Published by The Lawfare Institute
in Cooperation With
I have intentionally refrained from commenting on the Orlando shootings to date, because the situation seemed so fluid—save for the magnitude of the violence and horror that one man apparently committed—and I have been able to understand so little about it. I have been struck, however, by the range of people who have seen confirmation of their particular worldviews in this horrific event, some plausibly in my view, some not:
- To the LGBT community, understandably enough, it’s about violence against gays.
- For many Latinos, a salient fact is that the victims were overwhelmingly Latino, many of them Puerto Rican.
- To those who believe our society is too heavily armed, this latest mass shooting proves they were right about gun availability.
- For those who believe our society is insufficiently armed, this latest mass shooting proves they were right about more good guys needing guns.
- For those who are anxious about foreign terrorism, the shooter’s claimed allegiance to ISIS places this on the long list of attacks and attempted attacks by ISIS and Al Qaeda and those they inspire.
- To the Trumpists and others who don’t like Muslims, it’s all about Islam more generally.
- To those who have a problem with immigration, well, the shooter is the child of immigrants from Afghanistan.
- Apparently it’s also about the surveillance debate.
- I even saw one tweet—the logic of which I admit I could not follow—blaming the incident on white supremacy.
I’m pretty sure that the shooter’s aim was not to validate anyone’s preexisting political stance.
I have my own instincts about what may have been going on here, but like everyone else’s, these are largely self-validating guesses that reflect my prior assumptions. As such, I suspect they’re not worth much.
What I do know is that this is the latest incident of murderous mass violence that, to one degree or another, defies categorization. Whenever one of these horrific incidents happens, we find ourselves embroiled in an unavailing debate about whether we’re dealing with a hate crime, an act of terrorism, gun crime, workplace violence, or something else.
Often, as in the Orlando case, very little turns on the question legally. The shooter is dead, so he’s not going to be prosecuted. State laws against mass murder are uniformly strong anyway. And so many different factors can trigger federal jurisdiction that we don’t generally see investigative barriers arising out of the boxes we put these crimes into.
To be sure, sometimes legal path dependencies do arise out of our categories. Most importantly, the criminal laws on material support for terrorist groups don’t apply to domestic terrorist organizations, only designated foreign terrorist organizations. And the law presumptively treats as terrorism those crimes committed with bombs, but does not do the same with crimes committed by domestic individuals or groups with guns. (For an excellent explication of these points, see this piece by Jane Chong.)
But the more important impact of our taxonomical confusion, in my view, is intellectual, not legal: We just don’t know what to call an incident of (a) mass murder (b) by means of a gun (c) in which motive is unclear or mixed but involves clear elements of (d) bigotry, (e) mental illness, and (f) expressions of affiliation with a foreign terrorist group. And because we don’t know how to describe it, we also don’t know what aspects of it to prioritize in responding and preventing future such events.
One interesting question is why we care? It’s a crime; it’s a tragedy; it’s big. Why do we fight over what to call it?
The reason we care, I suspect, is that human beings have an overpowering tendency to tell stories, and the choice of words to describe a crime is really a choice of narrative as to what happened. When you call what happened in Orlando an act of terrorism, you’re telling a story in which a young Muslim man was radicalized by ISIS and committed a murderous act at the behest of, or inspired by, an organization that has committed other similar murderous acts.
When you call it a hate crime, you’re telling a different story—one in which a man who grew up in a culture of homophobia acted on impulses of bigotry and hatred towards a marginalized group. When you call the crime a mass shooting, you’re telling a story about a society in which high-power guns are readily available to dangerous people with violent impulses. All of these descriptions may be true. But when you name the event, you are picking one and making it primary; and the choice of category is a choice of narrative. And it’s a choice as well of what lesson to draw from the incident.
