Eugene Volokh's Blog, page 34

[Barry Strauss] Masada Speeches

[Two memorable speeches in defense of freedom.]

At Masada in the year 74, over 900 rebels chose death before surrender, an extreme stand for freedom. Masada is a famous episode in Jewish history. It was long an icon of Israeli nationalism, although recently some Israelis have turned away from it and what its suicides symbolize.

The Romans attacked Masada four years after they destroyed Jerusalem and the Temple in 70, thereby wiping out the center of the Great Revolt of Jews against Rome (66-70). It was the last of several mopping-up operations. The historian Josephus attributes two speeches to the leader of the rebels at Masada, Eleazar son of Yair.

I discuss those speeches in this excerpt from my new book, Jews vs. Rome: Two Centuries of Rebellion Against the World's Mightiest Empire (Simon & Schuster, 2025):

Masada is a steep-sided plateau, crowned by two palaces and a set of fortifications, that rises dramatically in the wilderness. Masada lies in the desolate and forbidding landscape of the Judean Desert. To the west rise scarred and craggy hills. To the east, the Dead Sea. Beyond the Dead Sea rise the rugged mountains of Moab. The Dead Sea is the lowest place on the surface of the earth….

Masada was a station on an ancient version of an Underground Railroad. It was a place where Sicarii ["dagger men," among the most determined of Rome's Jewish opponents]and other freedom seekers might stop before continuing to Egypt, Libya, Arabia, the Parthian [Iranian] Empire, or Galilee….

For all his harsh criticism of Eleazar and the Sicarii, Josephus attributes two speeches to Eleazar that are moving encomiums of freedom. Indeed, they are among the classic statements on freedom written in ancient Greek. (Josephus wrote in Greek, but Eleazar would no doubt have spoken in Aramaic or possibly Hebrew.)

As we saw, when Eleazar realized that there was no longer any hope of resisting the Romans or of escaping them, he concluded that mass suicide was the honorable choice, and tried to persuade his followers of that. In the first speech he addressed what Josephus calls only the bravest of his comrades, all males. Josephus's Eleazar reminded them of the creed that inspired the founder of his sect generations earlier: to serve neither the Romans nor anyone else other than God, the only true and righteous Master of humanity. Eleazar stated his pride in being descended from the first Jews to rebel against Rome, and now being the last to bear arms against them (at least the last in Judea).

Josephus has Eleazar admit that he and his followers deserved to die for their crimes—something that Eleazar surely did not say, no matter how much Josephus wanted to believe it. Eleazar urged his men to slaughter their families and each other, and so to choose to die nobly rather than to live on in slavery or be killed by the Romans. He summed up his advice with this exhortation:

Let our wives die unravaged and our children innocent of slavery, and after them let us do each other a generous favor, preserving our freedom as a noble winding sheet.

But many of his followers were unconvinced, so Eleazar gave a second speech, in which he supposedly went on a rhetorical flight of fancy about the immortality of the soul. Once again, he foregrounded freedom. He stated that death is the ultimate liberator of the soul, sounding as much like a Greek philosopher as a believing Jew.

He maintained that there was no shame in being defeated by the Romans, especially since the Romans could not even take credit for the many defeats inflicted on the Jews in recent years by Egyptians in Alexandria, and by Greeks and Syrians in and around Judea. With Jerusalem in ruins, he argued, it seemed hard to continue living. He summed up his advice with an appeal to family and freedom:

Unenslaved by the enemy let us die, and as free men let us leave life together with our children and our wives.

[I]t is unlikely that Eleazar ever uttered the beautiful words that Josephus gave him, although some of those words might have been true to Eleazar's thinking.… [H]istorians in Greece and Rome considered it their responsibility to compose beautiful speeches based on what they believed the occasion called for. Accurate knowledge of what was said was optional. The two speeches by Eleazar, therefore, are probably largely Josephus's creations. And that makes them even more striking.

