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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 5.C.
For Meeting of: January 17, 2023
ITEM TITLE: Discussion on creating an Ad Hoc Committee to review the
Domestic Terrorism Study by the Washington State Attorney
General's office
SUBMITTED BY: Robert Harrison, City Manager
SUMMARY EXPLANATION:
At the January 3, 2023 Council meeting, staff was directed to add this topic to the next meeting
agenda.
ITEM BUDGETED:
STRATEGIC PRIORITY:
APPROVED FOR SUBMITTAL BY THE CITY MANAGER
RECOMMENDATION:
ATTACHMENTS:
Description Upload Date Type
0 AGO domestic terrorism summary 1/6/2023 Corer Memo
D AGO domestic terrorism study 1/6/2023 Corer Memo
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Office of the City Attorney
City of Yakima
MEMORANDUM
January 6, 2023
TO: Honorable Mayor Janice Deccio and Councilmembers
Bob Harrison, City Manager
FROM: Sara Watkins, City Attorney
SUBJECT: Summary of the Washington State Attorney General's Office 2022 Domestic
Terrorism Study
At its January 3, 2023, regular council meeting, the City Council placed on the January 17,
2023, council agenda a discussion of the 2022 Domestic Terrorism Study completed by the
Washington State Attorney General's Office. The purpose of this memo is to provide a summary
of the 31-page report for your review, specifically noting the recommendations from the Attorney
General's Office and the outside firm hired to evaluate current federal, state, and local domestic
terrorism laws and provide its findings to the Attorney General. There are no recommendations
that are specific to local jurisdictions.
1. Background
The Attorney General's Office was tasked with studying issues of domestic violent extremism
and terrorism by the Washington State Legislature in 2022. The study is the result of the
directive from the Legislature to the Attorney General's Office ("AGO"). The Legislature tasked
the AGO with studying the following matters:
a. Reviewing federal, state and local laws relating to acts of domestic
terrorism;
b. Reviewing state and local data collection, tracking, and reporting
practices relating to acts of domestic terrorism;
c. Reviewing state and local policies regarding responding to domestic
terrorism;
200 South Third Street,2"d Fl. I Yakima,WA 98901
P:509.575.6030 I F:509.575.6160
3
Honorable Mayor and City Councilmembers
City Manager
AGO Domestic Terrorism Study
Page 2
d. Summarizing current laws and policies related to domestic terrorism;
e. Identifying best practices for improving and standardizing data collection,
strengthening law enforcement, prosecutorial and other local government
responses to acts of domestic terrorism; and
f. Making recommendations for any necessary statutory changes.
The AGO consulted with experts and professionals to complete the study.
2. Defining "domestic terrorism"
There is no definition of"domestic terrorism" in the Revised Code of Washington. The study
uses the definition provided in the U.S. Code as follows:
Activities that:
(A) involve acts dangerous to human life that are a violation of the criminal laws of the
United States or of any State;
(B) 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; and
(C) occur primarily within the territorial jurisdiction of the United States.
The report states that this definition is useful, but fails to capture all of the problems currently
faces. "Accordingly, rather than exclusively address 'domestic terrorism' per se, these
recommendations seek to best support Washington State to respond to this panoply of
challenges, which together combine to create the threat of—and indeed, are often precursors
to—acts of domestic terrorism." AGO Study, page 5. As such, for purposes of the study, the
AGO uses the term "domestic violent extremism" or "DVE".
3. The Raben Group's review of current laws and their recommendations
The AGO contracted with the Raben Group to review current federal, state and local domestic
terrorism laws. The report summarizes the federal laws, as well as the various different state
laws that have been passed. The executive summary on pages 20 and 21 of the report
summarizes their findings. In conclusion, Raben Group states:
There is little evidence that state-based efforts to combat domestic terrorism with
enhanced criminal penalties, dedicated surveillance, or attempts to exclude so-called
extremists from law enforcement have been effective in light of the federal government's
jurisdiction over all significant cases and the propensity for these types of state efforts to
be misused against social justice advocates. But given recent events and legislative
developments in New York state and elsewhere, the state policy landscape is ripe for
innovative thinking on community-based efforts to prevent domestic terrorism and
inoculate against disinformation.
4
Honorable Mayor and City Councilmembers
City Manager
AGO Domestic Terrorism Study
Page 3
4. The Report's Recommendations
The following recommendations were made by the AGO to the Legislature. This is a summary
and the objectives and proposed structures of these changes are included in the full report,
starting on page 8. These recommendations are verbatim from the report.
a. The legislature should create a two-year Commission, composed of
diverse stakeholders and housed within the AGO, with the broad goal of
establishing a comprehensive public health and community-based
framework for responding to DVE.
b. Relying on expert research and data, the Commission should propose
specific steps to adopt and fund a public health-style and community-
based framework for proactively responding to DVE.
c. Relying on expert research and data, the Commission should propose
specific steps to improve, standardize, and add transparency to data
collection and reporting on incidents of DVE.
d. The Commission should conduct and publish a review of Washington
State's existing civil and criminal codes to create a toolkit of potential
legal options to respond to DVE. Additionally, the Commission should
conduct a study, with significant community input, both to review legal
options under existing laws and regulations and to explore potential new
legislation and/or regulations.
Additional recommendations from the AGO include:
a. Create a journalism fellowship program to combat misinformation and
disinformation.
b. Protect election workers and election systems through new state
legislation.
c. Provide additional security funding for elected officials, at sensitive
locations and around political events and public gatherings that may pose
a risk to their safety.
�O`" WASHINGTON STATE
= ATTORNEY GENERAL'S OFFICE
2022 DOMESTIC TERRORISM STUDY
G4',1 2022 Domestic Terrorism Stud
Table of Contents
�ASH113�
Letter from the Attorney General 2
Background 3
Executive Summary 3
Outreach 4
Summary of Federal, State 5
& Local Laws
Recommendations 7
The Public Health Model 8
of Prevention
Strategic Intelligence Assessment & 10
Data on Domestic Terrorism
Endnotes 14
Appendix 1 15
Appendix 2 16
Appendix 3 19
i
0kiLetter from the Attorney General
Dear Washingtonians,
ilk Domestic violent extremism incidents are
on the rise. This should be no surprise to
ti- .c'4' 1; anyone reading the newspaper headlines.In
•� 2021, the FBI conducted approximately 2,700
domestic terrorism investigations,compared
to approximately 1,400 in 2020 and the
li�" approximately 1,000 in each preceding year from
2017-2019.
Domestic violent extremism encompasses
various forms of extremist and political violence like threats,coercion,and
intimidation, online disinformation,extremist recruitment and government
infiltration efforts, and the general spread of extreme white supremacism and
anti-government ideologies. Senior FBI officials state that racially-motivated
violent extremists are responsible for the majority of lethal attacks and fatalities
perpetrated by domestic terrorists since 2000.
In 2022 the Washington State Legislature asked my office to produce a study on these
issues.We must urgently address the factors leading to the rise in violent extremism
and white supremacy.For the past six months my team worked diligently,consulting
with experts across the country who are renowned in their respective fields. My
team also consulted with community organizations rooted in Washington State and
included them in the work.
As Attorney General it is my job both to defend the foundations of our democracy,
and preserve Constitutionally-protected expression and freedom of association.The
beauty of our state lies in its diversity and there is no place for hate. This report is
careful to uphold our civil liberties while simultaneously laying out a preventative
and public health approach to tackle these urgent challenges.
Sincerely,
t 41— F4,--Is______
Bob Ferguson
Attorney General
2
2022 Domestic Terrorism Study
U Background
In the 2022 session, the legislature directed the Attorney General's Office (AGO) to conduct a study,by
the end of the year, reviewing federal, state, and local laws relating to acts of domestic terrorism; state
and local data collection, tracking, and reporting practices relating to acts of domestic terrorism; and
state and local policies regarding responding to domestic terrorism.' The six-month study was also
tasked with summarizing current laws and policies related to domestic terrorism and identifying best
practices for improving and standardizing data collection; strengthening law enforcement, prosecutorial
and other local government responses to acts of domestic terrorism; and making recommendations for
any necessary statutory changes. The legislature gave the AGO the authority to consult with experts and
professionals with expertise in domestic terrorism to complete the study(See Appendix 1 for Proviso
language).
The AGO engaged a team of outside experts, comprised of: The Raben Group, a public policy consulting
firm; Rich Stolz, the former executive director of OneAmerica; Cynthia Miller-Idriss, a professor at
American University's School of Public Affairs and Director of the Polarization and Extremism Research
Lab; and the Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown University
Law Center. The Raben Group was tasked with reviewing federal, state, and local laws relating to acts of
domestic terrorism. Mr. Stolz led the Office's community engagement and feedback efforts. Informed by
this review and community feedback, and with input from the AGO, Professor Miller-Idriss and ICAP
collaboratively drafted the Office's recommendations (See Appendix 2 for relevant biographies of the
consultant team).
) Executive Summary
Informed by extensive review of current relevant laws and regulations, this report's topline
recommendation urges the legislature to create a new Commission on Domestic Violent Extremism
(DVE), composed of diverse stakeholders with the broad goal of establishing a comprehensive public
health and community-based framework for responding to DVE. This is consistent with both the new
U.S. Department of Homeland Security's approach to prevention (Center for Prevention Programs and
Partnerships) and the guidelines and principles outlined in the first U.S. National Strategy for Countering
Domestic Terrorism, issued in June 2021 by the White House.2 This report's recommendations outline
specific steps the Commission should consider to 1) identify adequate funding and build long-term
capacity for a public health and community-based model through existing state agencies and new civic
education hubs; 2) improve, standardize, and add transparency to data collection and reporting about
DVE; and 3) clarify existing legal tools and explore potential new legislation to address the complex
threats posed by DVE. Our hope is that the Commission's work will result in renewed investment in inter-
government and community coordination; increased engagement with outside experts and extremism
researchers; significant investment in legal, constitutional, and anti-extremism training; and the careful
consideration of existing legal tools and potential legislative reforms.
A note on terminology: "domestic terrorism" (DT) is an undefined term in the Revised Code of Washington,
but is defined in the U.S. Code as "activities that(A) involve acts dangerous to human life that are a
violation of the criminal laws of the United States or of any State; (B) appear to be intended (i) to intimidate
or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion;
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or(iii) to affect the conduct of a government by mass destruction, assassination,or kidnapping; and(C)
occur primarily within the territorial jurisdiction of the United States."' Although this is a useful working
definition,because the statutory term"domestic terrorism' necessarily includes"acts dangerous to human
life;'it fails to capture the full scope of the problem Washington State faces,which encompasses other forms
of extremist and political violence; threats,coercion,and intimidation; online disinformation;extremist
recruitment and government infiltration efforts;and the general spread of extreme white supremacist, anti-
government, and other ideologies. Accordingly,rather than exclusively address "domestic terrorism"per
se,these recommendations seek to best support Washington State to respond to this panoply of challenges,
which together combine to create the threat of—and indeed, are often precursors to—acts of domestic
terrorism. Consistent with the approach taken by the FBI and DHS,4 we describe this using the umbrella
term"domestic violent extremism" or"DVE." Relatedly,because effective State intervention to address these
threats has the potential to implicate speech or association that may be protected by the First Amendment, or
the individual right to bear arms protected by the Second Amendment,we include a recommendation that
all stakeholders involved in the whole-of-society response outlined herein be trained to have a solid,high-
level understanding of constitutional principles that may be implicated by the State's response to DVE.
(01
Outreach
In the development of the report submitted to the legislature on domestic terrorism, the AGO
contracted with Rich Stolz to conduct targeted outreach to identified stakeholders, primarily
representatives from organizations with expertise in or experience with issues relevant to the report.
