“Before Park Ave. Shooting,” says the headline over a New York Times story published this week, “Nevada Police Had Gunman Committed.” If so, that means Shane Devon Tamura, who killed four people before committing suicide at a Manhattan office building on July 28, was disqualified from possessing firearms under both federal and Nevada law. Yet last week, the Times reported that Tamura “obtained a firearm legally in his home state of Nevada even though he had a documented history of mental health problems.” The headline: “Gunman’s Mental Health History Did Not Prohibit Gun Purchase.”
What gives? In 2022 and again in 2024, Tamura was subject to a “mental health crisis hold,” which Nevada law authorizes when police, based on “personal observation,” have “probable cause to believe” that someone, “as a result of mental illness,” poses “a substantial likelihood of serious harm” to himself or others. That is not the same as being “committed” to a “mental health institution” under court order, which triggers the federal and state bans on gun possession.
That distinction is relevant to the gun control debate provoked by Tamura’s horrifying crime. New York Gov. Kathy Hochul blamed Nevada’s “weak gun laws” for the shooting. More specifically, the Times highlighted the fact that Tamura could have obtained the rifle he used in the attack “without additional background checks” because he “had a permit to carry a concealed weapon” issued by the Las Vegas Metropolitan Police Department in May 2022. But the Times acknowledged that Tamura had “no criminal history,” and now it seems clear that he did not have a disqualifying psychiatric record either, which means he would have passed a background check.
In other words, the background check issue is a red herring, which is usually true when politicians or journalists suggest that safeguard could have prevented a mass shooting. After the 2015 mass shooting that killed 14 people in San Bernardino, California, for example, President Barack Obama recommended “common-sense gun safety laws,” including “stronger background checks,” to prevent such crimes. But it turned out that the killers had obtained the rifles they used in that attack from a neighbor who bought them legally. Since the neighbor was allowed to buy guns, “stronger background checks” would not have made a difference.
After the 2022 mass shooting that killed 10 people in Buffalo, New York, the Biden administration “renewed its calls” to “expand national background checks,” the Times reported, “as it has done time and again after mass shootings.” Yet the Buffalo killer passed the background check that was conducted when he bought the rifle he used in the attack from a federally licensed dealer in Endicott, New York.
Those situations were not unusual. The vast majority of guns used in mass shootings are obtained legally, either by the killers themselves or by their relatives or acquaintances. Mass murderers typically do not have the sort of criminal or psychiatric records that would disqualify them from buying firearms. And even when they do or are not allowed to buy guns for other reasons (because they are too young, for example), they can get them through intermediaries.
According to a National Institute of Justice report on public mass shootings from 1966 through 2019, 77 percent of the perpetrators “purchased at least some of their guns legally,” while 13 percent made “illegal purchases.” In mass shootings at K‒12 schools, over 80 percent of the killers “stole guns from family members.”
In short, the “universal background checks” that politicians reflexively recommend after mass shootings cannot realistically be expected to have much of an impact on such crimes. The Manhattan shooting is just the latest illustration of that point.
Nevada already requires background checks for private gun sales, which means those transactions have to be completed via a federally licensed dealer. The Las Vegas Review-Journal reports that Tamura bought his rifle in October 2024 from Rick Ackley, “his supervisor at Horseshoe Las Vegas,” the casino “where he worked an overnight surveillance shift.” Chris Rasmussen, Ackley’s lawyer, told the Review-Journal his client “legally sold” the rifle to Tamura. Ackley “did everything right,” Rasmussen said. “The transfer was through a federal firearms licensee, and it was all lawful.”
For gun control enthusiasts, of course, the fact that Tamura was able to legally obtain his murder weapon underlines the laxity of Nevada’s laws. Given his “documented history of mental health problems,” they say, that purchase should not have been allowed. Although that argument might seem compelling, a policy that would have prohibited the gun purchase based on Tamura’s mental health holds would raise serious due process and Second Amendment concerns.
In September 2022, the Times says, Tamura’s mother called police to report that “her son was inside a Las Vegas motel, threatening to kill himself.” That incident resulted in Tamura’s first mental health hold, which entailed 72 hours of detention and a psychiatric evaluation.
As the Nevada Division of Public and Behavioral Health explains, a hold can be extended by court order when the individual “is still assessed to be danger to self or others.” In that case, he can be held until a hearing to determine whether he meets the criteria for court-ordered commitment, which requires “clear and convincing evidence” that he poses a substantial danger to himself or others “as a result of mental illness.”
Contrary to the misleading Times headline, Tamura evidently was not committed after that first evaluation. Police sought a second hold in August 2024 after his mother again reported that he was suicidal. That hold likewise did not result in a commitment order.
“In states with stricter gun control laws, Mr. Tamura might not have been able to purchase a gun legally,” the Times says. In California, for example, “just one of Mr. Tamura’s mental health holds would have resulted in a temporary firearm restriction for five years,” and a second hold would result in a lifetime ban on gun ownership.
If that rule were applied in Nevada, it would mean that someone could lose his Second Amendment rights based on nothing more than “probable cause” to believe he posed a danger to himself at some point in the previous five years. That is the same as the standard for arrests and search warrants, but it is much lower than the “clear and convincing evidence” required for gun confiscation orders under Nevada’s “red flag” law, which last up to a year unless a court renews them for another year.
If Nevada adopted the policy described by the Times, by contrast, residents could be prohibited from possessing guns for five years without judicial review, based on nothing more than a low-confidence police assessment. That situation would blatantly contradict the policy judgments underlying the state’s red flag law, which allows suspension of someone’s constitutional right to arms for one-fifth as long only by court order based on a much stricter standard of evidence.
Even with such safeguards, people can easily lose their Second Amendment rights under red flag laws when they do not actually pose a threat to themselves or others. Those problems surely would be multiplied under a probable cause standard, depriving many people of the right to arms for no good reason.
Can that cost be justified by the possibility of preventing a mass shooting? Even in this case, it is doubtful whether a California-style rule would have stymied Tamura, who already owned a handgun and could have obtained a rifle from a private seller less punctilious than Ackley. In any event, there is an unavoidable tradeoff between the potential public safety benefits of such a policy and the civil liberties of people who are not bent on mass murder, a category that is bound to include the vast majority of individuals affected by the laws that the Times admires.
reason.com (Article Sourced Website)
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