Justice for Ashli Babbitt
Washington, D.C. (January 6, 2021) The Senior Official Performing the Duties of the Deputy Secretary of Homeland Security Ken Cuccinelli tours the U.S. Capitol to survey damage from violent protests earlier in the day.
Last week saw the first public hearing by the January 6 committee. The Republican response was, as usual, all over the place. We were told that it didn’t happen, that it wasn’t that bad, that was actually Antifa, that it was Pelosi’s fault and that it was a great moment for American patriots. None of this is particularly new, although the Republican push to proclaim that January 6 was actually a good thing is relatively recent.
But one of the themes that emerged, as it usually does, was a demand for justice for Ashli Babbitt. Babbitt, you may remember, was with a crowd of people trying to push throw a barricaded door into the Speaker’s Lobby. When she tried to crawl through a broken window through the barricade, she was warned off and then shot and killed by a Capital Police officer. Investigations by both DC Police and the DOJ cleared the officer of any wrongdoing, deciding the shoot was justified.
Ashli Babbitt’s death has become a cause celebre among the Right Wing. Various TV and radio hosts have expressed support. Far right figures have claimed she was “executed” while wandering around the Capitol. Babbitt’s husband and supporters are currently trying to retcon this into her attempting to “stop the riot”. This is, of course, nonsense. We have video of what happened.
And while her death is mainly being used to distract from the horror of what went on that day and the culpability Republicans have for it … I am sympathetic to Babbitt and her family. I think her death was a preventable tragedy. I think that someone should be held responsible for it. The main difference is that I think that person is Donald John Trump.
Ashli Babbitt was steeped in the conspiracy theory of Q-Anon — the claim that there is a cannibalistic Satanic pedophile cabal in Washington and Donald Trump was going to bring all its members to justice. Q-Anon isn’t just a silly conspiracy theory. It was and is tearing families apart. It has motivated real world violence against its supposed members.
Donald Trump could have ended Q-Anon with a tweet. Or at least badly damaged it. Having the President state clearly and directly that it was nonsense would have gone a long way toward defusing it. But he not only repeatedly refused to do so, he winked and nodded at the movement.
We now know that the attack on the Capitol was spearhead by radical Right Wing groups like the Proud Boys. When asked to denounce the Proud Boys, Trump not only refused, but told them to “stand back and stand by”. Testimony last week showed that they used that as a rallying call and tripled their membership in the months leading up to the attack.
Donald Trump then spent two months lying to the American public and his supporters about the election. Last week, we found out that everyone around the President was telling him that he’d lost the election. But he either refused to believe it or deliberately lied to his followers about it. He then promoted January 6 as the day to save the country based on crackpot theories about Mike Pence’s ability to overturn the election. He riled up the crowd, sent them to the Capitol and continued to tweet about how unfair everything was.1 Then the Far-Right groups he’d told to “stand by” stopped standing by and breached the Capitol. And in the ensuing violence, one of his supporters, having bathed in his conspiracy theories and lies, tried to break through a barricade and was killed.
Babbitt was, of course, a grown woman who had agency and responsibility for her decisions. But you can’t act surprised that someone ended up getting killed over this. No one has more contempt for Donald Trump’s supporters than Donald Trump. To satiate his ego, he let them stew in crackpot conspiracy theories and did nothing about Far-Right extremist groups. He fed them a five-year diet of lies and rage. He then lied to them about the election, told them their democracy was in danger, summoned them to Washington and set them loose on the Capitol, where four of them were killed, including Babbitt. To me, that’s just as much culpability as the man who pulled the trigger. Donald Trump put a bullet out there. Someone was going to get hit by it.
It is crazy to blame him for what happened? In many states, if you commit a crime and someone dies, you can be charged with murder even if you didn’t kill them. It’s called Capital Murder. For example, if you and I rob a bank and I shoot a teller, you can be charged with murder even though you didn’t pull the trigger. Felony murder laws are so broad, people have been convicted of murders that took place while they were in police custody.
