On Dec. 4, 2024, Brian Thompson, then-CEO of UnitedHealthcare, was shot and killed on a New York City sidewalk. After a five-day manhunt, Pennsylvania authorities identified and arrested Luigi Mangione as the alleged culprit. As the killing drew extensive media coverage and attention, federal and state prosecutors swiftly announced their intent to charge the 26-year-old. New York moved first. On Dec. 17, the public learned that the Manhattan district attorney was pursuing charges of murder—as an act of terrorism.
Terrorism is an elusive term. Its murkiness has been cited as a source—if not the source—of its susceptibility to abuse. Indeed, in bringing the charges, the district attorney appears to have seized upon the textual vacuousness of New York’s criminal terrorism provisions. These provisions impose the label of “terrorism” on certain specified offenses, including a Class A felony, committed “with intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping.” The office has used this statutory language to describe the incident as “frightening” and “intended to cause shock and attention and intimidation,” teeing up an argument that Thompson’s killing was meant to “intimidate or coerce” a very specific “civilian population”: the health insurance industry.
The district attorney’s decision, however, pushes the limits of whatever lubrication “terrorism” and New York’s penal code can provide. Indeed, the announcement of the charge provoked public outrage and confusion. Considering terrorism’s slipperiness, the American public’s response reflects distrust in its application.
The shooting is an indubitably horrific act of violence. Even if, however, the naked letter of the law might permit such a prosecution, bringing terrorism charges against the facts of this case would not only run afoul of the logic animating the provisions but also compromise the utility of a state terrorism law—and potentially trigger dangerous unintended consequences.
New York’s Terrorism Laws
The quest for a comprehensive but workable definition of terrorism has been compared to the search for the Holy Grail. When Congress first took up the task, seeking to include a “definition of modern terrorism” in the 1978 Foreign Intelligence Surveillance Act (FISA), it observed that what made terrorism distinct was its perpetrators’ use of violence against a country’s institutions and citizenry for the purpose of fomenting “chaos” to achieve capitulation or annihilation. Terrorism, Congress recognized, stands apart from violent criminal activity because it is “designed primarily to generate fear in the community [or] a substantial segment of it for political purposes.” These concepts—fear, chaos, intimidation, and destruction—manifested the legal definition of terrorism that became the basis for subsequent statutory incarnations, including the definition and crime of terrorism under Article 490 of New York’s penal code.
Both § 490.05 and § 490.25 were part of the original codification of New York’s terrorism laws under the state’s Anti-Terrorism Act (ATA), which was passed six days after 9/11. According to the ATA’s legislative findings, codified in § 490.00, New York’s lawmakers saw the statute as filling a critical gap in state law, gruesomely exposed by the attacks on the World Trade Center and Pentagon. Notwithstanding federal statutes, the ATA’s authors believed that recent bombings against American embassies, federal buildings, and flights—and other heinous acts, including executions—“underscore[d] the compelling need for legislation … specifically designed to combat the evils of terrorism.” They believed terrorism to be “a serious and deadly problem that disrupts public order and threatens individual safety” domestically and internationally.
Bearing these considerations in mind, lawmakers modeled the ATA’s definition of terrorism on contemporaneous federal definitions (the PATRIOT Act, which uses the same definition for international terrorism, was enacted over a year later). This definition appears to originate with the original FISA, which itself looked to Executive Order 12036. There, in § 4-209 of the order, is where we appear to get one of the first references to “intimidating or coercing a civilian population or any segment thereof” as part of a definition for “[i]nternational terrorist activities” (emphasis added).
Again, however, context is everything. Itself a product of congressional input, the order was promulgated in 1978, during what is considered by some as the “first phase” of modern international terrorism, dominated by nationalist and revolutionary political violence. The decade witnessed an unprecedented raft of hostage-takings, foreign hijackings, assassinations of U.S. officials abroad, and massacres—actions undertaken to speak louder than words of protest and send a message of social destabilization and public vulnerability that could be cured only by a government’s capitulation to particular demands. The definition of modern terrorism found in statutes like Article 490 was born out of this fire, limiting the application of the term to those contexts and events for which it was originally created.
