Business Law 101 / Legal Aspects of the Capitol Invasion

By Albert L. Kelley, Esq.

I have been struggling with today’s column.  I try to keep this column free from politics, but when a legal event arises in the news, I try to explain the legal aspects of it.  No matter what I write today, no matter how neutral I keep it, due to the diversity of views, there is the possibility that someone will view it as political.

The activities on our Capitol this week were horrendous and unforgiveable.  I am not saying that based on a political belief but on a legal one.  There is no other way to say it, but everyone who participated in storming the Capitol broke the law.  They are criminals.  They are felons. Does it matter whether they entered the Capitol? No.  Although those that stayed off the Capitol property or outside the police barriers may cleared of some of the charges, any person who breached the police perimeter violated the law, whether they actually stepped in the building or not. Does it matter if they just got carried away in the excitement? No. They engaged in a concerted effort to unlawfully enter a secured area and disrupt the lawful action of Congress.

18 U.S. Code § 2383 is titled “Rebellion or insurrection” and states: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

18 U.S. Code § 2384 is titled “Seditious conspiracy” and states: “If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”

18 U.S. Code § 2385 is titled “Advocating overthrow of Government” and states: “Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.  If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. As used in this section, the terms “organizes” and “organize”, with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons.”

These are the laws of this Country.  They are not new laws; they have been on the books since 1948.  They are not vague. When the Capitol was invaded, everyone who participated, whether by entering the building or just going onto the Capitol grounds, was guilty of all three of these laws.  They went from being protesters to being insurrectionists and seditionists.  They specifically took action against the authority of the United States Congress; they used force to delay or prevent the execution of law; and they advocated to use of force or violence to overthrow the Congress.

Since the insurrection, many of those who participated have said they were “just exercising their right to free speech”.  There is no right to free speech when that speech is intended to incite criminal activity.  In Brandenburg v. Ohio, 395 U.S. 444 (1969), the United States Supreme Court stated, “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”  This means that nobody has the right to make statements or take action to encourage the overthrow of the government or the interference with government activities.

Several of the seditionists were seen carrying items of the government, specifically items of the Speaker of the House, including the Speaker’s lectern, an envelope from her desk and the sign above her door.  They argue that these items were owned by the taxpayers and therefore, they had a right to those items.  Ignoring the argument of theft, the possession of “any property of the United States contrary to the authority thereof” is sedition. In addition, 18 U.S. Code § 2112, titled “Personal property of United States” states: “Whoever robs or attempts to rob another of any kind or description of personal property belonging to the United States, shall be imprisoned not more than fifteen years.”

Finally, I cannot end this column without discussing the other tragedy of the insurrection; the death of United States Capitol Police Officer Brian D. Sicknick and insurrectionist Rosanne Boyland.  Whenever a person is killed during the commission of a felony, whether intentional or not, it is referred to as “felony murder”.  It does not matter if the death is to an officer, an innocent third party, or one of the criminals.  Here in Florida, any person who is significantly involved in the felony can be charged with felony murder, even if they did not intend for the death to happen.  On a federal level, there is also a felony murder rule. 18 U.S. Code § 1111 is titled “Murder” and states in part: “Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or 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 . . . is murder in the first degree.” Under this rule, the insurrectionists could be charged with first degree murder due to the act of burglary (entering a building with intent to commit any criminal offense), or robbery (taking anything of value from the person or in the presence of another, against his will, by means of force or violence).  This means that every person who participated in any significant way in the insurrection can be charged with first-degree murder.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law, and labor law at St. Leo University.  He is the author of five law books available through Absolutely Amazing E-Books and the host of “Basics Of The Law”, a weekly YouTube channel. This article is being offered as a public service and is not intended to provide specific legal advice.  If you have any questions about legal issues, you should confer with a licensed Florida attorney.