Josephus chose to give noble words to a man he despised. Furthermore, he graced Eleazar and his followers with what the ancients called "a beautiful death." When the Romans discovered the dead, as previously described, they were amazed at the nobility of the plan, their unhesitating behavior, and their contempt for death.

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[Josh Blackman] New on NRO: "This Constitution Day, Celebrate the Triumph of Originalism"

["As we celebrate the Constitution’s 238th birthday, originalism is now the dominant approach — on the left and the right — to interpret the Constitution."]

In honor of Constitution Day, and the launch of the Heritage Guide to the Constitution, John Malcolm and I authored an essay on National Review Online, titled: "This Constitution Day, Celebrate the Triumph of Originalism."

Five decades ago, originalism wasn't even an -ism. In the academy, at the bar, and on the courts, the Constitution was interpreted as a living, breathing document. Contemporary values mattered more than text, history, and tradition. Yet today, as we celebrate the Constitution's 238th birthday, originalism is now the dominant approach — on the left and the right — to interpret the Constitution.

Even Justice Ketanji Brown Jackson said during her confirmation hearing, "I believe that the Constitution is fixed in its meaning" and that looking to "original public meaning" is "a limitation on my authority to import my own policy." Still, critics charge that lawyers and judges, lacking Ph.D.s, are not qualified to perform historical research and that originalism is partisan and lacking in any sort of neutrality. These claims do not hold up.

For nearly five years, a coalition of 30 judges, 60 academics, and 60 practitioners united to assemble a definitive, comprehensive, and neutral statement about the entire Constitution's original meaning. This ground-breaking research will be published in the fully revised third edition of the Heritage Guide to the Constitution. Justice Samuel A. Alito wrote in his preface that "the new edition of The Heritage Guide is a great place to start" for all Americans who "want to understand what our Constitution means."

These judges, scholars, and advocates who contributed to this book teach us how to determine the Constitution's original meaning in the right chronological order: the history before 1787; the records of the Constitutional Convention; the ratification debates; early practice in the legislative and executive branches; and finally, judicial precedent. More than 200 essays break down every clause of the Constitution through these five steps.

Here are the five steps:

First, what were the origins of the text in the Constitution? . . . .

The second part of the originalist inquiry focuses on what the 55 delegates accomplished in Philadelphia to frame the Constitution. . . .

The third, and perhaps most important phase, was the ratification debates. . . .

The Constitution was formally ratified in 1788, and the new government assembled in 1789. At that point, the fourth phase began. How did the early actors in our government understand the Constitution? . . .

The fifth inquiry, finally, turns to the courts: What have judges, especially on the Supreme Court, said about a particular clause of the Constitution?

We conclude:

This five-step approach reflects originalist best practices that students, lawyers, and the judiciary should follow. The Supreme Court has often referred to the Constitution's text, history, and tradition to understand the document's original meaning. It is important to approach these inquiries in the right order.

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[Josh Blackman] Today in Supreme Court History: September 17, 1787

9/17/1787: The Constitution is signed.

The Constitution

Happy Constitution Day!

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[Josh Blackman] Introducing the Third Edition of "The Heritage Guide to the Constitution"

[Attend the live virtual launch on Constitution Day at 9:30 a.m.]

Since 2021, I have served as the Senior Editor of The Heritage Guide to the Constitution. After nearly four years, the work is complete. Today, on Constitution Day, we will launch the fully revised third edition.

