If George Floyd, Then Also Ashli Babbitt: “Equal Protection” of ALL People Murdered by Police
Leonard R. Jaffee, Copyright © 2021, all rights reserved
****** NOTICE OF NEW EDITION AND NOTICE OF FURTHER UPDATE ******
THIS IS A 2nd EDITION, WHICH I COMPLETED AND POSTED 2:06 PM, PACIFIC TIME, 16 MAY 2021. AT 5:01 PM, PACIFIC TIME, 21 MAY 2021, I UPDATED THIS EDITION TO ACCOUNT THE NEWLY LEARNED FACT THAT ASHLI BABBITT WAS A RATHER SMALL WOMAN, HER HEIGHT 5
" HER WEIGHT 110 POUNDS. AT 3:34 PM, PACIFIC TIME, 23 MAY 2021, I UPDATED THIS EDITION AGAIN, TO PAGINATE IT. PAGE NUMBERS APPEAR AT BOTTOMS OF PAGES.
FORENOTE A. Hyperlinks — how they appear
Because of the primitivity of an aspect of Substack’s upload software, in many instances hyperlinks show as blue coloration of text, but in other instances hyperlinks show as boldface-underscored text. [As likely you know, “hyperlink” = electronic function linking text to a web-page or website (URL) — like this.] I have struggled, but failed, to cure the inconsistency. When you see either (a) blue-colored text or (b) boldface-underscored text, know that the text is hyperlinked to a URL.
B. Endnotes — their importance
To appreciate this article’s contents adequately, the reader must read this article’s endnotes where and when the endnotes are signaled in this article’s text. The endnotes supply important substantive supplementation of this article’s text — not mere citations of sources. So, the reader must read the endnotes along with the text.
Why do I not include the endnotes’ material directly in the text? Some text passages serve as quasi-abstracts of essences of issues or factual or legal matters that beg substantial elaboration with, e.g., minutiae of evidence or history or logic or legal reasoning or……. Rather than burden the text’s flow and render the text clumsy, I provide the minutiae in endnotes. Also, I consign to endnotes matters that are a bit tangential but bear very useful significance or illumination.
As likely you know, if you click on an endnote number, the related endnote will appear. Then, when you have finished reading the endnote, click on the endnote number appearing at the beginning of the endnote, and the related text will reappear.
I. PREFACE A. Joe Biden’s Department of Justice Decides Not to Prosecute the Black Cop Who Killed Ashli Babbitt, but Decides to Prosecute Cops Who Killed George Floyd
On 7 May 2021, Biden’s Department of Justice [“DOJ”] announced that a federal grand jury rendered 18 U.S.C. § 242 civil rights violation indictments against Derek Chauvin [a White man] and the other three [non-Black] police who killed George Floyd.
[endnote 1 ]
The same day, in the same notice, Biden’s DOJ announced further that the same grand jury indicted Derek Chauvin also for a separate, 4 September 2017 violation of 18 U.S. Code § 242. The separate, two-count indictment charged that, wilfully, Chauvin deprived a 14-years-old boy of his constitutional (4th amendment) right not to suffer a cop’s unreasonable use of force
[again see endnote 1]:
“Count One...alleges that on Sept. 4, 2017, [Derek] Chauvin, without legal justification, held the teenager by the throat and struck the teenager multiple times in the head with a flashlight. The indictment alleges that this offense included the use of a dangerous weapon—a flashlight—and resulted in bodily injury to the teenager. Count Two...charges that Chauvin held his knee on the neck and the upper back of the teenager even after the teenager was lying prone, handcuffed, and unresisting, also resulting in bodily injury.”
But on 14 April 2021, Biden’s DOJ announced it would not prosecute the Black Capitol Police cop who shot to death a White woman, Ashli Babbitt. The DOJ explained:
“.... 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. “The investigation revealed no evidence to establish beyond a reasonable doubt that the officer willfully committed a violation of 18 U.S.C. § 242. Specifically, the 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. Acknowledging the tragic loss of life and offering condolences to Ms. Babbitt’s family, the U.S. Attorney’s Office and U.S. Department of Justice have therefore closed the investigation into this matter.” This article shows that the actual pertinent statutes, legal rules, judicial precedents, and evidence render the DOJ’s explanation patently false — and shamefully “inequitable” (which term I chose to contemn the “woke,” Black Lives Matter, and hypocritical Democrat mantra that “equity” demands the Black population receive unearned rights, powers, privileges, and immunities denied Whites because Whites are born either evil or psychically compelled to claim supremacy over non-Whites).
The Black cop murdered Ashli Babbitt — “willfully.” The DOJ’s decision was politically corrupt — egregiously “inequitable” — a flagrant racist disgrace.
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B. (1) Use of Civil-litigation Precedents & (2) Such Precedents’ Significance Respecting (i) Whether Babbitt’s Killer Murdered Babbitt & (ii) Whether The DOJ Could Win a Civil Rights Prosecution of Babbitt’s Killer
Federal statutory law provides both (a) that a citizen may prosecute a civil suit against a police officer who violates the citizen’s civil rights or kills, e.g., the citizen’s spouse or child by violating that relative’s civil rights [42 U.S. Code § 1983] and (b) that the federal government may prosecute a criminal action against such police officer [18 U.S.C. § 242]. Such private civil suit and such federal prosecution are here-pertinently different two ways.
(1) The private civil suit plaintiff’s burden of persuasion (commonly but wrongly mislabeled “burden of proof”) is “proof by a preponderance of the evidence” [a burden oft-wrongly put as proof that “more probably than not” the claimed wrong occurred as the plaintiff’s complaint asserted, see Leonard R. Jaffee, Of Probativity and Probability: Statistics, Scientific Evidence, and the Calculus of Chance at Trial, 46 University of Pittsburgh Law Review 925 (1985), available in any law school library and available online for a fee here]. But in 18 U.S.C. § 242 criminal prosecutions, the federal government’s burden of persuasion is “proof beyond reasonable doubt — a burden greater than that of the private civil suit plaintiff. Still, despite the difference of burden of persuasion, private-party civil case judgments are proper precedents for this article’s consideration of the Capitol cop’s killing Ashli Babbitt. The matter is not whether, if Ashli Babbitt’s family sues the cop and wins, the court’s factual determinations will be determinative — binding — in a murder trial or 18 U.S.C. § 242 prosecution of that cop. The matter is merely logico-legal: whether a precedent held that a cop committed unlawful homicide where the cop used deadly force substantially similar to, or less culpable than, the Babbitt-killer’s use of deadly force. (2) In 18 U.S.C. § 242 criminal prosecutions, defendant police officers do not have “qualified immunity. But in 42 U.S. Code § 1983 civil suits, defendant police officers do have “qualified immunity.” Qualified immunity shields officials from civil liability if their conduct does not violate a “clearly established” statutory or constitutional right of which a reasonable official would have known. Harlow v. Fitzgerald, 457 US 800 (U.S. Supreme Court 1982). A “clearly established right” is one that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658 (U.S. Supreme Court 2012). To be “sufficiently clear...” the right need not depend on precedent directly on point. But existing precedent must have placed the legal matter — the “right” — beyond debate. Ashcroft v. al-Kidd, 563 U.S. 731 (U.S. Supreme Court 2011). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335 (U.S. Supreme Court 1986). See generally Mullenix v. Luna, 577 U.S. 7 (U.S. Supreme Court 2015) When determining whether an official has transgressed a “clearly established” civil right, a court must not define the claimed right “at a high level of generality.” Mullenix, supra and Ashcroft v. al-Kidd, supra. The question is “whether the violative nature of particular conduct is clearly established.” Mullenix, supra and Ashcroft v. al-Kidd, supra. The “inquiry ‘must be undertaken in light of the specific context of the case, not as a broad general proposition’.” Brosseau v. Haugen, 543 U.S. 194 (U.S. Supreme Court 2004), quoting Saucier v. Katz, 533 U.S. 194 (U.S. Supreme Court 2001). Such specificity is “especially important” in the 4th Amendment (excessive-force/unreasonable-“seizure”) context, where “‘[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts’.” Mullenix, supra, quoting Saucier, supra. In every police-applied deadly force case, the ultimate question is whether the cop violated the rule of Tennessee v. Garner, 471 U.S. 1 (U.S. Supreme Court 1985), that deadly force is permissible only where the officer has probable cause to believe that the suspect poses a significant IMMEDIATE threat of death or serious physical injury to the officer or others. But in a private-party civil suit, the court cannot reach that question unless first it determines that the defendant officer is not entitled to qualified immunity — a determination that must involve antecedent determinations of (a) whether, abstractly, the officer violated the decedent’s 4th amendment right — the Garner rule right — of not suffering deadly-force “unreasonable seizure” (e.g., because the decedent was actually innocent and was not actually evading arrest or threatening to harm anyone) (b) whether the Garner rule applies with “obvious clarity” to the particular circumstances of the specific case, perhaps, but not necessarily, because the specif case is similar to several, well-known cases in which the court held that the cop was not entitled to qualified immunity and that the cop violated the deceased’s Garner rule right. See Smith v. Cupp, 430 F. 3d 766 (6th Circuit federal Court of Appeals 2005), approved in Mullenix v. Luna, supra, 136 S. Ct. at pp.311-312.
