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The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.
Your Duty to Report Serious Threats of Violence to the Police, Which is Like Your Tarasoff Duty to Protect, but not Exactly The duty to report is different from the Tarasoff duty to protect, both in terms of the aims of the laws and how they are discharged. This article will distinguish the two duties
David Jensen, JD
former Staff Attorney
Revised October 2017 by David G. Jensen, JD (former CAMFT Staff Attorney)
Elliot Rodger was a very angry and troubled young man, and on the evening of May 23, 2014, we all learned just how angry and troubled he was. On that night, Rodger killed six people and injured thirteen others in Isla Vista, California. As a society, we grieve for those affected by his desperate actions, and we long for a solution to the complex phenomenon of mass shootings, school or otherwise. In the aftermath of the Isla Vista tragedy, and in an attempt to prevent another one from occurring, California took out its powerful legislative wrench and tightened its gun control laws, and such tightening has vivified a dormant reporting requirement of psychotherapists: the duty to report serious threats of physical violence to local law enforcement (“Duty to Report”).
The Duty to Report is Different From the Duty to Protect Under Tarasoff
The Duty to Report is distinct from the duty to protect as set forth in Tarasoff, and the laws have very different aims in mind, although they share a common purpose of reducing violence towards individuals.
Under Tarasoff, the aim of the law is to require psychotherapists to do reasonable things to try and protect victims from physical violence committed by patients. Under the Duty to Report, however, the aim of the law is to get weapons out of the hands of patients who are dangerous to others. Hence, the laws are different, and if your patient utters a threat to harm other people, and you believe the threat is serious, you will need to comply with both laws.
The Duty to Report Serious Threats of Physical Violence to Law Enforcement
The purpose of the Duty to Report is to get firearms and other deadly weapons (collectively “Weapons”), out of the hands of patients who are dangerous to others. This duty is not set forth in a single statute; rather, it is created by the interplay between two statutes: California Welfare & Institutions Code §§ 8100(b)(1) and 8105(c).
Under Welfare & Institutions Code § 8105(c), a “licensed psychotherapist shall report to a local law enforcement agency, within 24 hours, … the identity of a person subject to subdivision (b) of Section 8100.” The word “person” here refers to a patient of a psychotherapist, but what would a patient have to do to be subject to Welfare & Institutions Code § 8100(b)?
A patient is subject to § 8100(b) if the patient communicates to you a serious threat of physical violence against a reasonably identifiable victim or victims (“Threat”), and we will consider the issue of what makes a “Threat” different from a “threat” in the next section. A Threat made by a patient then prohibits that patient from possessing, controlling, purchasing, or receiving, or attempting to purchase or receive Weapons for five years. The five-year time frame begins the day you fulfill the Duty to Report with law enforcement.1
The good news in this area is that psychotherapists who comply with the Duty to Report are “civilly immune” for making the report, which means that you cannot be successfully sued for making the report even if a patient is able to get his or her guns back.2
A Serious Threat of Physical Violence
So, what exactly is a Threat? How is a threat different from a Threat? Or, what makes a threat serious? A Threat is a communication from a patient that you believe needs to be taken seriously because of the presence of other factors in the patient’s life, such as a history of violence, possession of a firearm, volatile relationships, abuse of alcohol or other substances, and/or a specific plan to commit violence.
It is not joking, venting, or talking tough. It is a reasonable belief by you, considering the totality of the circumstances, that your patient is unstable enough to kill or injure people. In determining whether a threat is a Threat, i.e., whether a threat is “serious,” you must apply your training regarding risk assessments. Apply the literature, and have good reasons for believing that the threat is serious!
What are Weapons?
A Weapon is any item that Penal Code § 16590 prohibits the possession or concealed carrying of, and the list of prohibited items includes, among others, a variety of knives, guns, firearms, swords, explosive substances, and leaded canes or blackjacks. Although human hands are not specifically listed as Weapons, a hand would become a Weapon if the person was wearing metal knuckles.
Access to Weapons
If your patient communicates a Threat to you, that patient is then prohibited by law from possessing, controlling, purchasing, or receiving, or attempting to purchase or receive, Weapons. There are two distinct time frames contemplated by this statute: the “here and now” and the “future.”
Under the “here and now” time frame, if your patient communicates to you a Threat, as soon as you report it to law enforcement, your patient is prohibited from possessing, controlling, purchasing, or receiving Weapons, and law enforcement can confiscate any such Weapons that your patient possesses.3
Given the risk of harm to others, including law enforcement themselves, and the confiscation element to these laws, if your patient makes a Threat, and you are aware that your patient has Weapons, you should include that information in the Duty to Report. With a “here and now” type case, the combination of Threat and Weapons is especially volatile. And, the news that the patient has Weapons may not be accounted for in any databases law enforcement would be able to access.
There does not seem to be a legal duty to determine whether a patient has Weapons, but competent therapists routinely make such inquiries as part of thorough assessments in cases involving risk of harm to self or others. So, if you are aware of the presence of Weapons, pass that information along.
