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Published On: Sat, Jan 7th, 2017

Ft. Lauderdale Attack Raises Questions, Both Serious and Silly

Early indications are that Esteban Santiago, the former National Guard soldier who murdered five people and wounded six others at the Ft. Lauderdale airport, was mentally ill. At one point, he claimed to be hearing voices and made bizarre representations at the FBI office in Anchorage. He flew all the way from Anchorage to Ft. Lauderdale, apparently for the sole purpose of shooting people at the airport. Why he would do this (as opposed to shooting people in Alaska, for example) is unknown. There is probably no good answer.

As happens so often when murder is committed with a firearm, much of the commentary is politically-motivated and silly. The New York Times’s Manny Fernandez focused on the fact that Santiago legally checked a pistol in his baggage, and retrieved it when he arrived in Ft. Lauderdale: “Should guns be allowed in airlines’ checked baggage?”

According to the TSA, passengers at the nation’s airports are allowed to transport unloaded guns in their checked baggage. The firearms must be kept in a locked “hard-sided” container, and gun owners must declare firearms and any ammunition to airline representatives when checking the bags at ticket counters.

But baggage claim areas are, to my knowledge, always unsecured. I am not aware of any airport where one has to pass through a metal detector to get into baggage claim. So if someone wants to shoot people in the baggage claim area in an airport, he doesn’t have to check a gun in his luggage and pull it off the carousel. He can walk right in with it, just as he can walk into a shopping mall or a restaurant.

This case does raise a more serious question, however. Santiago legally possessed a firearm, even though it should have been obvious that he was mentally ill:

In November, Santiago had walked into an FBI field office in Alaska saying the U.S. government was controlling his mind and forcing him to watch Islamic State group videos, authorities said.

“He was a walk-in complaint. This is something that happens at FBI offices around the country every day,” FBI agent Marlin Ritzman said.

Santiago had a loaded magazine on him, but had left a gun in his vehicle, along with his newborn child, authorities said. Officers seized the weapon and local officers took him to get a mental health evaluation. His girlfriend picked up the child.

On Dec. 8, the gun was returned to Santiago. Authorities wouldn’t say if it was the same gun used in the airport attack.

U.S. Attorney Karen Loeffler said Santiago would have been able to legally possess a gun because he had not been judged mentally ill, which is a higher standard than having an evaluation.

Federal law (18 U.S.C. §§ 922(d)(4), (g)(4)) bars ownership or possession of firearms by anyone who “has been adjudicated as a mental defective or has been committed to any mental institution.” By any normal assessment, pretty much all the people who carry out mass shootings are mentally ill, but very few satisfy that high standard.

Currently, there is a vigorous debate going on as to whether the prohibition based on mental illness should be broadened. Most mentally ill people are not a threat to themselves or others, and civil rights advocates argue that a person should not be stripped of his constitutional rights merely because, for example, he has sought treatment for a mental or emotional disorder.

Gun control advocates argue plausibly that some homicides (not just mass shootings) could be prevented if the high bar of legal adjudication or commitment is lowered. I think they are probably right. For my part, I would be willing to see the standard for mental illness lowered, if a plausible alternative can be developed that is not overbroad, and procedures are built in to ensure that the constitutional right to bear arms is not arbitrarily infringed.

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