Stolz is the former Executive Director of OneAmerica, a statewide, community-based immigrant
rights organization, and he has extensive experience in civil rights, community outreach, and policy
issues.
Stolz conducted two rounds of outreach. The purpose of the first round of outreach was to scope
out community priorities and concerns about the issues raised in a report on domestic terrorism.
The second round of outreach involved an initial review of a set of preliminary recommendations
prepared by the report authors. Outreach primarily involved one-on-one meetings and interviews,
and in some cases Stolz gathered feedback electronically. Stolz then compiled information gathered
from this outreach and prepared memos for the report authors and staff from the AGO.
Organizations participating in these rounds of outreach included the American Civil Liberties Union
(ACLU) of Washington, the Anti-Defamation League (ADL) Western Region, Asian Counseling and
Referral Service (ACRS), Council on American-Islamic Relations (CAIR) Washington, Gairson Law
LLC, OneAmerica, Muslim Association of Puget Sound (MAPS) American Muslim Empowerment
Network (AMEN), Partners for Change, City of Seattle Office of Immigrant and Refugee Affairs
(OIRA), Planned Parenthood Alliance Advocates, and representatives from the Snoqualmie Tribe.
The information gathered through this outreach process is important, illuminating and illustrative.
However, there were constraints on the level of outreach possible, given time and resource limitations,
and there inevitably are some stakeholders whose views are not incorporated into these outreach
findings.
Without attribution, there were some broad themes expressed by participating community members:
• There was significant support for greater attention to the issue of domestic violent
extremism. Participants reported a significant level of fear among their constituents over the
potential use of violence against their communities. There were several specific examples shared
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by participants providing reproductive health services and serving Jewish, Muslim, immigrant,
and Asian American and Pacific Islander communities. Others expressed significant concerns
over the insurrection at the U.S. Capitol on January 6th and echo events that took place in
Olympia, WA and confusion over what law enforcement agencies in Washington State may have
known in advance of those events and what had been done to hold protesters accountable for
reported acts of violence.
• There was significant concern or ambivalence regarding the term domestic terrorism.
This reflected concerns over how the term has been used in the past to stigmatize Muslim
communities and communities of color. It also reflected a desire to more clearly name the
rise of White supremacist, anti-government, violent extremism and the threat posed by these
organizations against communities of color, government institutions, and institutions essential
to a functional democracy. And it reflected interest in looking beyond law enforcement and
national security frameworks toward more holistic strategies for public safety and community
well-being.
• There was ambivalence over the need for additional law enforcement tools. Participants
emphasized the need to develop deeper, resilient, and durable trust and relationships with
law enforcement to ensure protection against these potential - and realized - threats. Some
participants argued for the need for additional tools to help law enforcement counter domestic
violent extremism. The majority of participants expressed the view that law enforcement had the
tools they already needed,but were failing to use them.
This ambivalence reflected three primary issues.
• First, participants raised concerns over how such policies could be used to further police
and surveil communities of color that already feel over-policed and over-surveilled. Some
participants cited examples of how lack of due process and transparency had caused
harm to individuals inaccurately labeled as terrorist threats.
• Second, participants expressed dissatisfaction and frustration over access to data and
information on how existing resources are being used. They raised concerns about
providing new tools until there was accurate information on what federal, state, and local
law enforcement agencies were currently doing to counter domestic violent extremism.
• Third, participants expressed significant concerns over examples - anecdotal and in the
media - of apparent political or ideological alignment between White supremacist, anti-
government organizations and individual (including high ranking) law enforcement
officials in their own communities. Participants posed questions over whether these
alarming affiliations were truly limited to individuals or were more systemic in nature.
QJSummary of State, Federal & Local Laws
The AGO contracted with The Raben Group to review federal, state, and representative local domestic
terrorism laws including: statutory definitions of and responses to domestic terrorism; state and local
collection, analysis, and reporting practices for domestic terrorism data; and a representative sample
of recent state and local policy responses to domestic terrorism. Beyond explicit laws on domestic
terrorism, laws covering a broader set of anti-government actions such as mass shootings were also
discussed.
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The Raben Group's key findings are:
• There is no freestanding federal domestic terrorism offense.An individual being prosecuted by the
federal government cannot be federally charged with"terrorism" and instead must be charged with
other related offenses.
• Twenty-six states and the District of Columbia have terrorism statutes that explicitly or implicitly
cover acts of domestic terror.These are: Alabama,Arizona, Arkansas, Connecticut,D.C., Florida,
Georgia,Idaho, Illinois,Indiana,Iowa, Kansas,Kentucky, Louisiana,Michigan, Minnesota,Nevada,
New Jersey,New York,North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee,
Vermont, and Virginia.
• Although states have prosecuted some cases under their own terrorism statutes, the federal
government has also prosecuted all recent high-profile acts of domestic terrorism and anti-
government violence under applicable federal laws, including the Boston marathon bombing;the
plot to kidnap Governor Gretchen Whitmer; the Tree of Life Synagogue shooting;the car attack
following the Unite the Right Rally in Charlottesville, Virginia;the January bth insurrection at the
United States Capitol; and the 2022 mass shooting at a supermarket in Buffalo,New York.
• State laws contains few provisions, other than enhanced-sentencing statutes, to combat or mitigate
the threat of terror. The survey discovered no state laws authorizing preventive measures like
community engagement,deradicalization, or similar programming.
• The survey did not uncover any state domestic terrorism data collection legislation or policies other
than legislation governing the creation and operation of"fusion"centers.
• Some states have begun to update or modernize their domestic terrorism statutes and policies. For
example,in 2021 Washington State adopted a law that allows for the decertification of police officers
who affiliate with extremist organizations.New York State recently enacted a state law authorizing
a task force to evaluate the role that social media plays in motivating violent extremists,including
domestic terrorists; this complements a broader state domestic terrorism task force studying best
practices to prevent mass shooting incidents
For the full analysis,see Appendix 3.
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Recommendations
1. Recommendation 1: The legislature should create a two-year Commission, composed of diverse
stakeholders and housed within the AGO, with the broad goal of establishing a comprehensive public
health and community-based framework for responding to DVE. The Commission should have the
following objectives and structure, as described in more detail in the further recommendations below:
a. Objectives:
i. To identify community-led and evidence-based solutions to combat disinformation and
misinformation, address early signs of radicalization, and develop public health-style
responses.
ii. To evaluate any future data-tracking recommendations around DVE, including how data
is collected,what triggers data collection, and how to ensure data is not disproportionately
used against BIPOC (Black, Indigenous, and People of Color) communities or other
communities.
iii. To evaluate current legal tools, both civil and criminal, and make recommendations for
potential new legislation and regulations to address DVE.
b. Structure:
i. We recommend that this Commission be housed within the AGO.
ii. The Commission should include a broad cross section of relevant stakeholders, including
civil rights groups, state and local government officials, and law enforcement.
iii. The legislature must appropriate funding to support Commission member participation,
including resources for dedicated staff and the day-to-day work of the Commission.
2. Recommendation 2: Relying on expert research and data, the Commission should propose specific
steps to adopt and fund a public health-style and community-based framework for proactively
responding to DVE. The Commission should propose recommendations to address the following:
a. Establishing a system through which the Department of Health could work with community
groups to support (including with funding) multi-disciplinary intervention teams through
which families and others may refer someone they suspect may be on the path of radicalization
to violence, recognizing that any intervention would need to be agreed to voluntarily by the
referred person. Such efforts may need to be supported by grants and done in conjunction
with the Department of Commerce. This system should include at least one dedicated and
funded staff position within the Department of Health to bring expertise about DVE into the
department.
b. Funding and implementing significant training to Department of Corrections probation
officers (and related roles) aimed at their role in supporting those under their supervision to be
successful in their communities and avoid vulnerabilities to extremism. This training may be
developed by nonprofits or other experts experienced in combating DVE. This funding must
include a full-time staff position requiring prior expertise in DVE to coordinate training topics,
sequencing, and content.
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c. Funding through the Department of Commerce for primary prevention of DVE through the arts,
community organizations, faith communities,or other community-based non-profits.This funding
must include a full-time staff position requiring prior experience in DVE to help direct and shape
the grant program,criteria for selection,and criteria for evaluation.
d. A plan for the Department of Enterprise Services to develop a statewide training module to help
employees recognize red flags and warning signs,initial pathways for off-ramping or intervention
conversations,and where to get additional help.If feasible,this training can be shared with
community members as requested. This must include a full-time staff position requiring prior
experience in DVE.
e. A plan for the Department of Health to create a state-wide referral list of trained mental health
professionals who are skilled in addressing radicalization to violent extremism and to ensure that
school, university,and public mental health services are aware of the list.
f. Funding sources and the creation of Civic Education and Community Support Hubs to invest in civic
education by helping communities improve digital literacy,create public civic education tools,combat
misinformation and disinformation,identify and respond to radicalization,and provide educational
and support resources.This could include increasing capital funding for rural areas to expand and/
or improve library facilities or civic education hubs.It could also include working with pre-existing
library networks to expand disinformation/misinformation trainings through the libraries.
g. Creating a legal training program for relevant officials on constitutional issues implicated by the
regulation of DVE activity, including speech or association that may be protected by the First
Amendment, and the individual right to bear arms protected by the Second Amendment.
h. Establishing a dedicated staff team at the state level to coordinate and direct these efforts, manage
the work of the Commission,communicate best practices across the state,and coordinate with state
and local partners as well as counterpoints nationally and in other states.
The public health model of prevention
A deep and effective public health approach to preventing violent extremism includes investments at the
primary, secondary,and tertiary prevention levels. Primary prevention refers to efforts to address radicalization
before it takes root,including through broad civic education and media literacy for the entire population focused
on helping the public build resilience to harmful online content, propaganda,or false information.
Secondary prevention refers to efforts to mitigate the impacts of already radicalized people and groups, primarily
through surveillance,monitoring, arrest,interruption of plots,barricading of doors, hardening of soft targets,
etc. These strategies are key to crisis mitigation and violence prevention efforts,but cannot stand on their own as
the sole prevention strategy for a community or a region.
Tertiary prevention refers to focused deradicalization efforts,including through prison deradicalization
programs and"exit"-type counseling services that aim to help radicalized individuals leave extremist groups.
These specialized efforts require significant training and evidence-based approaches aimed at preventing
recidivism and are essential for probation officers and related roles.
An effective public health approach to countering violent extremism would require at least four simultaneous
categories of effort that are:
• rooted in communities'needs;
• holistic and whole-of-society;
• rely on evidence-based interventions;and
• focus on building resilient systems, not just resilient individuals.
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By following this recommendation,Washington State would become the first in the nation to adopt and
implement a public health-style and community-based framework for proactively responding to DVE.
But concrete models for a public health-style approach exist beyond our borders, as well as in some
local jurisdictions within the United States. These include models of public health-style approaches that
emphasize the role of family therapy, law enforcement, education, and the arts, and include examples
of approaches that are funded locally, regionally, federally, and through private philanthropic and
foundation support. For example:
Yorktown Family Services, Toronto, Canada
Yorktown Family Services is an intervention initiative housed within existing mental health and
family therapeutic services. The program provides therapeutic approaches to address and engage
people who are on pathways to violent extremism through a specialized integrated care and
rapid-access behavioral and social engagement team, called ETA (Estimated Time of Arrival),
to support youth and adults who show warning signs of violent radicalization. This includes
evidence-based and evidence-informed interventions including mental health therapy, public
awareness and capacity building, and other services to treat and divert youth and young adults
away from violent ideologies.
