WASHINGTON, June 19, 2016 — The horrific shooting at the Pulse nightclub in Orlando last week appears to be a hate crime. Many labeled the shooter a terrorist. Omar Mateen, an American-born Muslim, pledged allegiance to ISIL in a 911 telephone call during the attack. He also had frequented the nightclub, a known gay spot, and had tried to contact gay men on dating apps. The theory is he was sexually conflicted.
There is often overlap between what is a hate crime and what is a crime of terrorism.
The distinction is found by looking at who was targeted and why. Crimes based on who the victims are generally are hate crimes, while crimes intended to send a message are generally considered acts of terrorism.
The 1999 Columbine High School shooting was first seen as revenge against school bullies, but later seen as an effort to send a message “bigger than Oklahoma City.”
Hate crimes can be both Federal and state offenses. Five states do not have hate crime laws: South Carolina, Georgia, Arkansas, Wyoming and Indiana. Georgia actually passed a hate crime law, but that law was later overturned by its Supreme Court as unconstitutionally vague.
Terrorism itself is a Federal offense.
Hate crimes are typically known as “add-ons” to other charges, and for legal and common-sense reasons, are often not used. If a hate crime is charged and proven it will add punishment, often considerable punishment, to what is doled out for conviction of the other charges. An example would be adding a hate crime offense to an assault. The assault might carry a possible sentence of five years in prison. A hate crime conviction could add additional prison time, in some states, up to another 10 years behind bars.
Prosecutors often decline to bring hate crime charges because of additional complications to the case (more evidence needed, longer trial), or because a successful prosecution would add no further penalty, such as in a death-penalty murder case.
Hate crimes typically are defined in most states as those in which the attacker intentionally intimidated, harassed or harmed a victim because of the victim’s race, religion, ethnicity, sexual orientation, gender identity or expression, or disability. “Mistaken” hate crimes are also often covered when the crime was committed due to a victim’s perceived race, religion or other trait.
In Connecticut, in 2011, a Morgan Stanley investment banker stabbed a cab driver’s hand in a dispute over a cab fare. Because he uttered threats and racial slurs concerning the cabbie’s Middle Eastern ancestry, he was arrested and charged with assault and intimidation by race and bigotry. The charges were later dropped because of lack of evidence.
FBI statistics indicate that in 2014 (the latest figures), there were 5,462 hate crime incidents reported by various law enforcement agencies. The bias breakdown was:
- Racial: 47 percent
- Sexual orientation: 18.6 percent
- Religious: 18.6 percent
- Ethnicity: 11.9 percent
- Gender identity: 1.8 percent
- Disability: 1.8 percent
- Gender: .6 percent
Before the Orlando shooting last week, some of the worst hate crimes, according to AmericanPerspective.com, were these:
- June 2015, Charleston, South Carolina, shooting – nine people at an historic African American church were murdered by Dylann Roofer.
- June 2011, Jackson, Mississippi, assault by a group of white men on James Anderson. Anderson died when one ran over him with a truck.
- 1981 lynching and hanging of Michael Donald in Mobile, Alabama, by a group of Ku Klux Klan members.
- 1968 assassination of Martin Luther King Jr.
- May 1964 torture and drowning of Charles Moore and Henry Dee by members of the Ku Klux Klan in Franklin County, Mississippi.
- August 1955 murder of Emmett Till, age 14, after he allegedly flirted with a white woman.
Federal terrorism has been defined, but it is not always completely agreed upon by government agencies. The FBI and the Bureau of Prisons do not agree on the number of prisoners currently incarcerated on terrorism charges.
Domestic terrorism charges must meet three criteria. They must be:
- dangerous to human life that violates federal or state law;
- intended to intimidate or coerce civilians or government; and
- occur primarily in the United States.
Often neo-Nazi and white supremacists are charged with conspiracy, organized crime and weapons violations. A bombing attempt at a Spokane, Washington, Martin Luther King Day parade in 2011 was first described as a “domestic terrorism incident,” but was later resolved with the perpetrator pleading guilty to attempting to use a weapon of mass destruction and federal hate crimes.
Some of the worst terrorism crimes are these:
- April 2013 Boston Marathon bombing by “radicalized” Tsamaev brothers resulted in three deaths and more than 280 injuries and was perpetrated due to “extreme Islamic beliefs” over wars in Iraq and Afghanistan.
- December 2012 San Bernardino, California, killing of 14 people and injuring 20 at a shooting at a Center for people with disabilities and special needs. A “radicalized” married couple, Syed Farook and Tashfeen Malik, were killed in a shootout with police after the rampage.
- May 2010 New York City car bomb discovery (did not detonate) in Times Square resulted in a guilty plea by Faisal Shahzad to 10 terrorism and weapons charges.
- George Tiller was shot and killed by anti-abortion terrorist Scott Roeder in May, 2009. Tiller had a long been targeted by Christian Right terrorists, his clinic being firebombed in 1986.
- Timothy McVeigh’s bombing of a federal building in Oklahoma City in April 1995, killing 168 and injuring more than 600 people was predicated upon his extreme hatred for the U.S. government and was “revenge” for the Ruby Ridge incident of 1992.
- Alan Berg, a Denver talk show host and critic of white supremacists, was killed in June 1984 by members of the Order, a white supremacist group
Terrorism charges are harder to prove than regular crimes because, in part, they rely on motive and other psychological factors. Accordingly, a relatively small percentage of crimes that could be classified as terrorism are actually prosecuted as such. A Justice Department study found that cases that went forward with terror charges were less successful than those that did not include the terror charges.
Acts of terrorism include “material support” for terrorist groups and attempts to join a terrorist group.
Section 2339B, title 18 of the United States Code prohibits providing terrorists material support, including
“property, services, currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe-houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (including oneself), transportation, except medicine or religious materials.”
Attempts to join terrorist groups, even conspiring to travel to Syria and join ISIL (or IS or ISIS – whichever acronym is used) is illegal, even without ever crossing a border or leaving the U.S.
Most successful terrorism prosecutions have been against individuals supporting overseas groups like al-Qaeda, ISIL or the Islamic State.
It is impossible to get rid of all of the guns, or even any significant number of them, held by individuals residing in the United States. Gun laws can and should be made tighter, access should be made more difficult, mental health issues must be addressed, funding must be found and, clearly, punishments must be ordered.
There are three salient facts, however, that will continue to thwart all prevention efforts. First, hate is always going to exist. Next, there are some people in the world who do not care about their own lives or the lives of others. Finally, there are people who advocate, preach and teach that death to others is desirable.
I will vote for the presidential candidate who has a viable plan addressing these three facts.
Paul A. Samakow is an attorney, licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.