Why Does the FBI Refuse to Call the Pulse Massacre a Hate Crime?

Minutes after bartenders put out a last call for drinks at Pulse on June 12, 2016, a man burst past a ticket counter and into the main room of the Orlando gay bar. Shortly after 2 a.m., Omar Mateen sprayed the dance floor in bullets, and dozens of victims, most queer and Latino, fell to the floor wounded or dead. In total, the attack left 49 innocent people dead, more than 50 others wounded, and the LGBT community worldwide forever jarred.

Before stopping through the doors, the shooter posted an ominous message on Facebook pledging his allegiance to the Islamic State, and about a half hour into his killing spree, he stopped to write on his social media. He first added comments about U.S. air strikes in Syria. Then at 2:37 a.m. he wrote what turned out to be his last message to the world: "The real muslims will never accept the filthy ways of the west."

By then, Mateen had already killed most of the 49 people, video footage from inside the club shows. The words didn't stay online for long, nor did Mateen. The killer died in a shootout with police, and after law enforcement identified him as responsible for the shooting at Pulse, Facebook took his posts down from public view. But to many, the extremist rhetoric, combined with the fact that Mateen launched his attack at one of the most prominent gay clubs in Central Florida, demonstrated clear animus toward the "filthy" members of the LGBT community. Who else did he expect to murder in that venue that night?

Yet the FBI, which handled the investigation of the terrorist attack, never classified the attack as a hate crime. Prosecutors who later tried unsuccessfully to hold Mateen's widow, Noor Salman, responsible for the attack never explicitly argued homophobia as a motive in the shooting. The Pulse shooting today may be remembered as an historic assault on an LGBT community safe haven, but law enforcement officially settled on the conclusion that Pulse served as a random soft target.

Plenty of legal voices and hate-crime experts disagree, and consider hate an obvious factor in the attack. Why then does it lack formal recognition as such? That may have much to do with the difficulty that comes with nailing down motive, a central element to classifying crimes of hate, especially when criminals don't live to see prosecution.

Choice of Venue
Mark Winton, associate lecturer of criminal justice at the University of Central Florida, scoffs at the notion that hate played no role at Pulse.

"It seems to fit every definition of looking at a hate crime," he says.

The attack occurred at a club catering to an LGBT clientele during Pride Month. Mateen conducted his attack on Latin night, so he may have been targeting that population as well.

That the attack happened in a region where he lives and works makes Winton acutely aware of the toll the attack took on Orlando and which populations bore the brunt of the tragedy. And when Winton launches a new undergraduate course at UCF this fall on Hate Crimes and Criminal Justice Responses, he plans to includethe Orlando attack in his curriculum.

"Having a discussion on whether this should be classified as a hate crime is almost bizarre," he says. Winton specifically dubs the shooting at Pulse a "mission-oriented" hate crime, one aimed at ridding the earth of LGBT people. He knows many experts argue the attack should be classified chiefly as a terrorist attack, but it's a false dichotomy in his eyes, especially since the particular organization to which Mateen swore allegiance punishes gays with death. By failing to recognize that fact, he says, further insult gets delivered to communities already suffering from the attack. "And one of the things that is upsetting is this is taking the focus off of this as an attack on the queer community, or an attack on the Hispanic community," Winton says.

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Certainly, Mateen's allegiance to the Islamic State doesn't cross off hate as a motive for the Southern Poverty Law Center, which does include the Pulse attack in its database of hate crimes. "Mateen went to a gay club and shot dozens of people in a gay club," says Heidi Beirich, director of the SPLC's Intelligence Project. "I certainly would not discount that there could be an antigay motive. Given who the target was, and assuming that he knew the place and knew who the people were inside, it's hard to imagine this played no role."

