Below is my column in USA Today on charging decisions in the Wright and Babbitt shootings. The sharp contrast in the two decisions raises serious questions over the legal and political issues that rage around such cases.
Here is the column:
Within an hour of each other, charging decisions in two lethal police shootings were announced with strikingly different conclusions. The decisions reached in the shootings of Daunte Wright in Minnesota and Ashli Babbitt in Washington highlight concerns over the political and legal elements that can influence such decisions. The timing of the two decisions that involved two chaotic situations raises questions why charges were filed in Minnesota, but not in Washington.
In the Minnesota shooting, police were attempting to arrest Wright who, after a traffic stop, was found to have an outstanding warrant for fleeing police with an unlicensed firearm. Wright broke free of officers while he was being handcuffed and jumped back into the car to drive away. Kim Potter decided to deploy her stun gun against Wright, which would likely be viewed as a reasonable level of force in that circumstance. However, in the struggle, Potter grabbed her service weapon rather than her Taser. In the video, the officer is heard yelling “taser, taser, taser” before she swears and says, “Holy S**t I just shot him.”
Weapon confusion cases
The case has tragically familiar elements as a “weapon confusion” case. There are so many such weapon-confusion cases that departments have tried a variety of solutions, from adding special training to new designs for stun guns. The problem is such training can be lost to the fog and frenzy of the violent scene.
The case is similar to what happened in 2009, when Bay Area Rapid Transit officers struggled with Oscar Grant to arrest him. With Grant on the ground, BART officer Johannes Mehserle warned he was about to use a Taser but then grabbed his service weapon and fired a fatal round into Grant’s back.
The videotape of the incident showed Mehserle moving his thumb over his weapon as you would to release a safety on the Taser. (His service weapon did not have that type of safety release). The jury rejected second-degree murder or voluntary manslaughter charges but found him guilty of involuntary manslaughter.
Unlike past cases, the prosecutors did not overcharge Potter. However, under the criminal provision, the prosecutors must show that the 26-year veteran “creat[ed] an unreasonable risk, and consciously [took] chances of causing death or great bodily harm to another.” The question is whether a possible split-second mistake legally constitutes a conscious choice of an officer.
The Babbitt shooting
In Washington, the Justice Department announced that it would not charge the officer who shot Ashli Babbitt during the Jan. 6 riot. The decision in Washington had a number of striking differences. Potter was charged within a few days. It has been months since Babbitt was shot in the Capitol. The identity of the responsible officer has not been made public. Babbitt was an unarmed Air Force veteran without a criminal record. While she was clearly trespassing and at the forefront of a riot, there is no claim that she was threatening any officer or possible person with serious bodily injury or death. Indeed, near her were other officers who could have been hit by the round. (Babbitt was trying to climb through a broken door in the Speaker’s Lobby as police fought back the mob).
If the officer intended to shoot Babbitt, it would not likely meet the standard for a justified shooting under governing cases like Tennessee v. Garner (1985). If the officer fired blindly or wildly, it would appear to have many of the same negligent elements as the Wright shooting.
In rejecting charges, the Justice Department statement notably does not say that the shooting was clearly justified. Instead, it noted that “prosecutors would have to prove not only that the officer used force that was constitutionally unreasonable, but that the officer did so ‘willfully.’” It stressed that this element requires a showing of “a bad purpose to disregard the law” and that “evidence that an officer acted out of fear, mistake, panic, misperception, negligence, or even poor judgment cannot establish the high level of intent.”
Of course, “weapons confusion” cases are often caused by an officer’s acting out of “fear, mistake, panic, misperception, negligence, or poor judgment.” Yet, in one case an officer is charged and in the other the officer is cleared.
An uncertain line
For the public, the line of distinction can be hard to discern. For officers, that uncertain line can be the difference between discipline and incarceration. Officers have to be able to see that line clearly in carrying out duties with often in split second decisions in violent incidents.