Aurora Police Department Crisis Response Team and Targeted Violence Prevention (TVP),Aurora,
Colorado
Aurora Police Department Crisis Response Team and Targeted Violence Prevention is an
intervention initiative housed within existing law enforcement and emergency response services.
As part of a citywide initiative in Aurora, Colorado that pairs trained law enforcement officers
with mental health clinicians, Aurora's police department runs a Targeted Violence Prevention
Program (TVP) which provides threat assessment and management of behaviors indicating the
possibility of a future act of mass targeted violence in a person who is experiencing a mental
health crisis or already suffering from a mental illness. By integrating the TVP in the overall
crisis response team, Aurora has pioneered the integration of assessment, intervention, and
management of mass violence threats with clinical assessment and expertise on the mental health
side. This improves the likelihood that individuals in need can be connected with appropriate
resources and that they can be referred to treatment that might be able to address the causes and
underlying motivations of the identified problematic behaviors.
Mobile Advisory Centers, Germany
The mobile advisory structure in Germany comprises 50 offices with 150 staff members in local
sites across the country. Mobile advisory centers serve as professional consulting and counseling
centers for anyone who needs advice and guidance on dealing with right-wing extremism, racism,
antisemitism and other forms of inequality or hate. Center staff provide training and consultation
for schools and other educational partners,youth centers, unions,journalists, faith communities,
social services, sports centers, individuals, and other civil society actors, non-profits, and
organizations. Each mobile advisory center serves as a one-stop-shop for counseling and
consulting needs for mainstream civil society, while working closely with partners who support
victims' services (therapeutic and legal needs, for example) and perpetrator accountability (law
enforcement, EXIT and deradicalization programs, for example). There are parallel structures to
address different types of extremism and ideological radicalization as well.
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3. Recommendation 3: Relying on expert research and data, the Commission should propose specific steps
to improve, standardize,and add transparency to data collection and reporting on incidents of DVE. The
Commission should propose recommendations to address the following:
a. Undertaking a comprehensive review of the data collection, reporting practices,and overall
efficacy of the Washington State Fusion Center, including recommendations for possible
additional funding to improve capacity. The Commission should further consider whether
to require the Fusion Center to provide a publicly available annual report on DVE,detailing
data categories collected and processes in place, to the extent that such information does not
compromise ongoing investigations or violate privacy rights.The purpose of this report would be
to promote transparency and trust.
b. Identifying opportunities for establishing information-sharing relationships with researchers in
the private sector with expertise in tracking DVE,both online and offline.
c. Establishing clear cross-agency channels and mechanisms for data collection and reporting
within legal limits,along with the presence of adequately trained experts within data collection
and reporting channels to assess cases and determine next steps in intervention.
d. Across state agencies,evaluating and recommending improvements to processes and procedures
for publicly communicating information related to domestic extremist activity and threats. The
Strategic Intelligence Assessment and Data on Domestic Terrorism,produced by the FBI and
Department of Homeland Security(DHS) pursuant to the National Defense Authorization Act,
provides a template for a public-facing report along these lines.
What is the Strategic Intelligence Assessment and Data on Domestic Terrorism?
For the past two years,the federal National Defense Authorization Act has required the FBI and DHS,in
consultation with the Director of National Intelligence,to produce a strategic intelligence assessment on
domestic terrorism,including a discussion of activities,certain data on domestic terrorism matters,and
recommendations. In October 2022, the agencies reported that:
Preventing terrorist attacks remains a top priority for both the FBI and the DHS, and the FBI serves as
the lead investigative agency on terrorism matters. The threat posed by international and domestic threat
actors has evolved significantly since 9/11. One of the most significant terrorism threats to the Homeland
we face today is posed by lone offenders and small groups of individuals who commit acts of violence
motivated by a range of ideological beliefs and/or personal grievances. Of these actors, domestic violent
extremists represent one of the most persistent threats to the United States today. These individuals are
often radicalized online and look to conduct attacks with easily accessible weapons. Many of these violent
extremists are motivated and inspired by a mix of ideological, socio-political and personal grievances
against their targets.'
The report,which the AGO proposes as a template for recommended periodic inter-agency reporting at the
state level, provides the agencies' strategic intelligence assessments on DVE, a detailed discussion of the agencies'
procedures and methods to address DVE threats, as well as data on DVE incidents and FBI investigations.
Data currently included in the Strategic Intelligence Assessment and Data on Domestic Terrorism are useful
but limited. Data sets addressed in the report include descriptions of completed or attempted DT incidents;
identifications of each FBI assessment and investigation with a nexus to DT;data on arrests and criminal charges
with a nexus to DT;referrals of DT incidents by or to state,local,tribal, or territorial governments (SLTT) and
foreign governments; the number of intelligence products associated with each DT investigative classification;
and information about the agencies' staff and resources deployed for work on DT-related matters.However,
with respect to arguably the most important tracking metric—completed or attempted DT incidents in the
10
United States—the Strategic Intelligence Assessment and Data on Domestic Terrorism explains that"[m]any
incidents are rooted in state and local level criminal activity, and there is currently no mandatory incident
reporting requirement for these incidents to be reported to the federal government."' Likewise,the report
notes that DHS's and FBI's ability to track and document ideologically motivated DVE-related crimes, as
well as hate crimes, is limited by the lack of any mandatory incident reporting requirements for SLTT law
enforcement agencies. The patchwork nature of this federal DT incident traffic effort underscores the need for
better tracking, coordination, and data sharing at the SLTT level.
Consistent with findings made by non-governmental research and advocacy organizations that have
documented sharply rising levels of antisemitism, Islamophobia, anti-LGBTQI+ hate, anti-AANHPI (Asian
American and Native Hawaiian Pacific Islander) hate, and other forms of hate,'the limited federal data reflect
a significantly heightened DVE threat landscape compared to recent years. For example:
• Investigations with a DT nexus: As of the end of FY 2021, the FBI was conducting approximately
2,700 DT investigations, compared to approximately 1,400 pending at the end of FY 2020 and the
approximately 1,000 pending each year for FY 2017-2019. A significant portion of the FY 2021
investigations were "directly related to the unlawful activities during the January 2021 siege on the U.S.
Capitol
• Arrests with a DT nexus: The number of federal arrests with a DT nexus increased significantly in
FY 2021. In FY 2021, the FBI, often in coordination with partner agencies, arrested approximately 800
DT subjects, compared to 180 such arrests in FY 2020. Again, a significant portion of the arrests were
directly related to the January 2021 attack on the U.S. Capitol.
• Hate Crimes: In its latest reporting,the Hate Crime Statistics Program of the FBI's Uniform Crime
Reporting (UCR) Program recorded 8,263 hate crime incidents in 2020, compared to 7,314 in 2019, a
13-percent increase year-over-year and the highest level in 12 years.9
• Referrals of DT Incidents to the FBI: In FY 2021, the FBI received approximately 8,375 referrals of
possible DT incidents, compared to approximately 5,669 such referrals in FY 2020.
In responding to the legislature's request for current data collection practices, the AGO reached out to the
Fusion Center and the FBI for additional information. Please see Endnote 4 for the data shared pursuant to
this request.
4. Recommendation 4:The Commission should conduct and publish a review of Washington State's existing
civil and criminal codes to create a toolkit of potential legal options to respond to DVE.10 Additionally,
the Commission should conduct a study,with significant community input,both to review legal options
under existing laws and regulations and to explore potential new legislation and/or regulations. We
recommend that the Commission refrain from proposing new criminal laws defining and penalizing
"domestic terrorism:'in light of evidence-based community concern that these types of laws have the
potential to be applied disproportionately against BIPOC communities. To the extent the Commission
considers proposing any new DVE-related criminal penalties,they should be narrowly crafted to address
specific DVE-related conduct and drafted carefully to avoid the potential disproportionate application to
marginalized and vulnerable communities. Issue areas this work should encompass include:
a. Mandatory training to improve law enforcement readiness to address DVE;
b. Additional state law tools,and particularly those that support civil remedies,to combat DVE;
c. Legislation prohibiting private paramilitary activity that interferes with government proceedings,
infringes on others'constitutional rights,or usurps law enforcement authority,including civil
mechanisms to enjoin such activity;
11
d. Legislation disqualifying those who engage in extremist activity from public employment or
service,or from working as armed private security guards, or serving as law enforcement or
private security trainers;
e. Legislation in the model of the bipartisan federal Domestic Terrorism Prevention Act that would
authorize and fund joint investigation and reporting on DVE incidents. Such a bill could create
an inter-agency task force to analyze and combat extremist infiltration of state law enforcement
and other state agencies.
f. Licensure and training of private security guards;
g. Review of criteria for granting tax-exempt status to nonprofit organizations to ensure that
unauthorized militia or private paramilitary organizations and other extremist organizations are
not improperly obtaining and operating under tax-exempt status;
h. Potential amendments to regulations of firearms ranges;for example,to prohibit individuals who
engage in extremist activity from receiving grant funds from the Firearms Range Account, RCW
79A.25.210, and to prohibit firearms ranges from being used for unlawful paramilitary training.
12
1 Additional Recommendations from the Office
of the Attorney General (AGO)
Over the course of this work the AGO received several additional recommendations for proposed legislation
that it would like to include here.There was not sufficient time to share these with the outreach team, so
these are solely recommended by the AGO.
1. Recommendation 1: Create a Journalism Fellowship Program.
In a similar vein with the recommendation on Civic Education and Community Support Hubs
to combat misinformation and disinformation, the AGO believes that local news outlets have an
important role to play. California Governor Gavin Newsom signed into law a$25 million, state-
funded fellowship program this spring that aims to support and strengthen local reporting in
underserved and historically underrepresented areas across the state."The program pays for 40
fellows who receive an annual stipend of$50,000 to supplement their salaries.The AGO recommends
that a similar program be created for Washington State.
2. Recommendation 2:Protect Election Workers.
In the 2022 Session Engrossed Substitute Senate Bill 5628 regarding cyber harassment of election
officials (among others) made that harassment a class C felony, if the method of communication
(of the threat) is electronic. The bill also added election officials to the list of people eligible for the
Address Confidentiality Program (ACP) under RCW 40.24.030. ACP removes personal addresses
from public databases. Unfortunately, this bill only applies if the harassment is done electronically.
Given the importance of protecting our elections systems from domestic violence extremism,we
recommend the legislature pass Substitute Bill 5148,"Concerning the Harassment of Election
Officials"and explicitly call out harassment of an election official as a Class C Felony. Pursuant to the
bill draft,"election official" includes any staff member of the Office of the Secretary of State or staff
member of the County Auditor's Office, regardless of whether they are employed on a temporary or
part-time basis, whose duties relate to voter registration or the processing of votes. In addition,given
the limited capacity of County Prosecutors to prosecute these cases,we urge the legislature to provide
more funding for that work.
3. Recommendation 3:Provide Additional Security Funding for Elected Officials.
Elected officials across the country also face an array of violent threats. The Legislature should create
a fund for elected officials to have additional security,at sensitive locations, and around political
events and public gatherings that may pose a risk to their safety. This would help staff fund the critical
security and protections needed,be it for additional security at an event or for physical security at
their offices, like additional locks, cameras, and bulletproof glass.
13
Endnotes
1: 2022 Wash.Legis. Serv. Ch. 297(S.S.B. 5693) (WEST).
2: https:/lwww.whitehouse.gov/wp-content/uploads/2021/061National-Strategy-for-Countering-Domestic-Terrorism.pdf.
3: 18 U.S.C. §2331(5).
