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. 

Public law: Judges v Legislators

It wasn't until my jurisprudence class this year that I realized that the criticism of 'activist judges' is not actually as accurate as the term may suggest. At the Supreme Court level, judges tend to be more politicians and fewer jurists, as their decision creates a binding precedent which the lower courts are bound to follow. If the legislature deems the decision wrong, they have the ability to change the law, but the legislature process and multiple interests may make that nearly impossible, as we know.

At the lower level courts, judges, I'll argue, are actually more representative than legislators, as they see regular people every single day. Decisions made in courts directly affect the lives of the individuals and do not require the implementation of the bureaucracy. A judge in a lower court is bound under the law and the arguments set forth by the two sides.

I've been reading a text on piracy from the US Naval War College and there is a great summary on how our founding fathers left a lot of leverage and digression to the lower courts and knew that the supreme court was limited by the executive's willingness or unwillingness to implement a decision - as FDR illustrated, a decision out-with the agreement of the president may lead to packing the court by diluting the majority which ruled against the White House and Congress.

The counter argument is that legislators are more democratically accountable as they are elected by the people they represent, whereas judges are removed from the electoral process. Though in the many American states the Missouri Plan for selecting judges is used, whereby a judge is nominated by a judicial commission, selected by the state’s governor and confirmed by the state senate, then held up for a retention election every few years to ask the people if the judge is performing the duties charged under the constitution and laws of the state.

Prima facie, it is difficult to counter the argument that perhaps judges could be ‘closer’ to the people than legislators. Legislators are elected by their constituents for a prescribed term. Whereas judges are unelected, appointed for life tenure and they do not respond to the people in any direct way. The challenge to a representative democracy is that unelected individuals can overturn the decisions of an elected body, and therefore challenge the will of the people.

Legislators will often not contemplate the constitutionality of a proposed bill, but discuss the political reasoning or popular logic in the arguments debated in the committee rooms and on the floor of the assembly. At the turn of the 21^st Century, many members of the US Congress voted for campaign finance reform even though it was thought to violate the First Amendment of the US Constitution. The Supreme Court was almost set up for political failure as the decision was to (a) uphold the will of Congress and thereby the people or (b) uphold the validity of the US Constitution and the social contract which congress and the people are bound. The Court held the latter and was criticised for crafting ‘bench made law’ and also for ‘judicial activism’ and undermining the people’s elected representatives.

The British Parliament is supreme and therefore can do ‘whatever the hell it wants, whenever it wants’. The British Supreme Court (formerly the Appellate Committee of the House of Lords or simply, the House of Lords), cannot strike down an Act of Parliament for being unconstitutional, as the supremacy of parliament means the legislature and therefore the will of the people is absolute and cannot be undermined by the constitution and the supreme court, both of which are granted authority from parliament. The concept of judicial review is different in the America, as the US Constitution is regarded as ‘higher law’ and all other law is subordinate. Acts of Congress, case law, and regulations would all be subordinate to the US Constitution and therefore classified as ‘normal law’ or ‘ordinary law’. The US Constitution is the supreme law of the land. A constitution usually seeks to define the relationship the institutions of government, the relationship between the individual and the state, and provide limits on the power of the state, along with setting forth the goals and principles of the state, usually found within the preamble.

Judicial review by its nature undermines popular will, as all or part of a statute, passed by the legislature and given the force of law by the executive, can be declared ultra vires by a court, and struck down as unconstitutional. However, popular will in legislative terms is the support of the majority. This means that a minority in civil society may be largely unrepresented.

In Brown v Board of Education of Topeka (1954) 347 US 483, the US Supreme Court overturned their earlier decision of Plessy v Fergusson (1896) 163 US 537, which had upheld the post-Reconstruction (1877) doctrine of ‘separate, but equal’ enshrined in ‘Jim Crow’ laws, such as rules segregating public schools (Cumming v Richmond County Board of Education (1899) 175 US 528) in the American South as being within the ambit of the Constitution. The Court quickly followed the Brown precedent by holding segregation based on race within public spaces to be a violation of the Equal Protection Clause of the 14^th Amendment to the US Constitution. Many US States tried to argue the 14^th Amendment only applied to Federal and not individual state citizenship (the Slaughter-House Cases (1873) 83 US 36). As Brown illustrates, nothing happened for the next fourteen years in regards to segregation, mainly due to a violent backlash from Southern states who claimed the Court was circumventing the democratic authority of the legislature. It was the legislatively crafted Civil Rights Act 1964 which finally brought an end to racial discrimination.

The function of the democratic accountability in the courts is to interpret the constitution in respect of popular opinion of the people. They filter public opinion through their decisions to interpret the constitution in consistency with public opinion. Judges interact with the public on such a regular basis that the knowledge of popular opinion and arguments presented is known and able to be effectuated through the decisions and judgements of the court. This school of thought is embodied by the American Realist movement, which began with US Supreme Court Justice Oliver Wendell Holmes in the early 20^th Century. 

If all law is a product of ‘society’, can we nevertheless imagine a society that does not produce any law?