You can register to virtually attend our event at this link. Here is the program:

Panel I | Originalism in Theory and Practice: Insights from the Legal Academy

Charles J. Cooper, JD, Founding Member and Chairman, Cooper & Kirk, PLLC Kurt Lash, JD, E. Claiborne Robins Distinguished Chair in Law, University of Richmond School of Law Randy E. Barnett, JD, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center and Faculty Director, Georgetown Center for the Constitution Josh Blackman, JD, Senior Editor, The Heritage Guide to the Constitution and Centennial Chair of Constitutional Law, South Texas College of Law Houston (moderator)

Panel II | The Originalist Turn: A Judicial Perspective

The Honorable William H. Pryor Jr., Chief Judge, U.S. Court of Appeals for the Eleventh Circuit The Honorable David R. Stras, Judge, U.S. Court of Appeals for the Eighth Circuit The Honorable Elizabeth L. Branch, Judge, U.S. Court of Appeals for the Eleventh Circuit John G. Malcolm, Executive Editor, The Heritage Guide to the Constitution and Vice President, Institute for Constitutional Government, The Heritage Foundation (moderator) Description

Over the past two decades, the federal judiciary has increasingly grounded its cases in the Constitution's original meaning. Students, scholars, lawyers, and judges are now expected to understand and apply the text, history, and tradition of the Constitution. The Third Edition of The Heritage Guide to the Constitution will provide a comprehensive starting point to research issues from before, during, and after the Constitution's adoption. It equips all Americans with an authoritative and accessible introduction to our foundational charter.

Each of these 216 essays, written by over 150 distinguished jurists, scholars, and practitioners, was carefully reviewed to ensure they are of the highest quality and accuracy. This once-a-decade publication strives to be the definitive compendium of each of the provisions of the Constitution.

Join us for this two-panel launch event that includes authors from the both the judiciary and legal academia.

"The time is now right for a third edition of The Heritage Guide to the Constitution. The project continues under the leadership of Josh Blackman and John Malcolm. They are building on the proud legacy of the prior editions. I am confident that this volume will serve a new generation of lawyers, professors, students, and ordinary citizens who are deeply committed to the jurisprudence of originalism I spoke about four decades ago."

— The Honorable Edwin Meese III, Seventy-Fifth Attorney General of the United States

"'We the people' adopted the Constitution, and it is important that all Americans understand what our founding document means. Since the publication of the first edition twenty years ago, The Heritage Guide to the Constitution has been an invaluable resource for judges, lawyers, and the public at large. It marries scholarly depth and sophistication with prose that is readily accessible. The new third edition of the Guide retains the virtues of its predecessors while deepening the discussion of how constitutional provisions were understood when they were adopted. . . . Today, no savvy attorney would disregard original meaning in briefing or arguing an unsettled constitutional question in federal court. For attorneys involved in such cases—and for all other Americans who want to understand what our Constitution means—the new edition of The Heritage Guide is a great place to start."

— Justice Samuel A. Alito, Jr., U.S. Supreme Court

I will have much more to say about this important work very soon.

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[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Eugene Volokh] AG Pam Bondi Says "We Can Prosecute You" for Refusing to Print Posters for Charlie Kirk Vigil

[But there doesn't seem to be any federal law actually authorizing such prosecutions (or civil lawsuits).]

The Hill (Ashleigh Fields) reports:

Attorney General Pam Bondi on Monday said the Justice Department was investigating an incident involving a Michigan Office Depot employee who refused to print flyers advertising a vigil for conservative activist Charlie Kirk…. Office Depot said last week they removed the employee responsible for denying the order placed by the Kalamazoo County Republican Party.

Here's the Bondi quote, from Hannity on Fox, starting about 4:42:

Businesses cannot discriminate. If you wanna go in and print posters with Charlie's pictures on them for a vigil, you have to let them do that. We can prosecute you for that. But I have Harmeet Dhillon right now in our Civil Rights unit looking at that immediately, that Office Depot had done that. We're looking at that.

But no federal law, to my knowledge, purports to ban stores from discriminating based on the political expression of the material they're asked to print.

Title II of the Civil Rights Act of 1964 bans discrimination by certain places of public accommodation—such as restaurants, hotels, theaters, and places of public amusement—based on race, religion, and national origin. But it doesn't ban discrimination based on political views, and it doesn't apply to retailers, so it wouldn't apply here. It also bans discrimination based on disability, but that's not applicable here either. Businesses can discriminate, just not on bases that the law forbids; and here, federal law doesn't appear to forbid this sort of discrimination.

