According to a FoxNews.com report, the alleged Aurora batman shooter James Holmes sent a notebook “full of details about how he was going to kill people. . . . [with] drawings of what he was going to do in it -- drawings and illustrations of the massacre” to a University of Colorado psychiatrist before the attack. The psychiatrist, however, did not receive the notebook as it had been sitting unopened in a mailroom for almost a week. Additionally, the FoxNews report could not verify whether the shooter had a prior relationship with the psychiatrist to whom he mailed the notebook. These facts now raise questions as to what liability, if any, may ensue from the mailing of this package and the psychiatrists failure to receive it. This blog post will seek to address those questions in an informal/nonlegal advice manner. Again and as usual, nothing here constitutes legal advice, so please consult with an attorney before relying on any of it.
Before beginning my analysis, I'm going to flag several assumption I am making which may or may not be factually and/or legally accurate. First, I will be assuming that Mr. Holmes was previously the psychiatrist in question's patient. Second, I will be assuming that the psychiatrist had a legal duty to open the mail that Mr. Holmes addressed to him. Finally, I will be assuming that the psychiatrist's failure to open said mail will lead a reviewing a Court to deem that he read the notebook in question. Under such assumptions, the psychiatrist may in fact have liability to the victims of the shooting if the notebook's contents either (a) showed a serious threat of imminent physical violence against the specific patrons attending the theater on the date and time in question; or (b) were sufficiently clear to create an obligation place Mr. Holmes under an immediate 72 hour psychological hold.
To start the analysis, C.R.S. § 13-21-117 generally absolves psychiatrists from liability to third persons “for damages in any civil action for failure to warn or protect any person against a mental health patient's violent behavior.” The statute similarly protects psychiatrists for their “failure to predict such violent behavior.” The statute, however creates exceptions to this absolution of psychiatrist liability when: (1) the patient has communicated to the psychiatrist a serious threat of imminent physical violence against a specific person or persons; or (2) after a personal patient evaluation determining that the person appears to have a mental illness and, as a result of the mental illness, the psychiatrist determines that the patient appears to be an imminent danger to others and then negligently fails to initiate involuntary seventy-two-hour treatment and evaluation. Thus, for the psychiatrist to have liability to the Aurora shooting victims, there must be sufficient facts triggering one of these two exceptions.
It is unclear from the FoxNews.com story whether the Notebook's contents were sufficient to trigger liability under the first exception. While the story indicates that the Notebook was “full of details about how [Mr. Holmes] was going to kill people” it did not indicate if the Notebook was full of details as to where or when Mr. Holmes was going to in fact engage in such killing. Without details about timing, the psychiatrist may have a defense that the any danger was not imminent. More importantly, without details regarding the place of the shooting, there would not be a threat against “a specific person or persons” sufficient to trigger said exception. However, if the notebook in fact had details clearly indicating that Mr. Holmes was going to commit murder at the Aurora Mall Theater at the Batman Showing in the early morning hours of July 20, 2012, then the psychiatrist may have liability under this first exception.
As for the second exception, under C.R.S. § 27-65-105(1), the psychiatrist could have had Mr. Holmes placed under a seventy-two-hour hold as a danger to others. The psychiatrist's failure to do so will only trigger liability if there was already a “personal patient evaluation” that determined Mr. Holmes appeared to have a mental illness and was a danger to others. C.R.S. § 13-21-117. Given that we are assuming Mr. Holmes was already a patient of the psychiatrist and would have conceivably, under that assumption, already received a personal patient evaluation, there are two open questions. First, would the psychiatrist already have determined that Mr. Holmes had a mental illness that made him a threat to others? Second, if the psychiatrist had not so determined, would receiving the notebook after the “personal patient evaluation” trigger the second exception? If the answer to either question is yes, then the psychiatrist may in fact have liability.
Again these conclusions that the psychiatrist may in fact have liability under either of C.R.S. § 13-21-117's applicable exceptions are merely musings. They are not in any way legal advice. Moreover, they are based on several assumptions that may or may not be factually and/or legally accurate that I have spelled out above. However, the overall analysis may be useful to an attorney that wishes to use them as the starting point for his or her analysis of this case and as such, I am posting it.
Elliot Fladen is a graduate of Stanford Law School and an attorney practicing law in Colorado Springs at The Fladen Law Center. Nothing in this column constitutes legal advice or begins an attorney-client relationship with Mr. Fladen.