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Michael Dunne: Michael Dunne. We don't know where and we don't know when, but we know it's going to happen somewhere and sometime in America. There's going to be a mass shooting. This time, it just so happened to be in Bend, Oregon, and now one of our state's favorite cities is left reeling from an all-too-American tragedy. Today on the show, you'll meet and hear from a former Department of Justice attorney who was heavily involved in two recent mass shootings: the massacre at Marjory Stoneman Douglas High School and the church shooting at Sutherland Springs, Texas. He'll talk about what the community of Bend can expect in the coming weeks and months, what federal agents will be doing, and what lessons might be learned that can be applied when the next shooting occurs. Former Department of Justice lead counsel in the Parkland and Sutherland Springs mass shooting cases, Paul Stern. He's also the author of a just released book, "The Burden of justice: A DOJ lawyer's testimony on truth, love, and the human toll of mass shootings." Paul, thanks so much for coming on and talking with us.
Paul Stern: Pleasure to be here.
Dunne: Well, in our state, Bend has now joined sort of that infamous list of cities having to deal with a mass shooting, you've been in these situations before. Maybe talk to our audience about what do the next I don't know two to three weeks look like for a city, for a school, for a community dealing with the aftermath of a horrible incident.
Stern: Yeah, it's absolutely gut wrenching, and just very personally, if I can for a moment, having been a former rock climber and spent a lot of time in Smith Rock out in Bend, my heart goes out for the people and the unbelievable community out there in Bend, Oregon. It's going to be a very difficult time. The FBI is going to send out its victim services representatives to help with the grieving process, there's going to be a lot of conversations, a lot of a lot of hugging, a lot of holding on to to kids, explaining to them what happened, trying to get them the mental health and wellness services that they need, as well as the adults. I mean, right through from the kids that were there through the adults even to the shooter as we all know we now have a good Samaritan that helped prevent what could have been a more catastrophic event but let's not forget the fact that, you know. that individual killed a 16-year-old and I can only imagine the trauma that that even incurs, and so you know there's going to be from the superintendent on down a lot of healing and a lot of nurturing that needs to happen.
Dunne: Okay, what should just the members of the public, maybe people who weren't even involved, didn't have kids at the school, whatever, you know, what should they expect? Because I would imagine, again, in this situation, there isn't the direct shooter who's going to be prosecuted. He's no longer with us. But you know, is there going to be, in your experience, I mean, is there a lot of impatience about what happens next? Is there finger pointing? Is there, you know, the whole host of emotions that a community can go through?
Stern: Of course, and it's going to be human nature to want answers quickly and to point fingers, but the investigation has to be thorough. It has to be comprehensive, and unfortunately, sometimes it's going to be time-consuming. So, we can go through the elements of what that investigation would probably look like. Chances are, it is still led by the state and local investigators because while the FBI can assist, unless there's some federal nexus, it is still going to be the jurisdiction of local law enforcement to investigate with the help of feds. Okay. Obviously, the first thing that they look at is whether or not there were any co-conspirators. Whether it was anyone who helped an individual. By the way, I'm speaking of the abstract. Sure. Not this particular case. I do not have an inside personal knowledge about this case. So, in the abstract, are there any co-conspirators out there? They will also look to the perpetrators, social media and try to get access into his personal cell phone and computer to determine a few things. First and foremost, motivation. Second, leakage. In the industry, we typically think of leakage as was there some communication, some way that the perpetrator provided red flags or some communication that signaled his intent to do that which he did, and that has numerous implications. Because while we can talk about hardening schools, we can talk about gun safety laws. A lot of mass shooting experts will tell you that one of the best ways to prevent these types of instances is when an individual in the community, a family member, identifies this type of leakage. That they say something to law enforcement, to school resources, to try to prevent these types of events from occurring. They'll also obviously look at family members, other individuals around this this perpetrator to determine whether there was criminal liability, and we can go more into that. But of course, now that there have been some cases that have been brought successfully against parents of shooters for involuntary manslaughter, that's obviously a natural avenue that the investigators will pursue vigorously. By the way, I should say that they won't do it vigorously. I mean, they'll obviously follow any leads, but it will be a comprehensive analysis.
Dunne: Sure. Sure. Well, and to that point, let's talk about that because obviously, fairly recently, there was a case where parents went to jail because of purchasing firearms for a child who went on and committed a heinous act. In this circumstance, I believe the preliminary reporting is that he obtained this weapon from his mother. Kind of, where does that go from here, from a legal perspective, and perhaps what are either national or local firearm laws say about that?