PAGE 3 _______________________________________________________________If a court determines that a defendant cop is not entitled to qualified immunity, the case proceeds on premises of the antecedent determinations that, in the specific case — in the specific circumstances of the cop’s use of deadly force — clearly the cop violated the deceased’s Garner rule right clearly applicable to the specific circumstances of the specific case. So, very likely the plaintiff will win, and the cop lose. Just so, if in private-party civil case where the court denies the defendant cop qualified immunity, the qualified-immunity-denial and the denial’s predicate facts form good precedent for a factually similar murder prosecution or criminal civil rights (4th amendment) prosecution of a cop, including the coop who killed Babbitt. The matter is not whether the facts were “proven” in the precedent case. The matter is only what the facts were — the facts that premised the precedent.
For the preceding two reasons and a third reason, I use as precedent both criminal prosecution judgments and private-party civil case judgments, even judgments only denying qualified immunity — despite civil cases involve a burden of persuasion lesser than that of criminal cases. The third reason is that, disgracefully, just rarely do state or federal governments prosecute cops for killing people (despite cops kill many people unlawfully or unconstitutionally). So, the precedent-field does not bear many criminal cases; hence, one is compelled to use civil-case precedents.
The DOJ’s non-prosecution notice conflated — and confounded — qualified immunity rules with rules governing whether the Babbitt-killing cop’s deadly force use can support 18 U.S.C. § 242 (criminal) conviction. The stratagem obscured the DOJ’s politically corrupt woke purpose of not prosecuting a White-woman-killing Black cop despite the law indicates that he be prosecuted.
In Mullenix, the issue was whether a cop was entitled to qualified immunity where the cop fired a rifle at the deceased’s wildly speeding car and killed the deceased, though the cop intended only to disable the deceased’s car to prevent the deceased’s harming others, including another cop who was stationed where the speeding car non-unlikely would hit him. The Court observed:
“Mullenix [the police officer] confronted a reportedly intoxicated fugitive, set on avoiding capture through high-speed [over 100 MPH] vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer [down the road]. The relevant inquiry is whether existing precedent placed the conclusion that Mullenix (the police officer) acted unreasonably in these circumstances ‘beyond debate.’ The general principle that deadly force requires a sufficient threat hardly settles this matter. See Pasco v. Knoblauch, 566 F.3d 572, 580 (C.A.5 2009) (‘[I]t would be unreasonable to expect a police officer to make the numerous legal conclusions necessary to apply Garner to a high-speed car chase ...’).”
One might infer that the Court suggested the cop would not be liable even if the deadly outcome resulted from the cop’s mistake or judgment-error, since the Court put the question whether, in the extreme, highly pressured circumstances, beyond debate the cop’s act was unreasonable. And the inference may seem to obtain reinforcement from Justice Scalia’s concurring opinion:
“The police might, for example, attempt to stop a fleeing felon's car by felling a large tree across the road; if they drop the tree too late, so that it crushes the car and its occupant, I would not call that the application of deadly force. Though it was force sufficient to kill, it was not applied with the object of harming the body of the felon. *** *** “Here...it is conceded that Trooper Mullenix did not shoot to wound or kill the fleeing Leija, nor even to drive Leija's car off the road, but only to cause the car to stop by destroying its engine. That was a risky enterprise, as the outcome demonstrated; but determining whether it violated the Fourth Amendment requires us to ask, not whether it was reasonable to kill Leija, but whether it was reasonable to shoot at the engine in light of the risk to Leija. ....”
One might infer that Justice Scalia’s observations indicate that the cop’s lethal act was excused because he committed a mistake — shot the fleeing suspect, rather than the engine of the car. But the Court was not considering whether the cop was guilty of a criminal homicide or a homicidal, criminal violation of the deceased’s 4th amendment right. The Court was considering whether the cop was entitled to qualified immunity in a private-party civil case.
In a murder case, the prosecution need not show anything “beyond debate” — which could mean beyond all doubt, not beyond reasonable doubt. In a (criminal) 18 U.S.C. § 242 case, the prosecution need not prove “beyond debate” that the cop violated the deceased’s 4th amendment right. And in neither kind of criminal case would mistake or negligence or fumbling, alone, be an excuse, especially where
endnote 15] the defendant is a police officer trained and skilled in using a rifle.
I cannot know that the DOJ designed to conflate and confound the two much-separate sets rules. I deduce that the DOJ’s conduct was intentional, because either (A) as is very unlikely, the DOJ waxed imbecilic when it tried to explain its decision by suggesting the cop could be acquitted because he “acted out of fear, mistake, panic, misperception, negligence, or even poor judgment or (B) intentionally, the DOJ conflated and confounded the two rule-sets to obfuscate the political corruption of its decision.
Below, this article addresses these matters extensively, with voluminous detail.
PAGE 4 _______________________________________________________________C. Floyd Killing versus Babbitt Killing: Some Rudimentary Comparisons
On 18 April of this year, I published a two-part article that proved Derek Chauvin murdered George Floyd. That article’s Part One showed that, contrary to the Chauvin defense, neither Floyd’s drug-use nor Floyd’s pre-existing cardiovascular trouble constituted the proximate cause of Floyd’s death — that the proximate cause was a neck-compression hold Chauvin applied to Floyd (such neck-compression’s lethal effect having been accelerated by dorsal thorax compression applied by one or two of Chauvin’s police-cohorts).
That same 18 April article’s Part Two showed that the pertinent statutes, legal principles, legal rules, and judicial precedents rendered Chauvin’s conduct clearly 2nd degree felony murder and 3rd degree depraved mind murder.
By necessary implication, also my same 18 April article showed that Chauvin’s and his police cohorts’ actions violated Floyd’s constitutional (4th amendment) right not to suffer lethal excessive force applied by a cop.
[endnote 3 ]
My 18 April article addressed considerations of medicine, forensics, pharmacology, statistics, criminal-statute language, criminal law rules, evidence, criminal trial procedure, and details of judicial precedent. Many medical, forensics, pharmacological, and statistical matters were necessary considerations because the Chauvin defense sought to convince the jury that not Chauvin’s conduct, but Floyd’s drug-abuse and cardiovascular trouble were the proximate cause(s) of Floyd’s death.
The Ashli Babbitt murder —her murder — is a case much simpler than the Floyd murder case. By necessary implication, so, too, much simpler is the case that the killer cop violated Babbitt’s constitutional (4th amendment) right not to suffer lethal excessive force applied by a cop (an officer of the U.S. Capitol Police).
The only “complexity” is a woke, critical race theory, BLM, and Democrat “concern” that Babbitt was White (albeit an unarmed woman not resisting arrest) and her killer a Black cop. The surrounding “insurrectionist” crowd’s “mob violence” does not complicate the Babbitt-murder case nearly much as did George Floyd’s drug-use, cardiovascular trouble, criminal record, alleged passing of counterfeit money, and resisting being put in a closed-windows cop car because (Floyd insisted) he (Floyd) was “claustrophobic.”
In Part One of my two part article addressing the murder of George Floyd, I wrote:
...George Floyd was disgusting trash, garbage. His life contributed no benefit to anyone, even to Floyd, himself; and surely he burdened many whose lives his touched.
[endnote 4 ]
So, why do I write and publish this article? Two reasons:
(1) I am morally certain — beyond doubt — that two or three arresting officers murdered Mr. Floyd and a third or fourth ‘aided and abetted’ that murder. Though Floyd was trash, the law entitled him to live — not to suffer the murderous abuse the arresting officers committed against him.
(2) If George Floyd’s murderers and their accomplice are acquitted or suffer sorely inadequate plea-bargained sentences, then (a) police will continue to feel entitled to abuse police-power and use excessive force in detaining Blacks and Whites, Asians, and others and (b) the United States will experience a nationwide bloody uprising never experienced since the Civil War.
The matter is not the lives of Blacks. The matters are: (1) the life and liberty of every person, irrespective of ‘race’ and (2) abuse of power of ‘law-enforcement’ agencies and of police and other ‘law-enforcement’ officers. The second matter is but one aspect of the manifest psychopathy of most of the world’s governments, surely the federal government of the United States and most U.S. state and local governments.
Though George Floyd was scum, he was a 5th amendment and 14th amendment human person. He was entitled to due process of law, not extrajudicial summary execution by a cop. Despite Floyd was rubbish, he did nothing that could support a court’s sentencing him to death. A rational, civil society accords due process even to the meanest, vilest of its members.”
I have found very few reliable statements of Ashli Babbitt’s history. The next three paragraphs are distillations of a 20 January 2021 updated version of a 7 January 2021 New York Times article.
(1) Babbitt was an enlisted member of the Air Force, then a member of the Air Force Reserves. While in Air Force active duty, she was a security forces controller. Her duties included guarding gates at Air Force bases. She was deployed to Afghanistan and Iraq. While on active duty from 2004 to 2008, she met and married her first husband, Timothy McEntee. (2) While in the Air Force Reserves or the Air National Guard, she was assigned to a unit based near Washington, the “Capital Guardians,” because one of their primary missions was defending the city. The squadron’s security forces trained regularly with riot shields and clubs for what the Air Force calls “civil disturbance missions.” She was deployed twice more, to the United Arab Emirates in 2012 and 2014, according to an Air Force spokeswoman. (3) When she left the Air Force and entered civilian life, Babbitt’s social media activity included “a torrent of messages celebrating President Trump” and “QAnon conspiracy theories” and “tirades against immigration, drugs[,] and [California] Democratic leaders....”
