How have federal officials used the term 'domestic terrorism' in other police shootings, and what legal standards govern that label?
Executive summary
Federal officials have sometimes labeled individuals involved in violent encounters with law enforcement as “domestic terrorists” in public statements and agency releases, a rhetorical move that has precedent but is legally fraught because “domestic terrorism” is a definitional, investigative term rather than a standalone federal crime [1] [2] [3]. The legal standard that governs the label comes from 18 U.S.C. § 2331 and related DOJ and FBI guidance: the conduct must be dangerous to human life, violate criminal law, and appear intended to intimidate or coerce a civilian population or influence government policy—criteria that are difficult to establish quickly in a police shooting [3] [4] [5].
1. How federal officials have used the label in past shootings: blunt public messaging, selective application
Federal agencies and senior officials have used “domestic terrorism” in press releases and public statements to describe alleged attacks on agents or facilities, such as DHS characterizations in recent immigration-enforcement shootings and in the months-long campaign descriptions tied to operations like “Midway Blitz,” where agency messaging described suspects as having “weaponized” vehicles or ambushed agents [1] [6] [7]. Those usages have often preceded or paralleled criminal investigative decisions and have at times conflicted with local officials and independent video evidence, prompting criticism that the term is being applied as an immediate justificatory frame rather than as a prosecutorial determination [6] [8] [9].
2. The statutory and policy framework that actually governs the term
Congress and federal agencies rely on the statutory definition in 18 U.S.C. § 2331 — adopted via the Patriot Act framework — which defines domestic terrorism for investigative and sentencing purposes as life-endangering conduct that violates criminal law and appears intended to intimidate or coerce civilians or influence government policy, and that occurs primarily within U.S. territory [3] [2]. The FBI and DHS have produced guidance and methodology documents that translate that statutory construct into investigative categories and internal approvals, explicitly warning that the definition is for investigative use and does not create a separate criminal offense by itself [4] [10].
3. Prosecutorial discretion and the gap between label and charges
Even when conduct fits § 2331’s description, prosecutors have broad discretion: examples include high‑profile mass attacks where the Justice Department declined to seek terrorism sentencing enhancements, and other cases where federal authorities instead relied on hate‑crime, weapons, or murder statutes rather than a terrorism charge per se [10] [11]. Legal scholars note there are many federal statutes that can address the same underlying conduct, and agencies can treat an episode as “domestic terrorism” for investigative posture without converting that into a unique terrorism offense—because no standalone “domestic terrorism” crime exists under federal law [12] [2].
4. Practical evidentiary problems in labeling a police shooting “domestic terrorism”
Applying the domestic‑terrorism definition to a police shooting requires rapid proof of intent to intimidate or coerce a broader civilian population or to influence policy—mental states that are rarely apparent in the immediate aftermath of an encounter and often require substantial investigation, as DHS officials themselves have cautioned against rushed judgments [4] [9]. Civil liberties groups and media critics argue that rapid rhetorical designations risk prejudicing investigations and stigmatizing individuals or movements without meeting the statutory intent element, an argument reflected in legal advocacy and commentary about recent presidential memos and agency rhetoric [13] [8].
5. Motives behind using the label and competing narratives
Officials who invoke “domestic terrorism” publicly often aim to frame incidents as part of broader threat narratives to justify robust federal responses and to rally public support for enforcement actions, while critics see such uses as politically motivated or as a tool to delegitimize protest movements and deflect scrutiny of agent conduct [14] [6]. Independent analysts and legal commentators urge adherence to DOJ guidance and caution that the term should follow, not precede, investigative findings because its formal legal utility is narrower than its political impact [10] [13].
6. Bottom line: rhetorical power exceeds legal immediacy
Federal officials have precedent for calling violent acts “domestic terrorism” in public communications, but the legal standard governing that label is codified, narrow, and requires proof of intent and nexus to broader coercive aims under 18 U.S.C. § 2331 and FBI/DHS policies—criteria that are not the same as the on‑the‑spot assertions often made by agency spokespeople and political leaders [3] [4] [9]. Where reporting or video evidence does not yet establish the statute’s mental‑state elements, the wiser legal practice — reflected in DOJ and FBI guidance and echoed by former officials — is to let investigations determine whether the conduct meets the domestic‑terrorism definition rather than to use the term as immediate public justification [10] [9].