Felony Murder and the Storming of the Capitol

When the news broke that people had been killed during the Capitol riot on Jan. 6, commentators began speculating that at least some of the pro-Trump rioters could be charged with murder—in particular, felony murder. The felony murder rule is a complicated legal doctrine that can result in a murder conviction for people who did not intend to kill and people who did not personally cause anyone’s death. Though the facts of precisely what happened at the Capitol are still coming to light, it seems very likely that prosecutors could file felony murder charges against at least some of the rioters.

The Felony Murder Rule

Ordinarily, a person is guilty of murder only if she intentionally kills another person. The felony murder rule is an exception to this ordinary rule. It allows a murder conviction for deaths that occur in the course of certain crimes. There are limits on the rule, which vary from jurisdiction to jurisdiction. But the basic concept is that the intention to commit the other crime can somehow substitute for the intention to kill the victim.

Imagine, for example, that I decide to kidnap the child of a wealthy business person. I snatch the child off the street, gag him, put him in the trunk of my car and drive to a secluded cabin in the mountains. If the child suffocates and dies in my trunk, I can be convicted of murder—felony murder, that is. Because I did not kill the child on purpose, I could not be charged with murder absent the felony murder rule, as murder requires an intentional killing. Instead I could only be charged with manslaughter or some other lesser homicide crime. But the felony murder rule essentially treats my intent to commit the kidnapping as if I had intentionally killed the child.

There are limits on the felony murder rule—most importantly, what crimes can trigger it. If I accidentally kill someone when I am intentionally driving one mile over the speed limit, I am not guilty of felony murder. The intentional crime must be more serious.

Different jurisdictions take different approaches to deciding which crimes are serious enough to trigger the rule. Those decisions are usually made by the legislature and enshrined in a statute. Jurisdictions have listed a variety of triggering crimes in their statutes, such as burglary, arson, robbery, kidnapping, rape or escape from incarceration or arrest. Only those people who intentionally committed a crime listed in a felony murder statute can be charged with felony murder.

Additionally, the death has to have taken place while the person was trying to commit the crime. For example, if I committed arson two years ago, and then I accidentally kill someone on my way to the grocery store tomorrow, I am not guilty of felony murder.

Besides these limitations, though, there are also important ways in which the rule is expansive. Most notably, it allows a murder conviction for people who did not personally cause the victim to die. The classic example of this expansion is bank robbery by a group of people. If one of the robbers shoots a customer in the bank during the robbery, the other bank robbers could also be convicted of felony murder even though they didn’t pull the trigger. Put simply, felony murder treats all of the robbers as complicit in the customer’s death.

That someone who didn’t personally kill the victim can be convicted of felony murder has serious consequences. Some jurisdictions treat felony murder no differently than intentional murder, meaning that at least some people who didn’t personally kill can even get the death penalty.

Because the consequences are so serious, additional limitations sometimes apply to those who didn’t personally kill. One limitation is that the death must have been foreseeable—it can’t have been completely unpredictable. The death must also have been in furtherance of the felony. If, for example, the bank robber shot the customer to settle an old personal grudge, then the other bank robbers couldn’t be charged with felony murder.

While some states have placed limitations on felony murder charges for those who didn’t personally kill, others have expanded the possibility for felony murder charges even further. In some states, the felony murder rule even includes deaths that were caused by a person who wasn’t committing the underlying crime. Most states will only allow a felony murder conviction if either the defendant or someone with whom the defendant committed the crime ended up killing someone. But some states will allow a conviction if the victim was killed by someone else, including a police officer, so long as the defendant’s crime “sets in motion a chain of events” that led to the death.

Felony murder is a controversial doctrine. A number of people have called on states to repeal their felony murder statutes or to modify them to change the complicity rules. But the rule remains quite popular, and most states and the federal government have some version of the rule.

Felony Murder and the Deaths at the Capitol

There is no doubt that the storming of the Capitol led to deaths. Capitol police officer Brian Sicknick died after sustaining injuries at the hands of the mob. Rosanne Boyland, a Trump supporter, was reportedly trampled to death outside the Capitol. Law enforcement shot rioter Ashli Babbitt after she attempted to enter the Speaker’s Lobby inside the building. In the future, additional information may surface about these deaths that would change the legal analysis—for example, perhaps Boyland’s death was caused by a heart attack that occurred before she was trampled. But for the moment, I will assume that these deaths were caused by the riot.

Since people died, the first question to ask is whether people committed a serious enough crime to trigger the felony murder rule—in particular, the federal felony murder statute, as people who have been arrested for what they did at the Capitol are being charged in federal court. That statute lists many crimes that can trigger the felony murder rule—including arson, murder, treason and espionage—but the most likely to apply here is burglary.

There’s no federal statute that defines burglary, but the Supreme Court has used a pretty broad definition of the crime when interpreting other statutes, characterizing burglary as unlawfully entering or remaining in a building with the intent to commit another crime. Lower federal courts have used a similar definition when interpreting the felony murder statute, though at least one has suggested that the entry has to be “forcible,” and not merely unlawful.

Does that definition of burglary describe the people who stormed the Capitol on Jan. 6? I would say yes. Th

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