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A 14 April 2021 Washington Post article asserts:
“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.”
The Washington Post does not evidence, or explain, its assertion that Babbitt “had discipline problems.” The Air Force Times did not put such assertion, but rendered a service-record statement that bears neither assertion nor implication that Babbitt “had discipline problems.”
[endnote 5 ]
Another source —KUSI News — said Babbitt was a 14-year veteran who “served four tours with the US Air Force.” Contrary to the NY Times’s assertion that Babbitt’s duties included guarding gates at Air Force bases, she was a high level security official throughout her time in service.” KUSI News stated nothing that could suggest Babbitt “had discipline problems.”
The Washington Post’s “misinformation” term applied to Babbitt’s insistence that the 2020 election was stolen from Trump — an insistence I share (for, the election was stolen). Babbitt’s “Pence-committed treason” tweet was ignorant of law and factually absurd, not criminal, just emotional — only angry words, surely not seditious or capable of inciting riot.
For her military enlistment, her military reserves membership, and her brand of “patriotism,” I contemn Babbitt. She contributed to the hegemonic advance of the U.S. Empire and the grave sufferings of many tens of thousands of humans (and non-human animals) of much of the world — and contributed to the economic gargantuan costs the U.S. military/industrial/financial complex imposes on the U.S. citizenry.
Still, was Babbitt a criminal, like George Floyd? Her 6 January 2021 Capitol-trespass involvement was criminal conduct.
[endnote 6 ] But it was also a sincere, albeit irrational, political statement associated with some legitimate sociopolitical and economic concerns. So, one must ask whether otherwise Babbitt engaged in criminal — even serious felonious criminal behavior — often, or near often, as did George Floyd?
Per the Washington Examiner, in August 2016, Babbitt was charged for reckless endangerment (a felony if it involves using a weapon, which can be a vehical) hitting a woman’s car three times with her (Babbitt’s) car and pursuing the other woman through streets in what was described as “road rage.” Babbit was acquitted months later.
Per the Daily Mail:
*Ashli Babbitt was accused of “lying in wait for her then-boyfriend's ex-girlfriend,” chasing her down a highway with her (Babbitt’s) SUV, and deliberately rear-ending her (the ex-girlfriend’s) car three times “in an apparent fit of jealousy.” The ex-girlfriend wrote an affidavit supporting criminal charges.
*The ex-girlfriend sought a restraining order against Babbitt the day of the car crash. The ex-girlfriend asked the court for a second restraining order seven months later. She claimed Babbitt had been filing false police reports against her (the ex-girlfriend), lying under oath in court, and harassing her (the ex-girlfriend) with midnight phone calls. The restraining orders were “upheld.”
*Babbitt — “described by friends as a ‘boisterous firecracker’” — was charged for reckless endangerment, malicious property damage, and “dangerous driving.” (Babbitt’s husband said Babbitt was “very loud and opinionated, but caring, sweet, thoughtful, loving.”) Babbitt was found not guilty of any of the charges.
Perhaps (despite videos leave the matter unclear) Babbitt tried to enter — or permitted herself to be lifted toward entering — the Capitol building’s inner sanctum. Still no source (not even the Times or the Post) has suggested that Babbitt participated in breaking the glass of the inner sanctum’s doors.
Though the NY Times and Washington Post asserted that Babbitt was a QAnon enthusiast (and the Washington Examiner agreed), the Daily Mail did not publish such assertion. Though the Washington Post and NY Times asserted that Babbitt claimed Pence committed “treason,” the Washington Examiner and Daily Mail did not publish such assertion.
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Unlike George Floyd, Babbitt was not a drug-user and did not distribute “controlled substances.” She did not commit armed robbery, threaten or hit a pregnant woman with a gun, pass counterfeit bills...... She was not prosecuted 9 times, 5 times for felonies or arrested 19 times in her adulthood.
Babbitt tried to be a productive member of civilian society. She was a not-extraordinary, lower middle class, rather sparely educated, perhaps-slightly-below-average-intelligence “patriotic,” emotionally immature White, Trumpian “conservative” disgruntled by her condition and that of American society and its politics.
So, if (as was true) Chauvin murdered Floyd and violated Floyd’s 4th amendment right not to suffer excessive force, then, a fortiori, all Americans and federal and District of Columbia law-enforcement authorities ought to recognize that the gun-firing Black Capitol cop murdered Babbitt and violated her 4th amendment right not to suffer excessive force. The DOJ ought prosecute that Black cop for violation of Babbitt’s 4th amendment right. The District of Columbia U.S. Attorney ought file a murder charge against that Black cop.
II. THE DISTRICT OF COLUMBIA’S NOT PROSECUTING THE CULPRIT COP FOR MURDERING ASHLI BABBITT
A. Which Degree of Murder Did the Babbitt-killing Cop Commit?
Code of the District of Columbia § 22–2103 (Murder in the second degree) provides:
In the Ashli Babbitt killing case, the § 22–2103 key words are “malice aforethought.”
At common law, murder was defined as killing with “malice aforethought.” Such “malice” could be express and implied.
Express malice murders included killings where a person intended to cause death or grievous bodily harm. Implied malice murders included killings that occurred while a person was committing a felony (also called felony murder) or deaths resulting from an action that displayed a “depraved indifference to human life (also called depraved heart murder).”
Currently, “malice aforethought” is the mental element (or mens rea) required to prove 1st degree murder in federal law and in the law of some U.S. states.
Code of the District of Columbia § 22–2101 (“Murder in the first degree”) provides:
“Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate an offense punishable by imprisonment in the penitentiary, or without purpose to do so kills another in perpetrating or in attempting to perpetrate any arson, as defined in § 22-301 or § 22-302, first degree sexual abuse, first degree child sexual abuse, first degree cruelty to children, mayhem, robbery, or kidnaping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, or in perpetrating or attempting to perpetrate a felony involving a controlled substance, is guilty of murder in the first degree. ....”
In the Ashli Babbitt killing case, the § 22–2101 key words are:
“Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate an offense punishable by imprisonment in the penitentiary....”
The terms “kills...purposely...of deliberate and premeditated malice” could contemplate not only clear, direct, conscious homicidal intent but also sundry species of wilfulness, including the wilfulness of a “depraved heart.” Recall that at common law, “depraved heart” (or “depraved indifference” or “depraved mind”) homicide was “malice aforethought” homicide, which was 1st degree murder.
PAGE 7 _______________________________________________________________
Some District of Columbia precedent can support the argument that depraved heart murder is 1st degree murder in the District of Columbia — that depraved heart murder fits the terms of Code of the District of Columbia § 22–2101 (supra).
In Byrd v. United States, 500 A. 2d 1376 (DC: Ct of Appeals 1985), where one issue was whether felony murder was 1st degree murder, the court observed:
“Generally, at common law, murder is an unlawful homicide committed with malice aforethought. .... Malice aforethought may be express or implied... .... Malice aforethought is a term of art...that denotes four types of murder, each accompanied by distinct mental states: 1) intent to kill; 2) intent to do serious bodily harm; 3) depraved heart; and 4) felony murder. .... “* * * “Our decisions also have consistently viewed evidence that a killing occurred in the commission of a felony as an alternative means of demonstrating common law malice. For example, we explained in Shanahan v. United States, 354 A.2d 524 (D.C.1976) that: “‘Felony murder is a special crime of peculiar magnitude deemed to warrant proof by unique fashion. Malice, an essential element of murder, is implied from the intentional commission of the underlying felony even though the actual killing might be accidental.’ “In summary, the common law background of the first-degree murder statute supports the view that the killing of one person is but one offense of first-degree murder, even though the defendant harbors dual states of mind — premeditation and the intent to commit a felony.”
So, in Byrd, supra, the court equated felony murder with common law malice aforethought murder and held that such murder was 1st degree murder — murder that fit District of Columbia’s 1st degree murder statute. One may infer that any malice aforethought murder would fit the same statute — hence that depraved heart murder, too, fits that statute. That inference is reinforced by the opinion of NEWMAN, Associate Judge, concurring in the Byrd decision:
“I join the opinion of [the court] in all respects save one, and write separately only to highlight an additional area of concern which I have. I have serious doubt as to whether second-degree murder is a lesser included offense of felony murder.”
If 2nd degree murder is a lesser offense included within felony murder, then felony murder must be an offense higher than 2nd degree murder; and only 1st degree murder is a higher offense. Hence. felony murder must be 1st degree murder — because it is homicide to which the law imputes malice aforethought.
But District of Columbia judicial precedents suggest that “depraved heart” homicide is 2nd degree murder, not 1st degree — despite the § 22–2101 terms “kills...purposely...of deliberate and premeditated malice” fit the common law term concept “malice aforethought.” District of Columbia precedents have tended to equate “depraved heart” homicide with 2nd degree murder.
