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Possible Liability for the Aurora Shootings

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. Why would the doctor’s duty lapse if the alleged killer dropped out of school if the doctor still has a duty to exercise reasonable care to protect third persons? The university may no longer be liable (although I find that hard to believe if James Holmes remained her patient), but the doctor could still be. And I wonder if a true fantasy is equivalent or reducible to a “specific threat,” even if it is “about killing people at a movie theater,” which only sounds more ominous given our (post facto) knowledge now of what actually took place, while ex ante, it may sound altogether different, especially in the nature of a fantasy (if a therapist has knowledge, say, of the patient’s weapons arsenal or other facts related to an increased likelihood of planning of some sort, well, that could certainly change things). What is more, predictability of violence is notoriously unreliable, except where involving individuals who have committed violence in the past.

    And in the notes to the casebook discussion of Tarasoff (the influence of which is said by Epstein to have extended beyond California) we learn that in a subsequent decision by the California Supreme Court, Thompson v. County of Alameda (Cal. 1980), the court made a distinction between Tarasoff, in which “the potential victims were specifically known and designated individuals” and cases where the threat was more generalized and thus would have to be made “to a broad segment of the population,” these being viewed as less effective and even “difficult to give.” In California again, this was made part of the Civil Code (and now governs), which protects a psychotherapist from liability or cause of action “in failing to warn of and protect from a patient’s threatened violent behavior or failing to predict and warn of and protect from a patient’s violent behavior except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims.”

  2. Gerard says:

    I agree that liability against the doctor is unlikely, but I’d like to know more about her interpretation of what the patient was saying to her.

  3. But if that communication was not about a specific (and imminent?) threat to specific individuals (or something quite close thereto), do you think we’re likely to ever find out what that was? In other words, I would think all such communication remains privileged unless it has direct bearing on a specific threat, keeping in mind what the majority said in Tarasoff: “We realize that the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed. Certainly a therapist should not be encouraged routinely to reveal such threat; such disclosures could seriously disrupt the patient’s relationship with his therapist and with the person’s threatened.” Again, I wonder how WE will choose to characterize the nature of such a threat (our characterization or interpretation of her interpretation, should we learn of it), which of course looks different in hindsight than it may have looked at the time to the therapist. Too much speculation perhaps until we learn more about how long James was seeing her, etc.

  4. I should have said “Holmes,” as I’m not on a first name basis with the man.

  5. Brett Bellmore says:

    Personally, I’m committed to saying, “that dude”, as I’m not going to further his quest for notoriety.

  6. The notoriety was assured the moment we became aware of this as a mass killing. It’s a bit silly to think anyone at this point can change that state of affairs. In fact, it reveals something about our society’s collective belief in and the misplaced value we accord to things like fame (whether one is famous or infamous) and notoriety. The refusal to say his name cannot alter the need for accurate reporting and historical truth. In any case, the person who did this was a human being, a person with a family, a name, a reminder that in that sense he is just like you and I (we have a shared human nature*): nothing can change that (and is one reason why we attempt to hold people accountable for their actions, in this case, with regard to criminal liability, which includes the attempt to discover if mental illness played a role in the agent’s behavior and, if so, the extent to which such illness either legally excuses, as in the case of insanity, or diminishes culpability).

    * As the notion of “human nature” is not well understood these days (i.e., among those who make at least some effort at understanding; others simply dismiss the usefulness of the concept), so I should mention that there’s a nice introduction to the concept by P.M.S. Hacker in his book, Human Nature: The Categorial Framework (2007).

  7. According to Reuters: “A psychiatrist who treated the former graduate student accused of killing 12 people in a shooting rampage at a movie theater in Colorado warned her university about him more than a month before the massacre, a published report said on Wednesday. Dr Lynne Fenton notified a so-called threat-assessment team at the University of Colorado, Denver, in early June that she was alarmed by the behavior of James Holmes, but no further action was taken, the Denver Post reported, citing an anonymous source.” I think we may at some point become privy to what this “threat-assessment team” learned from Dr. Fenton if it arose from a belief that she had a “duty to take action if Holmes told her of a specific plan to harm others.” Here the question of whether or not Holmes had dropped out of school or was in the process of dropping out of school seems to be of some consequence, at least from the University’s perspective (the University seems to suggest that being in the ‘process of’ dropping out of school is the same as no longer being a student).

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