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Reports say that someone died during the protest/occupation at the Capital building. Given that, is it reasonable that some of the persons who stormed the building could be successfully prosecuted under federal or D.C. felony murder charges?

Mobius
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  • I’m voting to close this question because the situation is far to unclear at the moment. Everything is possible. – Trish Jan 07 '21 at 00:53
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    @Trish Would it be better as, in DC, if someone dies during a riot, can other rioters be successfully prosecuted with felony murder charges. That doesn't encompass the breaking and entering, but it's a start – Mobius Jan 07 '21 at 00:56
  • Is there a federal felony murder statute? I can't find it. – phoog Jan 07 '21 at 01:03
  • no, the situation you ask about is much more hard to oversea than the Rittenhouse case was in the first hours, and it's a political hothouse. If you could make a good hypothetical where you can define every circumstance, it could become answerable, but the situation at the moment that literally no answer could be ok. – Trish Jan 07 '21 at 01:04
  • @phoog Felony murder (not by that name) is covered by 18 U.S. Code § 1111 – David Siegel Jan 11 '21 at 01:47
  • The fact situation is unclear. But answers can indicate under what fact patters, if any, such charges could be brought and convictions obtained. This should not be closed as unclear. – David Siegel Jan 11 '21 at 01:54
  • @DavidSiegel I've read 18 USC 1111 and I don't see it. There's a list of felonies that cause a murder to be classified as first degree murder, but there's nothing about transferred intent. – phoog Jan 11 '21 at 08:38

2 Answers2

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Not under federal law, where the enumerated felonies are arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery. Under DC law, the triggering felony may be

arson...first degree sexual abuse, first degree child sexual abuse, first degree cruelty to children, mayhem, robbery, or kidnaping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, or in perpetrating or attempting to perpetrate a felony involving a controlled substance

The prosecution would have to prove beyond doubt that the shooter was attempting to commit mayhem (the only crime that is imaginably related to the events). But "mayhem" is different from rioting. The elements of mayhem are set forth in the jury instructions, namely intentionally attempting to cause a permanent disabling injury. When the facts are know, we might be able to assess the credibility of a mayhem charge.

phoog
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user6726
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    That is not an exhaustive list of federal felonies. What is your source for it? – phoog Jan 07 '21 at 02:07
  • why can't housebreaking apply? Flagpoles are dangerous weapons. – Trish Jan 07 '21 at 03:01
  • The shooter appears to be a member of a Law Enforcement agency. People have been charged with felony murder if an accomplice is shot by police. And some of the rioters certainly attempted theft and robbery. Arguably treason, since they were attempting to overthrow a democratic election. Couldn't they be charged? – Pete Jan 07 '21 at 03:29
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    @phoog, I linked the statute and actually listed the specific offenses. Why in the world would you think that any felony triggers felony murder? – user6726 Jan 07 '21 at 05:17
  • I am confused, "housebreaking while armed" seems to directly apply. Or am I misunderstanding the meaning of housebreaking? – user2705196 Jan 07 '21 at 15:08
  • Yes, you are misunderstanding housebreaking. It's not somebody's home. – user6726 Jan 07 '21 at 15:17
  • What is wrong with this legal definition of housebreaking? "House breaking literally means trespassing for an unlawful purpose; illegal entrance into premises with criminal intent. It is the act of entering a building as a trespasser for an unlawful purpose." https://definitions.uslegal.com/h/housebreaking/ – user2705196 Jan 07 '21 at 17:07
  • What part of this does not directly apply? There's clear photographic evidence of the intruders stealing and vandalizing government property, which would count as an unlawful purpose of their trespassing. Yes, in a trial one could argue that their purpose / intent was not the destruction of property. But it seems like this would best be left to a court to determine. Additionally, the intrusion resulted in violence threatened or committed against security, which sounds like it would be criminal too. – user2705196 Jan 07 '21 at 17:18
  • @user2705196 it's not a residence in any sense of the word. – grovkin Jan 07 '21 at 22:36
  • The list in the statute you describe is the list of felonies that cause a connected murder to be murder in the first degree. That is not the same as "felony murder" wherein someone committing a felony may be charged with the murder of someone killed during the commission of the felony even though the first person did not participate directly in the killing (for example a getaway car driver waiting outside a bank during a robbery in which someone inside the bank is shot dead). (Second degree murder is also a felony.) – phoog Jan 10 '21 at 18:46
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    @grovkin does "housebreaking" apply only to a residence? What law says so? – David Siegel Jan 11 '21 at 01:50
  • @DavidSiegel well, the dictionary, for one. Mirriam Webster defines housebreaking as "an act of breaking open and entering the dwelling house of another with a felonious purpose." – grovkin Jan 11 '21 at 02:10
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    @grovkin Dictionary meanings are often significantly different from statutory meanings. Is there an actual law that defines "housebreaking" in DC? – David Siegel Jan 11 '21 at 03:36
  • @DavidSiegel I don't know. But in the absence of a legal definition, wouldn't the plain-English definition be the one used? – grovkin Jan 11 '21 at 08:02
  • @grovkin yes, but nobody in this discussion seems to know whether that is relevant, because nobody knows whether there is in fact an absence of a statutory definition. – phoog Jan 11 '21 at 08:40
  • @phoog it is true that no one seems to know whether there is a statutory definition. I only joined the discussion to point out to user2705196 that they seemed to be missing the point that the building being a residence was a component of what made a housebreaking a housebreaking. Certainly breaking into an office building does not fit the dictionary definition of "housebreaking." – grovkin Jan 11 '21 at 08:47
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    Housebreaking, defined in D.C. law back in 1882, is nowadays known as burglary in the second degree, and defined in 22–801 of the D.C. Code using pretty much the same language as the 1882 statute (289, 22 Stat. 162) used to define housebreaking. "or other building" definitely applies. – JdeBP Jan 11 '21 at 10:45
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    See opinion in George L. Sydnor v. United States in the D.C. Court of Appeals (14-CF-1170) for a de novo discussion of this. – JdeBP Jan 11 '21 at 10:57
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To build up on the the user6726's answer above, if someone in that crowd took the extra steps which caused the police to believe that there was a threat to life (eg, by yelling something threatening like "kill em all"), then they possibly provoked the shooting. The individuals who did provoke it could conceivably be guilty of mayhem. And, therefore, felony-murder rule would apply. They would almost certainly be guilty if it could be shown that they intentionally made the utterance to provoke a heightened police reaction (such as the shooting).

I am not suggesting that anyone in that crowd screamed the phrase "kill em all", by the way. Although I have seen a claim that someone in that crowd was chanting "hang Pence." Since the Vice President was in the building at the time, that could have been the reason for the police's shooting.

Otherwise, this was a clear case of obstruction of justice. Since the stated intent of their actions was obstructing a Congressional procedure.

grovkin
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