In Jennings v. United States, 993 A.2d 1077 (2010), the prosecution charged 1st-degree “premeditated murder while armed, possession of a firearm during a crime of violence, and possession of a prohibited weapon.” After jury trial, the defendant “was acquitted of first-degree murder but convicted of second-degree murder, as a lesser-included offense....”
The defendant appealed. The appeal claimed the trial court committed reversible error by instructing the jury that it could find the defendant guilty of “the lesser-included charge of 2nd degree murder.” The prosecution suggested the evidence supported a 2nd degree murder verdict because the defendant fired the shots into group of possible victims, which conduct evinced a conscious disregard of extreme risk of someone’s death or serious bodily injury.
The trial judge had ruled a 2nd degree murder instruction was appropriate per “depraved heart” murder theory. The appellate court affirmed the trial judge’s ruling.
No significant social, public policy, jurisprudential, or moral effect follows from a legal determination that the killer cop committed 2nd degree murder rather than 1st degree. The only real or practical significance is difference of duration of incarceration. But 2nd degree murder maximum punishment can equal 1st degree murder maximum punishment, and, at low end, the difference is rather minor. So, a 2nd degree murder conviction’s real or practical effect is just very insignificantly different from the effect of a 1st degree murder conviction.
[endnote 7 ]
The District of Columbia U.S. Attorney ought to prosecute the killer cop for 2nd degree “depraved heart” murder. The prosecution would be eminently tenable. A conviction would accomplish legal, social, and moral justice.
The practical problem would be demographic. Blacks constitute about 48% of the District of Columbia population. Too many D.C. Blacks are poorly educated, irrationally angry, emotionally immature BLM types — anti-White racists who adhere to the woke tenet that Whites deserve legal protection notably inferior to the protection the law “owes” Blacks. But the DOJ owes the law, society, justice, and the Attorney General’s Oath of Office the DOJ’s unwavering manifest assurance that federal law-enforcement will not falter because of woke political pressure or the prospect of a BLM/anti-White-biased jury.
PAGE 8 _____________________________________________________________B. Why the Black Cop Is Guilty of MURDERING Babbitt 1. The Malice Aforethought Required for Murder Conviction
In Comber v. United States, 584 A.2d 26 (D.C. Ct of Appeals 1990), the Court stated:
“Examples of conduct rising to the level of depraved heart malice include:
firing a bullet into a room occupied, as the defendant knows, by several people; ... [or] shooting into... a moving automobile, necessarily occupied by human beings....”
Comber, supra, in its footnote 13
In Powell v. United States, 485 A.2d 596 (D.C. Ct of Appeals 1984), the defendant disregarded a police officer's signaling to stop the defendant’s car and drive it to roadside. He led police into a harrowing high speed chase, sped through a tunnel at faster than 90 MPH, turned onto a congested exit ramp blocked by vehicles, rear-ended another vehicle, and, so, killed one of its occupants.
The jury found that the defendant committed 2nd degree murder because his conduct “showed a wanton, reckless disregard for life.” The verdict was upheld. The court compared defendant’s conduct to firing a gun into a crowd or room occupied by many people (as Babbitt’s killer had done).
Several videos show the killer cop’s location before, when, and after he shot Babbitt. He was positioned mostly behind (inside) what seems a doorway, side-hallway, or alcove that borders or intersects the left wall of a main hallway located past the interior door the glass of which crowd-members broke. Hereinafter, for brevity’s sake, I shall call the doorway, side-hallway, or alcove “the alcove” and shall use “the main hall” to denote the main hallway located beyond the interior door the glass of which crowd-members broke.
About 20 seconds or longer before the cop fired his gun, only his gun-hand and and its forearm showed beyond the alcove. Then, just very briefly (for about one second) — an instant before he fired, exactly when he fired, and an instant after — his gun-hand, its arm, one shoulder, about half his torso, and maybe part of his head protruded beyond the end of the alcove and into the main hall.
Throughout — before and after he fired and when he fired — the cop appeared not positioned well enough to discern whether any particular crowd-member was undertaking to engage in any act that could threaten bodily harm of any other individual, including himself (the cop) or any House Member or other person possibly present in the main hall beyond the interior door the glass of which crowd-members had broken. Actually, not before, when, or after the cop fired his gun, had any crowd-member, or Congress Member, or anyone else entered the main hall.
The cop was about 12 (or more) feet away from Babbitt at the moment of her seemingly attempting to enter into the main hall. When the cop fired his pistol, he jerked his gun-hand and its arm forward toward the crowd, his motion arguably implying rage or hate or contempt — surely indicating lack of professional control. Viewing the video scrupulously, one cannot deduce that the cop pointed his gun at Babbitt or any other particular person, rather than simply at the crowd congregated at the interior door the glass of which some crowd-members had smashed.
The cop has insisted that he spoke a warning that he would fire his gun if Babbitt went past the door into the main hall.
[endnote 8 ] I have encountered no video having a soundtrack that evidences the cop’s having uttered a warning before he fired into the crowd. In its notice that it would not prosecute, the DOJ did not assert that the cop warned anyone that he might fire his gun.
[endnote 9 ] I have not encountered any official assertion that the cop identified himself and uttered an “I-will-shoot” warning, or any warning, before he fired.
But suppose, for argument, the cop did utter an adequate warning loudly and clearly enough for Babbitt to have been heard it. Still, the cop’s deadly force use was depraved heart murder. He shot into a crowd, many of members of which had not reached the door the glass of which a few crowd-members smashed. The crowd included police. No crowd-member had passed beyond the door.
Only Babbitt had maneuvered any body-part even inches into the main hall. At most, she had put beyond the door’s broken glass, into the main hall, only her head, part of her shoulder, and a spare portion of her upper torso. She was not brandishing a weapon, but was unarmed. She had not done anything that suggested she would attack a law-officer, or anyone else. She was a rather small (5’2,” 110-pounds) woman.
The killer was a male cop presumably trained sufficiently to subdue an unarmed small woman without firing a bullet into her.
[Cf. endnote 15.
] Babbitt and all other crowd-members were still located at the outer side of the door — not in the main hall. There — where the crowd and Babbitt remained — numerous Captiol police, even SWAT-seeming officers, were endeavoring to prevent the crowd’s entering the main hall and had begun creating a degree of crowd-control and order.
[endnote 10 ]
If the killer-cop could distinguish Babbitt from any other crown member, the killer cop could witness the active presence of a substantial number of Capitol police endeavoring, with some success, to quell the crowd’s unruly activity. Babbitt did not threaten those other Capitol police (or anyone else). Actually, at the pertinent scene, zero crowd-members were threatening any police.
One would not wax irrational if one wondered whether the killer cop fired into the all-White, Trump supporting, anti-Biden, anti-woke, anti-BLM, anti-Democrat crowd because he — a near-certainly Biden-supporting Democrat Black man — hated the members of that crowd. And the DOJ ought to have investigated that possibility — just as near-certainly Biden’s DOJ investigated the possibility that Chauvin was a Black-contemning bigot and Chauvin’s Floyd-murder a hate crime.
[endnote 11 ]
The Babbitt-killing cop’s conduct was a classic case of depraved heart homicide — quite the exemplar case the D.C. Court of Appeals put in footnote 13 of Comber v. United States (supra):
“firing a bullet into a room occupied, as the defendant knows, by several people; ... [or] shooting into... a moving automobile, necessarily occupied by human beings....”
And the Babbitt-killing cop’s conduct paralleled the 2nd degree murder act of the defendant of Powell v. United States (supra) — that defendant’s leading police into a harrowing high speed chase, the defendant speeding through a tunnel at faster than 90 MPH, turning onto a congested exit ramp blocked by vehicles, striking the rear of another vehicle, and killing one of its occupants: conduct that parallels firing a gun into a crowd.
PAGE 9 ______________________________________________________________2. Would the Babbitt-Killing Cop Have a Defense? (a) Lack of foreseeability of harm? Defendant’s act not the harm’s proximate cause? Harm and proximate cause attributable to victim’s pre-existing condition?
Quite enough judicial precedent indicates, compellingly, that the Babbitt-killing cop cannot claim justification or excuse.
Richman v. Sheahan, 512 F. 3d 876 (7th Cir. 2008) is an example. In Richman, Jack Richman [hereinafter called “Jack”], was a grossly obese 34-years-old man, 6 feet 2 inches tall and weighing 489 pounds. Jack and his mother [hereinafter called “Mom”] were in court and waiting for Mom’s traffic ticket case to be called. At the end of the court day, the judge told Mom he was continuing the case to the next day. Jack and Mom were irate, protested strenuously. The judge listened a while, then demanded they be quiet and threatened to hold them in contempt.
Jack and Mom did not desist. The judge summoned deputy sheriffs. Two deputies responded. The judge told Jack and Mom to leave the court with the deputies, but Jack and Mom refused. The judge declared Jack in contempt, ordered the deputies to arrest him. Jack continued to refuse to leave peaceably. The judge upped Jack’s jail sentence until it reached 120 days.
When the deputies tried to remove Jack forcibly, he clung to a podium, and they could not dislodge him. Additional deputies entered the courtroom and tried to seize Jack. Mom began screaming and waving her cane. Three female deputies dragged her from the courtroom and took her cane away. She tried to reenter but was blocked by a deputy. Female deputies thrust her into a wheelchair, wheeled her to another courtroom, detained her briefly.