4:See Federal Bureau of Investigation&Department of Homeland Security, Strategic Intelligence Assessment and Data on Domestic
Terrorism(October 2022),at 4 https://www.fbi.gov/file-repository/fbi-dhs-domestic-terrorism-strategic-report-2022.pdf/view("The
FBI and DHS use the term"domestic violent extremism"to refer to DT threats.The word"violent"is important because mere advoca-
cy of political or social positions,political activism,use of strong rhetoric,or generalized philosophic embrace of violent tactics does
not constitute violent extremism and may be constitutionally protected.").
5: Federal Bureau of Investigation&Department of Homeland Security,Strategic Intelligence Assessment and Data on Domestic
Terrorism(October 2022),https://www.fbi.gov/file-repository/fbi-dhs-domestic-terrorism-strategic-report-2022.pdf/view.
6:Id at 20.
7:See Cynthia Miller-Idriss&Bill Braniff, The State of Hate-Fueled Violence in America,Expert Presentation at the White House
United We Stand Summit(Sept. 15, 2022)(reviewing data drawn from the START PIRUS dataset and reports by the Anti-Defamation
League (ADL),Council on American-Islamic Relations(CAIR), STOP AAPI Hate,Human Rights First, and the Center on Countering
Digital Hate).
8: 2022 Strategic Intelligence Assessment and Data on Domestic Terrorism,supra n.2, at 20.
9: FBI Uniform Crime Reporting,Hate Crimes Statistics Program,https://www.fbi.gov/how-we-can-help-you/need-an-fbi-service-or-
m ore-inform ationlucr/hate-crim e/sery ice s/cj is/ucr/publications#Hate-Crim e%20 Statistics.
10:These include but are not limited to civil and criminal laws governing, for example,hate crimes(RCW 9A.36.078,9A.36.080,
9A.36.083);threats against the governor,lieutenant governor, and their families(RCW 9A.36.078); criminal conspiracy and attempt
(RCW 9A.28.040,9A.28.020);obstructing governmental operation(RCW 9A.76);intimidating a public servant(RCW 9A.76.180);
obstructing a law enforcement officer(RCW 9A.76.020);impersonating of law enforcement(RCW 9A.60.045);criminal mis-
chief,failure to disperse,and disorderly conduct(RCW 9A.84.010-.030);interference with health care facilities or providers(RCW
9A.50);harassment and stalking(RCW Ch. 9A.46);private paramilitary activity(RWC§§9A.48.120, 38.40.120);terrorist acts
(RCW 70.74.285); and public nuisance (RCW https://www.fbi.govlhow-we-can-help-you/need-an-fbi-service-or-more-information/
ucrlhate-crime/services/cjis/ucrlpublications#Hate-Crime%20Statistics 7.48.130).
11: California's news desert response a model Washington should follow.
14
Appendix 1: 2022 Domestic Terrorism Proviso Language
(38)(a) $125,000 of the general fund—state appropriation for fiscal year 2023 is provided solely for a study
regarding state and local responses to acts or potential acts of domestic terrorism in Washington state.
(b) In conducting the study, the office must review laws and policies regarding domestic terrorism, including but
not limited to:
(i)Federal, state, and local laws regarding acts of domestic terrorism, including how a criminal incident
is determined to be an act of domestic terrorism;
(ii) State and local data collection,tracking, and reporting practices as related to acts
of domestic terrorism; and
(iii) State and local policies regarding responding to acts of domestic terrorism.
(c) By December 15, 2022, the office must submit a report to the appropriate committees of the legislature
that includes but is not limited to:
(i)A summary of current laws and policies as identified in(b) of this subsection;
(ii) Recommended best practices for:
(A) Standardizing and improving data collection, tracking, and reporting on acts of domestic terrorism at
the state and local level;and
(B) Strengthening law enforcement, prosecutorial, and other local government responses to a potential act
of domestic terrorism;and
(iii)Recommendations for any statutory changes that may be necessary for clarity and consistency.
(d) The office may consult with experts or professionals involved or having expertise in the topic
of domestic terrorism to complete the study.
15
I
Appendix 2: Consultant Team Biographies
Mary McCord
Mary McCord is Executive Director of the Institute for Constitutional Advocacy and Protection(ICAP) and a Visiting
Professor of Law at Georgetown University Law Center. At ICAP,McCord leads a team that brings constitutional impact
litigation at all levels of the federal and state courts across a wide variety of areas including First Amendment rights,
immigration, criminal justice reform,and combating the rise of private paramilitaries. McCord was the Acting Assistant
Attorney General for National Security at the U.S. Department of Justice from 2016 to 2017 and Principal Deputy
Assistant Attorney General for National Security from 2014 to 2016. Previously,McCord was an Assistant U.S. Attorney
for nearly 20 years at the U.S. Attorney's Office for the District of Columbia. Among other positions,she served as a
Deputy Chief in the Appellate Division,overseeing and arguing hundreds of cases in the U.S. and District of Columbia
Courts of Appeals,and Chief of the Criminal Division,where she oversaw all criminal prosecutions in federal district
court.
McCord is a statutorily designated amicus curiae for the Foreign Intelligence Surveillance Court and Foreign
Intelligence Surveillance Court of Review. McCord served as legal counsel to the U.S.House of Representatives Task
Force 1-6 Capitol Security Review appointed by Speaker Nancy Pelosi after the January 6, 2021, attack on the U.S.
Capitol. McCord also served on the Columbus Police After Action Review Team tasked with evaluating how the
Columbus,Ohio,Police Department responded to the 2020 summer protests. McCord has written about domestic
terrorism, unlawful militia activity,public safety,and the rule of law for publications including the Washington Post,
New York Times, Wall Street Journal, Los Angeles Times, The Atlantic, Slate, Lawfare, and Just Security. She has
appeared on NPR,PBS,CNN,MSNBC,ABC,and other media outlets.
McCord received the Oliver White Hill Courageous Advocate Award from the Virginia Trial Lawyers'Association in
2018,based on her work with ICAP litigating against white supremacist and private militias that attended the Unite the
Right rally in Charlottesville,Virginia,in 2017.McCord graduated from Georgetown University Law School and served
as a law clerk for Judge Thomas Hogan of the U.S. District Court for the District of Columbia.
Cynthia Miller-Idriss
Cynthia Miller-Idriss is an award-winning author and scholar of extremism and radicalization. She directs the
Polarization and Extremism Research &Innovation Lab (PERIL) in the Center for University Excellence (CUE) at the
American University in Washington,DC,where she is also Professor in the School of Public Affairs and in the School
of Education.Dr. Miller-Idriss has testified before the U.S.Congress and regularly briefs policy, security,education and
intelligence agencies in the U.S.,the United Nations,and other countries on trends in domestic violent extremism and
strategies for prevention and disengagement. She serves on the international advisory board of the Center for Research
on Extremism (C-REX) in Oslo,Norway and is a member of the Southern Poverty Law Center (SPLC)'s Tracking Hate
and Extremism Advisory Committee.
A globally-recognized expert on far right youth and preventative interventions, Dr. Miller-Idriss is the author,
co-author,or co-editor of six books, including Hate in the Homeland: The New Global Far Right, published by
Princeton University Press in October 2020. In addition to her academic work,Miller-Idriss writes frequently for
mainstream audiences, both as an opinion columnist for MSNBC and in additional essays,with recent by-lines in The
New York Times, The Atlantic, Foreign Affairs, The Washington Post, The Boston Globe,CNN, The Hill, Politico,
The Guardian, Le Monde,Salon,and more.She appears regularly in the media as an expert source and political
commentator, including regular appearances on Fareed Zakaria GPS as well as other CNN news programs, PBS News
Hour, NPR's Morning Edition and All Things Considered, MSNBC's Hardball with Chris Matthews,NBC's Evening
News with Lester Holt, C-SPAN's Washington Journal,NBC's The Today Show ABC's Good Morning America, and in
global news outlets in over a dozen countries,including BBC News,Deutsche Welle,France 24, al Jazeera and more.
Dr. Miller-Idriss frequently advises or consults with foundations and organizations seeking expertise on radicalization
and extremism,and has provided expert consultation in legal cases involving radicalization and extremist violence.
16
Emily Chiang
Emily Chiang is an experienced changemaker,creative problem solver,and strategic thinker deeply committed to equity.
She brings twenty years of advocacy and policy reform experience and has deep ties to many organizations working for
social justice. Before joining The Raben Group,Emily served as a public policy manager with Facebook.There,she worked
to understand how the technology of the future will impact our lives—while also building connective tissue across teams
and advocating for ethical,equitable,and privacy-oriented innovation.Her work supported the advanced research teams at
Facebook Reality Labs,including augmented reality,hyper-realistic avatars,and human-computer interfaces.
As the legal director of the ACLU of Washington, one of the country's largest ACLU affiliates,Emily oversaw all litigation
filed in Washington state and coordinated advocacy efforts with government agencies and other nonprofits.She led
the office's legal strategy on everything from criminal justice reform to free speech,immigrant rights,reproductive
freedom,LGBTQ rights,and racial justice.Emily's department worked in community,with community,and on behalf of
community.One of her proudest achievements was leading the legal team that helped end the Trump administration's ban
on refugees.
During her tenure as an associate professor at the University of Utah S.J. Quinney College of Law,Emily created and
directed the Public Policy Clinic and taught a number of courses,including Constitutional Law;and Equality,Race,and
the Law.Her clinic made the issue of shutting down the school to prison pipeline a topic of state-wide conversation and her
students provided legal analysis and testimony on a number of bills before the state legislature.
Prior to her stint in academia,Emily also worked at Cravath,Swaine&Moore LLP,where she was the lead associate on the
team that successfully sued for public defense reform in Montana;the Brennan Center for Justice;and the ACLU's National
Legal Department,where she was a staff attorney with the Racial Justice Program. She earned her bachelor's degree from
Yale University and her Juris Doctor from Harvard University School of Law,where she was also an editor on the Harvard
Law Review.Emily has watched every single movie in the Fast and Furious franchise.
Rich Stolz
Rich Stolz previously served as OneAmerica's Executive Director.During his tenure,OneAmerica has cemented its status
as one of the most effective organizing,advocacy,and civic engagement organizations in Washington State. Stolz was
born in Seoul,South Korea.Stolz's family moved to the United States when he was three,and he was raised by his mother
in Redwood City,California. Stolz first cut his teeth in organizing while a student at Stanford University to create ethnic
studies programs. In 1994,he organized to defeat proposition 187,an anti-immigrant ballot measure in California.Prior
to OneAmerica,Stolz worked at the Center for Community Change,a national organization based in Washington,D.C.
During that time,he focused on the intersection of policy,politics,and organizing across a broad spectrum of issues
impacting low-income communities and communities of color,including jobs and income support policy,immigration
policy,infrastructure investment,and environmental justice. He has lived and organized in communities as diverse as
Portland,Maine;Montgomery,Alabama;Tucson,Arizona;Washington,D.C.;and Seattle,Washington. Throughout his
life,he has been deeply influenced by the civil rights movement and liberation theology in the context of Catholic social
teaching.Together,these experiences affirmed his calling to social justice and human rights organizing and activism. In
2013,Stolz was honored by President Barack Obama as a Cesar Chavez Champion of Change alongside other leaders in the
immigrant rights movement.
Alex Aronson
Alex Aronson is Managing Director at the Institute for Constitutional Advocacy and Protection at Georgetown University
Law Center. He leads ICAP's legal policy,development,and communications efforts,and helps oversee the operations of
the Institute.
