WSJ News Exclusive | Officer Who Shot Capitol Rioter Ashli Babbitt Shouldn’t Be Charged, Investigators Advise
Police investigators determined that charges against the officer who shot and killed Ashli Babbitt during the U.S. Capitol riot weren’t warranted, according to people familiar with the review.
Bolding my own.
WASHINGTON—Investigators have made a preliminary determination that the police officer who shot and killed Ashli Babbitt during the U.S. Capitol riot shouldn’t be charged with any crimes in connection with her death, according to people familiar with the review.
Ms. Babbitt, who served for more than a dozen years in the Air Force and Air National Guard and became a passionate supporter of former President Donald Trump, died from being shot by a Capitol Police officer after rioters smashed through a door to the Speaker’s Lobby on Jan. 6. She had entered the building as part of a crowd aiming to disrupt the certification of President Biden’s victory in the 2020 presidential election.
The officer who shot her had been placed on leave soon after the riot while Ms. Babbitt’s death was being investigated, including on the question of whether it was a violation of her civil rights.
The Justice Department said in announcing the investigation that it was following routine procedure for whenever a police officer uses deadly force by having the Washington Metropolitan Police Department examine the shooting. The police investigators have made an initial determination that charges against the officer aren’t warranted, the people said, adding that Justice Department officials haven’t yet made a final determination on the matter. The U.S. attorney’s office in Washington is leading the broader investigation into the riot and prosecuting the more than 150 cases that have resulted to date.
A Justice Department spokeswoman had no immediate comment. Any final charging decision would likely have to be approved by senior Justice Department leadership, who haven’t yet been briefed on the matter.
In evaluating such cases, federal prosecutors must establish not only that an officer used excessive force but also that the officer willfully violated someone’s constitutional rights. That high bar makes bringing federal charges against an officer difficult, and legal experts had predicted that any such case in connection with Ms. Babbitt’s death was unlikely.
A spokeswoman for the Capitol Police declined to comment on what she called “an ongoing investigation.” A Metropolitan Police spokesman said: “It would be premature to provide a comment at this time.”
The death of Ms. Babbitt, a 35-year-old San Diego resident, came as a crowd of rioters gathered at the doorway to the Speaker’s Lobby in the Capitol building, banging on the glass and urging officers on the scene to step aside, according to multiple videos of the incident.
The crowd smashed the glass with a helmet and stick, according to video footage. Seconds later, Ms. Babbitt, who was unarmed, attempted to jump through the shattered glass and was shot by a Capitol Police officer from inside the doorway, according to the footage.
Multiple videos of the shooting posted on social media showed Ms. Babbitt, who appears to be wearing a Trump flag as a cape, falling from a smashed-out window after being shot by an officer on the other side of a set of double doors.
The officer, a lieutenant, was essentially serving as a potential last line of defense between the rioters and members of Congress, thus providing some justification for his actions and falling well short of the standard necessary to charge a police officer with a civil-rights violation for a shooting, the people said.
“That’s where he drew the line in the sand,” a fellow Capitol Police officer said, adding that the lieutenant, whose police powers have been suspended, is expected to return to his previous status, though he is afraid of being retaliated against by Trump supporters.
“Without question he should be cleared,” a lawyer for the officer, Mark Schamel of the law firm Lowenstein Sandler, said. “There’s no way to look at the evidence and think he’s anything but a hero,” he said.
Rep. Markwayne Mullin (R., Okla.), who witnessed the shooting, said in an interview with The Wall Street Journal last month that he saw a Capitol Police lieutenant in a defensive position in front of the House lobby’s doors.
The GOP congressman said he was alarmed because there were still lawmakers and press trapped in the third-floor balcony inside the chamber, overlooking the floor.
“I believe they were wanting to hurt us,” he said of the mob that was banging on the door. “My thought was, ‘How are we going to handle this one?’”
Then, Mr. Mullin said, a gunshot rang out.
“Of course then everybody got really excited again,” he said, “but I’ll tell you, from my perspective, the lieutenant that did that, I truly feel that he saved some people’s lives that day.”
The officer approached him afterward, distraught, Mr. Mullin said. He said he hugged the officer and told him, “Listen, you did what you had to do.”
In the videos, multiple police officers appear to provide first aid to Ms. Babbitt, who was taken to a hospital and later died of her injuries.
The recommendation not to charge the officer who shot Ms. Babbitt is likely to stoke controversy. Some far-right activists have used her death as a rallying cry and referred to her as a martyr for their cause, with her image appearing on protest flags and a Telegram account linked to the far-right group the Proud Boys calling her a “casualty of system aggression.”
The Justice Department has declined to charge officers in a number of other high-profile cases that developed under different circumstances. It decided not to file federal civil-rights charges against the former Ferguson, Mo., police officer who fatally shot an unarmed black teenager in 2014, saying prosecutors couldn’t disprove the officer’s claims he fired because he feared for his safety. That led to widespread protests and spurred a national conversation about police use of force.
In social-media profiles in her name, Ms. Babbitt is described as a veteran and libertarian who loved her husband, her large black-and-white dog “and above all, my country.” Ms. Babbitt’s military service included several deployments to Iraq during the war.
On the day before the riot, Ms. Babbitt tweeted: “Nothing will stop us…they can try and try and try but the storm is here and it is descending upon DC in less than 24 hours…dark to light!”
A man who identified himself as Ms. Babbitt’s brother, reached by phone, said he couldn’t immediately comment.