Back in the courtroom, Jack continued to cling to the podium until several deputies managed to drag him from the podium to the floor, where he lay prone, his face down, and struggling with “a swarm of deputies.” Deputies tried to handcuff him — eventually succeeded. The judge now absent, several deputies positioned themselves on Jack’s back. Jack screamed he could not breathe, then fell quiet. The deputies noticed Jack had urinated and defecated. His skin had turned blue. He was dead.
An autopsy report stated Jack died as a result of coronary artery disease exacerbated critically by “restraint hypoxia,” or “positional asphyxia,” which the cops caused by pressing on — compressing — Jack’s dorsal thorax.
[endnote 12 ]
The court’s holding was: Because of his infirmities, Jack did not have a normal life expectancy. But the force used against him by the swarm of deputies accelerated his death; how soon he would have died from causes unrelated to the use of that force is relevant only to damages — not to liability.
That holding means that, as a matter of law, the defendant deputy sheriffs had violated Jack’s civil right not to be victim of would-be-felonious homicidal “excessive force” exerted by the defendant deputy sheriffs.
One Richman v. Sheahan issue was “foreseeability — whether the cops ought to have foreseen that likely Jack’s death would result from their restraint tactics (“seizure”) including compressing Jack’s dorsal thorax while Jack was prone and face-down. The court’s holding tells an affirmative answer. The foreseeability matter was entwined with the issue whether the cops were accountable despite Jack’s pre-existing poor health contributed to causation of Jack’s death, which issue is subsumed in the issue whether the cops’ tactics formed the proximate cause of Jack’s death.
The same facts would have supported a 2nd degree murder verdict against the defendant cops. The cops’ “force” was “excessive” because the cops callously disregarded the dire, imminently fatal condition their conduct caused Jack to suffer. The cops’ callous disregard constituted depraved heart malice paralleling the depraved heart malice of the Powell v. United States defendant who, during an extremely high-speed auto chase, turned his car onto a congested highway ramp blocked by vehicles and caused his car to rear-end another car and kill one of its occupants.
Unlike Richman v. Shehan, the Babbitt murder case does not involve an issue of “foreseeability,” “proximate cause,” or death-causative pre-existing physical infirmity. The only issue is whether the cop’s homicidal act was willful and neither justified nor excusable.
[endnote 13 ]
No evidence suggests — or could suggest — Babbitt suffered a physical infirmity without which the cop’s bullet would not have killed her. No evidence could suggest the cop could not have foreseen that someone would die or be injured by his firing his gun into the crowd. The DOJ conceded that the cop’s bullet was the proximate cause of Babbitt’s death; and a medical examiner concluded that the cop’s bullet killed Babbitt and that Babbitt’s death was homicide.
[endnote 14 ]
(b) Culpable intent or willfulness; conduct not justified or excused by circumstances; victim not threatening or resisting or evading arrest
Above-discussed precedents — Comber v. United States; Powell v. United States; Jennings v. United States; and Richman v. Sheahan — indicate that the Babbitt-killer cop’s homicidal act was willful and neither justified nor excusable.
The cop’s act was “willful” at least because the law imputes willfulness — “malice aforethought,” even intent — to a “depraved heart” homicide (a lethal act done with deprave disregard of foreseeability that very likely the act would cause the death of the person it killed). Apart from such legal niceties, the cop’s act was patently willful because no sane person could expect that if he fired a gun into a crowd the bullet would not kill or harm a single crowd-member.
The cop’s act was objectively unreasonable, because in the circumstances of, and surrounding, Babbitt’s killing, no reasonably prudent police officer would have fired a gun into the crowd. Babbitt did not pose a significant immediate threat of death or serious injury of the killer-cop or anyone else.
In United States v. Koon, 34 F. 3d 1416 (9th Cir. U.S. Ct of Appeals 1994), two Los Angeles police officers, Sergeant Koons and Officer Powell, were convicted for deprivation of rights under color of state law — violation of 18 U.S.C. § 242.
After drinking malt liquor with two friends, Rodney King left a suburb of Los Angeles and began driving. He was intoxicated. California Highway Patrol (“CHP”) officers observed King's vehicle speeding on a Freeway. The officers began pursuing and radioed for help. Several Los Angeles Police Department (“LAPD”) units joined the pursuit. One unit was manned by Powell and a trainee. The pursuit ended when King stopped at an entrance of the Hansen Dam Recreation Area.
Officers ordered King and his passengers to exit King’s car. King was ordered to assume a “felony prone position” — to lie on his stomach, arms behind his back, legs spread, heels turned toward the ground, and head turned away from the officers. King exited his car but did not lie down. Sergeant Koon arrived and took command. Police officers Briseno and Solano arrived soon after. Again, officers ordered King to lie in a felony prone position.
Eventually King dropped to his hands and knees, but did not assume the felony prone position. Officers Powell, Wind, Briseno, and Solano tried to put him in that position, with “team takedown” or “swarm.” King became combative. The officers retreated. Koon fired taser darts into King.
King attempted to get up. Powell and Wind struck King with batons. Powell struck King repeatedly. Powell’s baton-blows fractured King's right leg. Powell struck King on the chest or upper abdomen. King rolled onto his stomach and lay prone. The officers suspended use of force and stepped back for about ten seconds. Powell began to reach for his handcuffs, and the trial court found that movement to be evidence that Powell perceived King no longer a threat.
Briseno moved forward and used his left foot to stomp King in the upper back or neck. King's body writhed in response. Powell and Wind began striking King again, with batons. King put his hands behind his neck and was handcuffed.
After King was handcuffed, Powell radioed for an ambulance. Powell sent two messages to other officers. The message said “ooops” and “I havent [sic] beaten anyone this bad in a long time.” Koon sent a message to a police station: “U[nit] just had a big time use of force.... Tased and beat the suspect of CHP pursuit big time.”
A federal grand jury indicted Powell, Wind, and Briseno, and Sergeant Koon. Count 1 charged Powell, Wind, and Briseno for violating 18 U.S.C. § 242 by willfully depriving King of his constitutional rights and violating also 18 U.S.C. § 2 by aiding and abetting each other. Count 2 charged Koon for violating 18 U.S. Code § 242 by willfully permitting officers to strike King unlawfully and willfully failing to prevent officers’ assaulting King. Briseno and Wind were acquitted. Powell and Koon were found guilty of violating § 242.
PAGE 11 ________________________________________________________________
In his appeal, Powell argued that the trial court rendered erroneous and prejudicial jury instructions.
Powell challenged these instructions:
*It is not necessary for you to find that a defendant was thinking in constitutional terms at the time. You may 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, provided that you find that the defendant intended to accomplish that which the Constitution forbids.
*The government may meet its burden, even if the defendant was motivated by fear, anger, or some other emotion, provided that the intent which I have described to you is present.
*The term "willfully" as used in these instructions to describe the alleged state of mind of a defendant means that he knowingly acted or failed to act deliberately and intentionally as contrasted with accidentally, carelessly or unintentionally.
The Court of Appeals held all three instructions correct and affirmed Powell’s conviction. The Court held Powell's conduct willful and objectively unreasonable.
For the Babbitt-killing, the importance is that willfulness (even malice aforethought or intent) is a matter of law and objective fact, not a cop’s subjective state of mind. The law will infer willfulness (or malice aforethought or intent) on premises of details of the defendant’s conduct.
Willfulness is imputed to conduct that is empirically consistent with conduct that, per objective, empirical fact would not occur save for willfulness. Willfulness is imputed as if the defendant cop’s conduct matched conduct of culprit cops who express intent of using excessive force to violate a victim’s 4th amendment right not to suffer excessive official force, cops who express intent of causing death or serious harm to a victim who did not pose an immediate threat of harming anyone or whose subdual did not require use of deadly or gravely harmful force.
The law presumes that ordinarily a person intends all natural and probable consequences of an act knowingly done. Willfulness is imputed to the actor if, in the circumstances, the actor ought to have foreseen that his act(s) would produce the consequence(s) that actually occurred.
[endnote 15 ]
The DOJ said it decided not to prosecute the Babbitt-killing cop because, the DOJ alleged, it could not prove the killer cop acted willfully and did not either (a) “reasonably believe...it was necessary to do so in self-defense or in defense of the Members of Congress and others evacuating the House Chamber” or (b) “act out of fear, mistake, panic, misperception, negligence, or even poor judgment.”
As King’s conduct did not threaten imminent harm of his police assailants, a fortiori Babbitt’ conduct did not threaten imminent harm of either the cop who killed her or any other person.
endnote 15.] And as fear, mistake, panic, misperception, negligence, or even poor judgment could not justify or excuse Powlell’s conduct, a fortiori such faults (fear, ...mistake, ... negligence, poor judgment) cannot justify or excuse the conduct of the Babbitt-killer cop
endnote 15.] Other precedents provide much reinforcement.
(c) The Garner rule — objectively unreasonable use of force
The pertinent leading case is Tennessee v. Garner, 471 US 1 (U.S. Supreme Court 1985), where the Court held that a policeman cannot use deadly force unless such force is necessary to prevent the suspect’s escape and the officer has probable cause to believe that the suspect poses a significant IMMEDIATE threat of death or serious physical injury to the officer or others.