Prior to joining ICAP,Alex served as chief counsel to Senator Sheldon Whitehouse on the U.S.Senate Committee on the
Judiciary,and as staff director for the Subcommittee on Federal Courts,Oversight,Federal Rights,and Agency Action. In
that capacity,he led the Senator's executive and judicial branch oversight work,steered legislative efforts to improve judicial
ethics and access to justice,and maintained an active amicus curiae practice in the U.S. Supreme Court. He also served as
17
the Senator's lead counsel on two Supreme Court confirmations and advised on two presidential impeachment trials. Alex
previously served as an attorney in the Appellate Section of the Civil Rights Division of the U.S. Department of Justice,
a litigation associate at Covington&Burling LLP,and a law clerk to Judge Albert Diaz on the Fourth Circuit Court of
Appeals. Before law school,Alex led a nonprofit focused on improving voting access for underrepresented communities in
Oregon.
A greater Boston native,Alex is a 2012 graduate of Stanford Law School,where he was Senior Editor of the Stanford Law
Review and took part in Stanford's Community Law and Supreme Court Litigation Clinics. He received his B.A.,magna
cum laude,from the University of Pennsylvania.
Zachary Jonas
Zach Jonas is a senior associate in The Raben Group's Government Affairs and Policy Counsel practice area. Before joining
Raben,Zach served the people of New Hampshire for seven years as a community organizer and activist.
Zach is a graduate magna cum laude of the Georgetown University Law Center and was elected to membership in the
Order of the Coif. He was also an editor of the Georgetown Law Journal,where his student note on the relationship
between the Supreme Court and Congress won the 2022 GLJO Student Note Contest.During his time at Georgetown,
he served as a law clerk on the Senate Homeland Security and Governmental Affairs Committee and participated in the
Federal Legislation Clinic.
18
Appendix 3: Legal Review Conducted by The Raben Group
To: Washington State Office of the Attorney General
From:The Raben Group; Emily Chiang; Zach Jonas; Nikita Sibley
-
- Date: August 30, 2022
Survey of Federal, State, and Local
Domestic Terrorism Laws and Policies
Executive Summary
The Raben Group reviewed federal,state, and representative local domestic terrorism laws including:statutory
definitions of and responses to domestic terrorism;state and local collection, analysis,and reporting practices for do-
mestic terrorism data; and a representative sample of recent state and local policy responses to domestic terrorism.
Our key findings are:
• There is no freestanding federal domestic terrorism offense. An individual being prosecuted by the fed-
eral government cannot be federally charged with "terrorism" and instead must be charged with other
related offenses.
• Twenty-six states and the District of Columbia have terrorism statutes that explicitly or implicitly cover
acts of domestic terror.These are: Alabama,Arizona, Arkansas,Connecticut, D.C., Florida,Georgia, Ida-
ho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Nevada, New Jersey, New
York, North Carolina, Ohio,Oklahoma, Pennsylvania,South Dakota,Tennessee,Vermont, and Virginia.'
• Although states have prosecuted some cases under their own terrorism statutes, the federal government
has also prosecuted all recent high-profile acts of domestic terrorism and anti-government violence
under applicable federal laws, including the Boston marathon bombing; the plot to kidnap Governor
Gretchen Whitmer,the Tree-of-Life Synagogue shooting;the car attack following the Unite-the-Right
Rally in Charlottesville, Virginia; the January 6th insurrection at the United States Capitol; and the 2022
mass shooting at a supermarket in Buffalo, New York.
• American state law contains few provisions,other than enhanced-sentencing statutes, to combat or
mitigate the threat of terror. Our survey discovered no state laws authorizing preventative measures like
community engagement, deradicalization, or similar programming.
• Our research did not uncover any state domestic terrorism data collection legislation or policies other
than legislation governing the creation and operation of"fusion" centers.
• State fusion centers and FBI joint terrorism task forces have been deemed largely ineffective by U.S. Sen-
ate investigators. State fusion centers in several states have also been accused of violating privacy and
civil rights by surveilling political targets, including racial justice and environmental activists.
1 A representative listing of these state domestic terror laws can be found below.See infra App'x A.Several states not listed here
have anti-terrorism laws that are more limited in scope,often applying only to the use of weapons of mass destruction. Because the
definition of terror is imprecise and difficult to delineate,some analysts might include those laws in a listing of state domestic terror
laws.See,e.g.,Donna Lyons,States Enact New Terrorism Crimes and Penalties,Nat'l Conf of State Legislatures(Nov.2002),https://
www.ncsl.org/Portals/1/documents/cj/terrorismcrimes.pdf.We have decided to limit our discussion to laws that cover a broader set of
anti-government actions,including mass shootings,because the public understanding of the terrorist threat has expanded significantly
beyond the use of weapons of mass destruction in recent years.Moreover,all the states examined here specifically define"terrorism"
in their statutory schemes and,with the exception of Nevada and Vermont,closely model their definition on the federal definition of
domestic terror.
19
• Some states have begun to update or modernize their domestic terrorism statutes and policies. For
example,in 2021 Washington State adopted a law that allows for the decertification of police officers
who affiliate with extremist organizations. New York State recently enacted a state law authorizing a task
force to evaluate the role that social media plays in motivating violent extremists, including domestic
terrorists; this complements a broader state domestic terrorism task force studying best practices to
prevent mass shooting incidents.
• Our research did not reveal any municipal laws targeting terrorism.
This memo provides an overview of the methodology Raben used (Part I)and an analysis of the federal and state
domestic terrorism legislation currently in effect including definitions, penalty enhancements, the criminalization of sup-
port activities,civil liberties protections,forfeiture clauses, domestic terrorism data collection, analysis,and distribution,
and state emergency planning (Part II). It also covers local domestic terrorism laws (Part III) and other recent federal,
state,and local domestic terrorism policy developments (Part IV). All referenced state legislation is available in Appendix
A,which provides an illustrative overview of state domestic terrorism laws.2
I. Methodology
The Raben Group based its initial research on the Institute for Constitutional Advocacy and Protection's(ICAP)
guide to protests and public safety, which contains a listing of every state statute that explicitly defines the crime of ter-
rorism.3 Raben conducted a comprehensive survey in the WestLaw Edge service of each of those statutes and the sur-
rounding codes,collecting any statute with related subject matter. Any pending legislation flagged by Westlaw as poten-
tially modifying existing terrorism statutes was also reviewed,analyzed, and summarized in Part IV where appropriate.
Raben also keyword searched the state codes for the terms "terror"and "terrorism" to discover statutes outside
of the criminal code that might be related to domestic terrorism. Certain statutory provisions, notably freestanding short
titles, were excluded. Relevant and illustrative statutes were collected into Appendix A and analyzed for the discussion
below.
Additionally, Raben keyword searched the twenty-five state codes not listed in the ICAP guide for the terms"ter-
ror" and "terrorism"to confirm that they did not have relevant domestic terrorism statutes.
Given the substantial number of localities in the United States, Raben evaluated a group of representative munic-
ipalities for any domestic terrorism provisions. The final list included thirty-nine cities. Nine of these were chosen for size,
geographic representativeness, and recent major terrorist attacks: New York, Los Angeles,Chicago, Houston, Phoenix,
Philadelphia, Boston, Oklahoma City,and Orlando. Additionally,the largest cities in states facing increased domestic ter-
rorism activity were surveyed, including the largest cities in Idaho, Illinois, Michigan, Minnesota, Montana, North Dakota,
Ohio,Oregon,South Dakota, Washington,and Wisconsin.4 Each city's code was keyword searched for the terms "terror,"
"terrorism," and "terrorist."
Finally,the Raben Group conducted a broad survey of news sources in the Bloomberg Government tool to find
any additional domestic terrorism initiatives at the state or local level that were not reflected in the other sources. A
comprehensive listing of the keyword searches used is available in Appendix B.
II. Federal and State Domestic Terrorism Laws
This Section provides an overview and brief analysis of federal and state domestic terrorism laws, including provi-
sions that:
• define domestic terrorism;
• prescribe enhanced penalties for specific acts of terrorism, including crimes of violence,terroristic
threatening, attacks on critical infrastructure, and the construction, possession,and use of weapons of
2 See infra App'x A.
3 See Instit.for Const.Advoc.&Prot.,Protests&Public Safety:A Guide for Cities&Citizens 40 n. 164.
4 For a full listing of the cities surveyed,see infra note 85.These states were selected on the recommendation of ICAP and Dr.
Cynthia Miller-Idriss.
20
mass destruction (WMD);
• criminalize support activities, including provision of material support and hindering prosecution of ter-
rorism;
• expressly protect civil liberties;
• allow forfeiture, restitution, and civil causes of action against convicted terrorists in some instances;
• enable state law enforcement to create "fusion centers"or otherwise gather information about domestic
terrorists; and
• provide for the inclusion of terrorist attacks in state emergency planning, mitigation, and response ef-
forts.
Although the surveyed state statutes vary in their particulars, most create a crime of"terrorism" based on a defi-
nition found in federal law. Under this definition,terrorism involves the commission of an underlying offense—generally
a violent act like kidnapping or murder—with the specific intent to coerce or intimidate the civilian population or affect
the policy or conduct of a unit of government.This tracks with the accepted scholarly definition of terrorism as a political
tactic employing violence to achieve political and ideological goals through psychological warfare against governments
and civillian populations.5
In this memo, the term "domestic terrorism statutes" refers to laws that define and criminalize acts undertaken
by American nationals in the United States with the specific intent described above.6 Many states do not label their stat-
utes as "domestic terrorism statutes": while some use this label,' many instead criminalize "terrorism" generally, includ-
ing any covered act on American soil, without regard to the nationality or organizational membership of the perpetrator.8
Some states have additional laws penalizing certain acts related to foreign terrorist organizations,9 but this memo will not
cover those laws because they do not relate to acts of domestic terrorism. Other state laws incorporate the definition
of domestic terrorism described above but cover ancillary issues like victim compensation, insurance, and divestment
from sponsors of foreign terror.10 These laws will not be included in the analysis below. Finally, the 25 states not covered
in this memo also have statutes that criminalize specific acts, like the use of weapons of mass destruction,that might be
considered terrorism. However,because these statutes do not meet the specific intent requirement outlined above, they
will not be examined at length in this memo.11
State governments sometimes prosecute the perpetrators of terrorist attacks under state law, including some
state terrorism statutes,12 and terrorism investigations frequently involve cooperation between federal,state, and local
law enforcement. However,the federal government has also concurrently prosecuted all recent, high-profile prosecu-
tions of domestic terrorists under federal law.13 These include the Boston bombing, the plot to kidnap Michigan Governor
5 See Edward Orehek&Anna Vazeou-Nieuwenhuis,Understanding the Terrorist Threat,1 Poly Insights from the Behavioural
and Brain Sci.'s 248 (2014).
6 There are two exceptions to this definition included in this memo:Vermont and Nevada.Neither follow the federal definition
of domestic terrorism and focus instead on the commission of mass casualty events or attacks against critical infrastructure.However,
both include coercion of the civilian population in their definition of terrorism,and Vermont specifically refers to these acts as"do-
mestic terrorism"See Nev. Rev.Stat.202.4415;Vt. Stat.tit. 13, 1703.These exceptions highlight the difficulty in accurately defining or
delineating the concept of domestic terrorism.See supra note 1.
7 See,e.g., Ga.Code 16-11-220(2)(defining`domestic terrorism").
8 See,e.g., Conn. Gen. Stat. 53a-300(defining"act[s] of terrorism").
9 See Fla.Stat.775.32-34.
10 For example,many states have laws requiring schools to prepare for and report acts of terrorism;most states have victims
compensation and veterans benefits acts,which may provide support to victims of violent crimes,including acts of foreign and domes-
tic terror,and veterans of the"war on terror:'State racketeering statutes may also explicitly or implicitly cover certain terrorist activities.
