To Warn, or Not to Warn

Anthony Stone’s predicament began on the summer afternoon he first met Gordon “Jack” Garner III. Stone was a clinical psychologist, Garner a police officer who’d come to him for an evaluation. As they sat together in Stone’s office here, the therapist began to realize that this cop suffered from more than the usual stress and burnout.

Much in life left Jack Garner disgruntled and frustrated. He had to deal with an unsympathetic supervisor and whiny citizens. He didn’t fit in. He rarely slept well. It was a chore to get his uniform on some mornings. He felt himself “on a roller coaster.” Some days he felt “out of control.”

Also--he had fantasies.

Stone, taking notes, looked up. What kind of fantasies?

This very morning, Garner reported, he had an image of shooting his precinct captain, Mike Cowart. He envisioned going to Cowart’s office. He’d use his service revolver. He’d shoot Cowart lots of times. He’d hit him in his fat gut. He also might go to police headquarters. If he decided to kill himself, he’d take with him the police chief, the assistant chief and anybody else who got in his way.

Garner fixed Stone with a steady eye. He’d had other violent thoughts before, but nothing so vivid as the one about Cowart. “That’s when I caught myself. . . . I scared myself thinking that way.”

It’s fair to say that Garner was scaring Stone as well.

Were Jack Garner’s thoughts mere fantasies, or harbinger of a coming massacre? It was a nearly unanswerable question--but one Tony Stone had to answer.

If he concluded Garner was truly dangerous, his dilemma only deepened. A therapist in Stone’s position is obliged to keep his clients’ revelations confidential. Yet he also has a moral, professional and possibly legal duty to protect third parties from harm.

“Duty to warn” rules are sometimes defined by state statute, sometimes by case law, sometimes by professional boards, sometimes not at all. The model is a 1976 California Supreme Court ruling, Tarasoff vs. Regents of the University of California. Yet the Tarasoff rule is tricky. It’s unclear how direct the threat must be, how imminent the danger, how “reasonably” certain the mental health professional.

So counselors grope about. So Stone groped.

After Garner left his office, days passed. One week stretched to two. In 23 years of practice, seeing some 30,000 people, Stone had never once issued a Tarasoff warning. Yet now he picked up the phone and called those whom Garner had imagined harming.

What followed has confounded Stone and many of his colleagues. Instead of the usual pitfall--being sued for failing to warn--he ended up being sued for violating confidentiality. What’s more, he lost: In a civil trial that was possibly the first of its kind in the country, a DeKalb County jury in December delivered a $280,000 judgment against the psychologist.

*

That summer in 1995, Jack Garner knew he needed help. The weather, so uncommonly hot and humid, was wearing him down. He was working in a fast-growing county northeast of Atlanta, in its busiest precinct. His job was a grind--call after call after call. At 51, he was the oldest patrol officer, working with cops half his age.

His colleagues resented him because he was making more than others, because he once was a big-city police officer in Atlanta. A supervisor called him a loner. A written evaluation indicated that he wasn’t “sociable.”

Well, sure, he didn’t backslap and tell jokes like when he was in his 20s. What could he say? Older cops did seem to be loners. That’s just the way he was.

Garner’s father died when he was 9, turning his mother to drink. He quit high school to join the Navy. Then he worked 12 years on the Atlanta force, until he got demoted from a sergeant’s post over what he saw as “racial politics.” Later he left a suburban police department because it was “full of cliques.” He went through a difficult divorce--”like a death.” After that came a suicide attempt and solitary drinking. Twenty-eight days of inpatient rehab got him sober. He remarried. He had a son.

His problem now wasn’t his personal life but his job. He hated work; he didn’t trust his supervisors; he didn’t like the public. He was going after citizens, making excessive traffic stops, running background checks. He felt tired, stressed out. He didn’t know how much longer he could keep going.

That’s why, on the morning of Aug. 17, 1995, he went to see James Gonzales, an ex-cop turned psychologist whose business card promised “solutions for change.” On and on Garner talked, animated and expressive.

This officer, Gonzales recorded in his notes that day, had a history of suicidal and violent, aggressive thoughts. He currently had feelings of violence toward the Gwinnett County Police Department. He had “passive suicidal thoughts” and “nonspecific urges to hurt someone.”

