A U.S. Capitol Police officer has been cleared of criminal wrongdoing for fatally shooting Air Force veteran Ashli Babbitt as she attempted to breach a set of doors deep in the Capitol during the January siege, federal prosecutors in D.C. announced Wednesday.
The killing of the 35-year-old California native became one of the defining moments of the riot, after graphic videos of her shooting spread across social media and were replayed by news outlets.
Prosecutors notified a representative of Babbitt’s family of its findings Wednesday, the office of acting U.S. attorney Channing Phillips of D.C. said in a statement. The statement said the U.S. attorney’s office and the Justice Department have closed the investigation, “acknowledging the tragic loss of life and offering condolences” to Babbitt’s family.
Roger Witthoeft, Babbitt’s brother, said he was not happy that prosecutors decided not to charge the officer.
“In my eyes, everyone should stand before a jury to face justice. That decision shouldn’t be made behind the scenes. I think he should at least stand trial,” Witthoeft said.
“I love my sister and I’ll always remember her as a decent woman and patriot,” he said.
Mark E. Schamel, the Capitol Police officer’s attorney, credited his client with showing great restraint.
“His bravery on January 6 was nothing short of heroic,” Schamel said in a statement. “He stopped the rioters from gaining entry into the Speaker’s Lobby and saved the lives of countless members of Congress and the rioters. His heroism should be no surprise to those who know him.”
To convict law enforcement officers of civil rights violations, including shootings resulting in death, prosecutors must be able to prove that an officer used “objectively unreasonable” force and “willfully” used more force than he thought was necessary. The high bar of willfulness makes bringing charges against an officer difficult, and Wednesday’s outcome was not unexpected by legal observers under the circumstances.
Multiple cellphone videos captured the shooting as it unfolded on the afternoon of Jan. 6. Babbitt and a group of other rioters made their way inside the Capitol to barricaded doors leading to the Speaker’s Lobby, which is the hallway outside the House chamber where some lawmakers were sheltering during the siege.
Videos show the group pummeling the wood-and-glass doors with a helmet, feet and a flagpole. A Capitol Police officer in a suit and a surgical mask is seen standing in a doorway on the far side of the doors with his gun drawn.
The officer opened fire as Babbitt, who was wearing a Trump flag like a cape, attempted to crawl through one of the broken panes of the Speaker’s Lobby doors, video shows. Babbitt, who was hit in the shoulder, tumbled backward onto the floor.
The attorney for the officer, a lieutenant, said in a statement that the officer clearly identified himself and ordered rioters not to pass a barricade at the doors of the Speaker’s Lobby before firing. Other officers had also ordered Babbitt to stop and she broke multiple laws in attempting to enter the Speaker’s Lobby, according to the statement.
A group that included officers, rioters and a Hill staffer rushed to her aid, video shows. Two law enforcement officials familiar with the investigation have said that Babbitt was unarmed. She later died.
Babbitt was one of five people who authorities said died amid the chaos of the Capitol siege, including Capitol Police officer Brian D. Sicknick, whose remains lay in honor in the Capitol Rotunda in early February.
In death, Babbitt has become a martyr to many on the far right. Some even fashioned a flag that features a silhouette of a woman in front of a Capitol that is aflame. Below, it reads “Vengeance.”
Federal prosecutors have charged at least eight people who were in the crowd around Babbitt in the moments before she was shot. They include Christopher Ray Grider, a Texas winery owner who is accused of trying to kick in the Speaker’s Lobby doors; Zachary Jordan Alam, of Pennsylvania, who is accused of smashing the glass pane Babbitt attempted to crawl through; and Chad Barrett Jones, of Kentucky, who is accused of smashing another pane with a wood stick that had a Trump flag attached.
Authorities had suggested the possibility of bringing felony murder charges against rioters if Babbitt’s death was a foreseeable consequence of felony conduct by others, according to a person familiar with the matter. But they have since ruled out that possibility, given case law that allows such charges only in instances when an accomplice is responsible for a victim’s death, not a law enforcement officer.
D.C. police are required by law to identify officers involved in serious uses of force within five business days of an incident. They are also required to release video from body cameras of the officers directly involved. The law only applies to D.C. police. Capitol Police are not equipped with body cameras.
The law firm representing the officer said it was keeping his name confidential because he has faced death threats.
Witthoeft, Babbitt’s brother, said it was “appalling” that the officer’s name had not been released “in this age when everything is public record.”
The three-month investigation was conducted by prosecutors in the U.S. attorney’s office’s public corruption and civil rights section. The Justice Department’s civil rights division and the D.C. police internal affairs bureau reviewed social media video footage, statements by witnesses including the shooter and other officers, physical evidence, and autopsy results, prosecutors said.
Criminal charges against police officers involved in on-duty fatalities are rare in the District. City records show that prosecutors in the U.S. attorney’s office have never filed criminal charges against a D.C. police officer involved in a fatal on-duty shooting. Such historical data was not available regarding officers from other agencies.
Babbitt hailed from the San Diego area and became an ardent supporter of QAnon, an extremist ideology that the FBI has deemed a domestic terrorism threat, and a backer of President Donald Trump, her since-deleted Twitter account showed. She often echoed Trump’s baseless claims that November’s presidential election was stolen.
“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!” Babbitt tweeted the day before she died.
Babbitt spent more than a decade in the military, first in the Air Force and then in the Air National Guard, but she had discipline problems and didn’t advance far. Her ex-husband, Timothy McEntee, has said she served in Afghanistan and Iraq.
After leaving the military in 2016, Babbitt started a pool business with family members that struggled financially, and her Twitter account shows she became more interested in online misinformation and conservative causes.
In one video posted to social media, Babbitt rants loudly about the effects of immigrants on the U.S. economy. In a tweet, she called for then-Vice President Mike Pence to be arrested and charged with treason, presumably for not being supportive enough of Trump’s baseless claims of electoral fraud.
“She was never afraid to speak her mind,” McEntee told The Washington Post in a January text message.
Babbitt seemed to derive a sense of mission from the Jan. 6 protest. In the days leading up to it, she retweeted messages from other demonstrators who were traveling to Washington.
One read: “It will be 1776 all over again . . . only bigger and better.”
Tom Jackman contributed to this report.