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Calling a Terrorist a Terrorist: Why Philadelphia’s Cop-Shooting Jihadist Should Be Prosecuted Under PA’s Criminal “Terrorism” Statute (Instead of Waiting on the Feds)

Amara Chaudhry, Esq on 4/26/2016
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On January 7, 2016, Edward Archer shot Philadelphia police officer Jesse Hartnett at point-blank range while proclaiming that his actions were motivated by his Islamic faith.

On March 26, Archer was formally charged by Bill of Information and now faces criminal charges for attempted murder, and other lesser offenses, but one Pennsylvania criminal statute was noticeably absent from his charging documents: Title 18, Section 2717 of the Pennsylvania Consolidated Statutes, i.e., Pennsylvania's criminal "Terrorism" statute (hereinafter, "§2717").

The omission of §2717 on Archer's charging documents is noteworthy for several reasons. First, Archer's actions fall squarely within the conduct prohibited by §2717. Second, the Pennsylvania statute is more directly applicable to Archer's case than federal counterterrorism statutes. Third, a conviction pursuant to §2717 would permit a Pennsylvania court to impose a substantially higher sentence (twice as high) than that ordinarily allowable under law for an "attempted murder" conviction. Fourth, charging Archer under the state statute, based upon facts known to the prosecution at this time, would not preclude a subsequent federal counterterrorism charge should further investigations warrant a federal terrorism charge. Finally, a decision to prosecute Archer under a state terrorism law would not be unprecedented.

Understanding the Legal Framework

Before one can truly examine the omission of §2717 from Edward Archer's charging documents, it is important to understand both §2717 and the federal criminal statutes which apply to crimes of terrorism committed in Pennsylvania.

Pennsylvania's Criminal "Terrorism" Statute

Section 2717 was enacted on July 7, 2006, and became effective on September 5, 2006. The statute consists of two parts: the first part defines "terrorism," and the second part explains the legal effect of meeting that definition of "terrorism."

In the definitional section, § 2717(a) specifies that "A person is guilty of terrorism if he commits a violent offense intending to do any of the following: (1) Intimidate or coerce a civilian population[,] (2) Influence the policy of a government by intimidation or coercion[, or] (3) Affect the conduct of a government."

Pursuant to this language, there are two elements necessary to meet the statute's legal definition of "terrorism:" (1) a specific actus reas (criminal act) - the commission of a "violent offense," and (2) a specific mens rea, (mental state) - a specific criminal intent, as specified in the statute.

In addition to defining the criminal offense of "terrorism," §2717(b) outlines the legal effect of falling within that definition. In effect, §2717 serves as a sentencing enhancement. The statute works by increasing the eligible sentence for a particular criminal act (for example, shooting someone at point-blank range). As explained below, if applied to Edward Archer, §2717(b) would dramatically increase the eligible sentence which he could receive.

Federal Criminal Terrorism Statutes

Unlike Pennsylvania's §2717, the federal criminal code does not have a single section devoted to the crime of terrorism. The federal laws which apply to crimes of terrorism are numerous and, in all candor, somewhat convoluted. When taken as a whole, it becomes apparent that the federal laws only prescribe a small subset of criminal acts (actus reas) as sufficient to establish a substantive federal "terrorism" crime.

Most relevant to Edward Archer's case are the numerous federal criminal terrorism statutes codified at 18 U.S.C. §2332a et seq., which outline various substantive "terrorism" crimes. This narrow enumeration of specific criminal acts is the principal distinction between §2717 and the comparable federal law. Within these federal statutes, the specific criminal acts prohibited can be roughly divided into two categories: (1) specific methods of inflicting violence, and (2) specific interactions with other terrorists and/or terrorist organizations. Examples of the specific methods of violence prohibited by these statutes includes the "use of weapons of mass destruction," "bombings," and "acts of nuclear warfare." Examples of specific interactions with terrorists and/or terrorist organizations which fall within these statutes include specified "financial transactions," "financing of terrorism," and "receiving military-type training from a foreign terrorist organization," among other similar examples.

Other federal laws which ostensibly relate to "terrorism" confer no real legal effect.

For example, the federal statutes' definitional section, 18 U.S.C. §2331, defines "domestic terrorism" as broadly as §2771 - it requires a virtually identical mental state (mens rea) and even specifically refers to "assassination" as a possible act of terrorism. Despite this broad definition of "terrorism," however - and this is admittedly a difficult reality to accept - the language18 U.S.C. §2331 creates no specific legal effect for falling within its broad definition of terrorism. In other words, as an excellent article on Lawfare correctly pointed out: "Domestic terrorism does not exist as a substantive offense under federal law." ("The Good Reasons to Not Charge All Terrorists with Terrorism," December 5, 2015).