It is strange, if not downright hard to imagine a society without law, as the idea of legalism – the notion of there being a virtue in regulating societal behaviour through a system of expressly structured rules is a hallmark of Western civilization. German sociologist and philosopher, Max Weber (1864-1920), expressed an interest in informal methods of social control and stated, “Judicial formalism enables the legal system to operate like a technically rational machine. Thus it guarantees to individuals and groups within the system a relative maximum of freedom, and greatly increases for them the possibility of predicting the legal consequences of their actions”.[1] Weber was ambivalent about the importance of legal-rationality, as he suggested it could easily trap us in an ‘iron cage’ of meaninglessness, as administration categories with highly developed bureaucracies tend to drown-out creativity and fashion a society which is completely uniform and sterile.[2] What could be ‘strength in diversity’ becomes lost in the ‘iron cage’. The outcome of disputes are more often than not under-determined by the law, thus the appearance of predictability becomes merely a façade.

A world without strangers would seem conducive to a ‘society that does not produce any law’. This reasoning rejects rather than welcomes a rule of law. As the rule of law creates artificial bonds of legal rights between strangers in a society where inter-human relations are opaque and values are constantly subjugated to conflict and dispute. In this reasoning it does not seem out of question to consider whether law might be dispensable. During the early days of the Christian Church, believers were admonished about resolving disputes among fellow followers in pagan courts.[3] This scepticism of the rule of law is found in the theories of Karl Marx (1818-1883), which promulgate the elimination of law as a vehicle to class oppression. Marx argued in his early writings, The Critique of the Gotha Programme, under communism, law will ‘wither away’ following the proletarian revolution, in which the bourgeois state would be swept away and replaced by a classless society, without a need for law.[4]

Marx (i) saw law as an ideological cover for capitalism; along with (ii) being a tool of the capitalistic class to constantly suppress the working class. As (iii) a reflection on the economic base, modern Anglo-American law is highly capitalistic; the concept of juristic legal personality and limited liability in company law encourages risk and domination by business. Marx (iv) sees the law as a site of struggle between the classes. A French philosopher once said, ‘the rich and the poor are forbidden from sleeping on the banks of the river Seine’. The problem here is that telling a wealthy person not to sleep on the river banks is quite different from telling a poor person. For Marx, law is an iron fist in a velvet glove and indeed to many of us, the law tends to appear as such from time to time.

A view which seems to move from a codified or dictatorial system of law to more a convention and administrative system, was espoused by Soviet Jurist, Evgeny Pashukanis (1891-1937), who advocated a view of law as a contractual relationship, whereby all law could be explained by this contractual commodity exchange. Pashukanis wrote about law disappearing to administration; however this view was seen as too extreme a theory and Stalin had Pashukanis killed.

The weakness I tend to find in considering a society without law is more or less a practical or logistical one – such as road and traffic laws or laws which are focused on protecting the citizenry from one another. In a perfect world no laws would be necessary, nor would class, culture and race, along with religion, politics and ethnicity divide people. Two barriers would seem to be geographic land mass distances and the sheer number of people whom are scattered around the globe. Barriers seem to rise from a dearth of human mobility, but are broken down by the sharing and diffusion of knowledge. A society without law would seem more suited for a small population, whereby an organic bond of friendship and community ties the members, who share a similar set of values and morals.

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[1] G Roth and C Wittich (eds) M Weber, Economy & Society (Bedminster Press, NYC 1968) 811
[2] L Green, ‘Review: Legality and Community’ (1985) 5 OJLS 463
[3] I Corinthians 6:6-7
[4] S Moore (tr) K Marx and F Engels, ‘Manifesto of the Communist Party’ in Collected Works (vol 6, Lawrence and Wishart, London 1976)

Formalism v. Realism

In legal reasoning, two major schools of thoughts emerge: formalism and realism.

The former can be analogous to a machine, which runs with or without judges. A question is posed and an answer given. Formalism is based on legal principle, rather than the decision of judges or the courts. Ariel Bendor describes formalism as, “The thinking that underlies judicial formalism is inductive and deductive – legal principles that rationally produce, or at least should produce, a solution to the legal question being presented for judgment.”

The latter, suggests that law cannot be simply based on a system of formal rules which are unbending. Realism adds that law is made by humans and thus must have a human element. Realists give judges the power to interpret what the law should be, given the circumstances presented, and matched against stare decisis et non quieta movere and codified law.

One can argue that the realist approach gives rise to judicial activism, in the 1900s law was being heavily scrutinised in France, Germany and the United States. Many social activists began thinking that law should be something more than actions being constrained and the law saying whether or not those actions were right or wrong. Activists believed that law should include social aspects in legal reasoning. This became the group known as the American Legal Realists.

The realists attacked formalism as not being ‘fact’ specific, meaning if the rules say, “No getting off the bus, while the bus is in moving.” Does that mean there should be a strict interpretation of the rule to mean there are no precluding aspects? If the bus were moving into the sea and you jump off the bus to save your life, then are you guilty of breaking the rule? The formalist would interpret the law by way of a formal means test, whereby rules are followed, regardless of what the consequences will be, as formalism does not allow for compassionate justice and is insensitive to changing social conditions. The realist approach would opt for a substantive means test, looking at each specific case to see how the rules should be interpreted.

It appears a third way approach would be most sensible. The law has to be ambiguous enough to catch the known, unknowns. For example, if a sign in the park reads, “No vehicles in the park,” then does this mean bicycles are not allowed? Yes, as a bicycle is a vehicle. Now what about a skateboard, is that a vehicle? The more cases you have which test a law, the more certainty is brought to that rule and the area of uncertainty shrinks. A formalist fears uncertainty of judicial decisions, whereas a realist fears the law being insensitive to the particularity of situations. Law is for people and not the other way around.