38. A Strategy to Impede a New President

January 18, 2017

Wall-to-wall coverage of the Senate confirmation hearings for Trump cabinet appointees having ended on the cable news channels, yesterday I tried C-SPAN to catch the inquisition of Betsy DeVos by the Health, Education, Labor and Pensions Committee. Unfortunately my timing was off, and I caught only the last few minutes of a three-hour and ten minute session. On the basis of what may not have been a representative segment of the questioning, I had the impression that Ms DeVos was the most nervous and least prepared candidate of the few I have seen.

To be fair, I was hearing only the adversarial questioning of Democrat senators, but I thought Ms DeVos’ answers were tangential to and evasive of the questions actually asked. That she answered difficult questions like a politician did not recommend her to me, but there is much about her I do not know, which was why I tuned-in in the first place.  Again, to be fair, some of the questions were leading, compound, or were obvious traps that richly deserved not to be answered.

Personally, I tend to be critical of public education and focus on its failings in the inner city, but my daughter-in-law is a dedicated and extremely hard-working grade school principal and I am very respectful, not to say in awe, of the resource that she and her teachers represent. I have read that the present system of micro-management and ‘quality control’ in public schools is cruelly erosive of the spirit of good teachers, who, like many good people, work for appreciation and respect rather than salary alone, and I just don’t know whether the charter school and voucher system DeVos is likely to favor will make the plight of public school teachers worse, increasing burnout and throwing the resource baby out with the bureaucratic bathwater.

However the tail end of the hearing produced an interesting procedural drama that I found more fascinating than its substantive content. In the news during the past few weeks Democrats had threatened to delay the approval of cabinet appointees by the only road open to a minority party that had previously, when it held a slim majority, shot itself in the foot by voting to end the sixty-vote-for-cloture rule. With the filibuster not available, Democrats had said they would slow Trump’s roll by demanding every jot and tittle of a candidate’s paperwork and dragging out the questioning as long as possible prior to the confirmation vote they were sure to lose.

Apparently, before I started watching, one of the Democrats had asked for a “second round” of questions for each committee-person. Which Had been denied by Chairman Lamar Alexander, Republican from Tennessee, on the grounds that the members would have as much time to vet DeVos as had been allotted in any of several previous years of confirmation hearings, for instance of President Obama’s appointees.

Therefore, as the hearing was about to be closed, Democrat senators, including Colorado’s Michael Bennett again raised the matters of a “second round”, and of requiring the candidate to provide her tax returns, objecting to the closing of the hearing. On the matter of tax returns, the Chair had apparently earlier ruled that if the committee wanted to change the rules to require returns of future candidates, it could take that matter up after the hearings. When the request for a second round of questions was again denied by the Chair, on the same grounds as earlier, Elizabeth Warren made an additional argument for a “second round”, and when that also didn’t work, cited an obscure Senate rule requiring that time be given to hear testimony from “minority witnesses” before closing.

Chairman Alexander, saying that he respected Warren’s record as a renowned professor of law, nevertheless held that the rule she cited had never been observed within memory, and with that as a precedent, declined to honor it now. It was never clear whether there were actually any such witnesses ready to testify, but the appearance was that Warren had raised the issue merely to prolong the hearing.

Tennessee’s Senator Alexander is also formerly governor of that state, the founder of a law firm and founder of Corporate Child Care, the largest provider of work-site child care. Although he tipped his hat to Warren’s academic credentials, in his friendly, country-lawyerly way, he didn’t seem at all intimidated by them.

Of course, the Chairman’s decision may open the door to challenging DeVos’ confirmation, if that is the result of the Senate vote.

I should mention that in addition to her three hours and ten minutes on the hot-seat, DeVos had met with each senator individually for a half hour. She had offered them more time when requesting the meetings in December, but they were “too busy” to meet with her that month. And the senators have all submitted questions in writing that DeVos says she will try to answer before the Senate votes on her appointment. However, she is not actually required to answer all of those questions. The only risk being that senators who don’t like her anyway might not vote for her, which they won’t anyway. The matter of written answers became clear when former (and some say still current) clown, Minnesota Senator Al Franken, with what I perceive to be his usual empty bluster, tried unsuccessfully to bully the Chair into promising that DeVos would answer the questions by a certain date,

We will have to see how delaying strategy works out for the Democrats, but it seemed to me that with all their effort, they were able to achieve a delay of only about ten minutes when their thrusts were parried by an experienced and well-prepared Republican chairman.

[Ed.  September 27,2020:  This all seems tame from the perspective of the Kavanaugh hearing and the impending upcoming fight over the pre-election-day appointment of Trump’s third Supreme Court Justice.  Senator Schumer and other minority leaders have said, with histrionic and feigned moral indignation, that now, “the gloves are off”, and they will use any means available to frustrate the appointment of the president’s nominees.  After the brutal Kavanaugh hearings, and the savage treatment of Judge Amy Coney Barrett by Senator Feinstein when Barrett was appointed to the federal appeals bench, it makes the gorge rise to hear any Democrat infer that etiquette of any kind has, before now, played a role in their resistance to anything Trump seeks to accomplish.]