In Garner, officers Hymon and Wright were dispatched to answer a “prowler inside call.” When the cops arrived at the scene, a woman told them she had heard glass breaking and that “someone” was breaking in “next door.” While Wright radioed the dispatcher, Hymon went behind the house. He heard a door slam and saw someone run across the backyard.
The fleeing suspect, Edward Garner, stopped at a 6-feet-high chain link fence at the edge of the yard. With the aid of a flashlight, Hymon saw Garner's face and hands. He saw no sign of a weapon, and, though not certain, was "reasonably sure" and "figured" that Garner was unarmed. Hymon thought Garner was 17 or 18 years old and about 5' 5" or 5' 7" tall.
While Garner was crouched at the base of the fence, Hymon shouted “police, halt” and stepped toward Garner. Garner began to climb over the fence. Convinced that if Garner climbed over the fence he would elude arrest, Hymon shot Garner. The bullet killed Garner.
PAGE 12 _______________________________________________________________
Observing that the case was controlled by 4th amendment prohibition of unreasonable seizure (of a person), the Court stated: “To determine the constitutionality of a seizure “[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” [My emphases, LRJ]
Per the Garner-case Supreme Court:
*The same balancing process indicates that, notwithstanding probable cause of seizing a suspect, an officer may not always do so by killing him. “The intrusiveness of a seizure by means of deadly force is unmatched. The suspect's fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment.”
*Deadly force is a self-defeating way of apprehending a suspect and setting criminal justice mechanisms in motion. It guarantees that the justice mechanisms will not be set in motion. “While the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts, the presently available evidence does not support this thesis.”
*Most police departments have forbidden use of deadly force against nonviolent suspects. “If criminal law enforcement authorities have abjured use of deadly force in arresting non-dangerous felons, we must doubt that the deadly force is an essential attribute of the arrest power in all felony cases. We are not persuaded us that shooting non-dangerous fleeing suspects is vital enough to outweigh the suspect's interest in his own life.”
*Deadly force is not generally a reasonable means of arrest in most circumstances. In most circumstances, deadly force is constitutionally unreasonable. “It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead.”
*But, where an officer has probable cause to believe a suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. “Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that the suspect 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.” [My emphases, LRJ]
Recall that the Babbitt-killing cop fired his gun into a crowd — an act that, itself, evinces “depraved heart” — depraved disregard of likelihood of serious injury or death of any member of the crowd, even someone utterly innocent, even another police officer, since several police were present at or near the interior door the glass of which a few protestors had broken. And that cop committed that depraved act despite no one, surely not Babbitt, posed an immediate threat of harming the cop or a Congress-Member or anyone else who might have entered the main hall (legally or not).
(d) The Garner rule applied to particular pretexts the DOJ asserted to excuse its decision not to prosecute the Babbitt-killing cop
In Abraham v. Raso, 183 F. 3d 279 (3rd Circuit 1999), Kimberly Raso, an off-duty police officer, shot and killed Robert Abraham [hereinafter “Abraham”] in a mall parking lot while Abraham was trying to escape from a Macy's store where he had been stealing clothes. Raso was working as a mall security guard at the time and testified that she fired at Abraham because he tried to hit her with his car after she blocked its path.
Abraham’s survivor, the deceased’s estate’s administratrix, alleged that Raso used excessive force. The administratrix alleged further that Raso was not in front of the vehicle, Raso’s life was never in danger, and Raso fired simply to prevent Abraham’s evading arrest. The administratrix adduced physical evidence showing that the bullet shattered the driver's side window, rather than the front windshield, and struck Abraham in his left arm before passing into his chest.
The trial court had held that notwithstanding whether Raso's deadly force was may have been justifiable in self-defense, Abraham posed an immediate threat of physical harm to the public, so that the shooting was objectively reasonable. In a deadly police force case, the matter is whether deadly force was “objectively reasonable” — not a matter of the subjective perception(s), feeling(s), motive(s), or intent(s) of the cop who used deadly force. That legal rule has been well-established since 1989, if not earlier [see this (referenced supra endnote 1) and this (discussed above)].
PAGE 13 ______________________________________________________________
The trial court stated:
“[T]his Court finds that the following material facts have been established: (1) Raso was advised that Abraham was intoxicated or under the influence; (2) Abraham evaded apprehension by Mall security guard Roberto Avilez, got into his car and disobeyed Raso's commands that he not get into the car or that he exit the car; (3) Abraham recklessly drove his car in reverse and at a high rate of speed—with Avilez, Redding and Raso all in close proximity to the car— out of his parking space and rammed into another parked car; (4) Raso, in police uniform, positioned herself towards the front of Abraham's car and commanded him at least half a dozen times to stop the car and get out of the car, and effectively warned him that she would use her gun to stop him if he kept driving at her;(5) Raso was close to Abraham's car as Abraham inched his car towards her and, at some point, Abraham accelerated his car and drove it towards Raso; (6) Raso believed that Abraham was trying to hit her or was acting with reckless disregard for whether or not he hit her; and (7) Raso jumped to her right out of the car's path and fired her gun once at the driver-side window.”
On appeal, the 3rd Circuit U.S. Court of Appeals responded:
● Though Abraham had stolen clothing, resisted arrest, hit or bumped a car, and was believed reasonably to be intoxicated, still a jury could conclude reasonably that Abraham did not threaten death or serious bodily injury of others and that Raso could not believe, reasonably, that he did. ● In summary judgment process, the trial judge eschewed finding that Raso's gun-firing was justifiable in self-defense. But the trial judge said Raso believed Abraham was trying to hit her or acting with reckless disregard of whether he hit her. Since the evidence of Abraham’s public threat depends largely, if not entirely, on any threat of harming Raso, the issue is whether a court can decide on summary judgment that Raso's shooting was objectively reasonable self-defense. ● Security officers testified that Raso was in front of the car. But the fatal shot came through the driver's side window. The trial judge emphasized that the autopsy report described the bullet’s path as “slightly from front to back and slightly from above downward.” While that trajectory may rule out Raso’s being behind the car, it doe not preclude a jury’s finding that Raso fired from the side of the car and that she was never in front of the vehicle. ● The bullet shattered the driver's side window, struck Abraham first in his arm then passed into his chest. The autopsy report said the bullet’s path was “slightly from front to back.” But the report said also, clearly, that “[t]he course of the gunshot wound is from left to right.” With this physical evidence, a jury could decide reasonably to reject the security officers' testimony. ● Suppose Raso was in front of the car at some point. Still, the video tape evidence showed a wide lane separating rows of parked cars and open parking spaces near where Abraham backed out. “Raso is shown walking around immediately after the shooting, which suggests that even if hit or brushed by the car, she was not significantly injured. Together with the question of how fast Abraham accelerated, such facts raise genuine issues respecting whether Raso had room to avoid Abraham’s car. Since Raso's shot was fired through the driver's side window and hit Abraham in the left arm, Raso may have avoided the car, taken aim, and fired. A jury might not believe the officers' testimonies that Raso was simultaneously in front of the car, being struck by it, jumping out of the way, and firing through the driver's side window.” ● The ultimate question is not whether Raso really was in danger as a matter of fact, but whether Raso could believe, objectively reasonably, that she was in danger. After weighing the evidence, the jury may conclude either that Raso could not have believed, objectively reasonablly, that she faced a significant threat of death or serious physical injury. The Court could not say, as a matter of law, that, objectively reasonably, Raso could believe she was in danger. ● A jury could find that Raso did not fire until she could not believe, objectively reasonably, that she was in peril. “A passing risk to a police officer is not an ongoing license to kill an otherwise unthreatening suspect.” [My emphasis, LRJ] If the jury decided that Raso did not fire until safely out of harm's way, “the jury could also decide, reasonably, that Abraham's conduct was not dangerous enough to warrant Raso's use of deadly force.”
The Court of Appeals reversed the trial court’s summary judgment that held Raso’s deadly force “objectively reasonable.” The Court held that a jury could reject Raso’s self defense pleading because the objective facts did not indicate Abraham posed a threat of immediate physical harm of Raso or anyone else.
But, unlike Ashli Babbitt, Abraham was apparently drunk and out of control, evaded apprehension by Mall a security guard, got into his car and drove recklessly in reverse at high speed, and rammed his car into parked car.
Unlike the Babbitt-killing cop, Raso positioned herself towards the front of Abraham's car and commanded Abraham at least half a dozen times to stop his car and exit it. And Raso warned Abraham effectively that she would fire her gun to stop him if he kept driving at her. But the Babbitt-killing cop did not warn Babbitt — at least not so that anyone could observe.
Unlike the Babbitt-killing cop, Raso was close to Abraham's car as Abraham inched his car towards her and when Abraham accelerated his car and drove it towards Raso. The Babbitt-killing cop never approached Babbitt. Babbitt never attacked the cop. Babbitt never disobeyed a cops command. The killer cop never uttered a warning or command or he did not utter anything loud or clear enough to be heard by anyone. Except the Babbitt-killing cop, himself, no one, not even other cops, said the killer cop or any other cop uttered a warning or command to Babbitt.
Put as the defense would present it, the argument is that the available evidence can support a finding that the cop believed, reasonably, that he had to fire into the crowd to defend himself or Members of Congress and others evacuating the House Chamber or that he acted “out of fear, mistake, panic, misperception, negligence, or mere poor judgment.”
