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IMPLICATIONS OF CHARGING THE OXFORD HIGH SCHOOL PERPETRATOR WITH TERRORISM

Brandon Pachman, Counter Threat Strategic Communications Team; Marina Tovar, Counterintelligence and Cyber Team

Week of Monday, January 3, 2022


Court Room[1]


On November 30, 2021, a 15-year-old sophomore at Oxford High School in Oakland County, Michigan, US shot 11 people, killing four students and wounding seven others.[2] Public authorities will likely use existing counterterrorism measures and resources to combat school shootings in the event the attacker is found guilty of terrorism. The outcome of the Oxford High School shooting trial is very likely to set a legal precedent for future events. Future prosecutors would likely use the decision in the case against the Oxford shooter to charge other school shooters with terrorism. A non-guilty verdict will likely create complications for prosecutors who want to charge future school attackers with terrorism. Failure to apply these charges will likely allow other trials with similar events, motivations, or number of deaths to justify the non-applicability of terrorism charges imposed in those trials. Finding the attacker guilty of terrorism will likely lead public authorities to take more aggressive measures, like surveil suspects and respond more proactively.


Past US school shooters were charged with murder, attempted murder, assault, and possession of weapons.[3] The nature of each case and the laws of each US state where the shootings occurred likely impacted the types of charges brought against school shooters. Given many perpetrators’ suicides, the judicial responses to shootings likely developed more slowly than they would have if prosecutors could bring every perpetrator to court. Despite the life imprisonment sentences of the Santana, Granite Hills, and Orange High School perpetrators, the increase in school shootings very likely indicates that the threat of jail time does not deter perpetrators. The absence of federal charges filed against these school shooters likely indicates the US Department of Justice (DOJ) was either willing to let states handle criminal proceedings, or laws did not exist for the federal government to try school shooters. This has likely created heterogeneous legislation throughout the US with varying definitions and charges for the same event. The lack of standard definitions will very likely create problems in applying a precedent from one state to another.


Oakland County District Attorney (DA) Karen D. McDonald charged the Oxford High School perpetrator with four counts of first-degree murder, seven counts of assault with intent to murder, 12 counts of possession of a firearm during the commission of a felony, and one count of terrorism.[4] The public pressure from victims’ families likely contributed to the prosecutor’s decision to break from earlier patterns, filing charges against the perpetrator, his parents, and Oxford High School. Several high-profile school shootings and public pressure from victims likely pushed prosecutors to take more aggressive prosecutorial actions in recent years. In the Santa Fe perpetrator case, public pressure from victims’ families for the DOJ and US Congressional representatives to take more action after the DOJ declined to charge the shooter likely influenced the decision to ultimately charge said perpetrator with federal crimes.[5] The prosecutor’s decision to charge the Parkland shooter with 17 counts of murder and 17 counts of attempted murder, more than what was needed to imprison the perpetrator for life, suggests that they likely considered the importance of the public’s reaction to the shooting when presenting the charges.[6] The Oakland County DA likely anticipated the public pressure from the victims and their families when deciding what to charge the perpetrator with.


The parents of two Oxford High School students filed a federal civil lawsuit against Oxford High School arguing a violation of constitutional rights under the 14th Amendment due to the lack of a “clearly established right to be free from danger,” because the perpetrator was allowed to return to class after teachers met with him the morning of the shooting.[7] According to the civil lawsuit filed against the school, school officials ignored warning signs, and the superintendent “discouraged parents and students from reporting, sharing or discussing threatening social media posts.”[8] School officials’ lack of action aside from meeting with the perpetrator’s parents likely enabled him to attack the school. If the school is found liable, other schools that endure school shooting incidents and ignore warning signs could very likely be sued using the outcome of the Oxford High School civil lawsuit as a precedent. This precedent will very likely encourage educational centers to improve their detection and prevention protocols to flag suspicious behaviors of potential school shooters. Increased awareness due to improved protocols could likely lead to a decrease in shootings due to suspects’ early detection.


School shooters are not considered in counterterrorism legislation such as the Patriot Act, which facilitates the monitoring of concerning individuals and cooperation of law enforcement agencies against foreign entities.[9] The Oakland County DA likely believed that she could charge the Oxford perpetrator with terrorism as Michigan’s 2002 Anti-Terrorism Act defines a terrorist act as an act that would be a violent felony under the laws of this state, an act the perpetrator knows is dangerous to human life, or an act intended to intimidate or coerce a civilian population.[10] This broad definition of a terrorist act very likely allowed the DA to frame the attacker’s acts as terrorism. Due to differences between state and federal counterterrorism legislation, past school shooters were likely not charged with terrorism as it was unclear what crimes fell within the scope of these laws. Future school shooters will likely be charged with terrorism as a secondary measure. Prosecutors very likely did not choose terrorism as the main charge in a school shooter trial in order to increase the chances of conviction.


The Oakland County DA also charged the perpetrator’s parents with four counts of involuntary manslaughter because they gave the perpetrator the gun that he used in the shooting when he was not of legal age to own a firearm, and because they denied requests from school counselors to keep their child home after teachers reported concerning behavior on November 29, 2021.[11] The Oxford High School perpetrator’s parents are the first to be charged with involuntary manslaughter as the parents of a school shooter.[12] A guilty verdict will likely set a legal precedent that holds other guardians legally liable for future school shootings, which will likely compel hesitant guardians to proactively contact law enforcement or mental health professionals to minimize the risk of concerning children becoming school shooters. Increased cooperation between parents, law enforcement, and mental health institutions will likely improve the efficacy of existing measures to combat school shootings, like mental health counseling requirements and anonymous reporting hotlines.


