For hours, he holed up inside the clinic, unleashing a fusillade that wounded nine others, scattering post-Thanksgiving shoppers who had to hide inside surrounding buildings for six hours until police were able to arrest him.
To some in the community, the attack resembled an act of domestic terrorism, sparking a debate over what to call Robert Lewis Dear’s rampage even before he was taken into custody.
But the legal system may not resolve that question.
Dear faces state charges of first-degree murder, and the federal criminal code has no specific, catchall charge for domestic terrorism. Federal prosecutors bringing charges for ideologically motivated violence generally turn to other statutes — such as those for firearms, explosives, hate crimes or murder — to cover offenses that could arguably be labeled as terror. The punishment may be the same, but often without the branding more typically associated with international terrorism.
“There has long been some interest in defining acts of domestic terrorism as terrorism. It’s become quite a partisan issue,” said William Yeomans, who spent more than two decades in the Justice Department’s Civil Rights Division.
But given the number of laws already available to federal prosecutors, he added, “Whether it’s domestic terrorism or not, it doesn’t really matter.”
Police have refused to detail a motive in the Friday killings of one police officer and two civilians at a Planned Parenthood clinic in Colorado Springs, though one law enforcement official said Dear said “no more baby parts” during rambling comments after his arrest.
Dear used a rifle in the shooting. He also brought other firearms and ammunition, according to a law enforcement official with knowledge of the case who was not authorized to talk publicly and did so on condition of anonymity.
The Justice Department has said it’s reviewing the case. Federal officials have the option of filing charges, but they haven’t said whether they will do so. Among their potential avenues is a 1994 law known as the Freedom of Access to Clinic Entrances Act, which makes it a crime to injure or intimidate abortion clinic patients and employees.
Colorado Gov. John Hickenlooper has called the killings a “form of terrorism” and Planned Parenthood has said witnesses believe the gunman was motivated by opposition to abortion. But Dear has been described by acquaintances as a loner who once gave neighbors anti-Obama literature but never any indication he would target a clinic.
Colorado Springs Mayor John Suthers, a former U.S. attorney, said Colorado laws can ably address the shooting. Federal law defines domestic terrorism as dangerous acts that take place inside the U.S. intended to intimidate the public or coerce government policy or conduct — a description meant to encompass, among others, anti-government anarchists, white supremacists and animal-rights activists.
In the 1995 Oklahoma City bombing, for instance, Timothy McVeigh was charged with conspiring to use a weapon of mass destruction, malicious destruction of federal property and the murders of law enforcement officials. A Florida man in 2010 was sentenced to 10 years in prison on charges of arson and damaging a reproductive health facility after firebombing an abortion clinic.
While the Justice Department consistently charges individuals who look to join organizations like the Islamic State group with providing material support for a foreign terror organization, there’s no comparable statute for prosecuting domestic crimes motivated by extremist ideologies and no catchall “domestic terrorism” charge or offense in the federal criminal code.
That lack of clarity can make it hard to count how many domestic terror prosecutions there have been, or differentiate that crime from other illegal activity, according to a 2013 congressional report.
“Individuals considered to be domestic terrorists by federal law enforcement may be charged under nonterrorism statutes, making it difficult to grasp from the public record exactly how extensive this threat is,” the report said.
The issue arose most recently in July when the Justice Department brought federal hate crime charges against Dylann Roof in the massacre a month earlier at a black church in Charleston, South Carolina.
Asked about the absence of domestic terrorism charges, Attorney General Loretta Lynch replied, “Well, as you know, there is no specific domestic terrorism statute.” But she did describe hate crimes as “the original domestic terrorism.”
The Justice Department in the last year has repeatedly stressed that it takes domestic terrorism as seriously as it does international terrorism. Last year, it revived a domestic terrorism task force that had fallen into disuse after the Sept. 11, 2001, attacks as the government shifted focus to international terrorism. More recently, officials appointed a new domestic terrorism counsel to coordinate the flow of information.
Heidi Beirich, director of the intelligence project at the Southern Poverty Law Center, said Dear “should be charged with crimes that take him away forever” and that the federal government has many tools to do just that.
But, she added, “I think it’s very important for the government to call a terrorist, a terrorist. I think a reluctance to do that is a terrible thing.”