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In a recent press release: Department of Justice Closes Investigation into the Death of Ashli Babbitt, the focus of inquiry seemed to be under a civil rights law, rather than the more clear-cut concept of homicide.

Months earlier, the DC medical examiner established that Ms. Babbitt's death was a homicide. In the investigation of a homicide, committed by a known person, isn't the normal focus on whether or not the homicide was justified or not?

The DOJ said that "The investigation revealed no evidence to establish beyond a reasonable doubt that the officer willfully committed a violation of 18 U.S.C. § 242" (Emphasis mine.) Why would the U.S. Attorney focus on civil-rights law, rather than laws specific to homicide?

For example, why not focus on 18 U.S. Code § 1112 - Manslaughter, where the concept of willfulness is not applicable? Why not focus on the statutory use-of-force standard, which requires not only that an officer's belief be reasonable, but that his actions are reasonable and that the officer has exhausted other options.

DC Code, § 5–351 states

(b) A law enforcement officer shall not use deadly force against a person unless: (1) The law enforcement officer reasonably believes that deadly force is immediately necessary to protect the law enforcement officer or another person, other than the subject of the use of deadly force, from the threat of serious bodily injury or death; (2) The law enforcement officer's actions are reasonable, given the totality of the circumstances; and (3) All other options have been exhausted or do not reasonably lend themselves to the circumstances.

It goes on to state definitions of factors to be considered by a trier of fact, such as what the "totality of circumstances" means, including:

Whether the subject of the use of deadly force: (i) Possessed or appeared to possess a deadly weapon; and (ii) Refused to comply with the law enforcement officer's lawful order to surrender an object believed to be a deadly weapon prior to the law enforcement officer using deadly force;

Judicial Review (expanding scope)

Some comments have pointed out that the decision not to charge under manslaughter is prosecutorial discretion. I agree, but find the motives for the decision questionable. How can it be subject to judicial review?

@Fizz captured my concern very well in chat, saying

"One intersting consequence of that arrangement is that since 242 charges are usually brought when the state fails to do its job prosecuting something, the feds would have had to somewhat implicitly accuse themselves of that if they went for a 242 in DC".

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This reflects a typical division of labor. Normally, the Department of Justice investigates civil rights violations, which it has a division set up to do, while local authorities handle ordinary homicide charges arising (in this case) under the D.C. Code (as another answer notes, this instance didn't obviously fall under Congressionally enacted federal criminal homicide statutes, although there may be some room for ambiguity in that determination, but see Coleman v. United States, 334 F.2d 558 (1964) ("The [District of Columbia] area by no tenable construction can be said to have been within 'the special maritime and territorial jurisdiction of the United States.'")).

Certainly, the DOJ investigation, itself, did not exonerate the officer of a homicide charge, which remained open to be resolved.

An internal Capitol Police inquiry subsequently cleared the law enforcement office of homicide charges:

An internal investigation has cleared a U.S. Capitol Police officer of any wrongdoing in the fatal shooting of Ashli Babbitt during the siege of the Capitol on Jan. 6, the law enforcement agency announced Monday.

The Justice Department previously said the officer would not face criminal charges in the killing of the 35-year-old California woman, who was shot as she tried to force her way through a set of doors deep inside the Capitol. . . .

The probe by the U.S. Capitol Police exonerated the officer for his use of force. The department said in a news release outlining the investigation that the officer’s actions were within department policy, which allows deadly force only when an officer reasonably believes they are protecting themselves or others from serious physical harm.

The departmental policy described in the news article above closely tracks D.C. Code § 5-351.01 governing when the use of deadly force by a law enforcement officer is justified, which is an affirmative defense to criminal homicide and battery charges. The D.C. Code also expressly recognizes the authority of the Capitol Police as a law enforcement force in the District.

A recent general federal law analysis of use of force considerations is described in a July 10, 2020 report of the Congressional Research Service, in light of pending legislation.