In another example, the United States Sentencing Guidelines Section 3A1.4 ("USSG §3A1.4") provides for a "terrorism" sentencing enhancement, but like all provisions of the sentencing guidelines, USSG §3A1.4 only applies after there is already a lawfully obtained federal criminal conviction before the sentencing court. Simply falling within the definition of "terrorism," as defined by 18 U.S.C. §2331 does not automatically trigger the "terrorism" sentencing enhancement.

Applying §2717 to Edward Archer's Case

Now that the legal framework for considering Edward Archer's case has been established, it can be demonstrated how Pennsylvania's §2717 is more applicable to his case than the federal criminal terrorism statutes and, therefore, would be more effective in obtaining a sentencing enhancement on the basis of Archer's stated criminal intent.

Archer's Conduct Falls Squarely Within §2717

Archer's words and conduct fall squarely within the definitional section of §2717. His actions (and subsequent prosecution for attempted murder) satisfy §2717's actus reas requirement for "a violent offense," and his words clearly satisfy §2717's mens rea requirement.

Although neither Archer's criminal complaint nor bill of information have been widely disseminated, public reports indicate that Archer fired between 11 and 13 shots at Officer Hartnett, at point-blank range, and Archer's publicly-available criminal docket reports that he is being charged with attempted murder. These facts, along with this charge, clearly constitute "a violent offense" as required in order to satisfy the actus reas component of §2717's definitional section.

Furthermore, Police Commissioner Richard Ross has also indicated that Archer told police that he targeted a police officer specifically because he believed that the police department defends laws that are contrary to Islam. These remarks suggest a desire to live in a Philadelphia which is governed, and policed, in accordance with Archer's own Islamic beliefs and, therefore, indicate a desire to either "[i]nfluence the policy of a government by intimidation or coercion" or otherwise "[a]ffect the conduct of a government." Therefore, such remarks clearly indicate that Archer possessed the mens rea required by the definitional section of §2717.

Because Archer's actions fall squarely within §2717(a)'s definitional section, both in terms of actus reas and mens rea, his actions are also sufficient to trigger the legal effect created by §2717(b), i.e., the statutory sentencing enhancement.

Archer's Conduct Not Within Federal Criminal Terrorism Statutes

Not only does Archer's conduct fall squarely within the language of §2717, the Pennsylvania counterterrorism statute also more directly applies to his conduct than the federal counterterrorism statutes.

As was discussed in further detail above, the federal criminal terrorism statutes only pertain to a narrow set of specific criminal conduct described in 18 U.S.C. §2332a et seq. To fall within the various crimes codified at 18 U.S.C. §2332a et seq., a crime must either employ specified methods of inflicting violence or there must be some evidence that the accused has some sort of ties to another terrorist and/or terrorist organization.

Archer's specific criminal conduct - the shooting of an individual uniformed police officer at point-blank range - does not fit neatly within any of the categories of conduct prescribed by the substantive federal criminal statutes. As an initial matter, evidence which has been made known to the public at this time suggests that Archer likely had no ties to other terrorists, and/or terrorist organizations, sufficient to establish a case in which he engaged in "financial transactions" precluded by 18 U.S.C. §2332d, harbored or concealed terrorists in violation of 18 U.S.C. §2339, received in "military-type training" in violation of 18 U.S.C. §2339d, or engaged in other similar conduct with other terrorists and/or terrorist organizations. Furthermore, unlike other prior "lone wolf" domestic terrorists (i.e., those who do not have clear ties to a terrorist organization but, instead, have been motivated by the ideology embraced by such organizations), Archer did not use any of the methods of inflicting violence which are specifically covered by the federal terrorism statutes because he did not attempt to bomb "a place of public use," as prohibited by 18 U.S.C. §2332f; to employ a "weapon of mass destruction" or "destructive device" as prohibited by 18 U.S.C. §2332a and 18 U.S.C. §921(a)(4); or to engage in other conduct specifically prohibited by 18 U.S.C. §2332a et seq.

Not only does Archer's criminal conduct not fall within the substantive provisions of the federal criminal terrorism statutes, his conduct also does not trigger the "terrorism" sentencing enhancement created by USSG §3A1.4. There has yet to be any publicly-articulated suggestion that Archer has committed acts which could reasonably justify prosecution for any federal crime. Therefore, the federal "terrorism" sentencing enhancement created by USSG §3A1.4 - which requires a lawful conviction for a federal crime, whether or not terrorism-related - cannot be applied to Archer unless he can be lawfully prosecuted and convicted for a federal crime.

§2717 Provides for Greater Sentence Than Attempted Murder Alone

Under Archer's current criminal charges, his most serious offense is "attempted murder," charged under18 Pa.C.S. §901, which is graded as a first degree felony pursuant to 10 Pa.C.S. §15.66(a)(2). Pursuant to the relevant Pennsylvania sentencing statute, 101 Pa.S.C. §15.66(b)(3), the statutory maximum penalty for a first degree felony is 20 years. Therefore, the maximum penalty Archer can get for his "lead charge" (i.e., the most serious offense for which he is charged) is currently 20 years.