The Charges Against Mangione
Of the 11 counts Mangione faces in state court—all of which his lawyers have moved to dismiss—two involve accusations of terrorism. The first is a charge of first-degree murder “in furtherance of an act of terrorism” as defined by § 490.05 of the penal code. The second is a charge of second-degree murder as a crime of terrorism under § 490.25. New York’s terrorism laws work similarly to the federal “terrorism enhancement,” making the maximum penalty for both charges life with parole. Sections 490.05 and 490.25 require that, for a criminal offense to constitute “terrorism,” it must be intended to “intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by murder, assassination or kidnapping.”
In defending the charges, the district attorney claims that Thompson’s killing was intended “to sow terror” and “cause shock, attention[,] and intimidation.” The mayor’s office, backing the charge, has likewise described the attack as having “infused” terror in the city and connected it to social media’s “radicalization” of youth in America. As support, officials point to the time of day—just before 7:00 a.m., during the rush-hour bustle—and writings uncovered in a post-incident investigation in which Mangione allegedly condemns “parasites,” appearing to refer to health care executives, as having “had it coming.” That same investigation, however, also found notes apologizing “for any strife or traumas” and evidence that Mangione had decided to use a gun rather than a bomb because it was more targeted and less likely to put innocent people in danger.
Bad Law
Having descended from federal law, Article 490’s conception of terrorism, if untethered from the context in which it was crafted, makes it dangerously easy for overzealous prosecutors to exceed the bounds of what constitutes “terrorism,” betraying lawmakers’ original intent. Indeed, the ATA’s reference to “a civilian population” stands in contrast to other, narrower state terrorism laws. For example, Louisiana, which experienced a terrorist attack earlier this year, applies the terrorism label to offenses committed with “the intent to intimidate or coerce the civilian population” (emphasis added), as opposed to “a” civilian population. Nevada uses the even more circumscribed “general population.”
Prosecutions under Article 490 are rare, but recent applications demonstrate that there are cases in which it may be appropriate. In spring 2024, the Manhattan district attorney secured convictions against a cleric for recruiting students to join the Islamic State and against a woman who had used cryptocurrency to financially support terrorist groups in Syria. Both were charged with conspiracy in the fourth degree as a crime of terrorism, a class D violent felony. Mangione’s second-degree murder-as-terrorism charge, by contrast, is a class A-I felony, a classification reserved for the most serious types of crimes.
A starker comparison may be James Jackson. Jackson, a white man, pleaded guilty to murder as an act of terror in 2017 after stabbing Timothy Caughman, a Black man, with the intent of starting a race war—as proclaimed in his manifesto, “Declaration of Total War on Negros.”
Mangione’s prosecution isn’t the first time prosecutors have tried to stretch Article 490’s language beyond its drafters’ or the public’s imagination. This archive of precedents, none of which bore fruit, suggests that, for all of § 490.25’s ambiguity, there remains a judicial impulse to limit its application. In People v. Morales, New York’s highest court found that prosecutors misapplied the provision to a gang member who had shot an innocent bystander during a gun battle on the theory that the gangs used violence to “intimidate or coerce a civilian population.” According to prosecutors, the relevant “civilian population” was composed of rival Mexican American gangs and the broader Mexican American community in the Bronx. The court definitively and eloquently rejected this theory. Citing the ATA’s motivating logic, the court explained that:
“[T]he concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act.
While the court did not articulate what that “collective understanding” was, it then pointed to the several “notorious acts of terrorism” referred to in § 490.00 that were meant to “serve as guideposts for determining whether a future incident qualifies for this nefarious designation.” The label of “terrorist” is thus intimately tied to and defined by specific conduct. Anyone can be a terrorist, but to “earn” that label under the law, one’s conduct must satisfy a certain threshold.
After Morales, although courts have upheld § 490.25 against claims of unconstitutional vagueness, they have also been much more discerning in scrutinizing the conduct charged to ensure it falls within the contemplated parameters of the law. Pressing terrorism charges against Mangione on the theory his conduct was meant to “intimidate or coerce a civilian population,” that is, the health insurance industry, appears to fly in the face of Morales’s dictate that the relevant “statutory language cannot be interpreted so broadly so as to cover individuals or groups who are not normally viewed as ‘terrorists’”—not because they aren’t capable of committing an act of terrorism, but because the specific violence they are said to have committed in a particular case does not “qualif[y] for this nefarious designation.”