Of course, Babbitt's next of kin could bring a wrongful death action under the civil rights laws for money damages seeking to second guess the DOJ determination.

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    The article you referenced is behind a paywall. Can you link to a public source? Aug 30 at 20:25
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    Thanks, Michael. According to NPR, that finding was that the officer "acted within department policy," which seems quite distinct from manslaughter. Aug 30 at 20:28
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    @Burt_Harris Department policy is more restrictive than, or identical to, the statutory ground for use of deadly force.
    – ohwilleke
    Aug 30 at 20:30
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    @Burt_Harris To be honest, this particular case isn't even remotely close.
    – ohwilleke
    Aug 30 at 22:49
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    @Burt_Harris My last comment is saying that the facts show the shooting to be justified without any reasonable room for doubt. It wasn't a close case as to whether or not it was justified.
    – ohwilleke
    Aug 31 at 0:07
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The investigation did not focus on homicide, because that is a cause of death, not a criminal offense. As you noted, the fact that Ms. Babbit's death was a homicide has already been established.

DOJ cannot invoke the manslaughter statute (nor the murder statute at 18 USC 1111) because those statutes only apply to offenses committed in the "special maritime or territorial jurisdiction of the United States," which does not include the District of Columbia. You can read the full definition at 18 USC 7, but the short version is that it refers to crimes in the air, on the sea, and outside any other country's jurisdiction.

The federal government can generally only investigate and prosecute standard crimes like murder and manslaughter and assault when the offense has a connection to one of its enumerated powers. Congress usually relies on its authority to regulate interstate commerce as the hook for its law-enforcement powers, but it can likewise rely on its duty to enforce civil-rights laws, which is how this case ended up as an investigation into a potential civil-rights violation.

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    I thought about that too, but I think the US Capitol is within the special maritime and territorial jurisdiction: "Any lands reserved or acquired for the use of the United States..." (18 USC 7 (3)). Backing that up, here is an indictment against three of the alleged Capitol rioters; see Counts 6-7, where stealing a radio, badge and gun from a police officer inside or near the Capitol is claimed to have been within the SM&T jurisdiction. Aug 30 at 20:17
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    Interesting. I suspect that won't fly, though, as the D.C. Circuit has already rejected the application of 7(3) to crimes in the District. Coleman v. United States, 334 F.2d 558 (1964) ("The area by no tenable construction can be said to have been within 'the special maritime and territorial jurisdiction of the United States.'").
    – bdb484
    Aug 30 at 20:45
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    Yeah, but this isn't just anywhere within the District: it's actually inside a federal building. (The scene of the crime in Coleman was a liquor store and a random alley.) Perhaps this would make for its own question. Aug 30 at 20:50
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    This podcast with a DoJ legal instructor seems to address it: "However, military installations, federal buildings, post offices, and some other high value or security sensitive sites continue to be held in exclusive jurisdiction." ... "Exclusive jurisdiction and concurrent jurisdiction are included within the term Special Maritime & Territorial Jurisdiction, or SMTJ." Aug 30 at 21:20
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    "Homicide" is more than a cause of death, it is the heading of 18 U.S. Code CHAPTER 51, which includes 18 USC 1112. Aug 30 at 23:33
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Your question is honestly pretty long and complex. For the first part, i.e. why were the §242 charges dropped... (without 2nd guessing the prosecution here), that's actually (by far) the most common outcome, statically speaking. Here are some (nation-wide) stats; basically §242 charges are only pursued in about 3% of the cases referred to the DOJ (by the FBI):

Charges under § 242 are most often used in cases involving excessive use of force by police. Yet they are also relevant in cases broader than police, such as cases of excessive violence by a prison guard, and cases where an individual acting "under the color of law" commits a robbery, theft, or sexual assault. Most § 242 cases are first investigated by Federal Bureau of Investigation (FBI) agents or another federal agency, then referred to U.S. attorneys within the Department of Justice who have discretion over whether to prosecute. [...]

