I tweeted yesterday that the Las Vegas shooting was terrorism and that “No post [is] required.” Apparently mine is the minority view.
— Bradley Grey (@PozLawyer) October 2, 2017
I continue to observe the mainstream media and the President strain to avoid using that term and instead focus on the shooter’s motivation or mental health. But the answer under Nevada law is simple: this was an act of terrorism. And I do not understand why we are not calling it that.
The Definition of Terrorism under Nevada Law.
Nev. Rev. Stat. § 202.4415(1)(a) states that an: “‘Act of Terrorism’ means any act that involves the use or attempted use of sabotage, coercion, or violence which is intended to cause great bodily harm or death to the general population.” And a “terrorist” is “a person who intentionally commits, causes, aids, furthers or conceals an act of terrorism or attempts to commit, cause, aid, further or conceal an act of terrorism.” N.R.S. § 202.4439.
As I read the statute, the elements of the crime are:
- Act of [in this case] violence
- Intent to cause great bodily harm or death
Both elements are easily met here. The act of violence is obvious: the shooter used modified automatic-style weapons to fire nine rounds per second into a crowd of people attending a country music concert. I could do a search on Westlaw or Lexis Nexis for Nevada case law concluding that firing a gun into a crowd of people constitutes an “act of violence,” but that hardly seems necessary. No judge would dispute it, and no lawyer intent on keeping his or her license would suggest otherwise.
But what about intent?
Interestingly, the Nevada law does not require actual bodily harm or death. It merely requires the intent to make it happen. As written, accidental bodily harm, without intent, would disqualify the shooter’s act as terrorism. Some will argue that the intent element is satisfied per se because nobody would do what Stephen Paddock did without intending to do so. We can do better than that, though.
We do not need to rely on per se inferences of intent because the shooter broke two windows in his 32nd floor Mandalay Bay Hotel suite which gave him the view and access necessary “cause great bodily harm or death.”
Any prosecutor worthy of his or her job would [successfully] introduce this fact into evidence and argue to the judge or jury that the broken windows constitute the metaphorical window into the mind of the shooter and demonstrate intent. And as the perpetrator, N.R.S. § 202.4439 defines him as a “terrorist.”
So why aren’t we calling the Las Vegas Shooting terrorism?
President Donald Trump’s official statement to the nation the morning after the shooting describes the event as an “act of pure evil.” President Trump goes on to state that “[o]ur unity cannot be shattered by evil,” and “we pray for the day when evil is banished.” Nowhere does the statement even reference terrorism.
Is it because the White House Office of Legal Counsel had not yet had the time to analyze the complexities of Nevada law (or perhaps federal law)? No. It took me about five minutes to do so, and it would have taken them half that time. It is because the President was speaking in moral terms rather than the language of criminal law.
My own admittedly cynical take is this: Stephen Paddock was a white, wealthy, senior citizen of the United States. His motive is not immediately clear. He was not black, brown, muslim, Arab, or any non-white, non-Christian person. Therefore, instead of being a terrorist, he was just evil. We reserve the term “terrorist,” at least in a non-prosecutorial, morality based context, for non-white criminals, while giving white criminals the benefit of the doubt until circumstances require us to use that word.
It is time to call the Las Vegas Shooting what it is: terrorism. And it is time to call Stephen Paddock what he was: a terrorist.