A number of states also have"divestment from terror" statutes requiring various state funds,often pension funds,to divest from state
sponsors of terror.
11 See sources cited and accompanying text,supra note 1.
12 See Denise Lavoie,Man Sentenced to Second Life Term in Charlottesville Car Attack,AP News(July 15,2019),https://
apnews.corn/article/va-state-wire-us-news-ap-top-news-virginia-Charlottesville-08c7dbeb08ef4ad5874cd719e7cfc6b3;Case against
accused Buffalo mass shooter proceeds in court,AP News(July 7,2022),https://apnews.com/article/buffalo-supermarket-shoot-
ing-crime-shootings-hate-crimes-090ebfe29a8ea621ec5fbfaad6fa867d;Mitch Smith,Jury Convicts Men of Supporting Plot to Kidnap
Michigan Governor,N.Y.Times(Oct 26,2022),https://www.nytimes.corn/2022/10/26/us/michigan-wolverine-watchmen-trial.html.
13 See Lisa Daniels,Prosecuting Terrorism in State Court,LAWFARE(Oct.26,2016, 11:33 AM),https://www.lawfareblog.com/
prosecuting-terrorism-state-court.
21
Gretchen Whitmer,the Tree-of-Life Synagogue shooting, the car attack following the Unite-the-Right Rally in Charlottes-
ville, Virginia,14 the January 6th insurrection at the United States Capitol,15 and the recent mass shooting at a supermar-
ket in Buffalo, New York.16 As noted above, state prosecutors frequently undertake concurrent prosecutions for these
and similar terrorist attacks, but sometimes decline to do so or decline to use their state terrorism statutes to do so.The
reasons for these decisions may include resource disparities between federal and state prosecutors,the existence of par-
ticularly strong federal incentives to prosecute political violence,and the specific intent required in court to prove many
state terrorism offenses, which may make it easier to prosecute the offense under other state laws including murder
statutes.17 Free-standing state domestic terrorism prosecutions are less common and often focus on school shooters or
those who threaten school shootings.18
A. Defining Domestic Terror
The federal government defines domestic terrorism in 18 U.S.C. § 2331(5) as a specific intent crime covering
activities that. . . involve acts dangerous to human life that are a violation of the criminal laws of
the United States or . . . any State . . . [and] 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; and
occur primarily within the territorial jurisdiction of the United States.19
Although this definition is broad, it excludes attacks on U.S. soil committed by Americans with ties to foreign terrorist
organizations.20 It also excludes mass-casualty events, like mass shootings, that are not motivated by the specific intent
to coerce or intimidate civilian populations and governments(including acts motivated by racial animus that might be
covered by separate hate crimes laws).21
A majority of states with terrorism statutes incorporate the federal definition of terrorism from 18 U.S.C. §
2331(5). Many state statutes modify this definition,often specifying the particular "activities"that constitute terrorism
by listing certain offenses. For example, the Alabama code defines terrorism as
(1) ACT OF TERRORISM. An act or acts constituting a specified offense . . . that is intended to do the
following:
a. Intimidate or coerce a civilian population.
14 See id.
15 See Capitol Breach Cases, United States Attorney's Office:District of Columbia,Dep't of Just.,https://www.justice.gov/usao-dc/
capitol-breach-cases,(last visited Aug.12,2022).
16 See Buffalo Mass Shooting Suspect Pleads Not Guilty to Federal Hate, Firearms Charges,Reuters(July 18,2022, 12:15 PM),
https://www.reuters.com/world/us/buffalo-mass-shooting-suspect-be-arraigned-federal-hate-firearms-charges-2022-07-18/.
17 See Daniels,supra note 12.
18 See Katherine Fiegenbaum,Domestic Terrorism Charge Against Orleans County Student Marks Rare Use of 2018 Law,
VTDigger(June 10,2022),https://vtdigger.org/2022/06/10/domestic-terrorism-charge-against-orleans-county-student-marks-rare-
use-of-2018-law/;Jennifer Conlin et.al,Suspect in Michigan School Shooting Faces Murder and Terrorism Charges,N.Y.Times(Dec. 1,
2021),https://www.nytimes.com/2021/12/01/us/ethan-crumbley-michigan-high-school-shooting.html;Brad Dress,Florida Police Say
Students May Have Thwarted a Potential Mass Shooting by Reporting Snapchat Messages,The Hill(Dec. 10,2021, 10:27 AM),https://
thehill.com/homenews/state-watch/58 5277-florida-police-say-students-may-have-thwarted-a-potential-mass-shooting/?r1=1.
19 18 U.S.C.§2331(5).
20 See Lisa.N.Sacco,Cong.Rsch.Serv., R44921,Domestic Terrorism:An Overview 2-5 (2017).
21 See id.
22
b. Influence the policy of a unit of government by intimidation or coercion.
c. Affect the conduct of a unit of government by murder, assassination, or kidnapping.
(4) SPECIFIED OFFENSE. A Class A felony [which includes murder and the following first degree offenses:
kidnapping, rape, sodomy, sexual abuse, human trafficking, burglary,arson, and robbery], manslaughter,
kidnapping in the second degree,assault in the first or second degree, stalking, intimidating a witness,
criminal tampering, endangering the food supply, endangering the water supply or any attempt or con-
spiracy to commit any of these offenses.22
Like the federal definition, this language defines terrorism as a specific intent crime requiring the commission of a (usual-
ly violent) offense and an intent to use that crime to intimidate or coerce a civilian population or influence or affect gov-
ernment policy. The listed crimes vary by state but generally include different combinations of the violent offenses listed
in the Alabama statute above. Most states with domestic terrorism statutes incorporate some version of this language
into their state codes.23
States sometimes define specific terrorism offenses that do not require intent.These include categorizing as ter-
rorism any attack on critical infrastructure, including food supplies,water supplies, telecommunications, transportation
infrastructure, energy facilities,government buildings, and hospitals.24
B. Criminalizing Acts of Terror
Federal domestic terror law creates no freestanding"terrorism"offense.25 Instead, "federal law creates dozens of
'terrorism'crimes applicable to specific circumstances—such as using a bomb, biological agent,or radiological dispersal
device" but does not directly penalize violent terrorist acts using firearms or vehicles when those acts are not committed
on behalf of foreign terrorist organizations.26
State domestic terror laws differ from the federal law primarily because they do create freestanding crimes
under which a terrorist may be charged, convicted, and sentenced.These laws fall into several broad subcategories. First,
most state domestic terrorism laws include sentence enhancements for the crime underlying the terrorist act. Second,
many states created new terrorism offenses for attacks on certain targets. Third, many states have enacted laws that
criminalize activities performed in support of terrorism. Finally, some states have enacted statutes explicitly providing for
the protection of civil liberties in their domestic terrorism statutory schemes.
1. Sentence Enhancements on Underlying Offenses
The majority of states that criminalize terrorism use a system of sentence enhancing statutes that punish ter-
rorists more severely than non-terrorist offenders who commit the same underlying offense. For example,the Ohio
terrorism statute prescribes particular offenses that,when committed with intent to intimidate or coerce the civilian
population or influence government conduct or policy, become acts of terrorism subject to sentencing as "an offense one
degree higher than the most serious underlying specified offense the defendant committed."27 The statute also contains
even harsher sentences for specific categories of murder, providing for mandatory life imprisonment without parole.28
Almost all of the state statutory domestic terrorism schemes reviewed for this memo include provisions that
operate in the same fashion,either by increasing the"class" of the offense to a higher sentencing level29 or by including
22 Ala. Code. § 13A-10-151.
23 See,e.g.,Ariz.Rev.Stat. § 13-2301.12;Ark.Code.§5-54-205(a).The full listing of these statutes can be found in Appendix A,
infra.
24 See,e.g.,Nev.Rev. Stat. §202.4415; S.D.Codified Laws§22-8-14.
25 See Perris et.al,Cong.Rsch.Serv., R46829,Domestic Terrorism:Overview of Federal Criminal Law and Constitutional Issues
1 (2021);Instit.for Const.Advoc.&Prot.,supra note 3,at 39.
26 See id.; 18 U.S.C.§2331(5).
27 See Ohio Rev.Code§§2909.24(A),(3)(1)—(2).
28 See id.at(3)(3)—(4).
29 See,e.g.,Fla. Stat. §775.31(1).
23
specific, harsher penalties(for example, life without parole or a longer-than-normal term of years) in the terrorism stat-
ute."
Whether an individual offender may be charged for both an underlying offense and the crime of terrorism arising
from the same course of criminal conduct depends on state law and procedures.Some states, including New Jersey31 and
Virginia,32 specifically allow for separate criminal charges on both the terrorism offense and the underlying crime. For ex-
ample,an individual who committed first degree murder with terrorist intent in New Jersey could be convicted for both
first degree murder and terrorism and receive consecutive life sentences.
In states without specific statutes authorizing these multiple separate sentences,whether an individual offender
may be simultaneously sentenced for a terrorist offense and an underlying offense may depend on application of the
Blockburger test and its state equivalents,which generally prohibit multiple sentencing for the same course of criminal
conduct unless each crime contains an element that is not present in the other.33 These tests would also govern whether
individuals may be charged under both terrorism and hate crimes statutes (if applicable) for the same criminal conduct.
2. Creating New Terrorism Offenses
State statutory schemes sometimes create new offenses related to specific terrorist activities that may or may
not be covered by other underlying offenses. For example, many states outlaw the possession, construction, and use of
weapons of mass destruction,a category including chemical, biological,nuclear,and explosive weapons.34 This offense
is similar to one found in federal domestic terrorism law.35 These states also outlaw making threats or false reports of
WMD.36 Similarly, many states outlaw terroristic threatening—making threats to commit a specified offense with terrorist
intent.37
Some states create entirely separate offenses for attacks on critical infrastructure,mirroring a similar federal
domestic terrorism law.38 These include attacks against public transportation, energy facilities,food and water supplies,
agricultural areas, health care facilities, communications infrastructure, and computer networks.39
3. Criminalizing Support Activities
Many state domestic terror schemes create additional offenses to criminalize actions taken in support of terrorism.The
most commonly criminalized support activity is"material support"of terrorism. This offense,which is also present in federal domes-
tic terrorism law,40 includes soliciting with the intent to provide or actually providing terrorists with financial support, lodging,train-
ing,41 false documentation,communications equipment,weapons,transportation,and other similar assets with intent that the ma-
terial support be used to further acts of terrorism.42 These statutes usually exempt the provision of medical, and sometimes religious
or legal,services to terrorists.43 Several states create "tiered"material support offenses, providing that financial or other support
exceeding a certain dollar value will be treated as a more serious offense than assistance amounting to a lesser dollar value.44 Some
states,and federal law,45 also explicitly criminalize money laundering or fundraising in support of terrorism.46
30 See,e.g.,Ga. Code§ 16-11-221.
31 See N.J.Stat.§2C:38-2.f—g.
32 See Va.Code§18.2-46.10.
33 See Blockburgerv.United States,284 U.S.299,304(1932).
34 See,e.g., 18 Pa. Cons.Stat.§2716.
35 See 18 U.S.C.§2332a.
36 See,e.g., 18 Pa. Cons.Stat.§2715.
37 See,e.g.,N.Y. Penal Code§490.20.
38 See 18 U.S.C.§2332f.
39 See,e.g.,Conn.Gen.Stat.§53a-304;see Ga.Code§§ 16-11-220-21;Conn.Gen. Stat.§ 53a-301.
40 See 18 U.S.C.§2339A.
41 Washington state prohibits individuals from training others to use devices or techniques capable of causing significant harm
to others if done to further a"civil disorder"Wash. Rev.Code Ann.§9A.48.120.Our research did not reveal any cases involving this
statute.