Now some jurisdictions do ban political discrimination in places of public accommodation (see this article). If such a ban were applied to a print shop that deliberately refused to process an order based on its political content, then it might violate the First Amendment (see the concurrence in Lexington-Fayette Urban County Human Rights Comm'n v. Hands On Originals (Ky. 2019), a case in which Cato Institute and I filed an amicus brief making the First Amendment argument).

That First Amendment claim would be strengthened, of course, by 303 Creative LLC v. Elenis (2023), which recognized a First Amendment right not to create a website for same-sex weddings. It's conceivable that a court might limit the First Amendment defenses to small businesses where the owner would have to do the work personally; cf. Rumsfeld v. FAIR (2006), which upheld certain requirements that universities host certain speech, and distribute related speech, though perhaps the reasoning of 303 Creative would apply even to a large business such as Office Depot.

But none of that even arises here, because those jurisdictions are certain cities and counties, some territories, D.C., and perhaps a few states. None of those laws applies to the Office Depot involved in this incident; and even if there was such a law in Michigan or in the town of Portage (where the store was apparently located), it wouldn't be enforced by the U.S. Justice Department. Perhaps I'm missing something here, but it's hard to see a credible legal basis for AG Bondi's statements.

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[Eugene Volokh] "Why Everything Pam Bondi Said About 'Hate Speech' Is Wrong"

The Foundation for Individual Rights and Expression (Aaron Terr & Angel Eduardo) have a good rundown. An excerpt:

While discussing the assassination of Charlie Kirk and campus antisemitism on The Katie Miller Podcast, Bondi said the Justice Department would investigate and prosecute incidents of "hate speech." While she's trying to go into damage control mode and walk back some of her mistakes, it's important to correct our nation's chief law enforcement officer on what is and isn't protected expression….

The idea that "hate speech" is a separate and unprotected category of expression is one that we, unfortunately, have had to debunk time and time again. The fact is there is no "hate speech" exception to the First Amendment, and there can't be. The Supreme Court has rejected the notion on multiple occasions, and the reasons for this should be obvious to someone in Bondi's position….

Early this morning, Bondi published a post on X, attempting to clarify her comments after a wave of negative response. Unfortunately, she only introduced more confusion:

Hate speech that crosses the line into threats of violence is NOT protected by the First Amendment. It's a crime. For far too long, we've watched the radical left normalize threats, call for assassinations, and cheer on political violence. That era is over….

However, Bondi quickly shows that she doesn't understand [the] narrow [true threats] exception, which doesn't cover abstract advocacy of violence or "cheering on" political violence — speech that is, in fact, protected ….

I have some minor quibbles here: The main one is that I wouldn't quite say, as the article does, that "you can call for someone's murder as long as you're not inciting it," since there's also a solicitation exception that may target solicitation of specific crimes (especially against specific victims) even when the "incitement" test isn't satisfied. But on balance, FIRE's statement is excellent, and Bondi's statements on this have been very far from that.

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[Eugene Volokh] Hate Crimes Targeting People Based on Political Speech (as in the Charlie Kirk Murder)

The charges in the Charlie Kirk case include:

VICTIM TARGETING ENHANCEMENT: In violation of Utah Code Ann. § 76-3-203.14(2), Tyler James Robinson intentionally selected Charlie Kirk because of Tyler James Robinson's belief or perception regarding Charlie Kirk's political expression.

The Utah hate crimes sentencing enhancement statute indeed includes "political expression" alongside race, religion, and the like as covered "personal attributes," and provides,

A defendant is subject to enhanced penalties under Subsection (3) if the defendant intentionally selects … the victim of the criminal offense because of the defendant's belief or perception regarding the victim's personal attribute or a personal attribute of another individual or group of individuals with whom the victim has a relationship….

