Yesterday I wrote a column in the Hill about the FBI reportedly finding no evidence a planned insurrection at the Capitol on January 6th. In a related story, the Capitol Police has now entirely cleared the still unnamed officer who shot and killed Ashli Babbitt despite her being unarmed. The decision was marked by the same lack of information that characterized an earlier decision from the Justice Department. There is little media coverage of the obvious disconnect in the handling of this shooting and other uses of force against protesters in recent riots. Even law professors are largely silent on the implications of a finding that the shooting of an unarmed protester is justified. Babbitt seems to be treated as “fair game” because she was part of the January 6th riot.
Babbitt, an Air Force veteran, was a decorated security forces controller who served multiple Middle East tours from 2004 to 2016
A memo from the commander of the Capitol Police’s Office of Personal Responsibility simply says “no further action will be taken in this matter” after the officer was exonerated for use of force. However, there are very troubling questions about the shooting, as previously discussed.
Not only was there no claim that Babbitt was believed to be armed, but there were officers directly behind her and in front of her at the time. As I noted earlier, 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.
I was highly critical of the maddening findings of the Justice Department in the case. 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.”
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. Will the media support local police using live ammunition to break up the next violent riot? We have seen protests turned into riots repeatedly in the last few years, including racial justice protesters taking over police stations and city hall buildings. Officers did not use live rounds when protesters broke through doors of police stations or a city hall. They did not use live fire when protesters were breaking through windows and barriers to burn down police buildings. Will the Babbitt standard now apply?
Reasonable people could disagree on the shooting. I fail to see the justified basis under controlling legal standards but I may have the bias of a criminal defense attorney. What I object to is the absence of specificity in the facts and answers to satisfy the standards under cases like Tennessee v. Garner. Instead there is a conspicuous use of conclusory analysis to dismiss the allegations. There is also the general lack of interest in the media and in academia on the implications of these decisions to clear the unnamed officer.