Sifting Domestic Terrorism from Domestic Violent Extremism and Hate Crime

Sifting Domestic Terrorism from Domestic Violent Extremism and Hate Crime

Sifting Domestic Terrorism from Domestic
Violent Extremism and Hate Crime
Updated June 1, 2022
In light of the violence related to events in recent years, including the 2020 protests in certain cities
related to policing practices and police-community relations, the 2021 breach of the U.S. Capitol, and the
2022 mass shooting in Buffalo, NY, policymakers may be interested in how the concepts of domestic
terrorism, domestic violent extremism, and hate crime compare with one another. Federal law
enforcement agencies use these terms to categorize certain types of individuals whose unlawful actions
are at least partly ideologically motivated.
Domestic Terrorism
Domestic terrorism (DT) differs from other criminal activity in key ways. Importantly, unlike most
offenders—who may be driven by self-centered motives—domestic terrorists are driven by a cause or
ideology. The Federal Bureau of Investigation (FBI), the agency with lead responsibility for terrorism
investigations at the federal level, generally relies on two definitions of DT. First, the Code of Federal
Regulations characterizes “terrorism” as including “the unlawful use of force and violence against
persons or property to intimidate or coerce a government, the civilian population, or any segment thereof,
in furtherance of political or social objectives.” Second, 18 U.S.C. §2331(5) more narrowly defines
“domestic terrorism” as occurring primarily within U.S. territorial jurisdiction, and involving acts
(A) ... dangerous to human life that are a violation of the criminal laws of the United States or of
any State;
(B) [that] appear to be intended—
(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…
Domestic terrorists draw from many philosophies and worldviews to justify their illegal acts. They can be
motivated to commit crimes in the name of ideas such as animal rights, environmental rights, racially or
ethnically based ideological objectives, anti-government or anti-authority beliefs, abortion-related beliefs,
and anarchism, for example. Expression of these ideas—absent the commission of crimes—may involve
constitutionally protected activity.
The FBI safeguards against cases focused solely on constitutionally protected activities. FBI
investigations must be conducted for an authorized national security, criminal, or foreign intelligence
collection purpose and may not solely monitor the exercise of First Amendment rights. The FBI

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conceptualizes domestic terrorism in terms of threats, not groups or ideas. FBI Director Wray has
repeatedly stated in congressional testimony that the FBI requires DT investigations be based on “activity
intended to further a political or social goal ... involving force, coercion, or violence, in violation of
federal law” regardless of the nature of the ideology.
Domestic Violent Extremism
The FBI and Department of Homeland Security (DHS) have categorized the DT threat in terms of various
forms of domestic violent extremism. Domestic violent extremists (DVEs) support achieving political or
social goals, at least in part, through unlawful force or violence. DHS asserts that DVEs present the “most
persistent and lethal threat” to the homeland. The FBI made a similar assessment, stating that “trends may
shift, but the underlying drivers for domestic violent extremism—such as perceptions of government or
law enforcement overreach, sociopolitical conditions, racism, anti-Semitism, Islamophobia, misogyny,
and reactions to legislative actions—remain constant.” According to Director Wray, the top DVE threat is
from those the FBI identifies as racially/ethnically motivated violent extremists.
Law enforcement often uses the term domestic terrorism to describe the act while using domestic violent
extremists to describe the actors or the alleged actors. For example, Director Wray, in describing the
January 6 attack on the U.S. Capitol, has referred to those who engaged in violent criminal activity as
“violent extremists,” but has classified the incident as domestic terrorism. The use of DVE may be due, in
part, to the fact that no federal criminal provision expressly prohibits domestic terrorism. Additionally, the
FBI does not designate any domestic groups as domestic terrorist groups.
Hate Crime
Among other things, federal law defines “hate crimes” to include conduct involving bodily injury in
which certain jurisdictional prerequisites are met and in which the offender intentionally selects the victim
because of the victim’s actual or perceived race, color, religion, national origin, gender, gender identity,
disability, or sexual orientation. Hate crimes may appear to involve ideological issues. However, as
described by one former FBI official, a hate crime “generally involve[s] acts of personal malice directed
at individuals” and is missing the broader motivations driving acts of DT. The line may sometimes be
blurry, and some cases may be investigated as both a hate crime and DT. This suggests that sorting DT
from hate crimes may depend on the suspect’s intent. Did the suspect articulate an ideology, belong to a
domestic terrorist group, or follow an extremist movement? The grey area between DT and hate crime
implies that in some instances, suspects with links to domestic terrorist movements or ideologies
supporting DT may be charged with hate crimes.
While an individual’s actions may be consistent with the definition of DT, it is not a chargeable offense
on its own. There is no federal criminal statute that establishes criminal penalties solely for domestic
terrorism, although it may be an element of other federal crimes or provide an enhanced sentence. Unlike
domestic terrorism, there are federal criminal statutes that allow individuals to be charged with hate
crimes and that establish penalties for individuals convicted of hate crimes.
The Buffalo Shooting
On May 14, 2022, Payton Gendron allegedly shot 13 individuals (who were predominantly Black; 10
were killed) in a supermarket in Buffalo, NY. Prior to this incident, Gendron reportedly wrote a document
and made various online statements outlining his plans to murder Black people and supporting a racist
theory. The DOJ description of the incident, Director Wray’s statement, and President Biden’s remarks at
the crime site may illustrate the challenges officials face in characterizing acts as hate crimes, violent
extremism, or DT, or distinguishing between them. In describing the investigation, DOJ and Director

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Wray stated they are treating the incident as a “hate crime and an act of racially-motivated violent
extremism,” while President Biden described the incident as domestic terrorism.

Author Information

Lisa N. Sacco

Analyst in Illicit Drugs and Crime Policy

Disclaimer
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