42 See,e.g.,Ala.Code§13A-10-151(2),153.
43 See,e.g.,Ala.Code§13A-10-151(2).
44 See,e.g.,Iowa Code§708A.4.
45 See 18 U.S.C.§§2332d,2339c.
46 See Ohio Rev.Code§2909.29.
24
Many states criminalize"hindering prosecution of terrorism,"an offense prohibiting others from helping terror-
ists avoid discovery, evade apprehension,or disrupt or delay resulting trials.47 States sometimes provide for differing clas-
sifications of the"hindering" offense,which may turn on whether the underlying terrorist offense caused any deaths48 or
whether the hinderer was a close family relation of the terrorist.49 Federal law similarly outlaws"harboring or conceal-
ing"terrorists.5°
C. Protecting Civil Liberties
Some states provide explicitly that their anti-terrorism laws will not infringe on the rights of individuals under
the federal and sometimes state constitutions.51 These may describe particular rights not to be infringed, including free
speech, peaceful assembly,and the right to petition the government for redress.52 Idaho also notes that its anti-terrorism
statutes will not infringe on the constitutional right to bear arms.53
D. Forfeiture, Restitution,and Civil Causes of Action
Some states maintain statutory provisions to allow governments and individuals to recoup financial losses result-
ing from terrorist acts. In some states, these include seizure and forfeiture of any property used or intended for use in
the commission of terrorist offenses.54 These statutes allow the state to confiscate and sell any personal property belong-
ing to the perpetrator and used in the commission of the terrorist act.
Many states also allow for restitution,especially in cases of terroristic threats.55 Restitution allows government
agencies and individuals affected by terrorist threats to sue a convicted terrorist for costs incurred during the response
to the terrorist act. For example, a school and local emergency responders might recover the cost of an evacuation in
response to a terroristic bomb threat against that school.
Finally, some states and the federal government56 provide that prosecution under terror statutes does not pre-
clude civil action against terrorists by persons injured during a terrorist act.57 Some states simply guarantee that damages
will remain available while others allow for multiple damages, costs, and attorneys' fees in such cases.58
E. Domestic Terrorism Data Collection and Intelligence Analysis("Fusion Centers")
Federal and state governments engage in varying levels of data collection and intelligence analysis related to
terrorism.The federal Department of Homeland Security (DHS) has responsibility under the Homeland Security Act of
2002 to facilitate the collection,analysis, and dissemination of terrorism-related intelligence between the federal,state,
and local governments; DHS has chosen to carry out this statutory mandate by funding the establishment of state and
major-urban-area intelligence fusion centers that collect,analyze,and disseminate intelligence on terrorism, criminal
matters,and public safety.59 According to DHS,
"[f]usion centers contribute to the Information Sharing Environment . . . through their role in receiving
threat information from the federal government;analyzing that information in the context of their local
environment; disseminating that information to local agencies; and gathering tips, leads, and suspicious
47 See,e.g.,Mich.Comp. Laws§§750.543b(f), .543h.
48 See Ala. Code§ 13-A-10-154.
49 See Ark.Code§5-54-208.
50 See 18 U.S.C.§2339.
51 See,e.g.,Ga. Code§ 16-11-224.
52 See Idaho Code§ 18-8102;Mich.Comp.Laws§750.543z.
53 See Idaho Code§ 18-8102.
54 See,e.g.,N.C.Gen.Stat.§ 14-10.1(d).
55 See,e.g., 18 Pa. Cons.Stat.§2706(b).
56 See 18 U.S.C.§2333
57 See,e.g.,N.C.Gen.Stat.§ 14-10.1(e).
58 See id.
59 See Homeland Security Act of 2002, Pub. L.No. 107-296;see also Majority and Minority Staff Report, S. Comm.on Home-
land Sec.&Governmental Affs. Permanent Subcomm.on Investigations, 112th Cong.,Federal Support for and Involvement in State
and Local Fusion Centers 10 (2012)(hereinafter PSI Report).
25
activity reporting. . . from local agencies and the public."60
Fusion centers include federal, state,and local government entities, as well as private sector actors like critical infra-
structure operators.61 The FBI also plays a role in collecting and disseminating terrorism intelligence with state and local
entities through its Joint Terrorism Task Forces(JTTF).62 JTTFs are "multi-jurisdictional task forces managed by the FBI,
includ[ing] other federal and [state,local,tribal,and territorial] law enforcement partners which together act as an
integrated force to combat terrorism."53 There are nearly 200 JTTFs64 and approximately 80 state and major-urban-area
fusion centers65 in the United States,covering all 50 states.
Several states have specific legislation authorizing the operation of statewide fusion centers, which collect,
analyze,and distribute information related not only to terrorism but also general criminal activity within the state.66
The state statutes establishing these centers mandate information sharing between local, state,and federal agencies on
terrorist threats and provide for the classification and secure storage of such data.67 Other states established their fusion
centers without explicit authorizing statutes.68 Fusion centers are primarily funded by state governments,which have
considerable authority over their day-to-day operations.69
Both JTTFs and fusion centers have been criticized for ineffectiveness and purported violations of civil liberties.
As early as 2012, a report by the U.S. Senate Permanent Subcommittee on Investigations found that state fusion centers
lacked oversight,were largely ineffective in performing their counterterrorism mission, and frequently violated DHS
guidelines intended to protect Americans'civil liberties and privacy.70 According to PSI, "despite reviewing 13 months'
worth of reporting originating from fusion center[s] . . . ,the Subcommittee investigation could identify no reporting
which uncovered a terrorist threat, nor could it identify a contribution such fusion center reporting made to disrupt
an active terrorist plot."71 Most of the reporting was about criminal activity related to drugs or smuggling.72 The terror-
ism-related reporting conducted by the fusion centers was based on older news releases and media accounts or duplicat-
ed reporting by FBI sources.73
More recent investigations by several news outlets revealed that the South Western Oregon Joint Task Force
and Oregon's TITAN Fusion Center surveilled peaceful protestors opposed to the construction of a natural gas pipeline,
collecting information about nonviolent, noncriminal First Amendment activities.74 Oregon's fusion center also reportedly
placed the civil rights director of the Oregon Department of Justice under surveillance after he used the hashtag#B1ack-
LivesMatter.75 Other fusion centers have come under significant criticism for tracking racial justice demonstrators and
60 See National Network of Fusion Centers Fact Sheet,Dep't of Homeland Sec.,https://www.dhs.gov/national-network-fu-
sion-centers-fact-sheet(last visited Aug.8,2022)
61 See Fusion Centers and Joint Terrorism Task Forces,Dep't of Homeland Sec.,https://www.dhs.gov/fusion-centers-and-joint-
terrorism-task-forces(last visited Aug.8,2022).
62 See Joint Terrorism Task Forces,Fed.Bureau of Investigation,https://www.fbi.gov/investigate/terrorism/joint-terror-
ism-task-forces(last visited Aug.8,2022).
63 See See Fusion Centers and Joint Terrorism Task Forces,supra note 61.
64 See id.
65 See Fusion Center Locations and Contact Information,Dep't of Homeland Sec.,https://www.dhs.gov/fusion-center-loca-
tions-and-contact-information(last visited Aug.8,2022).
66 See,e.g.,Fla. Stat. §943.0321.
67 See Kan.Stat.§48-3703.
68 See Nick Morgan,Four Jordan Cove Opponents Sue State Over Secret Surveillance,Mail Tribune(June 2,2022, 3:12 PM),
https://www.mailtribune.com/crime-courts-and-emergencies/2022/06/01/four-local-women-sue-state-over-secret-surveillance/.
69 Alice Speri,The Defund Police Movement Takes Aim at Fusion Centers and Mass Surveillance,The Intercept(Apr.21,2021,
7:00 AM)http s://theintercept.com/2021/04/21/maine-defund-police-fusion-centers-mass-surveillance/.
70 See PSI Report,supra note 59,at 2-3.
71 See id.at2.
72 See id.at 3.
73 See id.
74 See Jason Wilson&Will Parrish,Revealed:FBI and Police Monitoring Oregon Anti-Pipeline Activists, The Guardian(Aug.8,
2019,2:00 AM),https://www.theguardian.com/us-news/2019/aug/08/fbi-oregon-anti-pipeline-jordan-cove-activists;Maxine Bernstein,
Lawsuit:Oregon's Anti-Terrorism Center Lacks Authority,Collects Intelligence on Protestors, The Bulletin(Dec. 14,2021),https://
www.bendbulletin.com/localstate/crimeandju stice/lawsuit-oregon-s-anti-terrorism-center-lacks-authority-collects-intelligence-on-pro-
te s to r s/ar tic le_0 0 fc c a 5 a-b 46b-5 912-ac 10-58 8 57 9b f38 fe.htm 1.
75 See Andrew Dorn,Johnson Says Oregon DOJ Didn't Show`Loyalty'In Civil Rights Case,Oregon Public Broadcasting, (Oct.
17,2017),https://www.opb.org/radio/programs/think-out-loud/article/oregon-civil-rights-attorney-settlement-erious-johnson-inter-
view/.
26
Black cultural events,76 environmental activists and gun owners,"and in some cases for attempting to evade state free-
dom of information laws.78 In some states,these incidents have led to lawsuits79 and state legislative action80 to disband
or establish more effective oversight over fusion centers.
These critiques of state surveillance dovetail with critiques of the FBI's domestic terrorism efforts, which have
been criticized for surveilling racial justice activists under the"Black Identity Extremism"domestic terrorism category.81
F. Emergency Planning
Many states have emergency management statutes governing emergency and homeland security planning and
response. While most of these statutes specifically reference terrorism,they do so as one in a list of many potential
disasters that state emergency management and homeland security agencies must prepare for.82 Because these statutes
only tangentially relate to domestic terrorism, only a few relevant examples are included in Appendix A.
Some states task emergency planning agencies with specific preparation and mitigation duties,86 although these
laws appear targeted at disaster planning and response rather than community engagement and de-escalation program-
ming for populations at risk of radicalization. Other states have statutorily-created homeland security advisory boards
intended to advise the executive or the legislature on best practices for mitigating, preventing, and responding to terror
and other disaster situations.`
III. Local Domestic Terror Laws
The Raben Group conducted a search of the municipal codes of thirty-nine major cities in the United States.85
The first six cities were included because they are six of the largest cities in the country;the next three are smaller but
experienced major terrorist events in recent decades; and the remaining thirty are located in states that have faced in-
creased threats from domestic terrorism in recent decades.
None of the cities searched had any ordinances or codes related to fighting domestic terror. Several referenced
terrorism in their emergency planning codes,which task municipal emergency management agencies with preparing for
and reacting to major terrorist attacks.86
IV. Recent Federal. State, and Local Policy Developments
In Spring 2022,the U.S. House of Representatives passed H.R. 350,the Domestic Terrorism Prevention Act of
76 See,e.g.,Michael German,The FBI Targets a New Generation of Black Activists, Brennan Ctr.for Justice(June 26,2020),
https://www.brennancenter.org/our-work/analysis-opinion/fbi-targets-new-generation-black-activists;Isaiah Holmes,A Look at
Milwaukee PD's Fusion Center,Wisconsin Examiner(Mar.30,2021,7:00 AM),https://wisconsinexaminer.corn/2021/03/30/a-look-at-
milwaukee-pds-fusion-center/;Mara Hvistendahl,Austin Fusion Center Spied on Nonpolitical Cultural Events, The Intercept(Nov.30,
2020, 12:00 PM),https://theintercept.com/2020/11/30/austin-fusion-center-surveillance-black-lives-matter-cultural-events/.
