DC –The Ashli Babbit killing:
- Officer at best exhibits horrible lack of judgement, hazarding even fellow officers
- So unnecessary, arguably willfull intent
- Obviously a sexist hate crime
- Also an aggravated race hate crime
- No other officers with the same mission felt compelled to shoot anyone
- Brave male officer in question didn’t shoot any larger male protestors, physically more threatening
- Example of systemic male oppression against women (what self-respecting feminist theorist wouldn’t argue such isn’t present in the police)
- Ashli Babbitt singled out by black man to send a political message . . . white females better tow the line.*
How does this compute:*
A male black high ranking (lieutenant) police officer (sex and race are relevant to this comparison) shoots and kills Ashli Babbitt, — an unarmed white female civilian with no existing warrant, the only officer actionable observance — not theft, not arson, nor destruction — possibly trespassing but even that arguably not chargeable given the totality of circumstances, — who was all of five-foot-two, who the officer in question observed climbing through a broken glass door (variously described) — which there is no allegation she broke, and by the way, her being unimpeded by other officers in very close proximity, . . . further . . .
This black, high ranking male officer certainly under no direct physical threat from Ashli Babbitt, unarmed and of such small stature as she was, nor reasonably was anyone he was charged to protect under direct threat of bodily harm from her, we repeat, unarmed and of such small stature, (additional explanation of the relevance to follow) . . . further . . .
This supposed professional with the experience of high rank and many DC protests, made no attempt at warning or subduing rather than killing the 5′ 2′ 110 lbs Ashli Babbitt, no attempt at non-lethal force . . . baton, restraint hold, or perhaps even “stop or I’ll shoot” . . . who used as an excuse that she was carrying a backpack which perhaps most DC visitors or protestors have who somehow are not shot under suspicion of carrying a bomb or other weapon even if engaged in policable activity — which would indeed give new meaning to the term “stop and frisk” . . . who did not resist arrest . . . further . . .
How is it that the usual suspects avoid critiquing the officer, ignore or incredibly justify that the killing officer’s name has not been released, who want rioters treated gingerly if they are of a certain race or political demeanor, even when engaged in arson, breaking and entering of public buildings, other destruction and actual assaults against police officers including in DC but on an ongoing basis in Portland and Seattle and other cites as well, . . . how is it they have not called for nationwide protests of the obvious sexist hate crime . . . not mere overzealous use of force but unjustified and reckless use of lethal force . . .
Beyond them, how is it that justice is not blind but blindered and the suddenly short arms of the law can’t find evidence and precedence or statute to charge said officer for the good of the community don’t you know, not to mention justice for Ashli.
Here is an analysis from Technofog regarding the specifics of the statute some how solely relevant and determinate in the recent decision not to charge the anonymous officer who killed unarmed diminutive protestor Ashli Babbitt:
The DOJ is Lying about the Ashley Babbitt case
The force was excessive so the DOJ punts on “willfulness”
Today, the U.S. Attorney’s Office for the District of Columbia issued a press release explaining their decision to not prosecute the officer who shot and killed unarmed protester (and veteran) Ashli Babbitt on January 6, 2021.
It states that DOJ officials, along with the Metropolitan Police Department’s Internal Affairs Division, “conducted a thorough investigation of Ms. Babbitt’s shooting.” This included reviewing video footage, getting statements from officers and other witnesses, collecting physical evidence, and the results of Ms. Babbitt’s autopsy.
They explain:
“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.”
You’ll notice there’s no mention of a verbal warning to Ms. Babbitt or other efforts to subdue her without the use of deadly force.
Continuing on, the DOJ maintains that the “focus of the criminal investigation was to determine whether federal prosecutors could prove that the officer violated any federal laws, concentrating on the possible application of 18 U.S.C. § 242, a federal criminal civil rights statute.”
The DOJ concluded:
“The investigation revealed no evidence to establish beyond a reasonable doubt that the officer willfully committed a violation of 18 U.S.C. § 242. Specifically, the investigation revealed no evidence to establish that, at the time the officer fired a single shot at Ms. Babbitt, the officer did not reasonably believe that it was necessary to do so in self-defense or in defense of the Members of Congress and others evacuating the House Chamber.”