Gonzales thought Garner depressed, paranoid and--most disturbing--highly agitated. While talking, Garner had stared at him--long stares, and infrequent blinking. The therapist saw anger; he sensed instability.

Two days later, Gonzales, wanting help, called Tony Stone, a psychologist who specialized in police evaluations. Tony Stone was an expert--the expert in their region.

I’ve got a troubled Gwinnett County police officer, Gonzales explained. Would you do a fitness for duty evaluation?

Stone hesitated. These fitness for duty exams often were so ambiguous, so painful. Sometimes his judgment cost a cop his job. It couldn’t be avoided, of course. You had to play the gatekeeper.

OK, Stone said. I’ll see him.

*

As he rose to greet Jack Garner that Aug. 30, Anthony Stone had good reason to feel assured about himself and his accomplishments. He’d grown up in Washington, D.C., the son of a physicist and a social worker. He’d been drawn to psychology for its insights into human behavior, for the way it resonated with his own introspective bent. Armed with a master’s degree in public health and a doctorate in clinical psychology, he’d worked as staff psychologist for the Atlanta police force, then had rolled the dice and opened his own private practice.

The gamble had paid off: At 48, he now lived with his wife, a criminal justice professor, and their two children in a big comfortable home set in the woods just north of Atlanta. He wrote journal articles, he contributed chapters to textbooks, he gave speeches. Working with police officers fascinated him. He liked cops, he enjoyed the intensity of their work. That the Atlanta force had sent him through the police academy and given him a squad car with siren and emergency lights pleased him no end. So did his ability to help troubled officers.

Jack Garner’s casual attire, shorts and a T-shirt, caught Stone’s attention. It didn’t look as if this officer had shaved that morning. Garner appeared younger than his 51 years. Although listed as 5 feet 10 and 180 pounds, he seemed smaller, lighter--not the least imposing.

Stone thought him intense and distraught, hardly able to contain himself. He was talking loudly and rapidly, his words rambling. Yet he was quite open, and clearly wanted to be helped.

Right near the start, Garner told of his latest problem: “My captain called me a liar.”

The day before, he’d been summoned to Capt. Mike Cowart’s office to discuss a citizen abuse complaint. Cowart hadn’t believed Garner’s account.

He drove home deeply disturbed. He changed clothes. He sat back. He felt so mad. He began to envision walking into Cowart’s office. He imagined saying, “What about this? Is this a liar in uniform?” He imagined pumping bullets into the fat SOB. He imagined pumping bullets into eight to 10 others.

Stone stiffened at Garner’s words. This officer had his full attention now. He began writing faster on his note pad.

Garner talked on. He expressed a hatred for his job. He railed at individuals on the force. He griped about “crybaby” citizens who “complain if you look the wrong way.” He described various compulsions, among them washing his hands as many as 20 times a day.

When Garner finished, Stone reflected. It was fairly common for him to hear violent fantasies. Usually, though, they were vague and general. Garner had gone further. Garner had offered names of specific potential victims.

No, he hadn’t said he intended to kill these people. Yet hardly anyone ever did. Most threats were conveyed as vague metaphors. Who knew? Maybe Garner had a simmering plan, or maybe he had a daydream.

Stone--as do most clinicians--freely admits he can’t predict violent behavior. He only can offer opinions based on probabilities. Not until someone kills can therapists know. Then they look back and do studies. Then fingers get pointed. Then anguished cries fill the air, and lawsuits the courtroom.

Stone did what he could: He searched for patterns and signposts. What he saw was a man with massive amounts of pain. One way to deal with such feelings is through compulsive rituals. Another way is to attack those you feel are causing them.

Stone thought Garner might just do that. He was naming names. He was saying he felt scared of his fantasies. He was saying he wanted someone to intervene.

Stone weighed his options. He’d never violated a client’s confidence. If he did it now, he’d likely end Garner’s career. The prospect made Stone uncomfortable--enough so that he cast about for a compromise. He didn’t believe Garner qualified for involuntary commitment, but what if Garner were willing on his own to enter structured treatment? That might be a way to protect Garner and those he imagined hurting.