77 See Speri,supra note 69.
78 See Will Parrish,Minnesota Law Enforcement Agency Blocks Release of Public Records About Surveilling Pipeline Oppo-
nents,The Intercept(Aug.7,2021, 11:04 AM),https://theintercept.com/2021/08/07/minnesota-pipeline-line-3-public-records/.
79 See Bernstein,supra note 74.
80 See Rachel Ohm,Lawmakers Critical of First Report out of Maine Police Fusion Center,Portland Press Herald(Apr.6,2022),
https://www.pressherald.com/2022/04/01/lawmakers-critical-of-first-report-on-cases-handled-by-state-police-intelligence-agency/.
81 See German,supra note 76.
82 See,e.g.,D.C. Code§7-2231.03.
83 See id.
84 See,e.g.,Ga. Code§§38-3-40-42.
85 The cities surveyed were:New York,NY;Los Angeles,CA;Houston,TX;Phoenix,AZ;Philadelphia,PA;Boston,MA;
Oklahoma City,OK;Orlando,FL;Boise ID,Meridian,ID;Nampa,ID;Aurora,IL;Naperville,IL;Detroit,MI; Grand Rapids,MI;Ann
Arbor,MI;Minneapolis,MN; St.Paul,MN;Rochester,MN; Billings,MT;Missoula,MT;Fargo,N.D.;Bismarck,N.D.; Columbus, OH;
Cleveland,OH; Cincinnati,OH;Portland, OR;Eugene, OR;Salem,OR;Sioux Falls,S.D.;Rapid City, S.D.; Seattle,WA;Spokane,WA;
Tacoma,WA;Milwaukee,WI;Madison,WI;Green Bay,WI.
86 See e.g.,NYC Charter,Chap. 19-A, Sec.497(a).
27
2022.87 H.R. 350 would have formalized and refocused federal law enforcement responses to domestic terrorism. H.R.
350 failed in the Senate, 47 to 47, amid Republican criticism that the bill duplicated existing authority,was "like the patri-
ot act for American citizens,"and "insult[ed] our police and soldiers as White supremacists and neo-Nazis."88
The Act would have created new offices in the Department of Homeland Security,the Department of Justice,and
the FBI with authority to gather intelligence, prosecute, and investigate domestic terrorism.89 The bill also would have:
required each office to have at least one employee dedicated to "ensuring compliance with civil rights and civil liberties"
and required that all employees undergo "annual anti-bias training";90 created a joint biannual reporting requirement
for all three agencies,including a qualitative and quantitative analysis of domestic terrorist incidents,specifically white
supremicist incidents,and associated law enforcement actions;91 required the domestic terrorism offices established by
the law to undergo law-enforcement training on best practices to combat domestic terrorism and to focus on the "most
significant domestic terrorism threats" as determined by the number of incidents from each category of domestic ter-
ror;92 and created an interagency task force to analyze and combat"White supremacist and neo-Nazi infiltration"of the
armed services and federal law enforcement.93
In 2021,Washington state passed SB 5051,94 a law that, in part,allows the Criminal Justice Training Commission
(CJTC) to deny,suspend, or revoke a peace officer's certification if that officer was affiliated with extremist organiza-
tions.95 The law also expanded the CJTC to create a majority of community and non-law enforcement members.96 Ad-
ministrative regulations promulgated by the CJTC broadly define"extremist organization[s]"as seeking to: 1) undermine
democratic processes through violence; 2) promote governmental changes through violence; 3) promote, espouse,
or engage in violence to marginalize certain protected classes or advance racist ideologies; or 4) advocate an ideology
holding that local law enforcement supersedes other governmental authorities.97 The bill faced intense opposition from
police unions.98
Although 2021 had the most certification cases on record and 2022 tied with 2020 for the second-most certifica-
tion cases on record, the CJTC's public database of certification cases shows no successful decertifications or denials of
certifications since the law's passage in spring 2021.99 Of the 100 publicly reported cases in the CJTC database from May
2021 to August 2022,sixty-eight are still pending, twenty are under review, and twelve were closed without decertifica-
tion.10°
In May 2022, New York Governor Kathy Hochul, responding to the threat of domestic terrorism following the
recent mass shooting at a Buffalo supermarket, signed an executive order that created a task force on social media and
violent extremism to study, investigate,and make recommendations relating to the role that social media companies
may play in promoting acts of violence,especially hate crimes and acts of terrorism.101 New York has also revived its
87 See H.R.350, 117th Cong.(2022).
88 See Clare Foran&Ted Barrett, Senate Republicans Block Domestic Terrorism Prevention Bill in Key Vote,CNN(May 26,
2022, 12:37 PM),https://www.cnn.com/2022/05/26/politics/senate-domestic-terrorism-bill-vote/index.html(quoting Senators John
Thune and Rand Paul);Tyler Olson,Texas School Shooting:Domestic Terrorism Bill Stalls in Senate After Tragedies in Buffalo,Uvalde,
Fox News(May 26,2022, 12:32pm),http s://www.foxnews.com/politics/texas-school-shooting-senate-domes tic-terrorism-law-gun-con-
trol-buffalo(quoting Senator Josh Hawley).
89 See H.R.350§3(a)(1)—(3).
90 See id.at§3(a)(4)(B)—(C).
91 See id.at§3(b).
92 §§3(d),4,
93 See id.at§5.
94 See Peace Officers and Corrections Officers—State Oversight and Accountability,2021 Wash. Sess. Laws Ch.323, 12-15, §8.
95 Gene Johnson,Washington Lawmakers OK Proposal Easing Decertification of Law Enforcement Officers,King5.com(Apr.
21,2021, 10:08 PM).
96 Melissa Santos,New WA Police Accountability Law Can Now Include Past Misconduct,Crosscut(Mar.31,2022,8:31 AM),
http s://cro s scut.com/politics/2022/03/new-wa-p olice-accountability-law-can-now-include-past-mis conduct.
97 See Wash.Admin. Code§ 139-01-310(11).
98 See Jim Patrick,Huge Win:Washington Removes Requirement Making Police Give Access to Their Personal Social Media
for Recertification,Law Enforcement Today(Sept.4,2021),https://www.lawenforcementtoday.corn/washington-police-giving-ac-
cess-to-social-media-for-recertification-reversed/.
99 See Washington State Criminal Justice Training Commission Officer Certification Cases,Data.T'VA.gov,https://data.wa.gov/
stories/s/WSCJTC-Certification-Database/3xkp-u89m(last visited Aug. 30,2022).
100 See id.
101 See Chris Gelardi,The State Police Sent You a Friend Request,N.Y.Focus(June 13,2022),https://www.nysfocus.
corn/2022/06/13/fake-accounts-state-police-social-media-monitoring/;N.Y.Exec. Law§70-c.
28
domestic terrorism task force (which was nominally established in 2020) to develop recommendations and best practices
on combatting domestic terror, hate crimes,and mass shootings.i02 Some of those best practices will be sent to the new
domestic terrorism unit in the state homeland security agency's Office of Counter Terrorism,which is intended to "inter-
vene in the radicalization process"and train law enforcement,mental health professionals, and school officials on how
to identify ongoing radicalization.103 These steps by the New York Assembly appear to be some of the first state legislative
enactments in the country targeted at mitigating terrorism through the use of community engagement and deradicaliza-
tion rather than criminal penalties.
Maryland's legislative budget committees requested in 2021 that the state Department of Emergency Manage-
ment convene an ad hoc task force to recommend how federal Homeland Security Grant Program funding could be best
used to prevent and counter domestic terrorism.104 These recommendations including engaging public health profes-
sionals to intervene and prevent radicalization, examining the impact of social media on radicalization, encouraging and
facilitating earlier reporting of emerging threats to bolster prevention,and creating a task force or coordinating group to
continue and align efforts across the terrorism prevention space.105 A bill to establish a permanent Domestic Terrorism
task force was introduced but did not advance to passage in 2021.1°6
Other states and local governments have also established domestic terrorism task forces to help coordinate and
respond to acts of domestic terror.These include Texas's Domestic Terrorism Task Force and the Monroe County Threat
Assessment and Management program in upstate New York, both of which collect,analyze,and distribute intelligence
with a focus on law enforcement and related preventative measures.107
New York legislators introduced a bill in 2021 to automatically categorize as domestic terrorism knife and fire-
arms attacks in certain public places motivated by race,religion, and other categories traditionally associated with hate
crimes legislation.108
In 2021,Oklahoma legislators proposed including"doxxing" (the involuntary release of personal information on
the internet for harassment purposes) in the definition of terrorism.109
Idaho legislators in 2022 proposed a number of changes to that state's terror laws,most notably by adding a
definition of"domestic terrorist" and specifically limiting that definition to individuals actually convicted of the crime of
terrorism within the state,11°which the sponsors argue will "prevent an Idahoan from being labeled a domestic terrorist
or terrorist in Idaho without constitutionally protected due process."111
Georgia legislators proposed in 2021 to create a legislative Joint Committee on Domestic Terrorism,which would
consider legislative matters and receive reports from state law enforcement related to domestic terrorism.112 The bill
would have required the Georgia Bureau of Investigation to monitor, investigate,collect,and share data on domestic ter-
rorism, and would have given the Bureau substantial power to search,arrest,and investigate, with and without warrants,
to carry out this information-gathering mandate.113
102 See Joshua Solomon,N.Y.Domestic Terrorism Task Force Set to Meet for First Time on June 15,Albany Times Union(May
31,2022,4:25 PM),https://www.timesunion.com/state/article/Domestic-Terrorism-Task-Force-set-to-meet-for-17204291.php.
103 Id.
104 See Task Force on Preventing&Countering Domestic Terrorism,Maryland.gov,https://msa.maryland.gov/msa/mdmanu-
al/14dem/html/demd.html(last visited Sept. 13,2022).
105 See Md.Dep't of Emergency Mgmt.,Joint Chairman's Report-State Operating Budget Bill Domestic Terrorism Taskforce 2-3
(2021).
106 See H.S. 1227,2021 Leg.,442nd Sess. (Md.2021).
107 See Teessa Weinberg,Domestic Terrorism Task Force Looks at Ways to Prevent Crimes Before They Occur,Fort Worth
Star-Telegram(Aug.30,2019,7:47 PM);Wendy Wright,Monroe County's Threat Assessment and Management Program to Be Used as
Model for New York State,Spectrum News 1 (June 23,2022,8:18 PM),https://spectrumlocalnews.com/nys/rochester/news/2022/06/23/
nys-to-model-monroe-county-s-threat-assessment-and-management-program.
108 See A.B.6580,244th Leg.,2021-2022 Reg. Sess.(N.Y.2021).
109 S.B.9,158th Leg., 1st Reg. Sess.(Okla 2021).
110 See S.B. 1398,66th Leg.,2d.Reg. Sess. (Idaho 2022).
111 See Statement of Purpose,S.66-1398, 2d Reg.Sess(Idaho 2022).
112 See H.S.716, 156th Leg.,2021-22 Reg. Sess.(Ga.2021),at§4.
113 See id.at§5.
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Conclusion
There is little evidence that state-based efforts to combat domestic terrorism with enhanced criminal penalties,
dedicated surveillance,or attempts to exclude so-called extremists from law enforcement have been effective in light
of the federal government's jurisdiction over all significant cases and the propensity for these types of state efforts to
be misused against social justice advocates. But given recent events and legislative developments in New York state and
elsewhere,the state policy landscape is ripe for innovative thinking on community-based efforts to prevent domestic
terrorism and inoculate against disinformation.
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