By Andrew Tuohy

I first learned of the Threat Assessment, Prevention, and Safety (TAPS) Act (H.R. 838) when I saw a tweet by Texas representative Dan Crenshaw. Because he mentioned it in the same tweet as state red flag laws, I immediately assumed it was some sort of federal red flag law. Since I have constitutional concerns about red flag laws, my initial impression of the TAPS Act was thus not an entirely positive one.

The first thing I did was to Google it and came up with a one-page PDF from the office of Rep. Brian Babin, who introduced the Act, along with the full text of the bill and also several blog articles and Facebook posts which did not hold back anything in their vitriolic criticism of the TAPS Act. After reading all of these sources, spending several days researching the issue, and reaching out to both sides for comment, I was ready to sit down and write this article.

This is not intended to advocate for or against the TAPS Act – only to provide an analysis of each section in order to explain what it means and what it does. I encourage you to read the full text of the TAPS Act. It’s not terribly long…in fact, this article is longer, by word count, than the Act itself.

Section 1 – The Title

Section 1 of the TAPS Act simply gives us an explanation of the name. TAPS stands for “Threat Assessment, Prevention, and Safety.”

Section 2 – “Sense of Congress”

Section 2 is the part of the bill where Congress explains why the bill exists. There is nothing functional or impactful here – just an expression that something should be done about indiscriminate incidents of targeted violence, that the US can do something about it, and that one way to do something about it is to get all the different levels of government together to talk about how to do something.

Section 3 – Definitions

Section 3 is a long one, because it defines all the various terms used in the bill. Most of these are pretty benign, like defining “educational entities” and “mental health service professional.” This section also defines “state” to include DC, the US Virgin Islands, Puerto Rico, Guam, the (American) Marianas, and American Samoa.

There is, however, one very important definition in this section. That is §3(2), “Behavioral Threat Assessment and Management,” which I will refer to as BTAM throughout this article. It describes this process as identifying people who exhibit “patterns of concerning behavior that indicate an interest, motive, intention, or capability of carrying out an act of violence.”

It says that BTAM involves “investigating and gathering information from multiple sources to assess” whether such people “pose a threat based on articulable facts.” Finally, it includes “the subsequent management of such a threat, if necessary.”

There are a couple of ways to look at this. As Campaign for Liberty said in their article on the TAPS Act, “How Liberty Dies,” behavioral threat assessment via the TAPS Act “destroys virtually half the Bill of Rights. It allows government bureaucrats to spy on you without a warrant (4th Amendment) and take away your gun rights (2nd Amendment) – without your day in court, due process, or even you knowing about it (5th and 6th Amendments).

“Or at least you will not know about it until a SWAT team kicks in your door, shoots your dog, and stands on your throat at 3:00 a.m. And all of this will be based on a bureaucrat’s assessment that you somehow, in some manner, pose a threat to their Big Government schemes or could fit the profile of a one-day ‘possible’ terrorist.”

Another way to look at it is by researching the history of behavioral threat assessment. One of its foremost advocates is Gavin de Becker, whose book “The Gift of Fear” has long been on the list of books I recommend everyone read. In fact, I gave out two dozen copies of that book to my classmates and friends last fall.

Mr. de Becker states that his MOSAIC threat assessment system “is not profiling in that it is always applied to an actual known individual, and it always explores actual behavior and circumstance.”

Behavioral threat assessment programs are currently used by the Secret Service and US Marshals to weed out garden variety steam-blowing from genuine threats to elected officials and judges. If these programs, in operation for decades, have resulted in blatant 2nd, 4th, 5th, and 6th Amendment violations, I am not aware of them.

Section 4 – Creation of a Task Force

Section 4 is the meat of the bill. It directs the Secretary of Homeland Security to establish something called the “Joint Behavioral Threat Assessment and Management Task Force” within 30 days of the enactment of the act. This “task force” has a goal of coming up with a plan, called a “national strategy,” to prevent targeted violence through behavioral threat assessment and management.