The result is that we instinctively revert to whatever facet of the crime happens to be most salient to us. If you’re a gay or lesbian, this is an ultimate expression of anti-gay violence you have experienced, been threatened with, or feared your whole life. And that makes all the sense in the world if the shooter was, in fact, an anti-gay bigot who targeted a gay club out of hatred. (I suspect this is the truth.) It makes far less sense if he was a crazy person who attacked a place familiar to him the way, say, people sometimes violently attack their offices or places of work.
If you’re someone who has been horrifiedly expecting ISIS to do something just like this for months now, you’re going to experience it through that lens. This makes all the sense in the world too if we imagine the shooter to be someone radicalized by ISIS and motivated by the group’s efforts to reach disaffected Muslim youth. It makes far less sense, however, if we suspect that he merely glommed onto ISIS after the rampage had already begun.
If congressional inaction since Newtown and Charleston has had you helplessly anticipating the next mass shooting, that lens is going to be irresistible—but it’s a far more useful lens in a prescriptive policy sense if the shooter is crazy person (whom background checks might actually flag) than if he’s an ISIS operative (does anyone really think gun control measures are going to keep AR-15s out of the hands of organized terrorist groups?).
Finally, if you’re someone who sees human behavior through a clinical lens, you may be inclined to discount a great deal of the shooter’s supposed ideation (the anti-gay feelings and the declared ISIS affiliation alike) and see the incident as an expression of rage in search of a script and a ideational text.
But accurate taxonomy matters and it matters in a forward looking policy sense. Use the wrong taxonomy and you may end up addressing a problem that doesn’t exist and missing a problem that does.
Consider, for example, the biological world, from which our notions of taxonomy spring. Before Carl Linnaeus developed our modern taxonomy for the life sciences, the komodo dragon and the tiger had a lot in common. Both, after all, are four-legged top-level predators that eat big animals. Yet they are not closely related. One is a reptile, the other a mammal. The tiger, in fact, is more closely related to you than it is to the giant lizard. Taxonomy helps make visible that any resemblance between the shark and the orca is similarly a matter of convergent evolution, not genetic proximity.
I suspect the mass shooting by a florid psychotic with no political motivation and the mass shooting directed by an ISIS cell for political reasons are just as dissimilar as the shark and the orca. Their similarity in operation is likewise a matter of convergent evolution, not genetic proximity.
This is hard for us to see both because the law creates certain intellectual path dependencies about what to call things and, more importantly, because we have not done the intellectual work to figure out what are the kingdoms, phyla, and classes of mass violence—that is, what are the distinctions that really matter and what are merely the number of legs.
We may learn more about what drove this shooting—and thereby gain a little bit of insight into which intellectual box to put it in. Then again, we may not.
Either way, it’s worth pausing and asking ourselves whether there are better, more objective taxonomical categories for them that might garner broader agreement and offer better policy insight into how to respond to them.
I want to suggest that we should endeavor to divest the nomenclature of incidents of mass violence with the moral and policy lessons we want people to draw from those incidents. To some extent, that’s going to be impossible, particularly when there is so much we don’t know about a case that the facts will tend to support many different hypotheses.
To some extent, however, we can be more rational about our categorizations than we’re being. And we can certainly develop intellectual categories for crimes of mass violence that don’t depend on legal categories that have developed for peculiarly legal purposes. The fact, for example, that the weapons of mass destruction law is situated in the part of Title 18 that deals with terrorist crimes while murders with guns are generally not should not receive undue weight in whether and how we describe a mass shooting as terrorism.
In posts to come, I want to try to develop a better taxonomy of mass violence. My goal here is modest. It’s not to affect the law. It’s not to stake out ground on whether Obama should be doing more to fight ISIS or whether hate crimes are worse or less bad than terrorist crimes or whether we should have more or less gun control. It is simply to try to reduce the story-telling and lesson-drawing impulse from all quarters in the description of these crimes and to develop a more clinical, more Linnaean taxonomy for mass violence so that when incidents like this happen in the future, we have a more common vocabulary for describing them—one that describes more clearly what has happened and puts into sharper relief the policy options for preventing similar incidents in the future. I welcome suggestions.