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Blurred Lines: Surprise Difficulties in Criminalizing Domestic Terrorism

By Maria L. Stratienko

In late July and early August 2019, over the course of a single week, back-to-back mass shootings in El Paso, Texas, Dayton, Ohio, and Gilroy, California, stunned the United States as the newest entries in the nation’s continuing and brimming ledger of fatal mass shootings. Collectively, the three shootings claimed the lives of thirty-five victims. Sixty-four others were injured.

What distinguished this trio of attacks was not only the rapid frequency with which they occurred (the El Paso and Dayton shootings took place only 13 hours after one another), but the immediate federal law enforcement response to investigate the shootings as acts of “domestic terrorism.” Mass shootings in the United States are more frequently investigated and charged as generally-motivated acts of violence or, increasingly, as hate crimes (as in the Emanuel AME shooting in Charleston, South Carolina, or the Tree of Life synagogue shooting in Pittsburgh, Pennsylvania). However, federal investigators and law enforcement officers almost immediately announced their intention to investigate the Gilroy and El Paso shootings as acts of domestic terrorism. This trend and the decisions undergirding it are notable in large part because federal statute only provides a definition of domestic terrorism—it does not provide a penalty for its commission unless the attack is carried out with explosives or against federal officers and facilities. As such, while pronouncing such horrific events as acts of “domestic terrorism” carry weighty implications, the practical effect is de minimis: even if such events are properly classified as domestic terrorism, their perpetrators are charged with the same crimes as other mass shooters, so long as the shooting did not constitute a hate crime.

In the wake of mass shootings like those in El Paso and Gilroy, interested non-governmental national security organizations like the FBI Agents Association have called for federal legislation to cover the statutory gap and officially recognize a blanket prohibition on the commission of qualifying domestic terrorism offenses, claiming the current statutory formulation constitutes an impermissible limit on federal law enforcement’s power to respond to this threat. However, these proponents have faced pushback from civil liberties groups like the ACLU, who cite First Amendment freedom of expression concerns as founding potential law enforcement abuse of the provision. Specifically, the ACLU claims that as currently defined, “domestic terrorism” covers a range of activities that include activist campaigns from non-governmental organizations like Greenpeace and Operation Rescue; as such, criminalizing that conduct without clarifying modifications would provide a blank check to law enforcement to reshuffle their resources to target those organizations and not potential mass shooters.

Enter freshman Sen. Martha McSally (R-AZ), who in early August announced her intention to introduce federal legislation that would criminalize acts of domestic terrorism. In her discussion draft circulated pursuant to her announcement, McSally’s as-yet-unintroduced bill penalizes seven categories of offenses accompanied by an intent “to intimidate or coerce a civilian population or influence, affect, or retaliate against the policy or conduct of a government” anywhere interstate commerce occurs. 

This mens rea, which matches the ideology former Department of Justice National Security Division Director Mary McCord articulated as necessary to demonstrate the government’s seriousness about the threat of domestic terrorism, is practically identical to the definition of domestic terrorism promulgated in 18 USC § 2331(5). Thus, at present, McSally’s legislation (as well-intentioned as it is) does nothing to assuage civil liberties organizations’ concerns; if anything, the definition of domestic terrorism her proposed bill would criminalize expands those organizations’ fears by including retaliatory conduct (which many of the cited organizations engage in as part of their activist work).

Proponents like McCord have pushed back against the civil liberties community by pointing to the potential role of oversight bodies to protect against abuses. That community has responded in kind by arguing such legislation is unnecessary, largely because it is duplicative—for example, state prosecutors handling the El Paso shooting have indicted that defendant for capital murder charges, though the Department of Justice indicated it was still considering filing hate crime charges out of consideration for the shooter’s anti-Latino motivations. Many of the mass shootings that manifest as domestic terrorism are charged under some amalgamation of the statutes criminalizing hate crimes, gun crimes, conspiracies, and other violent offenses; even current senior FBI employees have said another statute is unnecessary.

All told, the blurred line between constitutionally-protected speech and impermissible ideology governed under a potential domestic terrorism criminalization statute is a matter for judicial review and parsing. In the interim, meaningful gun reform proposals and legislation continue to collect dust at legislators’ feet, and the tools available to federal law enforcement under existing statutes continue to prompt creative solutions in charging perpetrators of mass shootings following these heinous acts of violence.


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