had some control over an outcome (however you get there in your argument), then that premise is fundamentally lacking here. Allowing an adult child to live in your home rather than the streets does not equal control. If the law doesn't allow a parent to control an adult child who is mentally ill (by forcing medical care on him or her, for instance), it is patently unfair and bad public policy to hold that parent liable for failing to control them.

I agree with Prof. Lewis that we need to reexamine our laws around mental illness in light of mass shootings, but I vehemently disagree with her proposal to address the problem. Focus on improving mental healthcare and in reducing the standard for commitment -- then, maybe, people will start getting the help that they and their families so desperately need.

Posted by: clueless | Oct 8, 2015 11:24:11 AM

"If we take this idea seriously, can it be limited only to access to guns? There are many ways a mentally ill person can injure people."

I agree: if you buy Lewis's arguments, it seems like they would apply to any foreseeable harm done by a mentally ill adult child living at home. Although she's arguing about mass shootings, the case law she relies on involves adult children who not only shot people, but attacked people with knives, punched them, and sexually assaulted them.

It also seems like factors like deterrence and financial compensation could be much more significant with respect to liability when a child puts someone in the hospital than with respect to something completely unthinkable and non-compensable like mass murder.

Posted by: Andrew Kim | Oct 8, 2015 11:17:08 AM

"Maybe you could elaborate on why you think the added incentive of economic self-interest would have made a difference."

Another great point. There's also the fact that pretty much everyone's judgment proof when it comes to liability for multiple murder victims. In addition to deterrence, I think Lewis argues that there's a moral dimension to holding parents liable when they are morally culpable, and that although money could never make victims' families whole, the payouts from homeowner's insurance is better than nothing.

Posted by: Andrew Kim | Oct 8, 2015 11:01:01 AM

"Hindsight makes that conclusion easy. What general principle would have led to this conclusion the week before he committed a crime?"

That's a great point. Lewis spends a lot of time discussing the issue of foreseeability, particularly the question of whether something unthinkable, like a mass shooting, could ever really be "foreseeable." She uses the Adam Lanza and Jared Loughner cases to argue that there can be some warning signs that can give rise to a duty to take action.

Posted by: Andrew Kim | Oct 8, 2015 10:44:19 AM

The law treats guns in particular as something to keep from the dangerously mentally ill. The article concerns mass murders and appropriate liability. Perhaps, other means were used such as arson here, and keeping certain items from the dangerously mentally ill would seem logically to follow. OTOH, guns still retain a certain a certain cachet, shall we say, making them particularly of concern even there.

Posted by: Joe | Oct 7, 2015 6:18:46 PM

If we take this idea seriously, can it be limited only to access to guns? There are many ways a mentally ill person can injure people.

Posted by: Howard Wasserman | Oct 7, 2015 4:42:50 PM

"[F]inancial liability would incentivize parents to limit access to guns . . . ." This seems to me an extraordinary statement. The supposition is that, absent the prospect of liability, a parent of a mentally ill child will inappropriately discount the risk that the child will kill someone, but that the parent's calculus will change if she's forced to consider that her negligence may result not just in someone's death but in serious financial consequences too. I'd sooner suppose the problem is that parents radically underestimate the likelihood their children will engage in any actual violence. But if that's not the case -- if we're really dealing with parents who so seriously undervalue other people's lives -- it's hard to imagine how the prospect of civil liability will make a difference. Presumably the parents in question aren't thinking along lines most of us would regard as rational because they are so overwhelmed by their children's illnesses. In Nancy Lanza's case, of course, that parental "misfeasance" resulted in her own death. Maybe you could elaborate on why you think the added incentive of economic self-interest would have made a difference.

Posted by: RQA | Oct 7, 2015 3:46:55 PM

Clarification would be helpful but the inference I would take is that the mother knew he had "emotional problems" that made having guns dangerous.

Posted by: Joe | Oct 7, 2015 2:50:28 PM

"He was a troubled young man living at home, who should not have had access to guns."

Hindsight makes that conclusion easy. What general principle would have led to this conclusion the week before he committed a crime?

Posted by: Phil | Oct 7, 2015 2:02:39 PM

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