The task force is supposed to consider the different needs of communities across the United States. Perhaps most importantly, the “national strategy” is not to be considered a national standard. The way I read that is that the national standard is just a recommendation which states and local governments are free to follow or ignore as they see fit.

The task force is supposed to have 24 or fewer members from a variety of different backgrounds. Two are supposed to be from non-government organizations that have experience in behavioral threat assessment. Two are supposed to be “mental health service professionals.” One is supposed to be a state or local prosecutor (a Guamanian prosecutor might qualify). Two should come from “educational entities.” The list goes on, including the Secret Service, FBI Behavioral Analysis Unit, US Marshals, VA, DSS, NCIS, and more.

One common thread: all of these people are supposed to be experts in behavioral threat assessment and management. But they can also consult with outside experts who aren’t on the task force.

They aren’t going to be paid more for being on the task force, and they’ll be a part of it until their boss (say, the director of the FBI if they came from the FBI) replaces them.

I saw a comment on Facebook about how the next subsection, §4(d)(1), allowed the task force to make up whatever rule they wanted in order to “deal with” someone identified as a threat. That subsection reads, in full:

(d) Operating Rules and Procedures.–

(1) Rules and procedures.–Any member of the Task Force may

propose to develop or change existing operating rules and

procedures of the Task Force consistent with the functions of

the Task Force. Any change to such operating rules and

procedures shall be adopted upon a majority vote of the Task

Force.

Reading this in context, as is appropriate for legal documents, what this means is that if the Task Force originally met on Tuesdays at 7:30 and wanted to switch to Wednesdays at 8, they could vote to do that. Or they could vote to submit their findings in .pdf form instead of .docx format.

Objectively speaking, “Develop or change existing operating rules and procedures of the Task Force consistent with the functions of the Task Force” is not the same as “change the Constitution of the United States of America.”

The next section goes over the staffing for the task force, including a staff director who will make no more than $166,500 at current executive pay rates, and no more than three additional staff who will be paid according to the standard GS scale. They can also hire experts and consultants for “temporary and intermittent” services. Finally, other federal agencies and departments send over personnel to help the task force out, but their services will be reimbursable – as I see it, out of the task force’s budget.

There’s a short blurb about the powers of the task force – how any member of the task force, if authorized, can take any action which the task force is authorized by this section. What are the powers of the task force? We’re getting to that.

Under subsection (g), the Task Force is supposed to “secure directly” from federal departments or agencies the “official data” necessary to accomplish its duties. This data is supposed to be “subject to applicable privacy laws and regulations.” As with the definition of behavioral threat assessment and management, there is likely a less sinister definition of “official data” than some might believe, especially as the data is coming from federal agencies and not, say, social media companies providing a list of everyone who likes the NRA on Facebook.

The next two subsections are very boring and deal with acquiring administrative services and contracting with government and private entities for other necessary services. Nothing to see here, move along.

Suddenly, we’ve arrived at the Report subsection, §4(j). It says that no later than 120 days after the “enactment of the Act,” the Task Force will submit its report to the appropriate committees of Congress and the DHS Secretary. The report will include recommendations on the “national strategy” and how to develop and implement said national strategy. Finally, in §4(k), we learn that the Task Force will “terminate” 180 days after the “enactment of the Act” and in §4(l) that the Task Force will have one million dollars to carry out everything described in Section 4.

For those of you counting the days, the numbers mean that if the Task Force is organized at the end of its allowed one month after the Act becomes law, it has three months to come up with its report, then it dissolves two months after that. From these deadlines I derive that the Task Force is not an ongoing group or council intended to pass judgment on individuals but a bunch of eggheads who get together to write a report and then go back to their old jobs. But let’s take a look at what the report needs to contain. That’s section 5 of the act.

Section 5 – What Does the Task Force Report Have to Contain?

