QUESTIONS ABOUT ASHLI BABBIT’S DEATH REMAIN
Ashli Babbit, a 35-year-old Air Force veteran from San Diego, was shot and killed by a law enforcement officer on Jan. 6 when she attempted to breach an area of the U.S. Capitol known as the Speaker's Lobby. On Wednesday, the Department of Justice announced the conclusion and closure of its investigation with a statement that “officials determined that there is insufficient evidence to support a criminal prosecution.” The Justice Department's announcement ensures at least two things. First, the officer who shot Ms. Babbitt will not be prosecuted. Second, the man responsible for setting into action the events that resulted in the officer's need to fire will escape criminal accountability.
Under the “provocative act” doctrine, as stated in a California Supreme Court case called People v. Gilbert, “When the defendant … with a conscious disregard for life, intentionally commits an act that is likely to cause death, and … a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such a case, the killing is attributable, not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life. Thus, … the police officer's killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant.”
What does the provocative act doctrine have to do with Ms. Babbitt's killing? Well, to explain why an officer deemed it necessary to fatally shoot Ms. Babbitt, one must preliminarily account for Ms. Babbitt's presence among the mob that stormed the Capitol. As we are currently witnessing in former Minneapolis police officer Derek Chauvin's murder trial, causation matters. For example, a central question in Mr. Chauvin's trial is whether his action in kneeling on George Floyd's neck constituted a substantial factor in Mr. Floyd's death, or whether the kneeling was incidental to Mr. Floyd's demise owing to his underlying physical condition, as the defense contends.
A bullet was the immediate cause of Ms. Babbitt's death, but the metaphorical camera aperture risks missing sight of an attendant substantial and concurrent cause. In short, was there another whose conduct represented a substantial causative factor? According to the
U.S. House of Representatives, the answer is yes.
On Jan. 13, the House impeached President Donald
Trump for incitement of insurrection. While the Senate failed to muster the twothirds majority necessary to convict him, the proceedings were widely recognized as representing a political versus legal question. Senate Minority Leader Mitch McConnell shared that he voted not guilty for constitutional reasons. Since Mr. Trump was no longer in office, the Kentucky senator reasoned, the Constitution did not provide a basis for impeaching him. However, Sen. McConnell said, “Trump is practically and morally responsible for provoking the events of the day.”
While Sen. McConnell's opinion regarding President Trump's responsibility is no more binding than a pathologist's regarding causative responsibility for Mr. Floyd's death, there is — as with the prosecution of Derek Chauvin — compelling video evidence documenting the associated events. Mr. Trump exhorted his supporters to “go fight” and famously (or infamously) celebrated the rioters as “patriots,” before later issuing messages aimed at de-escalating events, untimely if only for their occurrence following Ms. Babbitt's shooting.
From a lay and practical perspective, a straight and unbroken line akin to the sort of courtroom demonstrative sticks or poles used to trace a bullet's trajectory into a body lies between actions the House identified as incitement to insurrection and the bullet that took Ms. Babbitt's life.
Of course, Mr. Trump is far more important and powerful than Mr. Chauvin and power matters. No less an authority than Mr. Trump himself noted that he could, with practical impunity, stand on Fifth Avenue in New York City and shoot someone. It is no stretch then perhaps to consider the specter that he might stand somewhere else one day and escape criminal liability for a real shooting.
Ultimately, whatever else might be said regarding the Justice Department's probe, both Ms. Babbitt and the officer who shot her deserve better.
A bullet was the immediate cause of Ms. Babbitt’s death, but the metaphorical camera aperture risks missing sight of an attendant substantial and concurrent cause.