Legal Perspective: How many "mass shootings" are "terrorism"?

After a recent OpEd, Gun deaths told by the numbers, I was asked to examine how many mass shootings were actually at the hand of a terrorist. For this analysis I opted not to exam each mass shooting and apply the facts to the legal definition, but to look first at the broad legal definition and ask the policy question of how frequently should the term “terrorist” be used to describe mass shootings, or any shootings or violent acts toward humans that would satisfy the definition.

Looking at “mass shootings” committed by “terrorists,” the analysis, from a legal standpoint, is a bit challenging. Title 18 USC § 2331 defines "International terrorism" and "domestic terrorism" for purposes of Chapter 113B of the "Terrorism” code.

International terrorism has three characteristics: (i) involvement in violent acts or acts dangerous to human life in violation of state or federal law; (ii) appears to be intended to intimidate a civilian population, or to influence government policy by coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (iii) occur outside the territorial jurisdiction of the US, or the act transcended national boundaries.

Domestic terrorism has three characteristics: (i) acts that are dangerous to human life and violate state or federal law; (ii) appears to be intended to intimidate a civilian population, or to influence government policy by coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (iii) occurs primarily within the territorial jurisdiction of the US.

The federal crime of terrorism, 18 USC § 2332b, is an offence (i) calculated to influence or affect the conduct of the government by intimidation or coercion, or to retaliate against government action; and (ii) violates one of several statutes, including: killing or attempting to kill people at a federal facility with a dangerous weapon (§ 930(c)), and killing or attempting to kill officers or employees or the US government (§ 1114).

Many mass shootings could potentially be classified as acts of terrorism, as the definition of domestic terrorism is fairly broad. For example, both the Colorado Springs and San Bernardino shootings were acts dangerous to human life, namely the mass shooting, killing, and wounding of a group of a people. Such acts of murdering or attempting to murder are criminalized and in violation of both state and federal laws, thus satisfying the first element of domestic terrorism.

The second element which must be satisfied for the offence of terrorism is that the appearance of the act is to intimidate a civilian population or coerce government policy. An argument can be made that the act of killing or attempting to kill a group of people, especially in a metropolitan area that has sufficient media outlets to cover the act and convey the horror to the nation and world would seem to satisfy the requirement of intimidating a civilian population. As perverted as it may sound, a mass shooter could even be attempting to coerce the government to subvert the Second Amendment of the Constitution. A shooter, who knows one day an event will be the tipping point, may utilize such an act to influence governmental action, even if that action violates certain Constitutional provisions, such as right to bear arms, or the Fourth Amendments right of citizens to be secure in their persons, homes, papers, and effects and free from unreasonable searches and seizures. The key words in the second element are that the act’s appearance is to intimidate or coerce. It could be that the perpetrator’s motive was not to intimidate or coerce, but in order to satisfy the definition it is the appearance by a reasonable prudent person.

The final element of domestic terrorism is that the act took place in the territorial jurisdiction of the US. This is perhaps the easiest of the elements to satisfy. Both of the shootings aforementioned took place within the US.

While many, if not most, mass shootings could be classified under one of the legal definitions of terrorism, calling each event “terrorism” dilutes the meaning of the word. Terrorism is a strong word and should not be thrown out lightly. But when it looks like terrorism, smells like terrorism, then it probably is terrorism and the term should be used accordingly.