Bad Policy
Beyond being a questionable interpretation of the law, the terrorism charge against Mangione also poses dangers for legitimate terrorism prosecutions. First, the charge undermines trust in the U.S. justice system. Of the notable major white supremacist domestic terrorist attacks over the past decade—acts that have claimed dozens of victims, striking communities such as Charleston, Charlottesville, Pittsburgh, El Paso, and Jacksonville—only the Buffalo shooter has faced a terrorism charge, at the state level in New York (under a different provision of the penal code than at issue in the Mangione case). Christopher Hasson, a white supremacist Coast Guardsman who federal prosecutors argued “intends to murder innocent civilians on a scale rarely seen in this country,” was only prosecuted for drug and gun charges (although a judge did apply a terrorism enhancement to his sentence).
The uneven application of terrorism charges risks providing evidence to disenchanted individuals that the justice system is two tiered—punishing only those of particular racial or economic standing.
Second, the case sets a bad precedent, undermining efforts to prosecute and punish acts that do meet the expectations built into the provisions of the law. In May 2023, we argued that the Jan. 6 prosecutions underscored why Congress should pass federal domestic terrorism laws. “Jan. 6 defendants who were convicted of felonies have been sentenced to just 33 months—less than three years”—a meager sentence compared to the average 13.5 years faced by Islamic State-associated defendants prosecuted for material support to a foreign terrorist organization. This was despite many Jan. 6 defendants clearly satisfying the threshold of “generating fear” outlined in many terrorism definitions. Mangione’s case, however, offers a data point to critics who argue that federal domestic terrorism laws would be abused by overzealous and overtly political prosecutors who might deploy the charge against their detractors, likely deterring or delaying the establishment of a federal domestic terrorism statute. Broader laws ensure that prosecutors and law enforcement officials have the necessary tools to take action when it’s warranted, but with great power comes even greater responsibility to use such authorities justly and in ways that do not fundamentally undermine the law’s effectiveness.
Finally, the charge risks glorifying violent acts, encouraging action by those who seek public recognition. At a time in which “41 percent of those between the ages of 18 and 29 said they found [the killer’s actions] acceptable,” this overzealous charge could lionize him further, bolstering his image as a martyr. This scenario played out at the U.S. Capitol in January, as a woman was arrested with improvised explosive devices while claiming to target Trump administration cabinet members. She admitted she “had been thinking about this for a while because of Luigi Mangione.” Yet perhaps even more seriously, there is a risk the government will lose or drop the case, undermining the message of opprobrium it intended to send in the first place.
A cynical interpretation may be that the charges are simply part of the larger showmanship that has characterized the case so far, as opposed to a serious effort to hold Mangione accountable for his actions. Indeed, Mayor Eric Adams’s insistence that “I wanted to look him in the eye and say you carried out this terroristic act in my city—the city that the people of New York love, and I wanted to be there to show the symbolism of that” was undermined by Mangione’s aforementioned admission that he used a gun to limit casualties among “innocent” people, a targeting decision that would not have been taken by an assailant seeking to terrorize a broad population.
For the People
As the New York legislature recognized in passing the ATA, state anti-terrorism laws are crucial to ensure that terrorists face justice because they help ease the burden from the federal system and catch cases that may fall through the cracks due to the limits—or nonexistence—of federal legislation. When, however, these laws are drafted with broad language that can be exploited by aggressive prosecutors, their benefits give way to dangerous ramifications.
Discretion is crucial to the American tradition of criminal law, where lawmakers enact broader statutes to empower prosecutors to pursue justice while entrusting that they will stay within the confines of their authority and screen out the inevitable “absurd” cases that may arise. Discretion is also vital to maintaining the legitimacy of the legal system, particularly with respect to offenses like terrorism that open up uniquely coercive powers of the state beyond the standard instruments of law enforcement. That discretion was abused here with unfortunate consequences for public faith in the law, the legitimacy of the legal system, and the broader campaign against domestic attacks of terrorism.
– Jacob Ware, Ania Zolyniak, Published courtesy of Lawfare.