This conclusion should be no surprise. Not because of the law or the facts, but because of the people in charge of the Department of Justice. The U.S. Capitol Police, like the Park Police, have always had a special relationship with the DOJ – one that includes preferential treatment. This case is no different.
For starters, the three basic elements to a prosecution under 18 U.S.C. § 242 are that the defendant (1) acting under color of law; (2) willfully; (3) deprived the victim of a federally protected right.
Excessive force is easy to establish. The Supreme Court has held that the government must introduce evidence that the action of the officer in shooting to kill Babbitt was “excessive in relation” to a legitimate government objective. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473-2474 (2015). This is an objective standard – the force must be objectively unreasonable when viewed from the standpoint of a reasonable officer at the scene. Here, Babbitt was unarmed, was climbing through a window and not attacking anyone. In response, she is shot and killed. Easily excessive.
This brings us to “willfulness.”
We have serious doubts about the DOJ position that there was “no evidence” to establish beyond a reasonable doubt that the officer willfully violated Section 242. As an initial matter, the DOJ press release neglects to mention whether the officer used excessive force, instead going right to an analysis on willfulness. We believe this reveals their intent to soften the blow of the press release.
As to willfulness, 18 U.S.C. applies “when the defendant understands that he is unjustifiably invading a legally protected interest, or acts in reckless disregard of the law.” However, the defendant need not have been “thinking in constitutional terms,” as long as his “aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution.” Screws v. United States, 325 U.S. 91, 106 (1945).
Here, the DOJ exaggerates – and at worst, lies – about its “willfulness burden.” We doubt the DOJ couldn’t prove willfulness in this case.
In fact, the DOJ has brought Section 242 prosecutions with less egregious facts.
As the DOJ has argued in other cases, the officer’s prior training on the use of force could be viewed “as evidence that his conduct was willful.” Are we to think that this officer didn’t have training on when force became excessive?
In another case, the DOJ argued to the Fourth Circuit Court of Appeals that to establish “willfulness,” the jury was required to find that the defendant “intended to use more force than was reasonable under the circumstances – i.e., force that violated [the victim’s] well-established due rights as a pretrial detainee.”
What makes the Babbitt case different? The victim and the location.
This case should have gone to the jury. If this killing took place in Minnesota or Chicago the results would have been different.
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Accident in trying circumstance becomes felony
Compare the above to the treatment of a Brooklyn Center (suburb of Minneapolis) Minnesota police officer who circumstances indicate UNINTENTIONALLY killed a resisting felon.
Former Brooklyn Center police officer Kim Potter arrested, charged with second degree manslaughter
The reaction from “the community”
And the supposedly relevant law (as Minnesota officer is charged)
2020 Minnesota Statutes
609.205 MANSLAUGHTER IN THE SECOND DEGREE. (as officer is charged)
A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:
(1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another; or
(2) by shooting another with a firearm or other dangerous weapon as a result of negligently believing the other to be a deer or other animal; or
(3) by setting a spring gun, pit fall, deadfall, snare, or other like dangerous weapon or device; or
(4) by negligently or intentionally permitting any animal, known by the person to have vicious propensities or to have caused great or substantial bodily harm in the past, to run uncontrolled off the owner’s premises, or negligently failing to keep it properly confined; or
(5) by committing or attempting to commit a violation of section 609.378 (neglect or endangerment of a child), and murder in the first, second, or third degree is not committed thereby.
If proven by a preponderance of the evidence, it shall be an affirmative defense to criminal liability under clause (4) that the victim provoked the animal to cause the victim’s death.
History:
1963 c 753 art 1 s 609.205; 1984 c 628 art 3 s 11; 1985 c 294 s 6; 1986 c 444; 1989 c 290 art 6 s 5; 1995 c 244 s 14
* our choice of terms is only in part a play on the rhetoric that we would see from the left had a white officer shot a small female of color ,pro BLM protestor engaged in rioting in DC.
Related reading: https://www.wsj.com/articles/no-criminal-charges-for-officer-who-shot-capitol-rioter-ashli-babbitt-11618423059