I’m not actually advocating Trump be charged with murder. Laws governing incitement and felony murder are very specific. But I am saying that if we hold people responsible for deaths that happen, even inadvertently, while a crime is being committed, what should we do when deaths happen as a result of a series of high crimes and misdemeanors? Maybe there is not a legal responsibility, but is there not a moral one? If I told a parent that someone was molesting their kid and they got shot trying to harm that person, do I not bear at least a moral responsibility for that? Do I not have a culpability for, as the Bible says, placing a stumbling block in front of the blind?
So, yes, I am in favor of “Justice for Ashli”. But the justice I want, not just for her but for everyone harmed on the black day, is from those who created that situation in the first place. Lies have consequences. Winking at conspiracy theories has consequences. Grifting on delusions has consequences. Unfortunately, there will never be any justice for those who sent Babbitt on the path that intercepted a bullet that day. They will only get more money, more shows, more viewers and, in Trump’s case, possibly renominated and re-elected.
Because we are a deeply unserious nation.
Ms. Babbit’s death was tragic for her family, but nothing more. They should be supported in seeking wrongful death compensation from Mr. Trump.
Frankly, I remain stunned at the restraint shown by officers that day.Report
This is also my thinking. I’m surprised far more people weren’t shot under the circumstances. Which to be clear is commendable, justice is best served by those involved being tried in a court of law. That said I have no idea how anyone who went in that day could have imagined they weren’t taking their lives in their own hands by doing so.Report
That said I have no idea how anyone who went in that day could have imagined they weren’t taking their lives in their own hands by doing so.
The context they had in their heads, I imagine, was that “there were riots without consequence all summer, it’s our turn now.”Report
So there was no consequence for the riots over the summer. No arrests or people hurt. Good to know. I’ll replace my memories of that time with these new true facts.Report
Ehhhh I’m not really buying that. And if that was the reasoning it doesn’t speak particularly highly of their intelligence. Which I guess in itself is probably pretty indicative of how they found themselves there.Report
Remember the buffalo shaman guy?Report
Fair point I guess. But man, their lawyers better come up with something better than that.Report
Believe me when I say that my statement “they thought X” was not intended to be read as “X is true”, “X is good”, “X is a legal defense” or anything about X at all, really.Report
It would be a lot easier to believe if you said what you did mean. But that would spoil all the fun.Report
What I meant was:
“They were thinking X.”Report
And that would have been no fun at all. But it would have been clear.Report
(for a lawyer who yells about Reading Comprehension you show a remarkable lack of it)Report
Sure, there was that, given how the summer protests and riots were presented to them. Throw in what InMD says below, Granovetter’s threshold points, a bunch of grifters seeing only fame and dollar signs, and the whole tragedy led by a man who never saw an L in his life that was ever his fault, and, well, here we are.
None of this happens if Trump had accepted the loss.Report
They had the backing of the President.
All right thinking people back them.
They’re the good guys with the good motivation whose cause is just. There’s any number of movies with that plotline where the main character wins out no matter how many guns are involved.Report
Yeah, but no.
https://ordinary-times.com/2021/08/27/capitol-police-officer-michael-bryd-interviewed-about-shooting-death-of-ashli-babbitt/#comment-3525148
I commented on this already once, and nothing has changed since last year to motivate me to change my mind. I simply can’t get over the fact that Mrs. Babbitt was not an imminent threat to anybody’s life or limb at the time that Mr. Byrd shot her.Report
She was at the vanguard of a mob and crossed the one barricade between that mob and evacuating congressmen, with not nearly enough police on the other side to hold them off with non lethal means. I don’t think the police have to wait to see what said mob is going to do when it reaches the elected officials they’re there to protect. Her death is unfortunate but I don’t think it’s even a close call.Report
Ok.
I don’t see why not.
Coulda shoulda woulda.
Cops (or anyone else for that matter) at least in principle aren’t allowed to freelance the justification for the use of lethal force. I don’t see any reason why this is supposed to be an exception.Report
The police do that all the time! They main or kill someone, work exceptionally hard to post-rationalize why the use of force was justified, spend a great amount of time executing character assassination against the dead or wounded, and almost always ultimately fall back on “I was in fear for my life”, despite the fact that such a rationalization would never fly for a private citizen.
