The death of Officer Brian Sicknick at the hands of the insurrectionist mob assaulting the Capitol elevates the legal difficulties of everyone involved to a much higher level. They are all potentially guilty of “felony murder” under the law.
At issue is something called the felony murder rule for which establishes that a person is guilty of murder even if he accidentally kills someone while committing another felony. Often (as in this case) there is a list of underlying felonies required to invoke the felony murder rule.
I will give the classic law school example. A man attempts to rob a bank with a gun. He doesn’t want to hurt anyone, but he is nervous, this being his first robbed bank and all. While holding his rifle he drops it with the attending accidental discharge killing the teller. The man argues he did not commit murder because he didn’t intend to kill anyone. He loses. Because the accident happened while he was committing a felony the intent of that felony is transferred to the murder and he is guilty of intentional murder.
Now here is the remarkable part. So is his accomplice who never even went into the bank but just sat outside in the getaway car and never had a gun. As an accomplice to the bank robbery he is now an accomplice to murder.
In the riot at the Capitol the accomplices to the murder of Officer Sicknick numbered in the thousands, but the law doesn’t care. Under the Federal Murder statute at 18 U.S.C. § 1111 murder includes any unlawful killing “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.”
So for the Federal Felony Murder Rule to apply, those participating in the riot must also commit one of those listed crimes (of which rioting, sedition, insurrection, etc are not included). In this case that underlying crime on that list is burglary. The Supreme Court broadly defines burglary as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” See e.g. Taylor v. United States, 495 U. S. 575 (1990).
While rioting (or whatever else they might all be guilty of) is not on the list of crimes to establish felony murder, it can be the underlying crime associated with an unlawful entry required to commit burglary which is on the list of crimes that can complete felony murder.
I say charge them all.