Stern: Sure. So that's a lot in a single question. So let me try to break it down somewhat. My understanding from reporting is that a 16-year-old used a long firearm, a Maverick 88 pump action 12 gage shotgun to perpetrate the shooting that was purchased by his mother. Now, under Oregon law, it is illegal to sell a long arm shotgun to an individual under the age of 18. However, there are two caveats to that under Oregon law, and that is a transfer by a parent or a guardian. So it's unknown at this time whether or not his mother transferred the firearm to the child, and a temporary transfer to the individual under 18 for purposes of hunting, targeting, and the like. So again, that will have to be investigated thoroughly. A 16-year-old cannot purchase, or I should say, a gun store, a fed-off firearms licensee cannot sell a firearm to a long arm to a 16-year-old in the state of Oregon. Okay. To your larger point about the, I think, two recent cases where the parents were criminally prosecuted successfully, that was brought under involuntary manslaughter charges, and basically that requires two elements. Each state has specific elements for involuntary manslaughter, but generally speaking, it requires gross negligence that proximally caused the shooting, and those are two difficult elements to prove in these types of cases. First, gross negligence. Well, typically, and again, we're not talking about this specific case, but typically, a parent wouldn't have specific intent themselves. They didn't seek to bring about the shooting. So what we look at is whether or not their standard of care was so below what would be generally considered acceptable. So, for example, purchasing a firearm for a child that otherwise either legally couldn't own it, or the parent knew should not own it, and that's that. That is a big test. Another another fact in this analysis, because again, this would be so fact laden of analysis, would be: Did the parent see a lot of this leakage, as I discussed? Did they know or have some reasonable, foreseeable aspect that the child may commit this type of heinous act and turned a blind eye? Did nothing about it, or even helped facilitate it in in ways like purchasing a firearm for a child. So that's the gross negligence element. Then the other difficult element is the proximate causation. Did that gross negligence proximate cause the shooting? And that's sometimes very difficult to prove when you have you know the ubiquity of firearms in certain states, so that the the underage individual could obtain the firearm through other means, which is not uncommon in these types of shooting instances, so that's why these types of criminal cases are so difficult to prove. However, I think prosecutors in the state are getting so fed up with these instances and are trying to have the deterrent impact that they're bringing these cases and often are bringing them to great success.
Dunne: Paul, as you mentioned, I mean, unfortunately, mass shootings are quite common in in the United States. I am wondering, you know, and from a legal perspective, and also just what you've seen, do law enforcement and the legal community do they learn something every time one of these happens? Is there sort of an area of expertise, an area of practice where we're now collecting so much data because there are so many incidents that we are really becoming expert at establishing profiles of a shooter, circumstances where something is more prone to happen. Are I guess what I'm asking are, as we as Americans in the law enforcement and the legal community, are we becoming the worldwide leaders in understanding mass shootings.
Stern: I think the short answer is yes. I believe federal law enforcement agencies, most notably the FBI, have taken painstaking care to engage with what we call behavioral health assessments and to identify those types of triggers and leakage and communications that are likely indicators of a potential mass shooting. So, I think we are becoming, unfortunately, experts in this world. Now, what we can do about it is a different issue, and that is a much trickier issue. So, for example, as I said before, often the FBI would not be the lead counsel or the lead agency in investigating these types of incidents unless there is a federal nexus, for example, unless it was a hate crime, unless it was domestic terrorism, and there's no indication at this point that that is the case here, that the FBI would have a difficult time, sort of doing what we call preventative law enforcement in these cases. If FBI is not a national police force, they can't they can't investigate, especially preemptively, any type of state or local crime such as a homicide. So I think in that sense, they're somewhat hamstrung in the type of anticipatory law enforcement that it would take to prevent some of these shootings. So, while I think the FBI, DHS is getting very intelligent in terms of threat assessments and see something, say something, and they and the FBI certainly bolstered their what we call the NTOC National Threat Operations Center. There are still some limitations that our law enforcement can do when it comes to these types of events. Unfortunately.
Dunne: I want to talk quickly about social media, and I want to ask sort of a two-part question because obviously many people might point to social media and say that that is perhaps an accelerant to issues such as mass shootings, but as you pointed out very well, social media becomes probably a very rich environment for clues. Maybe talk a little bit about that. Obviously, on this side of the mountains here in the Eugene area, we had a mass shooting decades ago, back in the '90s. That predated social media, but obviously every mass shooting that occurs now, social media seems to play some kind of a role. I wanted to see if you could sort of talk a little bit about that?