Of course, that raises a sticky point in the debate, especially since more details about Mateen's actions the night of the shooting became public through the Salman trial. Before settling on Pulse as his target, Mateen visited Disney Springs -- where the annual Gay Days celebration had, perhaps coincidentally, concluded the prior weekend. Billboards for the celebration were up along Interstate 4, the main highway in Orlando, and local news reports from Gay Days were commonplace during the festivities. Media now claims Mateen left Disney that night only when noticing tight security. Video shows he had seen the security guards, but there's no way of knowing the thought process that led him to leave.

At one point afterward, he searched for directions to a mainstream club downtown. FBI investigators who looked at Mateen's cell phone and GPS history found no evidence he'd ever been to Pulse before. And while plenty of eyewitnesses placed him there before June 12, 2016, a lack of physical evidence led prosecutors and defense attorneys in the Salman trial to presume he had no prior knowledge of the club.

At the same time, others say Mateen explored Pulse before embarking on his attack. Security guard Neal Whittleton says Mateen even sparked a conversation with him the night of the attack, asking where the girls were in the club. "I'm gonna be honest with you, when he first said that, I thought he was coming on to me," Whittleton tells The Advocate. "I looked at the bartender like, 'I got another one.'"

But as the conversation continued, Whittleton says Mateen became fixated with the light crowd. The guard explained that Gay Days, the major LGBT gathering at Walt Disney World, had just ended the previous weekend, so tonight was bound to be slow. Whittleton now believes both that Mateen was straight and that he did not intend to target gay people in the attack, based on his conversation. But others see other importance on the exchange.

Nadine Smith, executive director of Equality Florida, finds it important that even if Mateen had no idea where he was driving before landing at Pulse, he knew from Whittleton the nature of the establishment. That's important considering Mateen apparently explored Orlando for hours without so much as opening his gun case, and he did ultimately pull up directions to Pulse on his phone.

"He had gone to other places including a different nightclub and chose not to shoot," she notes. "The description of Pulse on his search likely identified it as a gay bar. He even asked the security guard a question that would have left no doubt: 'Where are all the women?'" Add on the fact Mateen's father notoriously described his son's anger at the sight of two men kissing in Miami and homophobia seems clear.

But Smith also acknowledges one hard fact that stands in the way of perfect clarity. "The shooter is dead," she says, "and all we can do is speculate on whether he opened fire at Pulse because it was a gay bar."

Reading the Mind of a Dead Man
From a legal standpoint, that's crucial. Mateen left plenty of messaging in the world about his political motivation, from his Facebook message about "filthy ways" to conversations with police negotiators where he identified Islamic State leaders by name. Phone records that show nearly daily research on "jihadology" make the legal case for terrorism fairly simple, even though he never made contact with any Islamic State leaders and apparently became radicalized watching internet videos.

But what of the "filthy ways" quote? It may seem obvious based on his choice of venue that he referenced the West's tolerance of gay sexuality. It seems Islamic State leaders read it as such, with the Amaq Agency, an Islamic State-sponsored news outlet, making special note that the attack "targeted a nightclub for homosexuals" and was "carried out by an Islamic State fighter." The propaganda magazine Rumiyah cheered Mateen "single-handedly slaughtered 49 sodomites -- by Allah's permission."

But there's plenty of history in the words "filthy ways," the only comment Mateen issued that even obliquely referenced judgment of sexual promiscuity. Among the extreme sects of Islam with which Mateen sought an association, the "filthy" adjective gets attached to many behaviors. "Unfortunately, in radical interpretations of Islam, that gets applied to lots of things in the West that are considered abhorrent," Beirich says. "Drinking. Women in dresses that are too revealing. Sex outside of marriage."

(RELATED: What the Media Gets Wrong About Pulse)

Winton's research concurs. "Having him at a nightclub of any sort, where people are drinking alcohol and partying, he could be referring to any of those things," he says of the "filthy" post.

Phyllis Gerstenfeld, a California State University, Stanislaus, professor who included Pulse in her book Hate Crimes: Causes, Controls and Controversies, says a description of "filthy ways of the West" coming from an Islamic extremist could simply reference dancing. If he wanted it clear that he had targeted the LGBT community, he could have said so. "It seems like if he wanted it to be read that way, he would have been more specific," she says.