Although charges under § 242 are rare, they often form the legal basis in cases where police use of force is in question. For instance, after the police officers involved in the arrest of Rodney King in 1991 were acquitted by a Los Angeles County jury, federal prosecutors charged and ultimately convicted the officers with the federal crime of depriving Mr. King of his civil rights while acting "under the color of law" (i.e. in their capacity as police officers). [...]

In fact, in the twenty-year period between 1990 and 2019, federal prosecutors filed § 242 charges about 41 times per year on average, with as few as 19 times (2005) and as many as 67 times in one year.

Historically very few referrals under § 242 are actually prosecuted by the Department of Justice. Between 1990 and 2006, the percent of referrals that federal attorneys prosecuted never rose above three percent. A driving force behind the declination rate appears to be not the standards used by federal prosecutors for filing prosecutions, but the standards used by the FBI in deciding whether to refer a case to federal prosecutors. Between 2006 and 2019, as the number of referrals declined, the percent of referrals that were prosecuted increased. Yet this did not result in a marked increase in the total number of prosecutions each year. The highest year on record, 2008, saw 67 total § 242 prosecutions, but no year since has come close.

As discussed in another article successfully prosecuting such 242 cases is hard because of the Screws standard.

For example, the Kent State shooting criminal charges (stemming from National Guard firing on student protesters/rioters during the Vietnam-war era) were dismissed by the judge mid-trial. In a summary of that case:

During the course of the protests, the demonstrators ignored an order to disperse, and the national guardsmen who had been sent to maintain order began to advance with bayonets. A melee ensued with many students heaving rocks and insults at the guardsmen. In the chaos, the guardsmen’s line broke, and the guardsmen were suddenly surrounded by students. Without an order to fire, twenty-nine guardsmen shot at least fifty-four rounds into the crowd killing four students and wounding nine.

The issue presented in federal court [in Shafer] was whether the guardsmen had the requisite intent to willfully deprive the students of their constitutional rights. Based upon both intent and federalism concerns, the court held that the officers had not acted with the requisite specific intent.

An important facet of Shafer is the way the opinion emphasized that a federal prosecutor needs to show a prior animus of the officer toward the victim in order to prove a § 242 violation. The court concluded that acting out of fear, anger, or frustration did not, in and of itself, amount to the specific intent to violate constitutional rights. This interpretation of specific intent requires the officer to formulate a bad purpose prior to the deprivation of the right. In turn, the court tacitly rejects any use of a reckless disregard standard, keeping the intent requirement narrow.

In more general academic terms, from a CRS report summarizing the issue with 242:

By its text, Section 242 applies only to violations that are committed “willfully.” The Supreme Court stringently construed the willfulness standard in the 1945 case Screws v. United States (the main opinion in Screws was joined by only four justices, but binding opinions of the Supreme Court have since adopted its analysis). In Screws, a defendant convicted of violating the statute now codified as Section 242 argued that the law was void for vagueness—that is, it violated the Fifth Amendment’s Due Process Clause because it did not give potential defendants clear notice of the conduct it proscribed. The Supreme Court rejected that argument by interpreting “willfully” to require the government to show that a defendant acted with a “specific intent to deprive a person” of constitutional rights or with “open defiance or in reckless disregard of a constitutional requirement.”

The Screws plurality recognized that its interpretation of Section 242 differed from the usual mental state standard in criminal cases. To obtain a conviction for a crime, the plurality explained, the prosecution usually must show that the defendant intentionally performed some action, and the action was prohibited by law; but prosecutors ordinarily need not show that the defendant knew the conduct at issue was illegal or specifically intended to violate the law. However, Section 242 imposes criminal liability for constitutional violations, and courts examining the “broad and fluid definitions of due process” may interpret the Constitution to protect rights not expressly enumerated in the Constitution or prior court decisions. [...]

