In the wake of the recent Parkland, Florida, school shooting tragedy there has been much discussion about seriously considering new policies that could be developed to confiscate legally possessed firearms from persons who are deemed potentially “dangerous,” including by President Donald Trump.
But there is one element that must be part of any conversation involving the preemptive seizure of a legally possessed firearm: the fact that all predictions of dangerousness naturally produce a strong propensity to over-predict violent behavior.
Criminologists have been studying predictions of dangerousness for a long time because our entire rehabilitative “individualized justice” model, practiced over the past century, is based on such predictions. Such prediction is the most important consideration in granting probation and parole. Because all predictions of dangerousness share certain processes, the dynamics associated with dangerousness predictions in our justice systems are fully applicable to those same predictions about law-abiding gun owners who might criminally misuse their firearms in the future.
The crux of the problem lies in the following detail: The only identifiable mistakes in predicting dangerousness are under-predictions.
Persons who are predicted to be dangerous are subjected to physical conditions that are designed to prevent them from committing crimes. Criminals are sent to prison or kept there longer and, in this case, gun owners’ firearms are taken away. Consequently, we can never know whether the person would or would not have committed the predicted act of violence had they not been physically prevented from doing so. This allows us to assume that all predictions of dangerousness are 100 percent correct. We allow ourselves to make this assumption because it cannot be proven wrong.
On the other hand, if we predict a person not to be dangerous (we give them probation or an early release from prison or we do not take their guns away), we are then, and only then, able to measure how accurate our prediction was because the supposed non-dangerous person is free to commit or not commit violence. Thus, it is only under-predicted dangerousness that will indicate we made a mistake.
Under-predicting has immense negative implications because it means that one or more persons will be victimized by a crime of violence, including murder. When that happens, the person who made the erroneous non-violent prediction (either formally or by tacitly failing to identify “red flags”) will, to varying degrees, become the scapegoat.
Given the totality of these subtleties, if you are the one who is predicting violence among gun owners you have two choices. First, you can follow the adage that “it’s better to be safe than sorry” and predict the individual to be violent (take their guns away), knowing full well that a mistake here (where the person would not have committed gun violence, even if given a chance) can never be brought to light.
In other words, there are no risks whatsoever in predicting a gun owner to be violent. Further, predicting a person to be violent and taking their guns costs the government virtually nothing (as opposed to predicting them to be violent and sentencing them to an expensive incarceration).
Or, second, you can risk an under-prediction of dangerousness that may lead to tragic injury and death by allowing the allegedly disturbed person to keep their guns. But unlike the case of over-prediction, here you know full well that this mistake will not only come to light, but also that you will be disparaged as being some sort of indirect cause of the violent victimization of innocent persons. After all, the injury and death inflicted by the offender would not have happened if the predictor had made the correct prediction. Just look at the finger-pointing at the FBI, the police and others for letting the Florida school shooter pass under their radar.
The obvious choice is the first one because it is risk-free for the person who does the predicting and costs society nothing. In a nutshell: Our strong desire to avoid under-prediction will force us to greatly increase over-prediction. That is a natural operational law associated with any system that is built on predictions of dangerousness.
But what about the person whose legally possessed and constitutionally protected guns are confiscated, but their violence was over-predicted in an attempt to be “safe rather than sorry”? We are plainly revoking their gun liberties for something they not only have not yet done, but, in fact, will never do. And we know that these cases will abound because of the no-risk dynamics of over-predicting dangerousness.
The American Psychiatric Association openly admits that “While psychiatrists can often identify circumstances associated with an increased likelihood of violent behavior, they cannot predict dangerousness with definitive accuracy.” If a highly educated professional M.D. can’t truthfully predict violence, how can someone else be able to predict it?
Any widespread policy designed to forcibly take a person’s constitutionally protected firearm based on an unreliable scheme that has been well-proven to be fraught with high inaccuracy needs to be treated with great caution because the potential for abuse is enormous.
At the very least, if a firearm is confiscated based on fears of imminent harm, the accused must be entitled to basic due process safeguards (but not necessarily “the full panoply of rights”). Foremost, the burden of proof must be on the government. Protections should also include proper notice of a speedy judicial hearing that would involve the provision for counsel, the right to confront witnesses, and, because such a proceeding is clearly accusatory rather than investigatory, self-incrimination protection. If, at the end of all of this, a firearm is permanently taken away, the owner should be given just compensation because the seizure is for a “public purpose.”
These safeguards are necessary because, when it’s all said and done, we are penalizing the person for something they have not yet done and may never do.
Dr. Gary S. Green is retired justice policy Professor of Government at Christopher Newport University in Newport News, Virginia.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
