Robbins: What constitutes domestic terrorism? | VailDaily.com

Robbins: What constitutes domestic terrorism?

Editor’s note: This is the first column of a two-part series.

The latest paroxysms of gun violence in America beg the questions of what comprises domestic terror and what constitutes a hate crime.

In this column, let’s tackle domestic terror. In the next, we’ll parse out what composes the legal construct of a hate crime.

The recent slaughter in El Paso appears to have been deliberate in wreaking murderous havoc and causing widespread panic. In specifically targeting Hispanics and authoring a hateful “manifesto,” it seems clear that the alleged gunman’s motive was to intimidate, to influence policy, and — in a twisted manner tumbled in a tortured mind — to be “political.”

Specifically, the alleged gunman declaimed that the violence he was about to commit, and 19 minutes after his posting his online screed did commit, was meant to curtail what he perceived to be (parroting the President’s inflammatory rhetoric) an “Hispanic invasion of Texas.” More, it detailed a plan to separate America into territories by race and warned that white people were being replaced by foreigners.

There can be little doubt that the gunman’s shrill pronouncements were inspired by the twin motivations of hate and a blood-chilling call for social change. To make his point, the accused gunman traveled more than 10 hours, killed 22 people and injured more than another two dozen, most selected for a bullet solely by the color of their skin.

Chances are, however, that the gunman’s killing spree will not be charged as a crime of domestic terrorism.

Why not?

Although the crime has all the hallmarks of homegrown, racially-motivated terrorism, at law, “domestic terrorism” is much like a disease without a cure. Yes, we can name it — and we know it when we see it — but, for now at least, we lack the tools to cure the illness or excise the lesion.

Stated simply, there exists a domestic terrorism definition under federal law, but there are no prohibitions against acts of domestic terrorism. It’s defined but there no penalties subject to it. 

Unlike foreign terrorism where the government may designate overseas groups like ISIS as “foreign terrorist organizations,” and makes it a federal crime to offer such groups “material support,” the First Amendment stands in the way of treating groups based in America the same way.

In short, federal agencies are hamstrung because much of the rhetoric that is espoused by domestic hate groups shades beneath the protective umbra of the First Amendment.

Why, you may ask, does it matter? After all, this gunman, and others like him, will face the full thunder of the law. Those convicted of politically-motivated murder will likely spend their lives in prison or face the death penalty.

The answer is straightforward: if domestic terror statutes mirrored those emplaced for foreign groups, then bringing terrorism charges against them could widen the scope of an investigation, potentially implicate additional suspects (including those who may have provided financial or other support), and perhaps bring us closer to the seed from which the violence sprouted. In so doing, the hope would be that we could unearth it by its very roots.

How it’s defined

The definition may be found at 18 U.S.C. Section 2331 (5) which provides that the term “domestic terrorism” means activities that: (A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; (B) appear to be intended; (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping; and (C) occur primarily within the territorial jurisdiction of the United States.

In the El Paso case, as in many others that have come before it, all the boxes appear to be checked. Like them too, however, such as the one at the Tree of Life Synagogue in Pittsburgh that left 11 dead, while the act may be labeled as domestic terrorism and hit all the same notes, it’s unlikely that it will (or can) be prosecuted as terrorism.

Law is always an act of balancing. Think of Lady Justice and her scales held out before her. Here, the balancing to be done is between evil and free speech, between anarchy and freedom. Upon which scale one places his or her thumb can be endlessly debated. Nonetheless, while the debate rages on, the simple fact remains that while the El Paso gunman will likely be prosecuted to the umpteenth degree that the law permits, it is nearly a sure bet that among the charges will not be numbered domestic terror.

In the next column, we will look at hate crimes which are of a distinct and different species entirely.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.