Lower federal courts vary in how they apply the willfulness analysis in Screws. The U.S. Court of Appeals for the Fifth Circuit has held that “willfully” means “that the act was committed voluntarily and purposely with the specific intent to do something the law forbids. That is to say, with a bad purpose either to disobey or to disregard the law.” By contrast, the U.S. Court of Appeals for the Third Circuit, while remarking that Screws is not a model of clarity,” upheld a jury instruction stating both that “an act is done willfully if it is done voluntarily and intentionally, and with a specific intent to do something the law forbids,” and that the jury could “find that a defendant acted with the required specific intent even if you find that he had no real familiarity with the Constitution or with the particular constitutional right involved.” Overall, however, the Supreme Court’s interpretation of the willfulness requirement has resulted in what some view as a significant hurdle to bringing Section 242 claims.

I think the highlighted sentence says it all: not only is the Screws bar pretty high, but it's also been interpreted somewhat differently by various courts... That probably gives rise to even more prosecutorial discretion in such cases...


As for why they didn't go for the manslaughter charges [instead], IANAL, but the manslaughter text you linked to is clearly inapplicable in case the shooting is legally justified. "Manslaughter is independent of intent" as you say, but it's not without any other burden of proof (besides the killing):

(a)Manslaughter is the unlawful killing of a human being without malice.

It is of two kinds: Voluntary—Upon a sudden quarrel or heat of passion.

Involuntary—In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

Just imagine what it would mean if any shooting is "an unlawful killing" by definition. Then it's simply up to a prosecutor to decide who goes to prison or not when shooting someone (i.e. prosecution = guaranteed conviction) under such an assumption.

The federal wording is pretty arcane, but in some states simpler wording is used. E.g. the Minnesota policewoman who warned the suspect of imminent tasing but then shot her firearm (killing the suspect) was indeed charged with 2nd deg. manslaughter, but while that does not require intent, it still requires proof of "culpable negligence" under Minnesota law. In fact, in this case, the policewoman's own word show that she [probably] did not mean to shoot, which ironically probably precludes a defense of legally justified shooting.

Furthermore, you put in bold that the officer need to have "exhausted other options", but that wording doesn't actually appear as such in the federal law. As phoog points out, that's in the DC law.

In the DC code you quoted the "trier of fact shall consider" bit. I don't know who that is supposed to be exactly. Judge and jury are generally included, but it's not clear to me if the prosecution is held to the same standard. (Might make a good separate question.) Also " The totality of the circumstances, which shall include [...]" doesn't seem to preclude other considerations, not spelled out. So while a deadly weapon in the hands of the subject is clearly a spelled out consideration, some suspect strangling someone else with their bare hands, or more obviously, about to throw somebody off a rooftop, is not spelled out as such, but clearly would normally be considered a justifiable reason to shoot.

I suppose the most debatable part here is whether the officer should have tried "using non-deadly force prior to the use of deadly force" in this case.

From Law & Crime, the officer's justification was that he

subjectively believed shots had been fired, that officers were down, and that officers were being overrun. Most of that was true. Byrd’s assessment that what he was hearing from fellow officers on his police radio was either true or close to the truth was likely reasonable as well given the totality of the circumstances of the Jan. 6th breach of the Capitol.

I guess that was considered enough by the prosecution. He also said he did engage in verbal de-escalation measures (another consideration in the DC statue you've linked):

I had been yelling and screaming as loud as I was, “Please stop. Get back. Get back. Stop.” We had our weapons drawn.