Stern: I think you raise a great point because a lot of mass shooting experts will tell you that the number of mass shootings has basically been steady since almost 1966, when a shooter went into the tower of the main building at the University of Texas, Austin and started firing his rifle. The real difference has been the lethality, and the lethality is due to these weapons and the assault weapons and their and the bullets and they and their unbelievable capability to inflict mass casualty, but social media is also another accelerant, and so it's a twofold, in the sense that, you're correct. You have a lot of people on the dark web and various corners of the internet, sort of embolden. One another and trying to suggest that they want to they want to they want to break the record of the most inflicted harm and that is just so tragic and really sick, but I give general media a lot of credit for recognizing that things can be done to mitigate that. For example, not mentioning perpetrators' names, not giving them their day in the sun, because copycat events are very real, and to try to mitigate that is a huge important factor in in trying to tamp down the heated atmosphere when it comes to mass shootings. And the other part of it, as I mentioned, is so many of these perpetrators communicate through social media and provide some type of red flags and leakage that suggests that they're going to do that, which they did. And so, we have a lot of these that are prevented because people see social media posts and then comment and say things to school resource officers, law enforcement, and the like. And so there has been some success stories. So, I think you're right. I think social media is sort of a double-edged sword in this world.
Dunne: Yeah, I am curious. You've been in the thick of this several instances, and certainly your book talks about even in the title, "The Human Toll of Mass Shootings." How did it impact you working these cases, and was that the inspiration for writing your book?
Stern: It was. I think what your audience has to appreciate is that when you call me the lead counsel in the Parkland, Sutherland Springs mass shooting case of the Department of Justice. They're naturally going to think of me as a prosecutor, and wearing that proverbial white hat, and prosecuting the quote unquote bad guys. But my job was to defend the United States in civil litigation, where the shooting victims and their families accuse the FBI and the Department of Defense for being negligent, and that that negligence was a cause of the shooting, and so that's a very difficult moral position to take because, on the one hand, you know I have the greatest affection for these federal agencies that are doing their utmost to try to prevent these shootings in the ways that in the ways that I described, but you also have great sympathy for these victims, and so it is a moral conundrum in handling these types of cases, and it tremendously impacted my mental health and the mental health of a lot of law enforcement officers and officials who were horrified when they learned that their conduct or lack of action failed to prevent or cause these shootings. And so, I wrote the book because I think a lot of people are very interested in how these shootings can be prevented. Are they foreseeable? Who is responsible? Who should be held liable? But also, to talk about the humanity that persists in the aftermath of these terribly inhumane acts, and to talk about the individuals who are behind the curtains of these agencies and show their humanity and how much they love their communities, how much they are working 24/7 to prevent these these atrocities from occurring, and the real tenderness in which they handle these cases, just like I try to, when you're litigating against the most aggrieved victims you can imagine.
Dunne: Just before you coming on, and if you want to do an exercise in sadness, simply Google Sutherland Springs or Parkland, and the very first mention that comes up for both places is these shootings, and so, given that, I wanted to ask you, you know, as best you can, how do communities move on from this, or how do you know the agencies you just spoke of? How do they move on from this? I mean, I imagine you know these communities, and certainly Bend now would hope that a year, a few years from now, it won't be synonymous, but but it could be, and that that creates a whole world of problems. How do people, and using tenderness and love and compassion, move on from such a terrible incident?
Stern: I can only speak from my experience, and the fact is, you have to have justice and humanity working side by side. So, in the justice part, you need to find those who are responsible and hold them to account. Whether that's through criminal prosecution, civil liability, dis. Plan termination and things along those lines. Again, I'm not speaking for this case in particular, but generally speaking, you need to have that level of people, you know, getting their getting a sense of justice, but then also being heard, and so you have a level of accountability and reform that comes from any of these instances. Because for each of these mass shootings, we can always learn something, and from that education, we can grow and benefit from it. Whether it's you know hardening schools, whether it's certain gun safety laws at the state levels that work or don't work, whether it's you know the FBI changing their policies and practices, there's always lessons learned. And so you know I give a lot of credence to the FBI after Sutherland Springs, after Parkland, from to going to the communities and meeting with them, meeting with the victims, understanding what they're going through, you know, listening to them, saying that we hear you, we're going to learn from this and get better, and then it's just a matter of making sure that we're all there for one another, that the community remains strong, and that the grieving process is allowed to work, and we have the mental health and wellness professionals and counselors that are there for again everyone at the stage from the kids to the parents because again there is going to be rippling trauma that people don't even appreciate. I mean how far out the concentric circles of the of this ripple is going to is going to impact the entire community, and so it manifests in different ways. And everyone sort of grieves in their own time period, and just allowing for that and recognizing that it's not just going to be, as you say, a day, a week, a month, or even a year.
Dunne: The book is called "The Burden of Justice: A DOJ Lawyer's Testimonial on Truth, Love, and the Human Toll of Mass Shootings." Paul Stern, thank you so much for spending time with us and all of your all of your expert account.
Stern: Thank you for having me.
Dunne: That's the show for today. All episodes of Oregon On The Record are available as a podcast at klcc.org. Tomorrow on the show, you'll hear about how Oregon has quietly been walking away from its historic mandate on transgender health care. I'm Michael Dunne, host of Oregon On The Record. Thanks for listening.