Some other jurisdictions do the same, though I can't say how many; my quick search pointed to D.C., Iowa, and West Virginia. Some states also impose civil liability for violence targeting people based on, among other things, their political affiliation; consider, for instance California's Ralph Civil Rights Act of 1976:

All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51 [California's public accommodations antidiscrimination statute], or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive.

I leave it to others to decide whether it's good to set up special hate crimes enhancements (the Court has held they are constitutional, see Wisconsin v. Mitchell (1993)), and to include targeting based on political expression; I just wanted to report that these laws do exist in some jurisdictions.

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[Eugene Volokh] Hotel's Defamation Lawsuit Against Rabbi Shmuley Boteach Over Anti-Semitism Allegations Can Go Forward

An excerpt from Fontainebleau Florida Hotel, LLC v. Botach, decided today by Judge K. Michael Moore (S.D. Fla.):

This case arises from an incident that occurred at the Fontainebleau Florida Hotel …. Plaintiff alleges that the following events occurred:

After more than an hour of loitering, Defendant Boteach engaged in an uneventful conversation with a registered guest of the Hotel and the two parted ways. More than an hour later (after midnight on Sunday, December 2, 2024), Defendant Boteach engaged in a verbal altercation with the same registered guest wherein the guest and Defendant Boteach exchanged hateful words at each other.

The guest used language that was heinous and accused Defendant Boteach of being a "baby killer" and other words that are easily interpreted as antisemitic. Defendant Boteach, in turn, hurled anti-Islamic words at the registered guest and repeatedly shouted, "Allahu Akbar? Are you going to blow yourself up or something? … he uses the expressions of, like, suicide bombers." Within hours, Defendant Boteach posted an edited video of the exchange on Instagram and began his campaign of threats against the Hotel, its ownership, its outside lawyer, and its employees—who had nothing to do with the altercation except that Hotel security de-escalated and ended it.

Plaintiff alleges that following the altercation, the Defendant, who the FAC [First Amendment Complaint] describes as a "social media influencer and rabbi" with "hundreds of thousands of social media followers[,]" went on a "multi-week assault on the [Hotel], its personnel, and representatives—creating AI videos purporting to show them celebrating antisemitism, comparing them to Nazi collaborators, falsely accusing them of banning Jews from the property, and fabricating statements that they embraced a policy of Judenrein, i.e., the extermination of six million Jews." The FAC alleges that Defendant falsely stated that he was denied entry to the Hotel because he is "too Jewish," that the Hotel refused to cooperate with law enforcement's investigation of the incident, and that he "was trespassed from the Hotel for being 'too Jewish[.]'"

Plaintiff further alleges that "Defendant Boteach published a statement that, in part, called for guests 'who have booked' at the Hotel to 'cancel your reservations'" and to "'be smart and cancel and give your hard-earned money to a hotel that doesn't abide antisemites.'" Moreover, Plaintiff alleges:

At all hours of the day and night, Defendant Boteach proceeded to harass the Hotel and its representatives. For example, he posted a "headshot" photograph of the head of the Hotel's outside counsel with the words "DIGITALLY DECAPITATED" and later, at 3:49 am, menacingly threatened that counsel was "about to have a really interesting Shabbat" when he arrived at his synagogue, which Defendant Boteach identified by name and location. Defendant Boteach directly contacted counsel's clergy and posted harassing images of them.