January 7, 2017

Five Killed, Eight Wounded in a Florida Airport.

I spent several hours Friday and Saturday watching the coverage of the airport shooting in Fort Lauderdale.

Of course the factual information came in at a rate of just a few seconds per hour, so I did doze through some of the vapid and irrelevant speculations offered by “talking heads”.

However I believe I have developed a picture that some others may have missed, possibly because they are so horrorstruck or defensive that they do not hear the salient points, or because I have treated a number of state hospital patients who have committed murder while in a psychotic state, and one or two who were rampage killers.

Twenty-six year old Esteban Santiago is said to have had an altercation on the Delta flight, though not importantly enough that he was met by security upon landing. He had checked his bag containing a handgun and ammunition, displaying no longer valid military I.D. during the check-in. I have checked a firearm several times when traveling by air between two points at which it was legal for me to possess it. Anyone can do it. You don’t need a military I.D. It is perfectly OK to check a handgun on to a flight and that happens in the U.S. an estimated “thousands of times a day”, so long as the passenger secures an unloaded weapon in a locked container and separate from any ammunition. When the bag itself is hard-sided and lockable, that may constitute the container. Otherwise, a small lockable container or two may be employed, one for the weapon and the other for the ammo.

After boarding in Anchorage, Santiago’s bag was transferred to the second aircraft when he changed planes in Minneapolis. Upon arriving in Fort Lauderdale, Santiago retrieved his bag. Then he went to a men’s room and retrieved and loaded the handgun. After which he walked back to the baggage carousel and, without speaking a word, began shooting people, almost all of them in the head. Five have died, eight are surviving at this writing.

Possibly having changed magazines in mid-rampage, he then surrendered quietly when accosted by sheriff’s deputies.


He had been deployed to Iraq with a National Guard unit from Puerto Rico. And joined the Alaska National Guard when he moved to Anchorage, where he worked as a security guard.

However, he had been given a “General” discharge (less than Honorable) from the Alaska Guard when he failed to show up for drills beginning last summer.

It may be pertinent to his self-image that he was working as a security guard and that he kept and, although it was quite unnecessary, exhibited his invalid Army I.D. when he checked in the bag containing his pistol.

About the same time that he stopped going to Guard drills he had walked in to the FBI and told someone there he was hearing CIA voices telling him to go and join ISIS. The FBI referred him to a mental health facility for evaluation. A former FBI assistant director said this evening on TV that there was “nothing else they could do or should have done”. This assertion, it seems to me, lies at the heart of the problem.

When I heard he was living in Alaska and had been arrested twice for “domestic disputes” I thought he might be the kind of Alaskan antisocial/psychopathic misfit you can see any night on the Alaskan State Troopers reality TV show. And that he was probably involved with drugs… specifically with methamphetamines considering the got into a dispute on the plane before landing. Touchy because of stimulant abuse, I thought.

But the voices, and going in to complain about them to the FBI, along with being unable to get to the Guard drills, suggest what is called “decompensation”, and a descent into a disorganized state associated with the onset of schizophrenia. The peak incidence of the first appearance of symptoms of schizophrenia is in males in their late teens and early twenties.

Of course it is true that drug use can mimic schizophrenia, even producing paranoia and hallucinations. I had one such patient who got into an argument in a bar in Sacramento, pulled out a pistol and shot another man to death on the spot. And another meth addict patient who had stabbed his infant daughter to death because he thought she was controlled by the devil and would kill everyone in the family.

So there may be no practical way to be sure whether, in the case of Esteban Santiago, the psychotic state was produced by drug usage, or whether it is from the brain mis-wiring of schizophrenia. That question can only be resolved by clearing the body of drugs and waiting to see whether or not the psychosis persists.

The fact that he stopped shooting and sat quietly when approached by deputies suggests that Santiago’s episode was of schizophrenic rather than chemical origin.


As in the case of the UCSB college student in Isla Vista, the police were under notice that he was acting crazy. And like the police in Isla Vista, the FBI apparently did nothing beyond referring him to a mental health resource.

As in the cases of the Gabby Gifford shooter in Tucson, and the Aurora shooter in Colorado, both had been flagged as acting crazy, and had been seen by mental health professionals, and yet no one had made a report to any agency that could prevent them from obtaining firearms, or could remove firearms already in their possession.

It seems self evident that there needs to be a requirement that when people are reported to the police, by themselves or others, to be suffering from symptoms or exhibiting behaviors indicating a mental condition that makes it probable that they could be dangerous, that fact alone needs to trigger a legal process to separate them from firearms until a judge hears clear and convincing medical evidence allowing them to be declared safe to possess firearms.

The trigger can’t be AFTER they’ve shot twenty people. Understanding that there’s a risk of unwarranted accusations being made by people who are angry with the individual, when a guy walks into the FBI and says he hears voices telling him to go and join ISIS, that should be enough!