Rather than let the Task Force come up with whatever report it decided to submit, the bill requires some pretty specific things be included. All of them must be part of that §4(j) report submitted within 120 days of the “enactment of the Act.”

First up is the use of “existing… infrastructure, workforce, and experience including the use of personnel, communication channels, and information sharing capabilities of fusion centers” and “a model behavioral threat assessment and management process.” The way I read this section is that they’re saying, “hey, let’s not reinvent the wheel here – how can we best use the people and networks and facilities we have to get the right information to the people who need it now?”

Next there’s the “unit support program,” which has the goal of helping out “government agencies and private entities in the implementation of” behavioral threat assessment and management units, consulting on real-world complex behavioral threat assessment and management cases or programs, promote coordination between government agencies and private entities with protective public safety responsibilities, and support collaboration between the BTAM units of various government agencies at all levels.

As I see it, the Unit Support Program is the potatoes to the Task Force’s meat. This is where the strategies developed would be disseminated, where local units could consult with the head honchos who have more experience, and where people would make sure that critical information didn’t disappear into a data vacuum.

There are also, under §5(3) and §5(4), a Training Program and a School Violence Prevention Program. The former, as the name implies, is intended to help lower level agencies spin up their own behavioral threat assessment units, while the latter is basically a copy of the Unit Support Program described above but with a focus on schools.

Section 5 closes out with the requirement that the report include recommendations about how to keep mental health support professionals in the loop during the behavioral threat assessment process, subject to federal and state laws.

Section 6 – Congress Gets a Say

Section 6 says that the DHS Secretary will develop the national strategy and “consider” the recommendations made by the Task Force under the previous section in developing the strategy, but also consider the “diverse needs and existing resources of different communities.” I’m not quite sure that needed to be in there – it’s doubtful that a one-size-fits-all solution would make sense – but I suppose it might placate rural sheriffs’ offices who don’t want to have a program designed for urban police departments foisted upon them.

The second half of §6 is the important bit. It says that the national strategy shall take effect 180 days after the “enactment of the act” (I love that phrase for some reason) unless Congress enacts a joint resolution of disapproval of the national strategy during that 180-day period.

So if (most likely between the 120-day report deadline and the 180-day implementation deadline) Congress decides that it doesn’t want the gun owner reeducation camps proposed by the Task Force, Congress can make the whole thing come to a screeching halt through a joint resolution – that is, both houses of Congress.

There are no gun owner reeducation camps, of course, comrade. I’ll hold your rifle for safekeeping while you hop in the back of this deuce-and-a-half headed for the Berkeley Wellness Center for Freedom from Firearms.

Section 7 – Implementation

Section 7 is where the rubber meets the road. While it may have seemed like we were talking about implementation in Section 5, that was a list of requirements of what needed to be in the “national strategy” recommendation report – Section 7 is the lodestar for making it happen. Basically, the DHS Secretary is going to put the plan in motion and begin assisting agencies at all levels of government, plus private entities “with protective or public safety responsibilities”, with information and training services.

There’s going to be a senior official within DHS who is put in charge of running the program, and they’re going to need to make sure everyone involved – those agencies and entities – are talking to each other about the program, plus they’ll have to be mindful of the finances and budgeting involved as well as what else is going on at the federal level related to the “national strategy.” If that sounds like a lot for one person, it is, and I’m sure this is going to involve an office with some staff.

Or maybe not. The next section says the Secretary can enter into contracts with public and private organizations which have BTAM expertise to “assist with the implementation” of the national strategy. There are several such organizations out there, and I’m sure they’ll be jockeying for federal contract dollars when the time comes. I foresee a bid protest.

The program has to have a website! The website has to be interactive. It has to have data. Wow. Sadly, the website can’t have “classified or law enforcement sensitive data or processes and sources.” I guess that means no Uber-like user interface showing how close your FEMA bus is to the camp.