The hotel sued, and the court allowed the defamation claim to go forward:

The FAC alleges that Defendant falsely stated that he was denied entry to the Hotel because he is "too Jewish," that the Hotel refused to cooperate with law enforcement's investigation of the incident, and that he "was trespassed from the Hotel for being 'too Jewish[.]'" Defendant argues that "alleged defamatory statements amount to pure opinion" and that "expressions of opinion, regardless of how offensive, [including] that a party or entity is 'racist' or 'Nazi'[,] are not actionable as defamation[.]"In Response, Plaintiff argues that "[w]hether the Hotel trespassed Defendant Boteach because he is 'too Jewish' is capable of being proven true or false." In Reply, Defendant argues that "[t]he statement that Defendant was banned for being 'too Jewish' is obviously Defendant's hyperbolic opinion based on the sequence of events and circumstances laid out in [the FAC]."  The Court disagrees. The FAC alleges that:

Defendant Boteach knew that he was disseminating false statements because his claims were about events in which he purported to have been personally involved. For example, Defendant Boteach edited a letter that stated he was trespassed because of his threats of litigation by misleadingly deleting from that letter—that he had access to and read—the basis of the trespass (i.e., his threats of litigation) and then he claimed the Hotel trespassed him because he is "too Jewish" (i.e., falsely attributing those words to the Hotel). The claim that Defendant Boteach was trespassed from the Hotel for being "too Jewish" was false because Defendant Boteach was trespassed pursuant to Hotel policy to not entertain people who are threatening litigation against the Hotel.

Accepting the FAC's allegations as true, the Court finds that Defendant's statement that he was "banned for being 'too Jewish'" is capable of being proven false, and thus, a statement of fact or, in other words, the statement is actionable as defamation.

Sean A. Burstyn (Burstyn Law PLLC) represents the hotel.

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[Paul Cassell] Why Charlie Kirk's Murderer Is "Death Eligible" Under Utah's Death Penalty Statute

[Utah prosecutors have a strong argument that the assassination created a great risk of death to another individual besides Kirk, allowing capital punishment under Utah law.]

Today state prosecutors in Utah County, Utah, charged Tyler Robinson with "aggravated murder" under Utah law, making him eligible for the death penalty if convicted. The prosecutors also announced that they will seek the death penalty. Under Utah law, a murder becomes aggravated, and thus, death eligible, if prosecutors can prove a specific aggravating circumstance connected with the murder. Here, acting under Utah's capital murder statute (Utah Code Ann. § 76-5-202) prosecutors have alleged the aggravating circumstance that Kirk's murderer "knowingly created a great risk of death to another individual other than Charlie Kirk and the defendant." In my view the prosecutors have strong case that Kirk's murder fits within that aggravating circumstance, and thus that Robinson (if proven guilty) is eligible for the death penalty.

My purpose in writing this post is to set out the specific Utah law relevant to Robinson's prosecution for a capital crime. As a criminal law professor at Utah's public law school, I teach these subjects regularly. This post addresses only Utah state law, not federal charges that may be applicable. Similarly, this post attempts to describe existing Utah law, not the desirability of seeking the death penalty in the Kirk case nor, more broadly, the desirability of the death penalty in general.

The factual circumstances surrounding Kirk's assassination are generally well known. I won't recount them all here. But it is important to dispel some misconceptions about Utah's death penalty statute.

For a murder to be death-eligible in Utah, prosecutors must prove a specific aggravating circumstance—beyond the fact of intentional murder. The facts alleged (if proven) make clear that Robinson acted with premeditation and, indeed, was lying in wait to get the opportunity to shoot Kirk. Under some homicide statutes, that premeditation alone might well be sufficient to seek the death penalty. For example, in California, a murder committed with malice aforethought (i.e., without provocation) becomes death eligible where "[t]he defendant intentionally killed the victim by means of lying in wait."

Under Utah's murder statute, however, there is no general aggravation for lying in wait or clear premeditation. With some exceptions, Utah's criminal law statutes generally follow the Model Penal Code (MPC), which was drafted by the American Law Institute in the late 1950s and early 1960s to rationalize criminal statutes. The MPC abandoned the distinction between premeditated and "merely intentional" murder, providing for only a single degree of murder. When Utah revised its criminal code in around 1973, it followed the MPC's approach to categorizing homicides. See generally Paul N. Cox, Utah's New Penal Code, 1973 Utah L. Rev. 718.

