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The Capitol invasion and the felony-murder rule

3 min read

Suddenly, we’re all talking about the felony murder doctrine. Broadly, that’s a legal principle stating that if someone is involved in the commission of a felony, and the circumstances of that crime result in a death, then they are guilty of the offense of murder even if they weren’t directly involved in the death itself. The canonical example is an armed bank robbery where one of the robbers shoots the teller to death; the getaway driver is still subject to a felony murder charge, even if he wasn’t armed and didn’t even enter the bank. There are some complications to this, involving the proximate relationship between the offense and the death, but that’s the general idea.

So, can our merry band of insurrectionists be charged with felony murder?

Because the Capitol invasion happened in the District of Columbia, federal law applies. And the federal murder code is one of those that has a list, at 18 USC 1111 (a), if you’re playing along at home. There might be a quiz. That list of crimes is: arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, robbery, or a couple of bucket categories that really don’t apply here.

This still isn’t treason, sorry. And it’s not sabotage either (which really only applies to military stuff). Meanwhile, the federal robbery and burglary statutes (18 USC 103) are mostly concerned with banks and postal facilities. It’s possible that people looting the Capitol ran afoul of clauses involving the “personal property of the United Stats”, but it’s also possible it doesn’t matter, because of a 1990 Supreme Court case. In Taylor v. United States, the court examined what constituted “burglary” for a statute that allowed sentencing enhancements. The Court determined that, absent a specific definition of the term in the law being examined, “an offense constitutes ‘burglary’ … if, regardless of its exact definition or label, it has the basic elements of a ‘generic’ burglary — i.e., an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” The federal murder statute doesn’t refer to a specific burglary definition, doesn’t say the underlying offense had to be federal burglary, and doesn’t explicitly call out 18 USC 103; it’s pretty likely that the Taylor ruling applies here as well.

Now, I don’t expect to see felony murder charges filed against random members of the insurrection. Taylor is good law, but applying it to federal felony murder would be a novel argument, as far as I can tell. And there’s no compelling reason to do that when there’s a laundry list of other offenses to charge.

Zip-tie man and anyone directly involved with him may very well face 18 USC 351 (c) charges for attempting to kill or kidnap a Member of Congress. Just about everyone involved could potentially face (multiple) 18 USC 372 charges for preventing, “by force, intimidation, or threat” various Members of Congress from discharging the duties of their office. This whole debacle pretty easily meets the definitions of an 18 USC 102 riot. I’m not sure that I expect to see anyone charged with seditious conspiracy under 18 USC 2384 just because of the optics of actually charging “sedition” when there are less fraught crimes involved, but, yes, I think this looks an awful lot like it really was seditious conspiracy. On the other hand, if the DoJ wants to get mean, and throw the book at people, this mess involved “acts dangerous to human life” (clearly, since people died) that “appear to be intended … to influence the policy of a government by intimidation or coercion” (since that was the stated goal!), and that’s the definition of domestic terrorism in federal law. Plus, of course, there are a whole pile of offenses under DC law: unlawful entry, refusal to obey lawful orders, and so on; that’s what most of the early charges have been, but expect the bigger ones to come out to play as the FBI ramps up.

Bottom line: people not directly involved in one of the deaths probably aren’t going to face murder charges, although that can’t be ruled out (whoever wielded the fire extinguisher and killed that cop, on the other hand, will absolutely be charged with murder). But they do face prosecution for potentially a giant pile of charges, including quite a few felonies.

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