The police and their political supporters created the environment in which Ashli Babbit could be killed and it was always going to be a good shoot.Report
Save your breath. As he amply illustrates answering me below, he will never accept that the Capitol police were within their right’s at that point, because he clearly thinks the attack was a good thing.Report
Sometimes that happens, and when it does that’s bad too.
Definitely agree.Report
You and Oscar are both way over complicating this. The legal standard in play is Defense of Third Person. The pertinent questions are whether the officer believed the third person (in this case members of Congress and staff) was in danger of imminent bodily harm and whether the belief was reasonable. It doesn’t have anything to do with deference to cops or whether it was necessary in hindsight. There are clearer cut cases in the world but this isn’t a particularly tough one.Report
Yeah, but no. Obviously Oscar has priors about law enforcement, particularly the propensity of American law enforcement to use lethal force. I’m agnostic to those priors, at least for the purpose of the comments to this post.
That’s not really relevant to my comments. As I mentioned several times, Ashli Babbitt was not an imminent threat to anybody’s life or limb.
My understanding is, that the considerations of self-defense (or the use of lethal force by law enforcement) are basically the same whether you’re defending yourself or someone else.Report
Arguably the burden for defense of a third party is a bit lighter but that’s a pretty legalistic discussion.
For legal purposes the question isn’t a post hoc determination of whether she was or wasn’t actually a threat. The question is whether the officer reasonably believed she was in the moment.Report
No. It’s not about Mr Byrd’s actual beliefs, it’s whether a reasonable person standing in Mr Byrd’s shoes and acting on what Mr Byrd saw or had access to at the time would believe that Mrs Babbitt was an imminent threat.
But, of course a 30-something woman crawling through that window is not an imminent threat to anybody and any reasonable person would see that.
Ie, it’s the imminence that counts not the third party.
The imputations that she was a threat (all of them that I have heard) are contingent upon other subsequent things that could or would have happened and/or the situation of other people, neither of which justifies the use of lethal force against Mrs Babbitt.Report
You keep leaving out the part where she was entering through a window that had been actively broken by people trying to illegally enter the building, who were part of a mob that had spent the prior two hours actively beating police officers.
Why is that?Report
What you are saying is not and never has been the law. If it were self-defense or defense of a third party would never be possible. Based on the proposed standard the person would have to both know the future and the mind of another person with certainty. That isn’t required, for good reason.Report
No. “Imminent” is a reasonably common English word and its meaning is fairly clear, and it’s not the way you’re representing it.
And furthermore, as a generality it is what the law requires (allowing for a bunch of complicating and contextual factors).
Here’s a piece from Lawfare I thought was interesting (not all of antagonistic to Mr Byrd btw):
https://www.lawfareblog.com/evaluating-police-shooting-ashli-babbitt
In any event, here’s what it says about the justification for lethal force in general:
Report
She and her fellows were committing multiple violent crimes at that time. Trying to violently overthrow the government/election certainly counts.
We’re in “cops shoot violent criminal robbing a liquor store” territory.
The basic assumption that she shouldn’t be shot shouldn’t be there. This is why I’m so surprised there wasn’t a blood bath.
These guys were THAT far over the line.Report
As someone who agrees with your larger critique on law enforcement I’d say take a step back on this one to your own knowledge of self-defense law. This isn’t ‘police created volatile situation then rationalized killing someone by pointing to the circumstances they themselves caused.’ Your Breonna Taylor scenario, if you will.
This is continued to retreat until retreat was no longer reasonably possible without putting themselves or the people they’re charged with protecting in danger of imminent bodily harm. At that point it’s the Defense of Third Party doctrine I mention above. This is a pretty reasonable application of the law, not the perversion of it we’ve gotten used to.Report
I hadn’t even thought of that, but yes, you are right. Thanks.Report
Rioters broke through the Capitol Police line at the Ellipse at 12:53pm.The Capitol was declared breached at 2:14pm. Ms. Babbitt was shot at 2:44pm. So when she was shot, capitol police were almost two hours into significant armed combat with people trying to breach the Capitol. By that point, police had ample evidence that the crowd intended to harm them, and they had no way – while they were being beaten and bear sprayed – to interrogate each person and determine how “friendly” they were. They had to act as if everyone who got into the building was a threat.
