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October 31, 2017

Will NYC terror attack become the first big federal capital case for Trump's Department of Justice?

Despite the fact that Prez Obama and Attorney General Eric Holder sometimes hinted at having some ambivalence about the modern death penalty, the Justice Department during the Obama era consistently pursued and secured federal death sentences against high-profile mass murderers such as the Boston Marathon bomber Dzhokhar Tsarnaev and Charleston church shooter Dylann Roof.  Now, sadly, we have our first high-profile mass murder of the Trump era in which the murderer lives on to be subject to criminal prosecution.  The headline, "NYC terror attack leaves 8 dead, several injured; suspect's notes pledged ISIS loyalty," and first few paragraphs of this Fox News report highlight some of the reasons I would expect this latest mass murderer to soon be facing a federal capital charge:

A suspect accused of plowing a pickup truck onto a bike path and into a crowd in New York City Tuesday, killing at least eight people and injuring 11 more, is not a U.S. citizen and is originally from Uzbekistan, federal law enforcement sources have confirmed to Fox News.

The suspected driver, 29-year-old Sayfullo Saipov, had handwritten notes pledging his loyalty to the Islamic State terror network and shouted "Allahu Akbar" after the crash, law enforcement officials told Fox News. Saipov, who was shot by police, was taken into custody and remains hospitalized.

The suspect, from Ukbekistan, had a green card, a source told Fox News. Saipov came to the U.S. in 2010, and, according to The Associated Press, has a Florida license but may have been living in New Jersey.  Saipov was an Uber driver who had passed a background check, the company told Fox News.  It added that Saipov has now been banned from the app, and Uber has offered assistance to the FBI.

His notes, written in Arabic and pledging loyalty to ISIS, turned up in and near the vehicle, Fox News is told. In addition, The New York Post reported that investigators found "an image of the ISIS flag inside his vehicle."

Four of the injured were teachers and students who were riding on a short yellow school bus near Stuyvesant High School when they were hit by the suspect's Home Depot rental truck. One student remains in critical condition.

A victim killed in the attack was a Belgian citizen, Belgian Deputy Prime Minister and Foreign Affairs Minister of Belgium Didier Reyners tweeted on Tuesday. Three Belgians were also injured.  Others killed in the attack were Argentine citizens, according to Argentina's Foreign Ministry. Argentine newspaper La Nacion reported five of the eight people killed were Argentines traveling in the U.S. on a celebratory vacation.

As I have said after other similar horrible mass killing incidents, jurisdictions that retain the death penalty presumably do so in order to have the ultimate punishment available for these kinds of ultimate crimes.  Especially because both Prez Trump and Attorney General Sessions have be express supporters of the death penalty, I would be truly shocked if Sayfullo Saipov is not soon a capital defendant.

October 31, 2017 at 11:56 PM | Permalink


Crime is so very rare in NYC.

I call for legislation restricting cross state rentals of trucks. A background check should be run on any applicant to lease a truck. A three day delay should be instituted immediately.

We need to end the travel ban on Muslims.

Posted by: David Behar | Nov 1, 2017 12:36:56 AM


I may be wrong but I do not believe he committed a federal crime.

Posted by: Michael J.Z. Mannheimer | Nov 1, 2017 3:01:03 AM

yes, I agree, I am a federal defense practitioner and I do not see the federal crime here. most federal terrorism prosecutions are under 2332a, 2332f, and/or 844, all of which require the use of a bomb or explosives. if he is truly a lone wolf, there is no material support either, as this is "independent advocacy" under HLP. I might be missing something or not be aware of all the facts but nothing is jumping out.

Posted by: dgh | Nov 1, 2017 8:01:11 AM

Michael and dgh: I am quite grateful that you have flagged the reality that federal jurisdiction here for the commission of a federal capital crime is not, in fact, an obvious given. (Because the feds can prosecute any American for growing the wrong plant in their own backyard, see Gonzales v. Raich, I often too quickly assume the feds always have jurisdiction for anything).

That said, would not 18 USC §2332b (Acts of terrorism transcending national boundaries) arguably provide the basis for a federal capital prosecution here? I am not an expert on these statutes, but the facts suggesting this was ISIS inspired would seem to be sufficient for purposes of that statute. Also, perhaps other federal statutes can be deployed in this setting (e.g., 18 USC 844(f) or 844(i)), no?

Posted by: Doug B | Nov 1, 2017 9:25:16 AM

interesting. 2332b requires that the offense "transcend national boundaries." I am not sure if being ISIS-inspired counts, but I am inclined to doubt it. that would be a very broad (potentially limitless -- what if someone was inspired by a foreign movie, or TV program, or book?) reading of the statute. if there were direct communication with ISIS operatives abroad, that would make more sense. perhaps it is enough for this offense that some of the victims were foreign nationals?

I believe the 844 offenses require the use of fire or explosives.

Posted by: dgh | Nov 1, 2017 10:13:49 AM

2332f speaks of "Whoever unlawfully delivers, places, discharges, or detonates an explosive or other lethal device in, into, or against a place of public use, a state or government facility, a public transportation system, or an infrastructure facility"

I am assuming that a car is not the sort of "lethal device" covered by this provision though the language literally would seem to leave it open.

It is somewhat curious that a person can cross state lines with the intent to commit a major terrorist act in an area that is a major interstate/national commercial hub and not be subject to federal criminal jurisdiction if they don't use an actual bomb or fire. Thus, use of a plane, yes, but a car, no? To be clear.

Anyway, IF it was a federal crime, I would think there is a constitutional power in place for a capital prosecution to be carried out even if the death penalty is not available under NY law. I would oppose it on policy grounds and in general under the belief the death penalty is a violation of the Constitution. But, not on federalism grounds.

Posted by: Joe | Nov 1, 2017 10:59:03 AM

Here is the tortured legal analysis of federal jurisdiction in the Boston bombing. I mean, they really tortured and stretched it.

How about this one, my good lawyer friends?

We are at war with ISIS. He acted to help them attack our country.

How about simple treason, a capital offense?

Posted by: David Behar | Nov 1, 2017 12:14:51 PM

18 USC 2339B, material support of a designated FTO, punishable up to life if death results. If someone trying to board a plane to join ISIS violates the statute, then I suspect this falls into that vast statute as well.

Posted by: Geremy Kamens | Nov 1, 2017 1:23:10 PM

A motorized vehicle is the living definition of a an explosive device as your vehicle moves through a series of contained explosions. FASC--fuel, air, spark, compression. Besides I don't see why a vehicle would not be considered an "other lethal device" and the bike path was indubitably "a public transportation system". Maybe that is a stretch but as @joe points out a literal reading of the language seems to allow it.

Posted by: Dnaiel | Nov 1, 2017 1:28:29 PM

the definition of lethal device at 2332f(e)(9) camnor be read to include cars

Posted by: dgh | Nov 1, 2017 4:06:38 PM

Might be an explosive though.

Would be surprised if they don't find something federal. Think NY can handle it but sounds like Trump and some of his supporters don't trust us that much.

Posted by: Joe | Nov 1, 2017 9:48:24 PM

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