Hateful mass shootings terrorize the US. So why aren’t more shooters charged with hate crimes or terrorism?

Hours after a gunman opened fire on three Atlanta-area spas last week, killing eight people, including six women of Asian descent, Anthea Butler, an associate professor of religion at the University of Pennsylvania, took to Twitter: “Let’s be clear. This is terrorism,” she wrote.

The following day, New York City Mayor Bill de Blasio called the incident “domestic terrorism” and announced a deployment of counterterrorism forces “in some of the most prominent Asian communities” of the city.

The day after, U.S. Sen. Tammy Duckworth told CBS’s “Face the Nation” the shooting “looks racially motivated to me.” For many Americas – particularly Asian Americans who have experienced increased rates of hate crimes throughout the coronavirus pandemic – the killings were clear acts of racism.

In the wake of two mass shootings in less than a week – the second in Boulder, Colorado, on Monday – Americans are once again asking a tragically familiar question: When is a mass shooting considered domestic terrorism in the U.S.? Or a hate crime? And what difference does the label make?

“It depends on who you ask,” said Erin Miller, a researcher at the National Consortium for the Study of Terrorism and Responses to Terrorism at the University of Maryland.

The terms have legal definitions that vary by state and even at the federal level. But they also have a powerful meaning to academics and the general public, Miller said. 

While mass shootings are often widely denounced as terrorism or a hate crime, a number of legal concerns can stand in the way of associated charges being filed. Some experts say the frequent lack of such charges by prosecutors is a result of institutional and systemic racism and misogyny.

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What is domestic terrorism?

Domestic terrorism isn’t a federal crime and the federal government does not have a single definition of it. There’s also no federal list of domestic terrorist organizations, such as there is for foreign groups. However, commonly cited definitions say there needs to be a political or ideological motive.

• The FBI defines domestic terrorism as “violent, criminal acts committed by individuals and/or groups to further ideological goals stemming from domestic influences, such as those of a political, religious, social, racial, or environmental nature.”
• Title 22 of the U.S. Code defines terrorism as “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.”
• The 2001 Patriot Act defines domestic terrorism as “involving acts dangerous to human life that are a violation of the criminal laws of the United States or of any State appearing to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; to affect the conduct of a government by mass destruction, assassination, or kidnapping; and occurring primarily within the territorial jurisdiction of the United States.

“Usually what identifies terrorism from a hate crime is that political motivation – a political message or goal that the actor had in that act,” said Fait Muedini, an international studies professor at Butler University in Indianapolis. “The challenge is, it’s tough to know … unless they leave behind some sort of evidence.”

Many shooters don’t leave behind a “manifesto” outlining their motives, and even when they do, the evidence can indicate conflicting motives, Miller said. “Manifestos can sort of be a mixed bag in terms of providing information,” she said.

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The gunmen in the 2019 shootings in El Paso, Texas, and Gilroy, California, for example, left evidence suggesting ideological motives, and the FBI opened domestic terrorism investigations.

In El Paso, the gunman posted anti-Hispanic writings online before killing 22 people at a Walmart. He was charged with murder, and a federal domestic terrorism investigation, as well as a hate crime investigation, is ongoing.

In Gilroy, the gunman who killed three people at the Gilroy Garlic Festival had compiled a “target list” that included religious groups, federal buildings and both major political parties, authorities said. The gunman died in the event, and the investigation into domestic terrorism is ongoing.

Because there is no federal domestic terrorism charge, the only charges that could come from such investigations would likely be hate crimes and weapons offenses. Even though the Jan. 6 riot at the U.S. Capitol was an act of domestic terrorism, FBI Director Christopher Wray told lawmakers this month, the two most common charges were assault or entering a restricted building.

That’s why some survivors, victims’ families, law enforcement officials and legal experts are pushing Congress to make domestic terrorism a federal crime.

A congressional committee held a hearing Thursday on discrimination and violence against Asian Americans following a wave of assaults that have coincided with the pandemic. (March 18)

AP Domestic

What is a hate crime?

A hate crime, by definition, includes a motivation rooted in bias, according to the Justice Department. Bias can be based on a victim’s perceived or actual race, color, religion, national origin, sexual orientation, gender, gender identity or disability. 