Still, she says Pulse could be counted a hate crime even if Mateen never realized the men dancing together throughout the club were gay. He could have hated all Americans or Puerto Ricans or all non-Muslims. "I don't know whether he even had that straight in his head, knowing the facts of the case," she says. "But the fact is he purposely went in there to kill a whole bunch of people. Whether it was antigay sentiment or anti-whatever, he didn't just randomly decide to wake up and shoot people."

For law enforcement to make that case can prove difficult. The American justice system requires certainty, proof beyond a reasonable doubt, before declaring a citizen guilty of a crime. And questions of motivation rarely precede clear answers.

A Habit of Ignoring Hate
Besiki Luka Kutateladze, an associate professor of criminology at Florida International University, takes a keen interest in the prosecution of hate crimes. The out academic leads a research effort in South Florida trying to answer why, despite law enforcement's insistence that crimes of hate carry the highest priority, so few such violations ever get prosecuted. "The biggest problem in classifying a hate crime is you have to prove a motivation, a bias against one group," he says. That's harder than it sounds, even in cases where you capture a suspect and get to interrogate him or her.

While Kutateladze won't comment directly on the Pulse case because he's not been granted access to case files, he found through his research in South Florida that prosecutors rarely feel comfortable pursuing hate-crime charges because the case can be so hard to prove.

That may be why the FBI's 2016 Hate Crimes Statistics not only leave out the 49 homicides at Pulse, but also why the database fails to include a single murder in Florida on the list, whether motivated by anti-LGBT sentiment or any other bias on race, gender, religion, or a host of other characteristics. In fact, for all of 2016, only nine murders in the nation were classified as hate crimes, only one of those attributed to antigay violence.

For Kutateladze, the fact that so few crimes make the hate crime database flies in the face of why legislation came about in the first place. The whole purpose of hate-crime laws, from the government point of view, is to show the public hate crimes will be taken seriously, but that's only done in slam-dunk cases. He references the decision to charge several men with hate crimes after assaulting a gay couple at Miami Pride. "It was a gay bashing. It was in public view. Everything was recorded on video," he says. "That's easy to prosecute."

A cryptic Facebook message from a dead man doesn't carry the same weight. But experts still say it's a mistake for law enforcement to ignore the role of hate in the Pulse.

Would Pulse have been handled as a hate crime if Mateen had been captured alive? That would largely depend on what he said to police after the fact. "If he had survived and expressed any hate toward the LGBTQ community, you'd expect that, but it's something we will never know," says Beirich.

But the fact that law enforcement categorizes the attack as an act of domestic terror should inform study of the role of hate in shootings. Gerstenfeld says her research shows tremendous overlap in the mindset of terrorists, mass shooters, and perpetrators of hate crimes. Looking at the psychology of those acts, they share deep-down motivations suppressed and then unleashed by those committing the crimes. The deeds often get planned in isolation by individuals obsessed with their messaging to the public. The individuals behind the actions often share a frustration with and alienation from society at large.

"It becomes really hard to distinguish a hate crime from terrorism from mass murder," Gerstenfeld says. "Pulse is illustrative of how those three things go together."

Beirich says looking at the connection between terrorism and hate helps illustrate how the incubation of right-wing extremism in the United States provides similar threat to those posed by international terrorist groups. "You can see patterns of radicalization that have something in common with the right-wing extremists we track," she says.

That's an important takeaway to Smith. While she would rather the public and media -- some of which wildly reported after the Salman trial that Pulse was definitively not a hate crime -- focus more attention on honoring victims of the Pulse attack than continuing to analyze the shooter.

"This is what matters," Smith says. "The Pulse massacre fits the same pattern of mass shootings across the country. Angry men -- and it is almost exclusively radicalized, bigoted white men -- with easy access to weapons capable of mass murder keep killing people. LGBT people are disproportionately the victims of hate violence including gun violence and this massacre shook our community to its core. Two years later, the damage is still here."