Amidst all of the chaos, outrage, and excellent memes in the wake of the MAGA riot, it can be easy to gloss over the gravity of what happened last week.

Violent insurrectionists tried to stage a coup and five people died at the United States Capitol.

More than 50 people have been charged with crimes for their roles in last Wednesday's events — but, so far, no one has been charged in connection with any of the deaths.

Capitol Police Officer Brian Sicknick died of injuries from "physically engaging with protesters," according to the DC Metro Police Department. Both the MPD and FBI are investigating his death as a murder. Depending on what comes out in the investigation, one or more people could be charged with murder, manslaughter, or aiding and abetting murder or manslaughter. Four Trump supporters also died, including one who was shot by Capitol Police.

Because of these deaths, there has been a lot of talk about the doctrine of felony murder, which allows prosecutors to charge people with murder even when they didn't actually play a part in anyone's death.

Does the felony murder rule apply here? Let's take a look.

Let's talk about felony murder


I get it and I agree: There needs to be serious consequences for what that happened last week.

But the thing is, felony murder is bullshit. It makes murderers out of people who are not actually killers.

Felony murder lets prosecutors charge people with murder if someone dies, even by accident, if they were committing a dangerous felony at the time of the death. The underlying felony has to be dangerous enough that someone dying, even by accident, was foreseeable.

A common application of felony murder is when a group of people plan a robbery and someone dies. Even if the death is accidental — or one of the perpetrators is killed by a cop. It doesn't matter what role you played in the underlying felony, or even if anyone was armed.

Felony murder came from 12th century English common law and was eventually codified here in state and federal statutes. Twenty-seven states even execute people who found guilty of felony murder — and at least 11 people have been executed for felony murder since 1985.

It's not entirely out of the realm of possibility that someone could be charged with felony murder for some of the deaths at the Capitol. But it won't be an easy case to make.

Because the crimes were committed in DC, federal law applies. The federal felony murder rule, found at 18 U.S. Code § 1111, says people can be charged with murder if they:

committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Armed insurrection, riots, and terrorism are, for whatever reason, not on the list.

That doesn't mean it would be impossible for anyone to be charged with felony murder, though. According to former federal prosecutor Tim Heaphy,

"You could look at the storming of the doors of the Capitol by that riotous mob as burglary. If they went in with the intent to steal, disrupt proceedings, to commit other offenses, they committed burglary. And, therefore, a murder that occurred during the course of a burglary could be potentially charged as felony murder."

And it appears the DOJ and DC US Attorney have not ruled out felony murder charges, with senior prosecutor Ken Kohl saying,

"Felony murder is always in play in something like this. Until we get all the facts and conduct the investigation, talk to witnesses, review any videos, we're not in a position to comment."

So it looks like we'll just have to wait and see to find out.

It's easy to get outraged about what happened and understandable that so many people are demanding serious consequences. I'm pretty fucking pissed off, myself, that most of the charges so far have been for misdemeanors like unlawful entry to the Capitol. But, at the same time, we need to remember that changing the law to make it easier to charge people with felony murder would be a terrible thing — and very rarely used against people like the white, middle class MAGA assholes who stormed the Capitol.

As long as Black kids are still being charged with felony murder for their friends getting killed by cops, I'm fine with also using it against racist terrorists. The law is on the books and actively being used, so sure, charge the motherfuckers. Whatever.

But also, let's just get rid of felony murder entirely. We're not in medieval England anymore.

[ ACLU / DPIC / Reuters / USA Today / WTOP ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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