The federal Health Insurance Portability and AccountabilityAct, (HIPAA) was written to protect the confidentiality of medical information by controlling the circumstances in which it may be shared among various members of the treatment team and others, particularly the insurance carriers who underwrite the cost of that care, but also including employers, family members and government agencies.

The need for strict confidentiality is especially important with regard to conditions people find embarrassing, or that could give rise to adverse social or economic consequences. It is in the interest of the health and safety of the public that people with such conditions be honest in their discussions of these matters with their doctors. Protection of such communications makes such honesty more likely.

The logic of this reasoning has, in the past, been most evident in the case, for instance, of venereal diseases, as well as other communicable diseases like tuberculosis. The key being that some diseases endanger the public if they remain secret and undiagnosed.

This is also the case with some manifestations of mental illness.

The dilemma is that the greater the need is for the right people to know, the greater also is the need is that the information not reach those who might use it to cause unwarranted harm to the sufferer.


In 1976 the decision in the case of Tarasoff v. Regents of the University of California established a precedent that has since spread to statutes in all but six states, first stating that a therapist who knew of a threat to a third party owed a “duty to warn” that person of the risk. Within two years the courts had enhanced that imperative to a “duty to protect”.


“As of 2012, 33 states have adopted a mandatory duty to protect for mental health professionals in statute or common law, 11 states have a permissive duty, and six states are described as having no statutes or case law offering guidance.[5] A duty to warn or protect is mandated and codified in legislative statutes of 23 states, while the duty is not codified in a statute but is present in the common law supported by precedent in 10 states.[6]” — Wikipedia

Still, stupid, irresponsible, indecisive or bleeding-heart psychiatrists, citing HIPAA, are reluctant to report patients who are clearly dangerous to others without absolute proof… which is almost never forthcoming until after the patient has killed someone. In HIPAA, though mental health personnel are permitted to reveal case information when authorized by the patient or required by law, there is no mandate that they do so. In order to achieve maximum protection for the public against insane rampage killers, the failure to warn victims and police needs to become a serious crime itself in all 50 states. If a few doctors do some jail-time, the reluctance to report those with a manifested risk for harm to others will go away.

By the way, the reporting requirements need to be federal. As it is, even in states that require reporting to the state DOJ, in some states, the state DOJ is not required to report the dangerous person to the federal NCIC database to prevent acquisition of firearms. At the present time, in most states, only hospitals are required to report people who are a danger to others, and not individual practitioners.

Not to fix the reporting requirements only means that these incidents will continue to occur, and hoplophobic fools will continue to blame them on the existence of guns.


In the Florida case this past week one former ATF official offered the observation that ATF Form 4473, the one filled out for the transfer of any firearm, offers no protection against the mentally ill rampage shooter.

Question 11 f asks: “Have you ever been adjudicated mentally defective, (which includes a determination by a court, board or commission, or other lawful authority that you are a danger to yourself or others or are incompetent to manage your own affairs) OR have you ever been committed to a mental institution ? (See instructions for Question 11.f.)”

The ATF official averred that even when the applicant has answered in the affirmative, and even if the applicant were to sign an authorization for the release of mental health information, the institution is not obligated to provide any medical information. According to the HIPAA rules the custodian of records may, but is not obligated to provide information covered by an authorization given by the patient. This is likely because HIPAA was not written with the acquisition of firearms by dangerous mental patients in mind, but for an entirely different set of problems.

The HIPAA regulations are so voluminous and arcane, and so intimidating, as to cause health care providers to decline to reveal information even when they might be legally entitled to do so.

HIPAA regulations are basically designed to allow insurance companies to make payment for services, and are so byzantine that HIPAA training courses for medical office personnel are marketed at $1000 per person.

Moreover, at this time ATF Form 4473 does not include any sort of Authorization Form for medical or mental health records, meaning that the only information available to those making decisions on applications for the purchase of firearms is that which comes from the individual applicant.

In Germany, draconian privacy laws like HIPAA prevented the German aviation authority from receiving any information about the mental illness of the Germanwings pilot who crashed a planeload of passengers into the Alps. According to reports, a mental illness was known to his company and to several treating physicians. But the physicians were not permitted to reveal that fact that to the aviation authority.

One possible means of reducing the number of rampage killings perpetrated by mentally ill individuals would be to routinely deny permission to purchase a firearm to anyone regarding whom there is information from any source about a mental condition that could reasonably be expected to produce a “danger to self or others”, allowing for the denial to be challenged by documented evidence from experts, presented to a court, that the mental health problem was no longer a factor.

Cases falling under the Tarasoff rule should be made a specific exception to HIPPA requirements, reporting to the NCIC made mandatory, and physicians fulfilling the duty to warn or protect should be specifically exempted from any criminal or civil liability for doing so.

Finally, if it had been mandatory for mental health professionals to report patients who had, even briefly, been a “danger to self or others”, to a database to which the ATF also had access, a great many of the rampages by the mentally ill that have distressed us all in the past several years could have been avoided, leaving only those very few perpetrated by individuals who have never come to anyone’s professional attention prior to manifesting their lethal behavior.