Turning to Utah's death penalty provisions in particular, some history is helpful. In 1972, the U.S. Supreme Court struck down state death penalty statutes all over the country. In  Furman v. Georgia, the Court held that the statutes in effect at the time generally led to unpredictable infliction of the death penalty. In the immediate wake of Furman, many states (including Utah) responded by re-enacting death penalty statutes that addressed Furman's concerns by guiding jury discretion on death penalty verdicts. In 1976, in Gregg v. Georgia, the U.S. Supreme Court upheld the constitutionality of these modern death penalty statutes.

In drafting more specific death penalty statutes, many states looked to the MPC death penalty provisions. These provisions made certain murders death-eligible if a specific aggravated circumstance was proven. Among other aggravating circumstances, the MPC made a murder death-eligible when "[t]he defendant knowingly created a great risk of death to many persons." See Gregg, 429 U.S. at 194 n.44.

Utah looked to the MPC as a source for its aggravating circumstances in its death penalty statute. But, in its current form, Utah's death penalty statute modifies the MPC aggravator involving risk to "many persons." Instead, Utah's statute requires proof of "great risk of death to another individual" (other than the deceased individual or the murderer). This broader language is significant, because it means prosecutors need only show a great risk to one other person—besides Kirk—to make his murder death-eligible.

What does Utah's language mean when it describes "great risk of death to another individual"? To be clear, this issue of how to interpret the aggravating circumstance is (within broad constitutional limits) solely a question of Utah state law. It appears that Utah caselaw contains only a handful of decisions interpreting the "great risk of death" provision. The gist of these decisions is that the defendant's murder is aggravated if the defendant place another person within the "zone of danger" of death.

In Utah's most recent decision on the aggravator, State v. Sosa-Hurtado, 2019 UT 65, the Utah Supreme Court considered a case where the defendant shot at one person in the course of a robbery and then shot and killed another. Here are the facts:

Sosa-Hurtado entered the smoke shop and pulled an assault rifle from his jacket. According to Isabel's testimony, when Sosa-Hurtado entered the shop, Stephen and Isabel were standing three to four feet apart from each other behind the counter. A witness who was inside of the shop at the time of the shooting, however, said that Isabel and Stephen were closer—perhaps only two feet apart. Stephen stood at the cash register behind the north counter while Isabel stood behind the east counter. Sosa-Hurtado fired one shot at Isabel with his assault rifle, missing him but shattering a glass case, which hurled glass and wood into Isabel's leg, causing him to fall to the ground.

Sosa-Hurtado then turned towards Stephen. He fired a shot at Stephen, which hit Stephen's hand. Stephen fell on the floor behind the counter. Isabel began to get up and move towards Stephen. With his back to Isabel, Sosa-Hurtado leaned over the counter, positioned the rifle only inches from Stephen's chest, and shot him twice more. These shots killed Stephen. Only a few feet away, Isabel felt the air displaced by the bullets. Sosa-Hurtado exited the smoke shop and fired several shots into the air outside.

Id. at ¶¶ 7-8.

In affirming a conviction for aggravated murder (albeit not in a capital case), Sosa-Hurtado described the caselaw in this area. It pointed to an earlier decision, in which a defendant had used a caustic substance to kill three individuals and serious injure two others. In State v. Pierre, 572 P.2d 1338 (UT 1977), the Utah Supreme Court concluded that the evidence demonstrated "that the killing of the three victims and the creation of a setting of great risk of death to the two surviving victims occurred within a brief span of time in which were formed a concatenating series of events." 572 P.2d at 1355.

