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. 

Gun deaths told by the numbers*

The thesis for this OpEd is “hold your horses,” gun crime is a far more complex beast than most want to recognise.

From Colorado Springs to San Bernardino mass shootings have continued to make headlines and “memes” floating around social media.

Pundits and politicians have given sound bite solutions to America’s homicide and mass-shooting problems, yet the numbers reveal a far more complex universe, worthy of public analysis.

The latest reportable numbers reveal:

• 21,175 suicides by firearms[1];
•  8,438 murders by firearms[2];
• 1,107 people killed by police using firearms[3];
• 606 unintentional/accidental deaths by firearms[4];
• 31,326 total deaths in the United States during a recent year.[5]

As horrifying as these numbers appear, the U.S.'s murder rate has been declining from a high watermark of nearly 10 out of 100,000 in 1991 to less than 4.5 in 2013.[6] Comparatively speaking, researchers estimate that 18.5 mothers died for every 100,000 births in the U.S.[7]

The total number of suicides by all means was 41,149.[8] Since 2005 Americans taking their own lives has been on the rise, with 12.6 out of 100,000 falling victim to suicide.[9]

The rate of homicides involving a firearm decreased by 49% between 1992 and 2011,[10] though firearms remain the instrument of choice for roughly 67% of murders, the other 43% accomplished their lethal act with some other ‘tool’.[11]

Unintentional or accidental deaths caused by firearms, seems the easiest for society to reduce by pushing more gun safety education. Unfortunately Americans as a whole are not the most safety prone. The Center for Disease Control reports that 130,557 Americans died in 2013 as a result of accidents or unintentional injuries.[12]

Many American’s greatest fear is being the victim of a deranged perpetrator’s shooting rampage, yet the Department of Justice reports that 95% of all homicides in the U.S. involve only one victim.[13] This means 0.23 out of 100,000 will be victims of a mass murder, which is a fairly low rate in direct proportion to the media coverage.

The reality is the victim will more likely than not know their murderer. With certain exceptions, homicide is not committed by an unknown person to the victim: 25.5% of male victims and 11.9% of female victims were killed by complete strangers. Compared with 46.2% of male victims were killed by a friend or colleague, and 41.5% of female victims were killed by an intimate partner.[14]

Is homicide a male problem? The latest trends show: 68% of all homicides had a male offender and a male victim. Shockingly, 98% of all mass shootings were committed by males[15]; 94% of all gang related murders were male victims; 90% of drug related murders were male victims; and 79% of felony murders involved a male victim.[16]

In only 21% of homicides was there a male offender and female victim; 9% involved a female offender and male victim; and lastly just 2% of all homicides involved a female as both the perpetrator and victim.[17]

A mass shooting is defined as four or more people shot in one event, whereas a “murder spree” or “mass murder” is when more than one person was killed during the same occurrence.[18] Legally speaking, these distinctions are used as aggravating factors to increase the severity of the penalty.

According to the shootingtracker.com, mass shootings have declined from 363 in 2013 to just over 300 for the current year.[19]

One commonly cited precedent to follow is that of Australia. Following the 1996 school shooting on the Island of Tasmania, the government seized approximately 650,000 firearms. While suicides by firearms declined significantly, homicides by guns has been a hard statistic to determine since there were so few homicides in Australia before the ban.[20]

The lesson from down under is that a solution that only focuses on the tool and not on culture, education, regional values, crime, or economic triggers misses the big picture.

What is the take-away? Society must decide if attacking the ‘tool’ used or addressing the underlying causes is more important. Such underlying causes include: mental health (and legislative cuts to funding), long-term male joblessness (which leads to crime), and gang and drug related activities (which increase murders). There are no simple solutions, only intelligent choices.

Matt Soper is a resident of Delta County and alumnus of Colorado Mesa University, holding law degrees from The University of Edinburgh and the University of New Hampshire. Contact the author at matt.soper@alumni.law.unh.edu.

*M Soper, "Gun deaths told by the numbers." Commentary. The Daily Sentinel, Grand Junction, Colo. 6 December 2015, p. 7B.

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[1] “Suicide & Self-Inflicted Injury.” Center for Disease Control. U.S. Department of Health & Human Services, 2015. Web, . 6 October 2015.

[2] “Murder 2013.” Uniform Crime Reports. U.S. Department of Justice, Federal Bureau of Investigation, 2015. Web, < https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/tables/table-20/table_20_murder_by_state_types_of_weapons_2013.xls>. 6 October 2015.

[3] “2014 Data.” Killed by Police. Killed by Police, 2015. Web, . 6 October 2015.

[4] WISQARS Injury Mortality Reports, 1999-2010, supra note 1.

[5] Estimated total number of deaths for 2014 involving firearms. See FBI crime reports, CDC database, & the website killedbypolice.net. 1 December 2015.

[6] “Murder Rate 1970-2011.” Murder Rates. Death Penalty Info, 2015. Web, < http://www.deathpenaltyinfo.org/murder-rates-nationally-and-state>. 6 October 2015;  “Crime in the U.S. 2013.” Uniform Crime Reports. U.S. Department of Justice, Federal Bureau of Investigation, 2015. Web, < https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/violent-crime/murder-topic-page/murdermain_final>. 6 October 2015; also see: “The Nation’s two measures of homicide.” DOJ. Web, . 6 October 2015.

[7] “Maternal deaths in childbirth rise in the U.S.” The Washington Post.

[8] Suicide & Self-Inflicted Injury. Op. cite.

[9] “Facts & Figures.” American Foundation for Suicide Prevention. American Foundation for Suicide Prevention, 2015. Web, . 6 October 2015.