If the Oxford High School perpetrator is found guilty of terrorism, legislators, prosecutors, and law enforcement will likely use existing counterterrorism laws and resources to combat school shootings, including surveillance and a more proactive response. Future prosecutors will likely use the decision in the Oxford High School perpetrator case as a precedent to charge other school shooters with terrorism. The guilty verdict would likely also change public perception of school shooters, viewing them more in line with people traditionally thought of as terrorists. This change in perception could likely create pressure that would compel the US Congress to pass legislation to combat school shooters or modify counterterrorism legislation. Applying the Patriot Act to school shooters will likely enable law enforcement officers to build cases against school shooters across multiple states and devote existing resources used to prevent terrorist attacks to preventing school shootings.[13] Using the Patriot Act would likely raise legal concerns from the public regarding the extent to which law enforcement officers can surveil and monitor civilians without probable cause or a warrant. Lack of justification for these measures could likely lead law enforcement to abuse these extended powers. However, minors, who are under the age of 18, have more legal protection, and it is unlikely law enforcement officers will be able to surveil minors.


Failure to apply terrorism charges will likely be used as a precedent in other trials with similar circumstances to justify the non-applicability of terrorism charges. If plaintiffs file terrorism charges in other school shooting trials, they will likely have to thoroughly justify and differentiate the conduct of that trial from that of the Oxford High School perpetrator to convict. Given the diversity of counterterrorism laws in the US, this precedent could likely not be applicable in other states as definitions of terrorism and charges likely vary. Only accusing the attacker of terrorism is unlikely to change how law enforcement deals with these events. Law enforcement should conduct adequate analysis and fill information gaps to ensure no inconsistencies arise during the trial, as the defense team will very likely seek to undermine the terrorism charge based on motive. Governmental organizations should analyze previous school shooting cases to observe their disparities regarding the unfolding of events, the charges presented, and the trial results. This data will very likely show trends and inconsistencies among similar events and charges presented, serving as a base for the homogenization of federal and state laws.


The Counterterrorism Group's (CTG) Counterintelligence and Cyber (CICYBER) and Counter Threat Strategic Communications (CTSC) Teams will continue to monitor these events’ evolution. CTG will remain vigilant regarding future developments of the perpetrator’s trial and verdict, and analyze the outcome to provide recommendations to law enforcement agencies and public organizations. The CTG's Worldwide Analysis of Threats, Crime, and Hazards (W.A.T.C.H.) Officers will remain vigilant to threats and events related to the Oxford School Shooting incident by monitoring global events 24/7 and producing relevant reports.


The Counterterrorism Group (CTG) is a subdivision of the global consulting firm Paladin 7. CTG has a developed business acumen that proactively identifies and counteracts the threat of terrorism through intelligence and investigative products. Business development resources can now be accessed via the Counter Threat Center (CTC), emerging Fall 2021. The CTG produces W.A.T.C.H. resources using daily threat intelligence, also designed to complement CTG specialty reports which utilize analytical and scenario-based planning. Innovation must accommodate political, financial, and cyber threats to maintain a level of business continuity, regardless of unplanned incidents that may take critical systems offline. To find out more about our products and services visit us at counterterrorismgroup.com.

 

[1]Courtroom” by Karen Neoh licensed under Creative Commons

[2] Authorities look for motive with 15-year-old Michigan high school shooting suspect in custody, CNN, December 2021, https://edition.cnn.com/2021/12/01/us/oxford-high-school-shooting-what-we-know/index.html

[3] Man obsessed with Columbine convicted of murder, CNN, August 2009, https://www.cnn.com/2009/CRIME/08/21/north.carolina.castillo.trial/index.html

[4] Michigan teen charged with 1st-degree murder, held without bond in shooting spree, Reuters, December 2021, https://www.reuters.com/world/us/deadly-michigan-school-shooting-baffles-police-young-suspect-keeps-silent-2021-12-01/

[5] Federal agents take custody of Santa Fe HS shooting suspect, ABC13, April 2019, https://abc13.com/santa-fe-high-school-shooting-shooter-dimitrious-pagourtzis/5238741/

[6] Nikolas Cruz pleads guilty to murder charges and apologizes for Parkland high school massacre, CNN, October 2021, https://www.cnn.com/2021/10/20/us/nikolas-cruz-parkland-shooting-guilty/index.html

[7] In Michigan School Shooting, the First Lawsuit Is Filed, The New York Times, December 2021, https://www.nytimes.com/2021/12/09/us/michigan-school-shooting-lawsuits-oxford.html

[8] Oxford school officials accelerated Ethan Crumbley’s timetable for murder, lawsuit says, Yahoo News, January 2022, https://news.yahoo.com/oxford-school-officials-accelerated-ethan-154839040.html

[9] “The USA PATRIOT Act: Preserving Life and Liberty,” US Department of Justice, https://www.justice.gov/archive/ll/what_is_the_patriot_act.pdf

[10] Mich. Comp. Laws § 750.543b, Casetext, https://casetext.com/statute/michigan-compiled-laws/chapter-750-michigan-penal-code/subchapter-terrorism/section-750543b-definitions

[11] Authorities look for motive with 15-year-old Michigan high school shooting suspect in custody, CNN, December 2021, https://edition.cnn.com/2021/12/01/us/oxford-high-school-shooting-what-we-know/index.html

[12] Michigan school shooting: Suspect's parents deny involuntary manslaughter, BBC, December 2021, https://www.bbc.com/news/world-us-canada-59532845

[13] “The USA PATRIOT Act: Preserving Life and Liberty,” US Department of Justice, https://www.justice.gov/archive/ll/what_is_the_patriot_act.pdf


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