Being perverse, I attack first the last of the excuses the DOJ hypothesized — “poor judgment.” If judgment is “poor,” it is not reasonable, hence cannot be “objectively reasonable.” The same conclusion fits an excuse of “negligence” — which, by definition, is not reasonable.
[endnote 17 ] A panicked act cannot be reasonable conduct, because, by definition, panic deprives the actor of ordinary prudence — stops or impairs the operation of reason.
The “misperception” excuse bears specious complexity. One might suppose a court must consider whether the actor may have misperceived for some “understandable,” hence “reasonable,” reason. Not so. Still the question is objective reasonableness — specifically what a reasonable, prudent police officer would have done in the circumstances in which the defendant cop acted. If a reasonable, prudent cop would not have perceived what the defendant perceived, then the “misperception” was objectively unreasonable.
But such analytic complexity ought not be entertained. A “misperception” is, by definition, error; and no “error” can be objectively “reasonable.” Likewise, “mistake.” Per the objectively reasonable standard, if the “take” is a mistake,” it is so because it is objectively unreasonable — an inference, deduction, premise, or conclusion an ordinary, reasonable police officer would not have “taken.”
Acting “out of fear”? If fear is the explanation of the cop’s act, the cop’s act was objectively unreasonable. To act objectively reasonably, the cop must think beyond his fear to consider what would be reasonably prudent and then acted according to an indication of reasonable prudence.
Yes. Law-enforcement circumstances can be fraught with extreme pressure in contexts of rapidly occurring drastic events. Still, the law requires that the cop think much as the circumstances reasonably permit— not merely engage in fear-induced reflex action. Therefore, fear is not an “excuse” — surely not a justification.
So, the Babbitt-killing cop’s act could be justified only if it was objectively reasonably justifiable as defense of self or others.
Several videos show, from several angles, that at the time the cop shot Babbitt and for substantial time before and after, only the cop was in the main hall. The cop, himself, was just very briefly in the man hall and only with parts of his body. He was not near Babbitt, but about 12-or-more feet away and in an alcove separated from main hall and from the door through the broken part of which Babbitt seemed to try to put her body. When the cop fired into the crowd, Babbitt had not put more than her head, shoulders, and upper torso through the hole broken from the door’s glass.
The Garner decision indicates that the Garner-case culprit cops ought to have risked the suspects getting over the fence and the police department’s having to apprehend the suspect otherwise than by shooting him to death. Partly, and critically, the reason was that the suspect appeared unarmed and not dangerous, despite he had broken into a house.
Babbitt did not break the glass of the interior door through a hole of which she seemed to try to maneuver. Babbitt was an unarmed a small woman who had not acted in any way that suggested she threatened to harm anyone, physically. Unlike Babbitt, the cop was armed and trained to apprehend unarmed small women without using of deadly force.
In Zion v. County of Orange, 874 F. 3d 1072 (9th Circuit U.S. Ct of Appeals 2017), Connor Zion suffered several seizures. Then, seemingly, he had a seizure-episode where he bit his mother and cut her and his roommate with a kitchen knife. Police were called. Deputy Juan Lopez arrived. As Lopez exited his police car, Zion ran at him and stabbed his arms. Deputy Michael Higgins drove up separately and witnessed Zion’s knifing Lopez.
Two police videos show the following events. Zion ran toward an apartment complex. Lopez Higgins shot at Zion from about fifteen feet away. Nine shots sounded. Zion fell to the ground. Higgins ran to where Zion had fallen and fired nine more rounds at Zion's body from a distance of about 4 feet. Zion curled up on his side. Higgins paused and walked in a circle. Zion was still moving. Higgins ran at Zion and stomped Zion's head 3 times.
Zion died at the scene. Zion’s mother filed a 42 U.S.C. § 1983 suit that claimed Higgins used excessive force. The trial judge granted summary judgment in favor of Higgins.
Zion’s mother [“Mom”] did not challenge Higgins's initial nine-round volley (presumably because not all shots hit Zion and likely none would have killed him. But Mom challenged (a) the second volley Higgins fired at close range while Zion was lying on the ground and (b) Higgins’s stomping Zion’s head.
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The Court of Appeals observed:
*When Higgins began firing the second volley, Zion had dropped to the ground, appeared to have been wounded, and was not making threatening gestures. Though Higgins could be sure Zion wasn't bluffing or just temporarily subdued, still Zion was lying on the ground and not in a position where he could easily harm anyone or flee.
*A reasonable jury could find that Zion was no longer an immediate threat and Higgins ought not have fired again unless Zion showed signs of threatening Higgins or trying to flee. Or, a jury could find that the second round of bullets was justified, but not the head-stomping. If a jury found that Higgins shot Zion or stomped on Zion's head after Zion no longer posed an immediate threat, Higgins would have been “on notice that his conduct would be clearly unlawful.”
The Court held Higgins was not entitled to qualified immunity. Usually (or most often) when such decision occurs, the cop loses — is found to have violated the deceased’s 4th amendment right.
In Smith v. Cupp, , 430 F. 3d 766 (6th Circuit U.S. Ct of Appeals 2005), Deputy Sheriff Martin Dunn killed Glen Smith. Smith was an arrestee who had gained control of Dunn's police cruiser. The Court affirmed the trial judge’s order denying Dunn qualified immunity.
While Dunn was on patrol in his vehicle, he responded to a report of harassing telephone calls received at the home of Janice Quarles, mother of Cheri Smith, who filed a civil rights suit against Dunn. Cheri Smith was living with Quarles at the time because she was separated from her husband, the decedent, Glen Smith [hereinafter “Smith”]. Dunn discussed the calls with Quarles and left.
Later in his shift, Dunn coincidentally observed Smith driving erratically. Dunn initiated a traffic stop and had Smith perform field sobriety tests. Though Dunn believed Smith had been drinking, Dunn concluded Smith was not impaired enough to justify arrest. Dunn suggested Smith ask a friend to pick him up. Smith left his car in the parking lot of an adjacent McDonald's.
Later that evening, Dunn responded to another report that Quarles's home received harassing phone calls. Hearing voice-recording evidence seemingly implicating Smith and suggesting Smith was at a certain MacDonalds, Dunn drove to a McDonald's parking lot where he left Smith earlier. Dunn saw Smith's car was still in the lot but had been moved to a different spot.
Dunn saw Smith enter another parked car. Dunn approached the car. Smith was in the backseat. Dunn questioned the driver, Smith's sister, and another passenger. Both said Smith had used Craig's cell phone to make several calls. Dunn arrested Smith for making harassing phone calls.
Dunn read Smith his Miranda rights, cuffed Smith's hands behind his back, double-locked the handcuffs, put Smith in the back seat of Dunn’s police cruiser, and secured the seat belt around Smith. Dunn patted Smith down, found no weapons or contraband. Dunn arranged that a tow truck remove Smith's car.
Smith was cooperative. But Dunn believed Smith was somewhat impaired. Dunn left his cruiser’s engine running to provide air conditioning. Dunn's cruiser was not equipped with a security partition. When Dunn left the vehicle to talk to the tow truck driver, Smith climbed to the front seat and took control of the cruiser. [The record does not explain how Smith could drive the cruiser with his hands handcuffed behind his back.]
Dunn insisted Smith directed the cruiser at him and the tow truck driver and that he (Dunn) shot Smith in self-defense as the cruiser was bearing down on him and the truck driver. The opposing parties (“plaintiffs”) insisted Smith was merely trying to flee in the cruiser and Dunn purposefully shot Smith under circumstances of no threat to Dunn or others.
Plaintiffs referenced the autopsy report as proof that all shots were fired either after the cruiser had passed Dunn or, at the earliest, while the cruiser was passing Dunn when Dunn was on the driver-side of the vehicle. The autopsy report described the path of the fatal gunshot: the bullet entered "into the left ear..., direction left to right, slightly back to front, and downward, passing through the left ear.” Plaintiffs adduced evidence that Dunn lied when he described the events.
Another on-scene officer said that immediately after the shooting Dunn said Smith had “gone for” Dunn's gun. That statement was a lie. Dunn stated in deposition that Smith was left sitting in the police cruiser with the windows rolled up. Later Dunn abandoned any argument that his actions were motivated by Smith’s trying to get his (Dunn’s) gun.
The court concluded:
Plaintiffs adduced evidence sufficient to show that Dunn's actions violated Smith's constitutional right. According to plaintiffs' evidence, Dunn shot Smith after the cruiser was past Dunn, when Smith did not pose immediate danger to anyone. Dunn's deadly force appeared specially unreasonable because Smith had been cooperative and was arrested for a nonviolent offence (harassing phone calls). Though possibly Smith endangered the public by driving off in a stolen police car, the danger was not grave enough to justify use of deadly force.
The Court affirmed the trial judge’s denying Dunn qualified immunity.
In the Babbit-killing case, the killer-cop had much less objective reason of firing his gun. With depraved heart, he fired into a crowd. The cop had no objectively reasonable cause of believing Babbitt posed an immediate threat to him (the cop) or anyone else.