In comparison, if Archer is/had been charged under §2717, the maximum penalty he could get would be 40 years - twice his current exposure - pursuant to §2717(b)(2).

Furthermore, the only way Archer can lawfully receive this sentencing enhancement provided by §2717 is if he is initially charged under §2717 pursuant to the rationale articulated by the U.S. Supreme Court in Apprendi v. New Jersey in 2000.

§2717 Conviction Would Not Preclude Federal Prosecution

Though the evidence which has been made public thus far does not fall within the definitions of "terrorism" outlined by the federal criminal statutes, charging Archer under the state statute at this time would not preclude a later federal charge should new evidence develop sufficient to justify a federal terrorism prosecution.

Public reports indicate that federal authorities are continuing to investigate Archer's so-called "ties" to terrorist organizations. If such ties do exist, then federal authorities may have sufficient evidence to prosecute Archer under several federal statutes which relate to an individual's so-called "ties" to a terrorist organization, including those articulated above.

Federal authorities can prosecute Archer under any of these substantive provisions of federal criminal terrorism law even if Archer has already been convicted under §2717. Any subsequent federal prosecution would be permitted by a concept known as the "dual sovereignty" doctrine and is particularly permissible where federal laws address different factual elements than those prescribed by the applicable state laws.

In a 1920 case known as United States v. Lanza, the U.S. Supreme Court applied the "dual sovereignty" doctrine to a case in which a single defendant was prosecuted under state law, and subsequently under federal law, for essentially the same criminal conduct. The court concluded that the subsequent federal prosecution was valid because the state and federal governments were separate sovereigns and, as such, each had an independent right to prosecute Mr. Lanza for a crime against its own sovereignty. The court further explained that the Double Jeopardy Clause of the U.S. constitution does not preclude separate prosecutions by separate sovereigns but, instead, only precludes repeated prosecutions by the same sovereign.

Moreover, as described above, the specific federal statutes under which Archer's case is being investigated address facts not encompassed by the state statute because they investigate whether, and to what extent, Archer had ties to other terrorists and/or terrorist organizations. When federal criminal laws address facts not addressed by state laws, such circumstances are known to generate a subsequent federal prosecution for an incident previously prosecuted under state law. Perhaps the most memorable example of this phenomenon occurred in the Rodney King case in which the police officers were initially acquitted on state assault charges for their beating of King but subsequently prosecuted, and convicted, of violating King's civil rights by participating in that beating.

"Terrorism" Conviction Under State Law Would Not Be Unprecedented

If the Commonwealth were to prosecute Edward Archer under §2717, the Philadelphia District Attorney's Office would not be the first local prosecutor's office to prosecute a terrorist on the basis of state terrorism laws. From October 20 through November 17, 2003, the "D.C. sniper" John Allen Muhammad was tried before a jury in the Circuit Court of the City of Virginia Beach, Virginia, and ultimately convicted pursuant to both Virginia's capital murder statute and the Virginia terrorism statute. The Manhattan District Attorney's Office has twice secured the convictions pursuant to New York State's terrorism statute in New York state courts: Ahmed Ferhani in 2012 and Jose Pimentel in 2014.

Conclusion

The Philadelphia District Attorney's Office has not publicly identified the reasons why it chose not to charge Edward Archer under the state "Terrorism" statute, §2717, or made any public reference to the existence or relevance of a state terrorism statute. Certainly, the Philadelphia District Attorney's Office has sole discretion to decide the formal criminal charges it will pursue against Edward Archer. However, it is not unreasonable for the public to critique the decisions of its public officials, and decisions not to prosecute for certain offenses are frequently and increasingly being examined by the media, scholars, and ordinary citizens.

Within this context of public debate, it is not unreasonable to suggest that Edward Archer  Archer's actions fall squarely within the conduct prohibited by the statute; the Pennsylvania statute is more directly applicable to Archer's case than comparable federal statutes; a §2717 conviction would permit a Pennsylvania court to impose a higher sentence than a mere "attempted murder" conviction; and charging Archer under the state statute, based upon facts known to the prosecution at this time, would not preclude a subsequent federal counterterrorism charge should further investigations warrant a federal terrorism charge. Finally, if either the Philadelphia District Attorney's Office, or the Pennsylvania Attorney General, were to formally charge and prosecute Edward Archer pursuant to §2717, such a prosecution on state terrorism statute would not be unprecedented.

Amara Chaudhry Kravitz is a criminal defense and civil rights attorney in Bala Cynwyd. She is the former Legal Director of the Council on American-Islamic Relations Philadelphia Office where her legal cases, publications, and speaking engagements addressed issues at the intersection of criminal law, civil rights, and national security, particularly as applied to the American Muslim community. With a broad background in both criminal defense and civil rights, she also has a history of service to the American Civil Liberties Union and currently serves on the ACLU of Pennsylvania's board of directors.

Editor's note: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Philadelphia Bar Association.

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