Should the school psychiatrist who worked with alleged shooter James Holmes be held legally responsible for failing to prevent Holmes from engaging in the attack by notifying the police? How about the university where Holmes was a student, should they be held liable?

According to the Denver Post, Holmes’ psychiatrist at the University of Colorado-Denver contacted the university’s Behavioral Evaluation and Threat Assessment team about Holmes, but that the matter was not pursued because he began the process of withdrawing from the institution. This Christian Science Monitor article discussing potential legal liability notes that Colorado requires doctors to inform the police if a patient makes a specific threat against an individual. These types of laws recognize that psychiatrists have a duty to protect individuals threatened by their clients. If a psychiatrist fails to warn the police or the threatened individual, and the client carries out the threatened harm, then the psychiatrist can be sued for monetary damages. Many of these laws stem from Tarasoff v. Regents of the University of California, a case from 1976 where a college student killed an ex-girlfriend after telling his psychologist that he was going to commit the murder.

As more details become public about the relationship between Holmes and his psychiatrist one crucial element will be the exact communications made by Holmes. Did he actually make a specific threat to shoot people in a movie theater? Why did the psychiatrist contact the Behavioral Evaluation and Threat Assessment team? Was it based on specific statements or a general view that the person may be a danger to himself or others? A person can seem dangerous without any overt, specific threats being made. What if the psychiatrist felt that Holmes was probably not a danger but contacted the Behavioral Evaluation and Threat Assessment team to get an additional opinion? How should the law deal with these liability issues without resorting to 20/20 hindsight?

The shooting spree allegedly committed by James Holmes during the premiere of the new Batman movie in an Aurora, Colorado theater resulted in the death of 12 people. According to authorities and the New York Times Holmes planned the shooting far in advance. He gathered an arsenal of weapons, utilized some form of noxious gas, and set up a series of explosives to detonate in his apartment with the purpose of injuring investigators. In addition to this planning, the alleged shooter, Holmes, was a promising neuroscience student (not exactly a cakewalk subject).

Contrast this preparation and the identity of the shooter with the act itself. Motive: none readily apparent. Victims: random. This doesn’t fit with our conceptions of crime. I might understand to a certain extent (but never condone) a person killing another out of revenge, greed, or anger. When a disgruntled employee engages in a workplace shooting, at some level we can explain this behavior based upon our human experience. The shooter was angry and was seeking revenge. In the Colorado case the victims are unrelated to the alleged shooter. There was no profit motive beyond the apparent desire to murder as many people as possible in as dramatic a fashion as possible. When these types of crimes occur, oftentimes our default explanation is that the perpetrator must be crazy.

At this point it is unknown whether the defense in this case will attempt to use the insanity defense. As noted in the Christian Science Monitor, the Colorado insanity defense requires clear and convincing evidence that the defendant was suffering from a mental disease and failed to know the difference between right and wrong. This is a high standard. First, clear and convincing proof requires more than a preponderance of the evidence. The best way this legal speak can be broken down, albeit in a somewhat nebulous manner, is by saying that the clear and convincing standard requires the fact-finder to be more than 51% sure and less than 99% sure. Second, it will be difficult to argue that a person with Holmes’s level of education, combined with the obvious wrongfulness of the act, was unable to know the difference between right and wrong.