He also said that he didn't know whether she was armed or not, but that under the circumstances that didn't matter to him. So, yeah, that's what we know. As it turns out, the article's author repeats what I observed above, that possession of a weapon is a factor, but not dispositive:

Byrd is correct on the law: nothing in the justification statute cited above requires the person being shot (here, Babbitt) to be armed with a weapon. As the statute itself points out, it is helpful to the analysis: if Babbitt hypothetically had displayed a weapon when she climbed through the window, it would have been easier to justify Byrd’s actions. But the lack of a weapon is not dispositive. The law is best restated like this: the police can meet “threat of serious bodily injury or death” with deadly force. Hundreds upon hundreds of angry people crashing into the halls of Congress — some of them wearing tactical gear, some allegedly carrying or beating officers with deadly weapons, and some allegedly attacking officers with chemical irritants — can hypothetically cause death or serious bodily injury by the sheer force of their numbers. An angry mob of people screaming and shouting about an election can still present a serious threat if they outnumber the assembled law enforcement forces and resort to destructive violence. Though many conservatives — including Babbitt’s husband — have drawn considerable attention to Babbitt’s lack of a weapon, it is not completely dispositive of the threat posed by the situation in its entirety. It weighs against Byrd but is only part of the “totality of the circumstances” analysis contained within the statute.

In the officer's stated judgement:

there was imminent threats and danger to the members of Congress

I guess the prosecution bought that, at least to the extent that they thought they could not prove otherwise beyond a reasonable doubt.

Of some interest, the CRS document linked in answer says that indeed there are agency-specific policies that matter, but that generally speaking there's nothing in Federal law itself besides the 4th amendment and its case law that governs use of [deadly] force:

At the federal level, there is no generally applicable statute that governs the use of force by law enforcement. [...]

That said, the Supreme Court has announced some general principles that lower courts employ to guide their assessment of the reasonableness of both lethal and other uses of force by police officers. First, reasonableness is judged “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” In other words, the calculus must allow “for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving[.]” Second, the reasonableness inquiry is an objective one; that is, the appropriateness of a use of force is gauged by what is “‘objectively reasonable’ in light of the facts and circumstances confronting” an officer. As such, the officer’s “underlying intent or motivation” is irrelevant. The Court has also noted several factors to be included in the assessment of the reasonableness of a particular use of force: (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3) whether the suspect “is actively resisting arrest or attempting to evade arrest by flight.” And with respect to lethal force specifically, the Court has said that use of such force is permissible where “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others[.]” Thus, “if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”

You'll be perhaps pleased to read above that (officer's) intent indeed does not matter, but otherwise it's down to a fairly flexible standard on deadly force that “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others”.

Slightly off topic, but on that angle, for example, the DOE regulations (a kind of policy) allow use of deadly force if some kinds of nuclear material are being stolen--presumably the implication being that their falling into the wrong hands presents that kind of threat of physical harm.


As for "judicial review", I doubt it's possible to have the prosecutors' decision(s) reviewed (anytime soon), but as e.g. in the Kent State case and others, it's possible to bring separate civil lawsuits in such cases. Quoting from the very first source in my answer:

Although federal prosecutors can bring criminal charges under § 242, individuals can also bring civil lawsuits against the government under 42 U.S.C. 1983, which similarly covers deprivation of civil rights by individuals acting under the color of law

Sometimes, e.g. in Kent State, these civil lawsuits had different outcomes than the state prosecution in criminal track.

Also of some note, in the Kent case, the DOJ more recently (2012) declined to reopen the case, so such request can be made in light of new evidence.

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    The exhaustion of other options comes from the DC law defining justified use of force by a police officer.
    – phoog
    Aug 30 at 23:45
  • @phoog: fair point.
    – Fizz
    Aug 30 at 23:48
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    It's not clear to me that it applies to the Capitol Police, though, as it's basically a statement of policy, and DC doesn't have authority to set policy for the capitol police.
    – phoog
    Aug 30 at 23:50
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    Also it seems to have taken effect in March, more than two months after the events in question.
    – phoog
    Aug 30 at 23:57
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    Well the law that enacted it was an "emergency" measure, and it mentioned reforming use of deadly force, but it's entirely possible that a similar or even identical statute was in effect in January and that other elements of the code were the target of this reform. I'm sure you are right about the wording coming from a model one way or another.
    – phoog
    Aug 31 at 0:33

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