Ms. Babbitt’s death was tragic. Once she decided to enter the window and refused to follow police orders to leave, her death was probably unavoidable.Report
I’m shocked we didn’t have a blood bath. The rioters were coming for Congress, the cops knew this.Report
Agreed.Report
The cops shot Babbitt pour encourager les autres, and it worked. If they’d waited until she broke through, many more rioters would have been shot.Report
Coulda shoulda woulda
Coulda shoulda woulda
Coulda shoulda woulda.
From what I understand, there’s black-letter rules about the justification of lethal force. What Mr Byrd did was freelancing.Report
So you are saying that after two hours of hand to hand combat all over the Capitol, with large crowds in the building chanting they wanted to hang the Vice President, the cops had no evidence to conclude that people continuing to try and break in – as Ms. Babbitt was – were a threat? And thus she should have been allowed to enter, with who know how many people behind her, to do whatever she wanted?
Interesting take man. I guess you were hoping the attack would succeed . . .Report
No. What I’m saying is that there are very narrow reasons to justify the use of lethal force, by Mr Byrd or anyone else.
Those reasons didn’t apply in the situation between Mr Byrd and Mrs Babbitt. End of.Report
She was part of a mob that hand spent the prior two hours attacking officers, breaking into the Capitol and calling for the hanging of the sitting vice President who was in the building. Seems to me he had every right by that point to use lethal force to repel any more invaders who refused his and other officers orders to leave.Report
Mrs Babbitt was not an immediate threat to anybody’s life or limb.
Seems to me he didn’t.Report
That is the standard you and I are held to, but is not the standard the police are held to.Report
And I’m saying that’s a lovely bit of idealistic fiction you have there, but that’s not how police use of force actually works in this country. The police and the courts (and lawmakers) bend over backward to make sure any use of force that satisfies their priors is acceptable.Report
That’s true to a significant extent, and this was such an odd case that it’s hard to know exactly what a comparable situation would be.
But even by the standards of contemporary law enforcement, this was a whitewash.Report
Not even, the police have killed for less and gotten commendations and medals for it.
Killing one person at the head of a mob as the person is climbing past the barricade is actually showing restraint by police.Report
No, no. The Capitol Police are like, nothing to see here, move along for at least six months or so. The officer involved wasn’t disclosed. The process to exonerate him wasn’t disclosed, etc.
Even for municipal police, the mayor and chief of police are political figures and don’t get away with that.Report
You don’t generally bury stories by handing out press releases.
Most police shooting investigations by their agencies are closely held until they are finished. And considering the DoJ announced no charges would be filed 3 months or so before the USCP closed its investigations – again publicly – I don’t know what you think wasn’t disclosed. Her shooting got as much investigation as any other police shooting.
https://www.uscp.gov/media-center/press-releases/uscp-completes-internal-investigation-january-6-officer-involvedReport
“No. What I’m saying is that there are very narrow reasons to justify the use of lethal force, by Mr Byrd or anyone else.
Those reasons didn’t apply in the situation between Mr Byrd and Mrs Babbitt. End of.”
Please, enlighten us. With specific facts as it relates to each claim.Report
” I simply can’t get over the fact that Mrs. Babbitt was not an imminent threat to anybody’s life or limb at the time that Mr. Byrd shot her.”
If I had the time, I would go through the comments on all of the posts about other people being killed by the police to see how often you expressed this sentiment.
I have this sort of nebulous feeling that maybe you’re not consistent in this position.Report
Go ahead. As right-wingers go, I’m not especially cop-friendly.Report
I too would appreciate seeing you find Koz’s cop-booster posts.Report
Well, most of the rioters were white…Report
Fair point. Ironically many of the cops who didn’t shoot them were and still are Black.Report
This is such a low standard I doubt we can apply it. Crackpots are going to crackpot.