Both of these deaths were tragic. There was a clearly different political contexts and timelines for the decisions. After Babbitt’s death, there was no outcry over her death because she was part of an infamous riot that stopped a constitutional process of certifying presidential electoral votes. Yet, the shooting does not appear any more justified than the Wright shooting, which was likely an accident. The Justice Department indicates an intentional shot was fired by an officer either at Babbitt or the mob generally. It does not explain which.
Violent riots are unfortunately common today in cities ranging from Minneapolis to Portland to Washington. The use of live rounds however have never been authorized absent a particularized showing of a significant threat to an officer or others. Nothing in the announcement in the Babbitt case answers how such a showing was made by the officer.
In the end, these cases capture the uncertain line in these cases of when mistakes or errors by police are criminal matters. There is a credible basis for the charge in the Wright shooting, but a jury will now have to decide if this was a conscious decision or tragic (but noncriminal) mistake. All such cases are highly fact specific. However, the Babbitt decision leaves more questions than answers for the public and police alike.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley
CONTEXT: “As members of the mob continued to strike the glass doors, Ms. Babbitt attempted to climb through one of the doors where glass was broken out. An officer inside the Speaker’s Lobby fired one round from his service pistol, striking Ms. Babbitt in the left shoulder, causing her to fall back from the doorway and onto the floor.”
As much as I grieve over Ashli’s loss (there are many good things we can say about her life), if I were in a rioting mob and climbing through a broken door to break into the House of Representatives, I would expect to be shot, armed or not. I’m astonished by such conduct. I’ll have to punt on this one.
I respectfully disagree with Professor Turley. Distinguishing between armed and unarmed during a riot inside our Capitol is impractical. I would not prosecute the officer either.
Ashli Babbitt is NO victim, and even mentioning the fact that she served in the military is wrong, because it is irrelevant to the facts and circumstances and death that she brought upon herself. This piece is just more red meat for the disciples–portraying poor little Ashli like some kind of patriotic victim. First of all, how did the few police officers on the other side of the window she broke and was trying to enter know whether or not she or those with her were armed? Were they supposed to wait and see if guns came out before using deadly force to stop them? She saw them pointing guns, but decided to proceed through the window anyway, ignoring their commands. This was NOT a split-second shooting decision, like the officer who grabbed a revolver rather than a gun. And in the mistaken weapon situation, there was no direct threat to the officers or to others. The Capitol Insurrectionists had already beaten and injured Capitol Police to get to the Speaker’s Lobby. So, are you trying to argue that they should have just been allowed to keep going until they got to the floor of the House? If Babbitt and the others had breached the door, how did the Capitol Police know whether or not they would have been killed trying to stop them further? The Capitol Police were outnumbered, and a dangerous mob was threatening members of Congress because they believed a lie.
What were Babbitt and the others trying to accomplish? Were they going to abduct, injure or kill members of Congress? They intended to stop the certified vote totals from being accepted and Biden declared the winner, so how far were they prepared to go? Were they going to occupy the Capitol indefinitely? Are you trying to argue, Turley, that the police should have just stood by and allowed this mob of Trump disciples to breach the last barrier to the floor of the House and start attacking members of Congress, possibly killing some of them, before using deadly force? This wasn’t a simple case of trespass. Even Babbitt’s family have said she was at fault for causing her own death. Attempting to portray her as a victim is just wrong. Whatever happened to the Republican Party being pro law enforcement?
“Ashli Babbitt is NO victim, and even mentioning the fact that she served in the military is wrong, because it is irrelevant to the facts and circumstances and death that she brought upon herself.”
You are right Natacha. If we bring up Babbitt’s service to the nation how does that make the followers of the criminal G. Floyd look?
She was murdered and didn’t even have any coke in her system, She worked and served her nation. You can’t stand the fact that she was a hero and G. Floyd a failure and criminal. Even your hero’s stink.