As their session drew to a close, Stone recommended to Garner an increased level of care, a hospital or day program. When Garner agreed, Stone relaxed.

He still had strong concerns, but given Garner’s cooperation, he didn’t see an imminent danger. He didn’t think a Tarasoff warning was warranted.

Later, in court, he said of this moment: “I did not feel that it was the time to do it.”

*

Tony Stone had good reason to waver over his course with Jack Garner.

Ever since the 1976 Tarasoff case first established the duty to warn, mental health professionals have struggled with issues of confidentiality and their questionable ability to predict behavior. Tarasoff left many therapists worrying that they were caught in a no-win situation. They could be liable for a patient’s violence, or they could be liable for breaching that same patient’s confidentiality.

In the Tarasoff case, two therapists treated an obsessed patient who told them of his intention to kill a former girlfriend. They informed not the girlfriend but the police, who questioned and then released the patient when he denied plans to harm anyone. Two months later, he killed his former girlfriend. When the victim’s family sued, the court found that “once a therapist does in fact determine . . . that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.”

Tarasoff applies only in California, but has proved a model and prod elsewhere around the country. A duty to warn has become part of the professional standards of care outlined by various boards and associations. It also has become the law in some states. Yet responses by state courts and legislatures have varied widely: Some have restricted the application of the Tarasoff rule, some have broadened it, and some have not addressed it in any fashion.

Georgia, as it happens, is among those that have done nothing. As Anthony Stone agonized over Jack Garner, he knew only that his state Board of Examiners of Psychologists did recognize situations in which therapists should reveal a confidence “to protect the patient, client or others from harm.”

He could choose his lawsuit. Which would he rather face, a client suing for breach of confidentiality, or widows suing after a massacre?

Early on the morning after he met Jack Garner, Stone called the referring therapist, Gonzales. He thought Garner clearly unfit for duty. He also thought they might have a Tarasoff situation. As Gonzales recalls it, Stone wanted to notify right then and there.

Gonzales didn’t. He wasn’t in the session with Stone and Garner, he didn’t know firsthand what Stone had experienced. All he knew was that Garner hadn’t told him about specific violent fantasies. In fact, to him, Garner had denied any intent to harm.

Let’s hold off, Gonzales proposed to Stone. Let me work with Garner. Let’s get him into a structured program. Based on that, we can reevaluate.

Stone embraced this notion, it being his own first impulse. Things are going to be OK, he told himself. There are issues, but we’ve got a handle on them.

*

What transpired in the two weeks after Stone saw Garner remains, even now, murky at best. Notes are scarce, memories are blurred.

It’s known that Gonzales, on that first day, wrote a letter recommending that Garner be placed on 30-day paid leave. It’s known that, as a result, Garner went on leave. The rest is open to some conjecture.

Stone says he thought he was “handing Garner off to Gonzales,” and that “something would happen imminently, in a day or two.” Yet Gonzales’ records contain no references to any contact with Garner between Aug. 31 and Sept. 11, 1995. As the days passed, Stone kept calling Gonzales, only to learn that Garner had neither come for another visit nor entered a structured program.

Things weren’t playing out as Tony Stone thought they would. Events weren’t allowing him to set aside his Tarasoff concerns.

Stone’s customary assurance began waning. One evening, he spoke of the case to his wife as they sat in their lush backyard garden, a labyrinth of ponds and paths that he’d designed and built himself. Azaleas and coleus teemed; a dense stand of pine and magnolia and Japanese maple reached to the sky. Psychology had always given Stone a way of looking at things that made sense; now it didn’t. “This is not OK,” he said. “I don’t know quite what to do.”

Jack Garner, meanwhile, was sitting at home enjoying his leave. By all accounts he was feeling better. He spent time with his 2-year-old son. He did chores around his apartment building. He cooked dinner for his wife--lots of outdoor grilling. He still had a key to all the precincts and headquarters. He also still had his own guns. “I could do anything,” he later pointed out. “But I’m just sitting there, thinking, ‘I’m glad I’m off.’ ”

Days turned into a week. Late on Sept. 6, Stone learned Garner still hadn’t entered a program. The next morning, as much to protect himself as to inform, he wrote Gonzales:

“This officer . . . verbalized recent vivid fantasies of murdering his captain and discussed vague fantasies of gunning down his chief, assistant chief and others, in part so he could be killed. It seems appropriate to notify the captain consistent with Tarasoff guidelines and possibly the chief and assistant chief. I strongly recommend that his level of care be increased. I suggested to [Garner] that full or partial hospitalization made sense to me and that I would talk to you [which I did last week].”