[10] “Homicide in the US known to law enforcement.” Bureau of Justice Statistics. U.S. Department of Justice. Web, . 6 October 2015.

[11] “Murder 2013.” Uniform Crime Reports. FBI, 2015. Web. 6 October 2015.

[12] “Mortality: accidents & unintentional injuries.” Center for Disease Control. U.S. Department of Health & Human Services, 2015. Web, . 6 October 2015.

[13] “Homicide in the US known to law enforcement.” Bureau of Justice Statistics. Web. 6 October 2015.

[14] “Homicide Trends in the United States, 1980-2010.” Bureau of Justice Statistics. U.S. Department of Justice. Web, . 6 October 2015.

[15] “Why Mass Killers Are Always Male.” Time. Web, . 6 October 2015.

[16] Homicide trends. Op. cite.

[17] Homicide trends. Op. cite.

[18] “2014 Raw Data.” Mass Shooting Tracker. Shooting Tracker, 2015. Web, . 6 October 2015.

[19] “2013-2015 Raw Data,” Mass Shooting Tracker, Shooting Tracker, 2015. Web. 2 December 2015.

[20] Ehrenfreund, Max. “What liberal don’t want to admit about gun control,” Wonkblog. The Washington Post 9 October 2015. Web. < https://www.washingtonpost.com/news/wonk/wp/2015/10/02/what-liberals-dont-want-to-admit-about-gun-control/> 2 December 2015.

Murder rate way down, unsolved murder rate way up*

As unbelievable as Hadiya Pendleton’s ruthless murder, less than a mile from President Obama’s home in Chicago, is the reality that only 66% of those who murder are ever brought to justice. Pendleton’s murderer continues to remains at-large.

Marred by the mass-shootings of 2012 was America’s statistical achievement of seeing the lowest murder rate in the past 50 years. Hidden by the smoke of the gun debate is the disturbing reality that unsolved murders are nearing an all-time high.

Pendleton was murdered a mile from Pres Obama's home.

In 2011, according to the US Department of Justice, the murder rate was 4.8 per 100,000 people, which is contrasted to the 1980 high-water-mark of 10.2 per 100,000. It is estimated that after non-culpable homicide cases for 2012 are wound-up, the statistic will be around 4.6 – the rate hit back in 1963.

When graphed on a chart, the national murder rate looks like a bell-curve, with murders steadily increasing from 1960 to 1980 and then decreasing ever since. The lowest murder rate during the past 100-years was in 1957 – there were 4.0 per 100,000. If society does nothing, the projection is such that the US will near the 4.0 mark in a few years.

Vice President Joe Biden, outlined nine proposals for reducing homicides, which include: requiring background checks for all gun sales, banning assault weapons, limiting ammunition magazines to ten rounds, providing tax dollars for gun violence research, school emergency preparedness, and mental health coverage. Each recommendation noted that ‘no single law, or even a set of laws, can prevent an act of violence.’ Yet none focus on apprehending perpetrators.

The US has serious problems, for example, from 2011 to 2012 murders in Chicago increased by 38% to a devastating 506. Pendleton’s murder marks number 42 for 2013. By contrast, 418 people were murdered in New York City last year and seven so far have been murdered in 2013.

According to the UNODC, every US Territory, over the past decade, has seen a general increase in murders. Puerto Rico has the highest murder rate at 26.2 per 100,000 people. A record breaking 1,136 murders occurred in 2011 alone. Yet, Puerto Rico boasts twice as many police officers per capita as any US state.

Shockingly, only 25% of the murders in Puerto Rico result in the police apprehending the culprit. This was the case in New Orleans in 2010. Last year, homicide investigators improved this number to 39%, and were able to reduce murders by 3%. It is unfathomable that over half of the 193 murders during 2012 resulted in an accused being brought before the courts.

From 1980 to 2008 nearly 185,000 homicides went unsolved in the US, according to a Scripps Howard News Service study. Some cities, like New Orleans, have low murder clearance rates. Meaning the police were able to present the court with an accused. Others, like Washington, DC, have nearly doubled their success rate to a laudable 96%. Nearly 6,000 homicides go unsolved every year in the US. A national average of 66% is unacceptable.

While the Biden working group and the emotions of the nation cling to media images of recent shootings, a larger problem is law enforcement’s inability to bring more suspects before the courts.

If America truly cares about justice for victims’ families, society needs to invest resources to bring perpetrators to justice. Sophisticated investigating techniques and the quashing of minor criminal offences that are working in Washington, DC and New York City should be used to help municipalities like Chicago and New Orleans and territories like Puerto Rico.

When does society begin the conversation of addressing low murder clearance rates? Society needs to move beyond looking at the sensationalizing effect of recent mass shootings and see the big picture.

The US murder rate is at a 50 year low and dropping, despite recent outliers in the data. Concern, which should be sounding alarms, is the low national average of solving these murders.

To quote former President Bill Clinton, “There is nothing wrong with America that cannot be cured by what is right with America.” The US has the knowledge and the resources to better solve homicides; there is void of political will power. It is time to implement successful techniques to bring murderers to justice.

If society truly cares about tackling murders, the debate needs to be about unsolved crimes, supporting local law enforcement, and not about the implementation devices (eg guns) used to commit the offence. 
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*M Soper, Murder rate way down, unsolved murder rate way up, OpEd, Western Slope Watchdog 17 February 2013: 4+ <http://westernslopewatchdog.com/2013/02/murder-rate-way-down-but-unsolved-murders-way-up/> accessed 18 February 2013