• The Justice Department adds: “Hate crimes have a devastating effect beyond the harm inflicted on any one victim.  They reverberate through families, communities, and the entire nation, as others fear that they too could be threatened, attacked, or forced from their homes, because of what they look like, who they are, where they worship, whom they love, or whether they have a disability.”

These crimes are usually violent and may also include threats of violence. The FBI notes hate crimes may be wholly or partially motivated by bias, but that hate alone without the addition of a criminal act is not illegal.

The self-identified white supremacist who in 2015 killed nine black parishioners at Emanuel African Methodist Episcopal Church in Charleston, South Carolina, for example, was found guilty of federal hate crime and murder charges and was sentenced to death. He was also found guilty on state murder charges and sentenced to life imprisonment.

“A hate crime is putting aside politics in the sense of governance. It’s talking about hatred of a group. That can and does overlap into politics, but somebody can have hatred towards a group without being politically motivated,” Muedini said. “A lot of times, this does overlap – a hate crime can be terrorism or vice versa.”

FBI officials called the 2016 Pulse shooting in Orlando, Florida, both terrorism and a hate crime. The gunman, who pledged allegiance to the Islamic State, killed 49 people and wounded 53 more at a gay nightclub, and most of the victims were Latino. The shooter died in the incident.

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When officials investigate an incident as a hate crime or an act of domestic terrorism, more resources may be available, punishments for convicted offenders can be increased and experts say the process caries an increased moral significance.

“There is legal difference when something is called a hate crime or terrorism. There are resources and mechanisms of accountability that are different than other crimes,” Muedini said.

Hate crimes can be prosecuted at the federal level and in almost all states. The laws vary by state as to which aspects of a victim’s identity can form the basis for bias, but race and religion are two of the most commonly found on the books.

Under federal hate crime legislation, bias-motivated violence is punishable by 10 years to life in prison, and some crimes are punishable by the death penalty.

In Georgia, which passed its hate crime law last year, there is a mandatory additional minimum two-year sentence and up to a $5,000 fine for any felony – including murder – determined to be a hate crime on top of the sentence for the felony itself. For certain misdemeanor hate crimes, the additional sentence is six months to a year and up to $5,000 fine.

While domestic terrorism isn’t a federal crime, some states have laws defining terrorism that would allow them to press charges, and state prosecutors told a Homeland Security subcommittee hearing Wednesday their laws could serve as models for federal legislation. Thestate-level definitions of domestic terrorism “vary quite a lot,” Miller said.

In Las Vegas, for example, where a gunman killed 60 people and injured hundreds in 2017, the gunman, if he had lived, could have been charged under a state law that defined acts of terrorism, including attempted sabotage, coercion or violence intended to “cause great bodily harm or death to the general population,” according to Nevada Attorney General Aaron Ford.

There’s some research suggesting many mass shootings meet the criteria to be considered domestic terrorism. A 2019 study in the Behavioral Sciences of Terrorism and Political Aggression found that mass shooting incidents fit standard definitions of terrorism to a greater degree than is often reported by government officials, academics and media outlets.

The study defined terrorism as involving a political, religious, ideological, or social motivation; intent to reach a larger audience; the motivation not involving personal monetary gain; and the manifestation of an “enemy/other.” Of 105 mass shootings in the U.S. from 1982 through 2018, the researchers determined 39% met all four criteria and an additional 43% met three of the criteria.

But the designations go beyond legal ramifications, said Brian Levin, director of the Center for the Study of Hate and Extremism at California State University, San Bernardino.

“It is one of moral and communal significance,” he said. “There’s a terroristic effect to these crimes whether it meets the data collection or prosecutorial threshold. It must be acknowledged because people are hurt and feel scared.”

Some academics, including Butler, argue all mass shootings should be considered terrorism.

“People have to think – do I go to the Walmart? Do I go to school? Can I sit in my church and pray?” she said. “We’re all living under terrorism right now, and that’s the truth of it. We have too many mass shootings, and we continue in this country to say that it’s OK.”

Contributing: Marc Ramirez, Bart Jansen, Jeanine Santucci, Jay Cannon, Joel Shannon, Elizabeth Lawrence; The Associated Press

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