Who Killed Ashli Babbitt?

On November 19, 2019, Nathaniel Pinnock was shot and killed by officers of the Los Angeles Police Department. Pinnock, 22, had robbed an auto parts store in Hollywood while armed with a machete and was walking from the scene when officers arrived and confronted him. Despite the presence of several officers, Pinnock refused orders to stop and drop the machete. Instead he ran to the drive-through lane of a nearby Chick-fil-A restaurant where he carjacked a Lexus and sped off. He made it only as far as the adjacent street where, after colliding with police cars, he got out and ran down Sunset Boulevard.

Officers pursued on foot, and after running some distance Pinnock turned and charged at one of them while wielding the machete. The officer retreated and fired his pistol at Pinnock, who despite being shot continued charging. The officer ran into the street where he stumbled and fell, and when it appeared Pinnock was about to deliver what surely would have been a devastating blow with the machete, the officer again fired his pistol. A second officer also fired. Pinnock fell to the ground mortally wounded.

That Pinnock’s death did not become a national news story is owing to the fact that the shooting was so manifestly justified, as can be determined even from the cursory presentation of facts above. But such is the transparency now attendant to officer-involved shootings in Los Angeles that anyone questioning the propriety of the officers’ actions can find the LAPD’s video summary of the incident and the involved officers’ body camera footage here, the civilian police commission’s 37-page report here, and the Los Angeles County district attorney’s 12-page legal assessment here. All officer-involved shootings in the city of Los Angeles are similarly investigated and documented, and while one may argue with the conclusions reached by the police commission or district attorney in any given case, no one can claim the relevant facts have been concealed.

This level of transparency regarding the use of deadly force by police has come to be expected and is now common (though not yet ubiquitous) across the country, which makes it all the more curious that what rightly should be regarded as one of the most controversial police shootings to have occurred recently has gone all but unexamined in the press. The case of Ashli Babbitt, the Air Force veteran who was shot and killed by a U.S Capitol Police officer during the so-called insurrection of Jan. 6, has gone largely unexamined, either in the media or among the self-professed experts who find fault in even the most clearly justifiable police shootings.

Ashli Babbitt’s shooting was not clearly justifiable, far from it in fact, yet the U.S. Department of Justice, in a memo just over a page in length, explains it away by saying their “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.”

And that, peasants, is that. Your rulers have made their decision, do not dare question it.

How the other half thinks.

Within a day of the death of George Floyd in Minneapolis last year, the entire country came to know the name of Derek Chauvin, the police officer who ultimately was convicted of murdering him. (Chauvin was sentenced on Friday to 22 and a half years in prison for second-degree murder.)

Similarly the name of every officer involved in a shooting that has tickled the antennae of the Black Lives Matter movement and its fellow travelers has been made public, in some cases forcing the officers and their families to flee their homes so as to avoid hostile protesters. Yet the officer who shot Babbitt remains unidentified and, as far as we know, employed by the Capitol Police.

More disturbingly, the officer’s rationale for shooting Babbitt remains a mystery beyond the perfunctory language in the DOJ memo. Compare this to the LAPD shooting of Nathaniel Pinnock, or to any LAPD shooting in which the officers’ actions are scrutinized and publicly judged by the district attorney in light of the applicable California law and U.S. Supreme Court precedent, specifically the case of Graham v. Connor (1989). In Graham, the Court held that an officer’s use of force must be “objectively reasonable” under the circumstances. In the case of Ashli Babbitt, how can the public be reassured the officer’s actions were in fact reasonable when his explanation for firing remains cloaked in secrecy?

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The Washington Post has produced a video of the Babbitt shooting, compiling two points of view from cameras carried by protesters in the crowd that included Babbitt. In the video, three uniformed police officers can be seen blocking the doorway to the Capitol’s Speaker’s Lobby, beyond which is the House Chamber. A man who appears to be a police officer dressed in a suit stands nearby. Just beyond the locked doors can be seen several men, one of whom is identified as a congressman. Inexplicably, none of the police officers appears to take any action to prevent the windows from being broken or otherwise interfere with the protesters. The officers look to be perplexed but not panicked, nor do they display any apparent concern at what might occur should the protesters breach the doorway.

Indeed, after some moments the officers abandon their position and allow the protesters to continue their efforts to break the windows. We then see, just beyond the doors, the extended arm of man in whose hand is a semi-automatic pistol, and when protesters at last succeed in breaking one of the windows, Babbitt is the first to attempt to climb through. While she is still in the window, the man with the gun fires a single shot, striking Babbitt and causing her to fall backward to the floor.

At the time the shot was fired, the Speaker’s Lobby appeared to be empty save for the shooter and two or three men walking casually at the far end. Babbitt, who was of slight build, carried neither a weapon nor anything that might reasonably be mistaken for one. The officer was about ten feet away from Babbitt when he shot her and cannot reasonably claim he was under an imminent deadly attack at the time, nor can he claim he was defending someone else from such an attack as no one else visible on the far side of the doorway appeared to be closer than fifty feet away. If it is true that the officer fired in self-defense or the defense of others, what was his explanation for doing so when no justification is evident in the video, the only publicly available evidence we have? The government will not say.

The Capitol Police and the Justice Department may be forced to produce whatever evidence they have in the course of a lawsuit expected to be filed by Babbitt’s family, though I expect the case to be settled prior to the discovery phase with the government, i.e. the taxpayers, paying a considerable sum to the plaintiffs. Their decision to clear the officer notwithstanding, the government’s position rests on such a feeble legal foundation as to make going to trial potentially expensive and embarrassing. When the facts are placed before a jury, the shooting simply cannot withstand the reasonableness test as outlined in Graham v. Connor, and no credible use-of-force expert would dare testify otherwise absent evidence not yet revealed.

"Insurrection" or provocation?

The Babbitt case is only the most fearsome example of what can plainly be seen as a dual system of justice as it relates to political protest. The FBI and DOJ have spared no effort in identifying, arresting, and prosecuting every last person who entered the Capitol on Jan. 6, and even those accused of nothing more than trespassing have languished in jail for months without trial, often in solitary confinement.

I have no sympathy for those who violated the law at the Capitol on Jan. 6, least of all for those who assaulted police officers. Yet video recorded in and around the Capitol that day reveals varying levels of criminality on the part of protesters, from those who merely walked through the hallways as if on a lark, to those who vandalized or stole property, to those who, again, assaulted and even injured police officers. Let them all be punished, each according to the law and his own misdeeds.

Would that the authorities exhibited equal zeal in pursuing all lawbreakers, but in Portland, Ore., many people arrested in the nightly attacks on the federal courthouse, in which officers were injured and the building repeatedly set afire, have been released on bail or had their charges reduced or dismissed altogether. In Minneapolis, few have been held accountable for the destruction of a police station, and in New York City, charges have been dismissed for hundreds of people arrested for rioting and looting. Similar leniency for rioters has been displayed in cities across the country.

Justice is blind, goes the old maxim, but when it comes to political protests under the current administration, one must himself be blind to believe it.