Still, Gonzales didn’t act. Four more days passed. Stone was rushing around--a steady stream of clients, his kids’ school plays, racquetball with friends, golf and biking with his son. At the start, Garner had only occupied his mind in a few quiet moments, driving home or late at night. Now, more and more, Garner commanded his central attention. He was there when Stone awoke in the morning. He was there shooting people whose names Stone knew.

On Sept. 11, 1995, Stone sent Gonzales a formal report, with a cover letter that betrayed his sense of desperation: “I want to reemphasize my intention to notify specific persons named by Officer Garner in reference to his homicidal thoughts; however, I wish to do this in a way that is minimally disruptive to your treatment of him. Hence, I will wait your review of this report and your next session to plan the next move. I have no choice but to warn named persons under the Tarasoff guidelines, and it may be that you have no choice either, being the recipient of my report.”

The next day, at their appointment, Gonzales told Garner about Stone’s intent to issue Tarasoff warnings. Garner grew agitated and animated. His voice rose. He’d made no threats, he insisted. He had no intent to act violently toward himself or others. He and Stone had only discussed hypothetical situations. He’d be hung out to dry by the department if anyone issued warnings.

Gonzales urged Garner to enter a structured program. Tony Stone will feel better then, he said. Tony Stone might not follow through.

Garner consented. Gonzales called a psychiatrist, Dr. Jeffrey Flatow, to arrange the necessary admitting appointment. Flatow could see Garner in two days--on Sept. 14.

After Garner left, Gonzales punched in Stone’s number. “Good news,” he said. “Jack has agreed to go into a program.”

Stone celebrated. Suddenly the world was a lot cleaner, a lot simpler.

Or so it seemed. Not until he was driving home from Gonzales’ office did everything hit Jack Garner squarely in the face.

He’d overheard Gonzales on the phone to the admitting people using the word “homicidal.” He didn’t believe that’s what he was. Yet his therapists did. Stone and Gonzales obviously had been doing a lot of talking together, not including him.

That night, Garner shared his concerns with his wife. “Something’s not kosher,” he said. “They’re setting me up for an involuntary commitment.”

*

It’s most likely that Tony Stone learned late on the morning of Sept. 14 that Garner had canceled his 3:30 p.m. appointment with Flatow. It’s also possible that Stone learned then that Garner intended to terminate his relationship with Gonzales.

Whatever the exact timing, on this morning Stone saw a crippling cloud of ambivalence evaporate. Now he didn’t have a choice: He and Gonzales had lost the ability to control the situation, to control Jack Garner. Stone had to act, had to give the warnings.

Yet still he paused. For one last confirmation, he called the law firm that provides legal advice to members of the Georgia Psychological Assn. Yes, a lawyer there advised, you have an affirmative duty to warn.

Sitting in his office, Stone reached for the phone. It felt sort of like diving into cold water, yet it wasn’t hard now, it wasn’t a struggle. At 4:07 p.m.--37 minutes after Garner failed to show for his appointment--Stone made his first call, to Capt. Mike Cowart. At 4:30, he made his second, to the Gwinnett County police chief. At 3 p.m. the next day, he called the assistant chief.

The Police Department responded with dispatch. Within hours, Chief Carl D. White wrote Garner, ordering him “to remain on leave.” Soon after, a sergeant arrived at Garner’s home to seize everything from his badge to his battery charger. Weeks later, White, rejecting recommendations from Garner’s new therapists to take him back, instead offered a job at the county pound.

There, Garner lasted just four months before getting fired. He eventually moved to Savannah, where he now drives a truck, delivering pharmaceuticals each night over a 400-mile route. He makes half his police salary, with no benefits. “After a 31-year police career,” he asks, “what else am I going to do?”