Under the “future” time frame, a Threat made now will prohibit a patient, or more likely a former patient, from possessing Weapons up to five years later. The “future” time frame may become important in a unique type of case. For instance, suppose your patient states that he is going home to “beat the hell” out of his wife, presumably with his bare hands, because he believes she is cheating on him. If you believe the threat, and you fulfill the Duty to Report, that Threat would prohibit the patient from being able to lawfully access Weapons for five years, which may or may not make his wife any safer.
After the Report has Been Filed
After you report the Threat to law enforcement, the Threat will be forwarded to the Department of Justice, who will send your patient a letter, which will advise the patient that he or she may not possess, control, receive, or purchase, or attempt to purchase or receive, any Weapons for five years.
The letter will also advise the patient that he or she may petition the court for an order permitting the patient to possess, control, receive, or purchase Weapons.4 This petition hearing must be held in the superior court of the county in which the patient resides.5 It is possible that a psychotherapist may have to testify about the patient’s Threat at such a petition hearing.
The Duty to Report is Discharged Differently Than the Duty to Protect Under Tarasoff
What might be confusing for some is that the same facts, i.e., the determination of the therapist that a threat is serious, meaning we have a Threat, will trigger compliance with both duties; however, depending on the facts of the case, the two duties might be discharged differently.
For instance, suppose your practice is located in Temecula, a city in Riverside County; your patient, who you know has a handgun, lives in Tustin, a city in Orange County; and, your patient’s ex-boss, whom your patient has just threatened to kill because the boss fired him three months ago, works in Escondido, a city in San Diego County. After threatening his boss, the patient abruptly leaves your office.
Given these facts, you know you need to call “local law enforcement” to comply with the Duty to Report, and you know contacting “law enforcement” is one of the things you need to do to get immunity under Civil Code § 43.92 in Tarasoff cases, but which police department are you going to call? Temecula? Tustin? Escondido?
The answer to the question is likely found in the aim of the law under consideration. Since the Duty to Report is concerned with getting Weapons out of the hands of patients who make Threats, one way of discharging the duty would be to report the Threat to law enforcement in Tustin because that is where the patient resides. If the patient wishes to challenge the prohibition, such challenge must occur in Orange County.6 That is also the police department that would be involved in any attempts to take possession of a patient’s Weapons under the confiscation laws.7
Conversely, since the aim of the duty to protect is to help protect victims from imminent violence, it would make sense to contact law enforcement in Escondido because it seems reasonably likely that the violence directed against the former boss would be committed there. That is where the victim is likely located and where the patient would be headed if he were going to kill his former boss.
Of course, it is entirely possible that all of the “action” in one of these cases would occur within the confines of one city or town. In such cases, one police or sheriff’s department could be contacted to cover the Duty to Report and the duty to protect. There would be two aspects to the call, however. One aspect is to help quell imminent violence under Tarasoff; the other is to report the Threat made by the patient to prohibit access to Weapons.
The Phrase “Licensed Psychotherapist”
The statute, on its face, applies to “licensed psychotherapists” but what about unlicensed psychotherapists, meaning trainees or associates? Since trainees and associates often counsel patients who make Threats, the Duty to Report would certainly seem to apply to them as well as to licensed psychotherapists, although unlicensed practitioners are not specifically named in the statute.
Since trainees and associates practice psychotherapy under supervision, and any case involving Threats should be discussed with supervisors, the Duty to Report could simply be fulfilled by supervisors on behalf of all concerned.
Alternatively, the trainee or associate could explain that they are complying with the Duty to Report on behalf of their employer, i.e., a licensed psychotherapist in private practice or an entity providing psychotherapy services. In this sense, the unlicensed person would be making the report as an employee of a psychotherapist. Given the reference to licensed psychotherapists in the statute, however, it is critical that licensed psychotherapists be involved in this process.
This issue is murky now, but may become clearer in time. The bottom line is that compliance with the Duty to Report necessitates a flow of information from psychotherapists to law enforcement to help ensure public safety, and the source of that information, whether licensed or unlicensed, should not really matter. Protection of the public is paramount.
Good Law? Bad Law?
Although the state legislature’s heart was in the right place, it is unlikely that the Duty to Report will have the desired effect of preventing gun violence in California. The flaw in the law is that the government believes the “system” can address these types of cases by lawfully restricting access to Weapons, but in reality, we all know from watching the news that it is very easy to purchase Weapons unlawfully.
In fact, the Violence Policy Center reports in its publication Lost Youth that homicide is the second leading cause of death for Californians between the ages of ten and twenty-four, and that “guns are nearly always the weapon of choice to murder California’s youth,” even though our laws prohibit minors from possessing or purchasing handguns.
Additionally, this law seems to have these problems as well:
David Jensen, JD, is a staff attorney at CAMFT. He is available to answer members’ questions regarding legal, ethical, and licensure issues.
1 California Welfare & Institutions Code § 8100(b)(1).
2California Welfare & Institutions Code §8108.
3 California Welfare & Institutions Code § 8102(a).
4 California Welfare & Institutions Code § 8100(b)(2).
5 California Welfare & Institutions Code § 8100(b)(3).
6 California Welfare & Institutions Code § 8100(b)(3).
7 California Welfare & Institutions Code § 8102(a).