There must be an annual report to Congress and it has to include (1) information on how many people are working on the program, (2) how many contracts have been entered into, (3, 4, 5, 6) how many states, agencies, and entities (including educational entities) are participating, (7, 8) a formal evaluation of how the program is working (or not working) and how well all the different feds are getting along, (9) a look at how things might change in the future regarding threats, and (10) accounting of waivers under §8(d), which we’ll get to later. Finally, there has to be an annual briefing to Congressional committees, at which I presume details of the annual report will be discussed.

Section 8 – Grants, But No, Not For Affordable Housing

To get cash-strapped state, tribal, local, educational, and NGO types to stand up their own BTAM units, the feds are helpfully going to throw money at the problem. “Eligible entities,” which I just gave a list of in the previous sentence, can apply for grants by providing information required by DHS. The entity must provide matching funds, but not on a 50/50 basis – only “not less than” 10 percent of the amount of the grant. Will some agencies choose to pay more than 10 percent? I doubt it.

What if they can’t come up with any matching funds? That’s where the §8(d) waivers come in. If an entity demonstrates a need for a waiver or reduction in the matching funds amount, DHS “may” grant their request.

Section 9 – $$$

This section is important because it not only outlines how many dollars can be spent administering the bill, but how those dollars may not be spent.

The program, including implementation (§7) and grants (§8), has a $25 million budget for each of the four fiscal years it would be in operation. That money cannot be spent “to train any individual in the use of a firearm”, but more importantly, it cannot be spent to “encourage or discourage the otherwise legal ownership and use of firearms.”

The way I interpret this phrase, that means the behavioral threat assessment management units couldn’t, for example, go out and start teaching school kids to inform on their parents’ AR-15s. Nor could they do a host of other things that would lead to anti-gun results. On the other hand, they also can’t advocate for people to go out and buy their own guns.

Finally, this section says that just because its dollars can’t be spent on firearms training, that doesn’t have any effect on other laws which authorize providing firearms or training. Fairly self-explanatory.

Summary

To write this article, I read the entire bill three times. I spent several days parsing the details of various sections. I reached out to a Congressional office and to Campaign for Liberty and to conservative social media personality John Burk (both CFL and John Burk have spoken out against the bill). I asked the Congressional office how the bill might contain Constitutional violations, the specific meaning of §4(d)(1), and why certain agencies were listed as sources of experts while others were not. I asked CFL and John Burk to identify which sections of the bill, specifically, they felt were violations of the Bill of Rights.

While I received a very rapid response from a Congressional staffer speaking on background, I did not receive a response from either Campaign for Liberty or John Burk.

As I said at the beginning, this article is not intended to advocate for or against the bill. I’ve only sprinkled lame jokes throughout because sitting down to analyze a bill is a very boring endeavor. I’m not telling any of you to call your Congressional representative and ask them to vote for it or vote against it. You should make up your own mind after reading the bill.

What you should not do, however, is assume that the TAPS Act tears up the Bill of Rights. It doesn’t. I pushed and pulled and stretched my interpretation of every sentence of the bill. I can’t see any Constitutional violations. I certainly don’t see any 2nd, 4th, 5th, or 6th Amendment violations. They just aren’t there. I have no idea where those criticisms are coming from. They are simply not based in reality.

We should be evaluating the TAPS Act on the merits of what it actually says, not an emotional reaction to a boogeyman that doesn’t exist. If anyone reading this can identify any part of the TAPS Act that is a violation of our Constitutional rights, please point that out to me. I would like to know – honestly.

The TAPS Act is also not a red flag law, and you shouldn’t confuse the two. What the TAPS Act does is form a group of nerds to make some recommendations on behavioral threat assessment, give Congress the option to take them or not, then give DHS the responsibility of training various agencies and entities in behavioral threat assessment. If you think that’s a good idea, fine. If you think that’s a bad idea, fine. But it doesn’t authorize any specific actions by any government official, at any level, against any private citizen.

This article originally appeared at omahaoutdoors.com and is reprinted here with permission.