Sosa-Hurtado also pointed to another case, in which the Utah Supreme Court found that the grave risk of danger aggravator was not proven. In State v. Johnson, 740 P.2d 1264 (Utah 1987), a defendant bludgeoned a victim/husband to death, and then raped a victim/wife. The Court concluded that there was insufficient evidence that the defendant's murder

of [the husband] on the other side of a basement, separated from [his wife] by shelving, constitutes the kind of conduct described by [the great risk of death to another provision]. The State produced no evidence indicating the at [the wife] was placed at grave risk of death by defendant's battery of [the husband], nor did it produce evidence indicating that defendant knew that his conduct toward [the husband] placed [the wife] at great risk. This case resembles State v. Clark, 616 P.2d 888 (Ariz. 1980). In that case, the Arizona Supreme Court held that the victim's wife, who was in another room of the home when her husband was shot by the defendant, was not, even assuming the possibility of a ricocheting bullet, within the zone of danger. 

In Johnson, in referring to a "zone of danger," the Utah Supreme Court cited favorably to a New Jersey Supreme Court's interpretation of a similar first degree murder statute. There, the New Jersey court explained that, to fall within the aggravator

the facts must include a knowing or purposeful state of mind vis-a-vis the creation of a great risk of death, that there be a likelihood or high probability of great risk of death created, not just a mere possibility … and that there be at least another person within the "zone of danger" created by defendant's conduct.

State v. Price,  478 A.2d 1249, 1260 (N.J. Super. 1984) (citations omitted).

In Johnson, the Utah Supreme Court specifically stated that it also agreed "with the New Jersey court that there may be circumstances in which a defendant may be guilty although the endangered person is physically removed from the defendant's conduct, but we note that such cases require a careful consideration of a defendant's intent and knowledge of the risk and the endangered person's proximity in time and place to the murder."

The state prosecution is being capably led by Utah County Attorney Jeff Gray, who has considerable experience in serious criminal cases—and has covered these issues in the charges he filed today. The prosecutors will need to show that at least one other individual was within the "zone of danger" from the deadly bullet fired by Robinson from a high-powered rifle, specifically, a Mauser Model 98 .30-06 caliber bolt action rifle with a mounted scope. This issue of risk to another person becomes essentially a factual question, which the jury will need to resolve after hearing evidence from the prosecution and defense.

Below is a photograph of multiple people in close proximity in time and place to Kirk just moments before he was murdered:

Whatever else may be said about this photo, it makes clear the shooting was not a covert, private vendetta but rather a public assassination of a victim surrounded by hundreds of people.

The Criminal Information filed today lays out strong evidence of at least one of these other persons being in the zone of danger:

Mr. Kirk's team members were very close to him on his right and left, as well as some behind his canopy and others at various close locations near him. The large crowd surrounded Mr. Kirk on three sides. Temporary metal fencing separated attendees from Mr. Kirk by only a matter of feet. Directly above and behind Mr. Kirk was the UVU Hall of Flags, an indoor walkway spanning several hundred feet with floor-to-ceiling glass windows which overlook the plaza where Mr. Kirk was seated. People were in the walkway at the time of the shooting.

Approximately fifteen minutes into the event, Mr. Kirk was answering a question about mass shootings by transgender individuals when a gunshot rang out. The bullet struck Mr. Kirk in the neck. He slumped to the ground almost immediately. The bullet's trajectory passed closely to several other individuals beside Mr. Kirk, including the questioner who was standing directly in front of Mr. Kirk.

Further supporting this conclusion about risk is the fact that, immediately after the shooting, according to a Salt Lake Tribune timeline, "swarms of attendees bolted from the area, some wading through water in a campus fountain as they sought shelter." Presumably people were fleeing because of the great risk they were exposed to.

Robinson can be expected to challenge this conclusion that he placed others at risk. Presumably his lawyers will point to the fact that only a single person died. And his lawyers can point to the mounted scope and Robinson's deadly accuracy in carrying out the execution to suggest that the only person at risk was Kirk. But in asking whether there was a "great risk" to another person, part of the calculation is presumably the nature of the risk that is involved. The risk that Robinson created was, of course, a criminal risk of death from a bullet flying dangerously close to others. Robinson's crime seems to have created exactly the kind of danger that Utah's death penalty statute covers—making Robinson death-eligible if the prosecutors prove their case.

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