In Las Vegas, more than 50 people are dead, and perhaps hundreds of others have been injured, in the deadliest mass-shooting attack in American history. Stephen Paddock, a 64-year-old Nevadan believed to be the lone gunman, fired upon attendees of the Route 91 Harvest music festival from the 32nd floor of the Mandalay Bay Resort across the street. He killed himself before police reached him.
As we begin to process what has happened, it is important to remember — as we have learned from too many of these incidents — that initial reports are often wrong. We must wait for investigators and responsible journalists to do their work before we can have a clear picture of what happened.
On that score, news reports this morning are already referring to this atrocity as a “terrorist attack.” And that was even before the Islamic State jihadist organization claimed responsibility for the attack, a claim that has just been reported by the Washington Examiner. ISIS offered no proof of its assertions that Paddock was a recent convert to Islam and had carried out the massacre on the terror network’s behalf. Again, we cannot assess it until the investigation unfolds.
Clearly, Paddock did terrorize a community, particularly an event attended by 22,000 people, at least hundreds of whom he put in mortal peril.
Does that make him a terrorist? Let’s put the unverified ISIS claims aside. If Paddock was a lone gunman acting independently and not under the influence of any organization or ideology, the answer to the question may depend on which law we apply — the federal penal code or Nevada’s criminal law.
We’ve recently had occasion to consider federal terrorism law in connection with a discussion over whether the violent “Antifa” movement should be legally designated as a terrorist organization. Under the U.S. penal code (section 2331(5) of Title 18), a violent act meets the definition of “domestic terrorism” if the actor was seeking:
(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.
Many (perhaps most) mass killings will meet this test. Plainly, shooting at a crowd is an act of intimidation. But as the word “coerce” (also in that first clause) implies, the federal terrorism statute speaks to intimidation or coercion of a civilian population toward some identifiable objective. This kind of intimidation is easy to make out when the aggressor is a jihadist, whether associated with an outfit such as ISIS or merely “inspired by” sharia-supremacist ideology (which seeks the imposition of sharia law and to force changes in American policy). Establishing such intimidation is also straightforward when a group with a radical political agenda, such as Antifa, is involved. It is more difficult, though, when we are dealing with a lone gunman.
As we pointed out regarding Antifa, most law-enforcement is done at the state and local level. Thus, what the state criminal code says will often be critical. Nevada’s code has a more expansive definition of terrorism than does federal law. Under the Nevada statute (NRS 202.4415), an “act of terrorism” is
any act that involves the use of attempted use of sabotage, coercion or violence which is intended to (a) cause great bodily harm or death to the general population; or (b) cause substantial destruction, contamination or impairment of (1) any building or infrastructure, communications, transportation, utilities or services, or (2) any natural resource or the environment.
Note the subtle difference: Federal law focuses on the purpose of the violent attack; Nevada law homes in on the violence itself — the intent to cause great bodily harm or death on a mass scale, regardless of whether it is done in furtherance of a particular cause.
The braying of ISIS cannot be dismissed, but neither can it be credited at this point.
For now, we know very little about Stephen Paddock. As the Clark County sheriff, Joseph Lombardo, has explained, “We have no idea what his belief system was.” Fox News is hearing from federal law-enforcement sources that he was known to local authorities in Las Vegas, but police in Mesquite, where he lived, say he had no “run-ins” with authorities there. The braying of ISIS cannot be dismissed, but neither can it be credited at this point.
Still, unless we learn that Paddock had mental problems severe enough to call into question his capacity to form criminal intent, it seems clear that he was a terrorist under Nevada law. We may need to know more before we can say he was a terrorist under the federal definition.
That he has terrorized a community, and all of us who are following the aftermath of his savagery, there is no doubt.