The legal duty to warn has come to the forefront as more information has come out about James Holmes in the aftermath of the Colorado shooting.
Lynne Fenton, the therapist treating Holmes prior to the shooting, was alarmed enough by his behavior to alert the University of Colorado's threat assessment committee. The committee chose not to pursue the issue because Holmes had recently dropped out.
Now that decision looks like it may have been incorrect.
The school should have kept the case open for as long as Holmes could pose a significant threat to the campus or another identifiable target, says Gene Deisinger, the deputy chief of police at Virginia Tech and head of the school's threat assessment team.
Since the 2007 shooting at Virginia Tech, many universities have stepped up their emergency plans.
It's not uncommon now for higher education institutions to have a text message safety alert system to notify community members of threats. The systems are designed to warn students, staff, and faculty of potential dangers.
But the legal necessity of such systems has never been put to the test.
One of the legal claims against Virginia Tech after the shooting was that the school failed to adequately alert students. The case settled out of court, reports the ABA Journal.
The school didn't want a public lawsuit.
It's possible that University of Colorado could have had a duty to warn students, staff, and faculty. But it's less likely that they had a duty to warn people outside the community.
There is a therapist's duty to warn police in the event of a reasonably certain threat of specific harm. But it's not clear how concrete Holmes's plans were when Fenton reported her concerns.
If she didn't have information about a specific threat then there is no duty to warn.
In the Colorado shooting it's unlikely that a duty to warn would have changed anything. But given the destruction James Holmes caused it raises the issue of how to balance therapist-patient privilege with public safety.