In an act truly unprecedented in American law and history, after a secret process in which no public testimony was taken and no media were allowed in to report on the proceedings, the
U.S. Attorney’s Office for the District of Columbia and the Civil Rights Division of the U.S. Department of Justice announced the government will not pursue criminal charges against the U.S. Capitol Police officer involved in the fatal shooting of 35-year-old Air Force veteran and Trump supporter Ashli Babbitt.
We say unprecedented because over the long course of American history – from the pre-Revolution Boston Massacre in 1770 to the Kent State shootings in 1970 – the armed authorities deployed in this country have always had their actions publicly reviewed and been held accountable for shooting into unarmed crowds.
But today, we know more about the participants and defendants in the Boston Massacre than we know about who killed Ashli Babbitt and what their justification was for shooting into an unarmed crowd.
We know that Captain Thomas Preston was the officer in charge of the British detail that killed Crispus Attucks, Samuel Gray, James Caldwell, Samuel Maverick and Patrick Carr. And we also know that Preston and his men were immediately arrested and spent months in jail before they were tried for murder and the lesser included charge of manslaughter.
Patriot firebrand and later President John Adams defended the British soldiers because he thought it was important that they have a fair trial – all but two were acquitted of all charges, with two being found guilty of manslaughter.
In 1970, after a detachment of the Ohio National Guard opened fire on unarmed students during an anti-Vietnam war protest at Kent State University numerous public investigatory commissions and court trials followed, during which members of the Ohio National Guard testified that they felt the need to discharge their weapons because they feared for their lives.
A grand jury indicted five guardsmen on felony charges -- Lawrence Shafer, 28, and James McGee, 28, both of Ravenna, Ohio; James Pierce, 30, of Amelia Island, Florida.; William Perkins, 38 of Canton, Ohio; and Ralph Zoller, 27, of Mantua, Ohio. Barry Morris, 30, of Kent, Ohio; Leon Smith, 27, of Beach City, Ohio; and Matthew McManus, 28, of West Salem, Ohio, were indicted on misdemeanor charges. The guardsmen claimed to have fired in self-defense, testimony that was generally accepted by the criminal justice system.
On November 8, 1974, U.S. District Judge Frank J. Battisti dismissed civil rights charges against all of the accused on the basis that the prosecution's case did not warrant a trial. However, in dismissing the case Judge Battisti said, “It is vital that state and National Guard officials not regard this decision as authorizing or approving the use of force against demonstrators, whatever the occasion of the issue involved," Battisti said in his opinion. "Such use of force is, and was, deplorable.”
In the succeeding years, many in the anti-war movement have referred to the shootings as "murders," although no criminal convictions were obtained against any National Guardsman. In December 1970, journalist I. F. Stone wrote the following:
To those who think murder is too strong a word, one may recall that even [Vice President Spiro] Agnew three days after the Kent State shootings used the word in an interview on the David Frost show in Los Angeles. Agnew admitted in response to a question that what happened at Kent State was murder, "but not first degree" since there was – as Agnew explained from his own training as a lawyer – "no premeditation but simply an over-response in the heat of anger that results in a killing; it's a murder. It's not premeditated and it certainly can't be condoned."
Note: We don’t usually rely upon Wikipedia for information but their article on the Kent State killings is unusually well-footnoted and without apparent bias.
Again, the decisions and actions of those Ohio National Guardsmen involved in the Kent State killings were fully and publicly aired. There was complete transparency in all proceedings and the justification offered by the Guardsmen was, albeit reluctantly, accepted by the court.
The Department of Justice decision not to pursue charges against the Capitol Police officer who killed Ashli Babbitt hinged on much the same plea as did the decisions in the Kent State killings and indeed the Boston Massacre trial findings:
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. In order to establish a violation of this statute, prosecutors must prove, beyond a reasonable doubt, that the officer acted willfully to deprive Ms. Babbitt of a right protected by the Constitution or other law, here the Fourth Amendment right not to be subjected to an unreasonable seizure. Prosecutors would have to prove not only that the officer used force that was constitutionally unreasonable, but that the officer did so “willfully,” which the Supreme Court has interpreted to mean that the officer acted with a bad purpose to disregard the law. As this requirement has been interpreted by the courts, evidence that an officer acted out of fear, mistake, panic, misperception, negligence, or even poor judgment cannot establish the high level of intent required under Section 242.
But those findings were made after public trials and inquests during which the killers were required to justify their actions.
So, what makes the killing of Ashli Babbitt different? And more to the point why haven’t these questions been answered publicly:
Why was Ashli Babbitt singled out for death?
What special threat, if any, did Ashli Babbitt pose?
Did someone in the chain of command authorize the use of lethal force, and if so, who?
Did the officer who killed Ashli Babbitt make an error in discharging his weapon, as Brooklyn Center, Minnesota officer Kim Potter alleged regarding her shooting of Daunte Wright?
Has the officer been disciplined in any way for his actions?
Why didn’t the Capitol Police follow their usual protocols for large gatherings, such as the protests against the confirmation of now-Justice Brett Kavanaugh?
For over 250 years it was a settled principle of American law that when the authorities fire into an unarmed crowd their actions are subject to public inquiry and the intense scrutiny only a public trial can bring to bear upon their actions.
The public record now available shows Ashli Babbitt presented no unique threat, she was unarmed, she was in a crowd of other people, why was she singled-out for death? If we are in a place where the police can fire into unarmed crowds without offering any public justification, then our country and constitutional liberty are indeed in peril.
The toll-free Capitol Switchboard is (1-866-220-0044), call and urge your Senators and Representative to demand full and open hearings into the killing of Ashli Babbitt, including public testimony by the officer who killed her justifying his actions. To do less than that is to discard over 250-years of American legal tradition in favor of the way Tsarist Russia, Chinese Communists, Venezuelan dictators and other authoritarian regimes handle protests and protestors.
George Rasley, editor of Richard Viguerie's ConservativeHQ.com, worked at the U.S. Capitol complex for many years. A veteran of over 300 political campaigns, he is a member of American MENSA, and served on the staff of Vice President Dan Quayle, as Director of Policy and Communication for former Congressman Adam Putnam (FL-12) then Vice Chairman of the Oversight and Government Reform Committee's Subcommittee on National Security and Foreign Affairs, and as spokesman for retired Rep. Mac Thornberry, formerly a member of the House Intelligence Committee and Chairman of the House Armed Services Committee.
January 6th riot
U.S. District Judge Frank J. Battisti
American legal tradition