*

When Garner vs. Stone came to trial, lawyers, jurors and judges found themselves in midair, creating rules on the come, just as Tony Stone had. All the relevant case law involved doctors who failed to warn, not one who did warn. “A case of first impression,” the lawyers call it.

Stone won every battle along the way.

Garner’s attorneys first asked for summary judgment, arguing there was no Tarasoff provision in Georgia code, so no exception to confidentiality. The judge turned them down. Then they argued that if the judge was going to recognize a Tarasoff rule, he should tell the jury it requires a specific threat and imminent danger. Again the judge turned them down. All you need to violate confidentiality, he essentially ruled, is a reasonable chance of harm.

Stone, though, took a few hard blows inside the courtroom. The opposing attorneys and expert witnesses pointed out that Stone had seen Garner for just one session, with no follow-up, not even a call before issuing the warnings. They pointed out that Garner described fantasies, not threats; that Garner hadn’t been Stone’s patient; that Garner had been feeling much better since going on leave. Garner didn’t represent imminent danger, two therapists suggested, and nothing indicated he would ever become violent. “Grandstanding,” one lawyer called Stone’s conduct; “unbridled arrogance.”

In the end, these criticisms weren’t what cost Stone. Despite the therapist’s possible missteps, lawyers and jurors alike agree they would have allowed him his clinical judgment if he’d reached it right away. Stone’s two-week delay was his undoing.

One of Garner’s attorneys, William G. Quinn III, said: “If Stone had issued his warnings on the first day, we’d have no case.”

Instead, Stone, recognizing ambiguity, wavered. That left him obliged--at least by the lawyers--to point to an intervening act that changed the equation, that drove him finally to act.

It’s when we lost control, Stone claimed. It’s when Garner canceled his hospital appointment and terminated Gonzales.

Courtroom testimony, however, didn’t serve Stone well here. What Gonzales said on the stand obscured just when Garner terminated him--before or after Stone began making his calls. Stone’s letters to Gonzales didn’t help either: They made clear he felt compelled to issue Tarasoff warnings days before Garner broke relations.

That Stone had struggled with ambivalence for two weeks was obvious. So was the fact that the events of Sept. 14 provided a final impetus. Yet in the courtroom, this untidy tale got squeezed between two therapists’ poor record keeping and the exacting rules of law.

Gonzales, for one, was stupefied: “The way psychologists think and lawyers think is entirely different. Human behavior is just more complex than the legal system or written laws. What goes on in a courtroom is just not a rational process, though it tries to appear rational.”

Quinn had his own interpretation: “I think Stone just thought on it some more and changed his mind. Over time, he stewed. He should have just said that. It would have worked.”

The DeKalb County jury ended up awarding Garner and his wife $176,471 in damages and $103,779 in attorneys’ fees. Rather than try to appeal, Stone settled in early May this year: Garner got paid, and in exchange, the judge vacated the formal judgment.

That means there technically is no legal finding against Stone. Yet he remains on a national database of malpractice settlements. He also remains seized by a new reticence when he hears clients in his office voice possible threats. It all has become a matter of legal chess to him, rather than trying to do the right thing.

“It makes me feel sad and cynical,” Stone said. “It’s like I’m in this kind of crazy world that doesn’t make sense. I have obligations but no protection. I did the right thing; I would do it again. Maybe not all my I’s were dotted. But it’s not like there’s a preset method for doing this.”

In the end, Garner vs. Stone highlighted rather than resolved a difficult situation. Instead of setting legal precedent, it fueled an already confused debate, and the sense among many therapists that they had better get it right whichever way they land.

In fact, what therapists really must do, at least for the lawyers, is carefully document their reasoning process. Yet that won’t ease the underlying problem. No matter how many sessions or phone calls, therapists cannot with certainty answer Garner vs. Stone’s most haunting question: Were Jack Garner’s vivid fantasies just that, or harbinger of a coming tragedy?

Only if Garner had sprayed a volley of bullets would that be known. That he didn’t could mean he never would have. Or it could mean that Stone’s intervention had an impact.

Talking about all this one recent afternoon in Savannah, Jack Garner offered a sort of confession: “When we won the case, I actually felt sorry for Anthony Stone. It’s true, I felt sorry for him. Now tell me--is that weird?”