The usual laws and rules apply. My expectation is a lot of people, maybe even Trump, stepped over important lines.Report
What do you do when there’s a governmental coup?
When the commander in chief’s duly considered orders (based out of the Pentagon) were countermanded, illegally, by his Vice President? (Again, we have an amendment for this. Trump was not declared unfit for duty).
Oh, right, you talk about How Our President could have prevented Governmental Dudes From Taking The Nuclear Codes Away from him. With a Tweet.
By Jan 6th, the Trump Administration and its allies had lost, and lost badly. Forgive them for their failures, they fought a good fight.Report
Forgive them for their failures, they fought a good fight.
No, they did not. Anybody with at least a minimally functioning moral compass and reasoning capacities* ought to have figured out that storming the capital to overturn the election was wrong. It was not just wrong because democratic procedures are some how all important. Those are important, but can be overridden in exigent circumstances. It was also wrong because Tump and MAGA-ism is substantively wrong about almost everything. Any honest assessment of the available evidence and any honest assessment about what morality requires will tell us that Trump and everything he stands for are the wrong things to be supporting. But, people decided to indulge in evil and stupidity for at least 4 years. The first time people did it, it felt cathartic. And that got them to want to do it again. The thing is, catharsis is bullshit. If you entertain a particular pattern of thoughts, the next time gets easier and the next time gets even easier and so on. And very soon, instead of getting it out of your system, it’s a core component of it. Perhaps lots of MAGA types managed to pull back at the very last minute, but some did not. On that fatal day, they tried to do something illegal in order to accomplish something profoundly immoral.
They did not fight the good fight. They fought the bad fight. And thank God they lost that one.
*i.e. the basic minimum that someone should have not to be a sociopathReport
“storming the capital ” is in and of itself, unwise. Certainly not by a bunch of amateurs. It takes skill and finesse to overturn elections if you’re doing it on the DL and it takes a hell of a lot more people and gear (guns/comms/coordination/a plan, etc.) to do it if you’re doing it violently, which is why it wasn’t an insurrection. Any rationale person, who decided to participate in this event SHOULD have weighed the possible consequences–one of those is getting shot.Report
I think it is a mistake that to think that the truth conditions of whether someone counts as “attempting to do X” is given by whether it would be reasonable to believe that one’s actions would bring about X. Irrational or unreasonable people can still attempt to do something even if they ought to believe that their actions will be unsuccessful.Report
Children often try to “trap” Santa Claus. They have zero hope of succeeding. That doesn’t mean that they don’t fully intend to trap him and take deliberate action in direct pursuit of that goal.Report
On November 3rd, Trump lost and lost badly. All he’s done since is demonstrate how well deserved that was.Report
This ought to be fantastically obvious. Trump set in motion a chain of events that he knew or should have known would lead to violence. Babbitt died in the violence Trump created. Nancy Pelosi did not create that violence. Mike Pence did not create that violence (debatably, he failed to do what he could to prevent it). Joe Biden did not create that violence. Donald Trump did. He did it for terrible reasons, reasons that lack any claim to justification or excuse.
I hope most Americans can see this, and I fear that a substantial number are blinded by partisan preference or defensiveness that they will not.Report
There were three officers within 15ft of Ashli Babbitt on the same side of the barricades as her. The only justification for deadly force is an imminent threat. Why would three officers standing ten feet away not just grab her and make an arrest. The three police officers even leaned out of the way of the shot that was fired. Of all the riots from George Floyd’s killing, Jan. 6 was the only riot were the police killed protesters. At least two others were killed on the steps. Regardless of what President Biden says, no police were killed by rioters or protesters.Report
With an angry mob breaking down doors to take vengeance on politicians, I’m amazed the cops didn’t start mowing down the crowd. Even that would have passed the smell test for reasonable use of force.
Shooting one person who was trying to break down a door as a way to slow down the others? That’s a massive show of restraint.Report