People died at the Capitol. Can rioters be held accountable?

Since news of the first death during the Capitol riot Jan. 6 broke — which is to say, before the riot was even over — lawmakers, television personalities and countless regular people on social media have been saying that the rioters have blood on their hands.

The law does, in fact, provide a way to hold people accountable for deaths they did not directly cause, like that of Ashli Babbitt, who was shot and killed by a Capitol Police officer while attempting to enter a restricted area.

But the felony murder rule, as it is called, is a limited provision that has raised a host of legal and moral questions about complicity and fairness.

In its broadest terms, the felony murder rule holds a person who commits a crime responsible for any deaths that result.

Michael R. Sherwin, the acting U.S. attorney for the District of Columbia, has said that felony murder charges are among those under consideration in the sprawling federal investigation, which has resulted in more than 180 arrests.

Though five people, including a Capitol Police officer, lost their lives in the siege, the most serious charges so far include weapons possession, assault of police officers, conspiracy to impede the certification of the vote and conspiracy to obstruct law enforcement.

Over the weekend, authorities arrested Zachary Alam, who is accused of using a helmet to break the window through which Babbitt was trying to climb when she was fatally shot. He was charged with multiple offenses including assaulting an officer with a deadly weapon.

“Just the gamut of cases and criminal conduct we’re looking at is really mind-blowing,” Sherwin said in a news conference Jan. 12. “This is only the beginning.”

Felony murder is a vestige of British common law that many other countries have abolished. It has been used in the United States in ways that have been widely decried, such as charging young people who are not the central participants in a crime.

In other circumstances, like when police officers are accused of killing unjustly, prosecutors have turned to the felony murder rule as a way to avoid having to prove malice aforethought.

It is difficult to tell how often the felony murder rule is used in federal prosecutions because it is lumped in with all other first-degree murder charges, according to the U.S. Sentencing Commission, which tracks convictions and sentences.

Any such charges stemming from the Capitol siege will be highly dependent on the facts that emerge and what prosecutors think a jury will accept.

“Prosecutors don’t like to charge crimes where the law hasn’t clearly established that the charges will stand,” said Joyce Vance, a former U.S. attorney who now teaches at the University of Alabama School of Law. “So that concern will have to be weighed against the seriousness of the circumstances.”

The classic example of felony murder is an armed robbery in which one robber shoots and kills someone.

Prosecutors can charge both the triggerman and his accomplices with first-degree murder, regardless of premeditation or intent to kill.

States have wide variance in what their felony murder laws require. Some say that the death must have been foreseeable or committed “in furtherance of” the crime. In a robbery using guns, for example, objective people would most likely agree that death was a foreseeable outcome.

Federal law lists 11 crimes that can serve as a basis for felony murder: arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery.

Legal experts say the one most likely to apply in the Capitol riot is burglary, defined as entering a building with the intent to commit an additional crime. Simply having entered the Capitol unlawfully would not be enough, and intent is difficult to prove.

Beyond that, there are other significant hurdles, said Guyora Binder, an expert on felony murder at the University at Buffalo School of Law. One is the question of who qualifies as an accomplice.

“Let’s say you enter with the intent to commit one crime, and half an hour later I enter with the intent to commit another crime and we never see each other, and I’ve never heard of you,” he said. “So we’re both committing burglaries, but we’re not committing the same burglary. I’m not your accomplice. You’re not my accomplice.”

Another wrinkle: Whether the death must be foreseeable or in furtherance of the underlying felony is “an open question” in federal law, Binder said, because courts have ruled different ways.

Still another question is raised by the deaths of Babbitt and Rosanne Boyland, who appears to have been trampled to death as fellow rioters fought their way into the building. A fourth person died after a stroke, and a fifth after a heart attack.

It is unclear whether the federal law allows for felony murder charges in a “third-party” death, such as one caused by a victim or, in Babbitt’s case, a law enforcement officer. Such cases are not unheard-of in state courts, although they are often among the most controversial uses of the felony murder rule.

In 2018, a teenage girl in Columbus, Ohio, was charged with felony murder when the police shot and killed her boyfriend in an undercover bust of an online robbery scheme in which she was accused of participating. In 2019, five teenagers suspected of attempting to steal a car in suburban Chicago were initially charged with felony murder after a sixth member of their group was shot and killed by the homeowner. After an outcry the charges were dropped.

Critics say felony murder has too often been used to assign culpability to peripheral figures in a crime, such as the getaway driver, or to overcharge young people who are particularly vulnerable to group pressure. Many countries that once had felony murder statutes have overturned them, and several states including California and Massachusetts have recently acted to sharply curtail their use.

But felony murder has also been used when the public has clamored for severe charges. Former police officers accused in the deaths of George Floyd in Minneapolis and Rayshard Brooks in Atlanta, as well as the man who filmed the killing of Ahmaud Arbery in Glynn County, Georgia, have all been charged with felony murder, with assault as the underlying felony.

Both Georgia and Minnesota have particularly broad felony murder statutes. Federal law does not include assault as a triggering felony.

So in the death of Officer Brian Sicknick, who was overpowered and beaten by Capitol rioters, and died later at a hospital, those who assaulted him would have to be found to have caused his death during the commission of a different crime — or face a lesser homicide charge like second-degree murder. No one has been charged in the death of Sicknick, who was expected to lie in honor in the Capitol Rotunda on Tuesday night.

The federal felony murder rule holds that the underlying purpose of the triggering felony has to be distinct from that of homicide — in other words, unintentionally killing someone in the course of a robbery or burglary may count as first-degree murder, but unintentionally killing someone while assaulting them does not. Robbery has the purpose of self-enrichment, while assault and murder share the purpose of causing harm.

“If I intend to commit an assault and the person dies, those are too closely related,” explained Barbara McQuade, a former U.S. attorney who teaches at the University of Michigan Law School. “Prosecutors could inappropriately bootstrap the intent from the assault and convert it into a homicide in every single case.”

In the end, not all who entered the Capitol are going to be treated as equally culpable, McQuade said. Some may argue that they came in with the sole purpose of expressing their views, while others were clearly reckless and violent.

“I would think the prosecutor would perhaps weigh those two cases differently and would be more likely to file charges in the latter case, even though both might technically qualify,” she said.