Babbitt was not driving a car at the cop or at anyone else. She was unarmed. She had not harmed or threatened anyone at any time during which the cop might have seen Babbitt before she seemed to try to enter the main hall through the break of the interior door’s glass. Other Capitol police were near Babbitt and might have stopped her had the cop not shot into the crowd and killed her.
So, if (as appeared) the Smith-case cop violated Smith’s 4th amendment right (which meant that Smith’s death was cop-caused criminal homicide), a fortiori the Capitol cop murdered Babbitt.
In Curnow v. Ridgecrest Police, 952 F. 2d 321 (9th Circuit U.S. Ct of Appeals 1991), decedent, Steven Curnow [“Cudrow”], and Mercedes Taylor [“Taylor”]were standing in the kitchen of Curnow's home when a window was shattered by an object coming from outside the home. Curnow and Taylor believed someone shot at them and called police. Then Curnow took an HK-91semi-automatic rifle from a closet.
Police questioned occupants of a next-door house before going to Curnow's residence. Then, after examining the broken window of Cudrow’s house, the cops determined no shots were fired. Cops entered Cudrow’s house. Curnow showed Officer Randy Bias [“Bias”] the HK-91 and asked Bias whether having such weapon was legal. Bias answered the affirmative.
During the investigation Bias learned Taylor had been threatened by her ex-husband. After police left the scene, Officer Edward Luarca [“Luarca”] went to Taylor's ex-husband's residence to question him. The ex-husband denied participating in breaking of the window.
Bias’s supervisor ordered Bias to contact Cudrow’s neighbors to determine whether they saw or knew anything respecting the window-breaking incident. Bias interviewed the neighbors regarding any noise they might have heard or any other disturbances of the night before.
When Bias left the neighbors’ home, he heard shouting coming from Curnow's house. He looked through Curnow's window and, allegedly, saw Curnow bent over Taylor and slapping and shaking her and begging her to wake up. Bias then returned to the patrol car and called for backup. Luarca arrived, went to the same window, and saw what Bias had seen.
Bias and Luarca decided they needed a supervisor and additional backup. Bias radioed the request. Officer Krueger [“Krueger”] and Sergeant Compton [“Compton”] arrived. Compton viewed the scene and allegedly observed the HK-91 lying at the side of the decedent. Purportedly the officers were not concerned by the nature of the HK-91.
Compton devised a plan of entry. Luarca would stand at the window and aim his weapon at Curnow. If Curnow picked up the HK-91 in a threatening manner, Luarca would take “appropriate” action. The other three officers would break down the front door, enter, and attempt to rescue Taylor and prevent Curnow’s using the HK-91.
Allegedly, the plan went awry: The first door-break failed. When Curnow heard the cops trying to break in, allegedly he reached for the HK-91. Again the cops tried to break down the door, and they succeeded. Curnow had picked up the HK-91. Still at the window, Luarca yelled “freeze, police.” Compton and Krueger entered through the front door. Curnow raised his weapon. Luarca fired “in defense of the other officers.”
Curnow was seriously wounded. But, carrying his HK-91, he ran into the kitchen, opened the kitchen door, and exited the house. He turned and pointed the weapon at Luarca. Luarca fired a second shot which killed Curnow.
According to Taylor's statement, Curnow was not hitting her but simply holding her in his lap. She said Curnow did not reach for his gun before the police shot him. Curnow had been shot in the back by the first shot. Taylor added that the gun was unloaded and Curnow grabbed it by the muzzle as he tried to flee his house.
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The Court concluded: “Under Taylor's version of the shooting, the police...could not reasonably have believed...deadly force was lawful because Curnow did not point the gun at...[them] and apparently was not facing them when they shot him the first time. Thus, viewing the evidence in the light most favorable to the nonmoving party, the [defendant police] are not entitled to qualified immunity.”
If the jury believed Taylor’s account of the events, the jury would have to find that the cops could not believe, reasonably objectively, that Curnow posed an immediate threat of harm and that, therefore, that the cops’ deadly force was objectively unreasonable. If (as appeared) the cops violated Curnow’s 4th amendment right (which would mean Cudrow’s death was cop-caused criminal homicide), then a fortiori the Capitol cop murdered Babbitt.
Several times above, I showed that no evidence indicates, objectively reasonably, that Babbitt posed an immediate threat to anyone. Rather, all the evidence — its synergistic sum — shows, objectively reasonably, that Babbitt posed no threat that could have rendered objectively reasonable the cop’s shooting into the crowd and killing Babbitt.
Babbitt was not “escaping.” She was unarmed.
If a suspect seeks to escape when police demand he halt and submit to possible arrest, he is attempting to enter an area where his presence is illegal, since his proper presence is where police seek to “seize” him. In that “illegal” area, perhaps the fleeing suspect might harm others to assure his escape. But no one ordered Babbitt to “halt,” and she was not escaping anyone or anything.
At worst, Babbitt’s main hall entry effort paralleled the Garner suspect’s attempting to climb over the wall. If the Garner cop violated the Garner suspect’s 4th amendment right not to suffer “excessive” deadly force, then a fortiori the Babbitt-killing cop violated Babbitt’s same right.
Nothing suggested that the cop could not have “seized” Babbitt with non-deadly force had Babbitt succeeded in entering the main hall.
The cop could not defend a civil rights action with a claim that he feared Babbitt would harm him or someone else unless a reasonable person would conclude that the cop’s fear was reasonable. No “reasonable” person could find that the cop could feel such fear reasonably in the exact circumstances that preceded the cop’s firing his gun into the crowd.
Babbitt did not pose an immediate threat to the cop or to any other person. Babbitt had not committed a crime involving the infliction or threatened infliction of serious physical harm to any person. The cop — a trained law-enforcement officer — was presumptively capable of “seizing” Babbitt without using deadly force, or, at least, the cop’s training taught him that he was obliged to attempt to arrest Babbitt without shooting her.
Suppose Babbitt had entered the main hall and the cop sought to arrest Babbitt and Babbitt fought the arrest attempt with physical violence. If the cop could not subdue Babbitt with unarmed means but Babbitt (despite an unarmed woman) began inflicting physical harm on the cop and seemed able to harm the cop gravely, then perhaps the cop could draw his gun and shoot Babbitt. But Babbitt had not entered the main hall and had not hurt or threatened anyone.
In the Garner case, one police-process fault was that Officer Hyman’s deadly force prevented the suspect’s being processed properly by the criminal justice system’s machinery. Just so, the Babbitt-killing cop’s deadly force precluded determination whether actually Babbitt was guilty of any law-infraction(s).
Much irrefutable evidence proves that Capitol Police not only permitted protestors to enter the Capitol but even ushered protestors inside. Perhaps Babbitt was one such protestor.
Babbitt did not break the glass of the interior door that borders the main hall. Merely did Babbitt seem to try to enter the main hall through a hole made by others’ breaking the glass of the door.
Perhaps Babbitt’s only intention was to confront Congress-Members peaceably with a protest of the pending installation of a “President” fraudulently elected. We cannot know, because the cop killed her. Such benign intention’s realization would have been, at worst, a misdemeanor, not a cause of “depraved heart” use of deadly force.
PAGE 18 ______________________________________________________________(e) District of Columbia cases & federal 14-amendment/4th-amendment cases interplay to indicate, clearly, that the cop murdered Babbitt
The Capitol cop’s conduct fits perfectly the pertinent District of Columbia murder statutes. The cop fired into a crowd without justification (as if such act ever could be justified) — a “depraved heart” act. That “depraved heart” act caused Babbitt’s death — hence was murder.
The pertinent federal 14th amendment and 4th amendment decisional law supports powerfully the conclusion that the cop acted without justification or excuse, but clearly violated his professional and 4th-amendment/14th-amendment duty not to fire into the crowd, whether just irrationally, in panic, or for the purpose of “seizing” Babbitt with a bullet. No evidence suggests — and near-certainly no evidence could indicate — the cop was legally insane when he fired his gun into the crowd or that he suffered a temporary diminished capacity that the law might deem excuse.
The cop murdered Babbitt.
III. THE UNITED STATES DEPARTMENT OF JUSTICE’S DECISION NOT TO PROSECUTE THE CULPRIT POLICE OFFICER FOR VIOLATING ASHLI BABBITT’S 4TH AMENDMENT RIGHT NOT TO SUFFER UNREASONABLE OFFICIAL USE OF LETHAL FORCE
Above, this article observed (a) that qualified immunity and its special rules do not apply to 18 U.S. Code § 242 prosecutions, or any other criminal prosecutions and (b) that the DOJ played sleight of hand by mixing qualified immunity rules with 18 U.S. Code § 242 criminal prosecution rules — to be able to explain away, spuriously, the DOJ’s deciding not to prosecute the Black cop who killed Ashli Babbitt.
[endnote 18 ] The DOJ’s non-prosecution notice asserted:
“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. “*** ...[T]he [DOJ’s] 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 [leaving] the House.”
Above, this article showed, extensively, that the DOJ’s explanation clashes greatly with both fact and law. This article showed the factual and legal falsehood of the DOJ’s propositions (a) that the officer could believe (reasonably) that his lethal force was necessary for his self-defense or for defense of Members of Congress and others leaving the House and (b) that the law might allow that the cop’s homicidal act was justified or excused because the cop acted out of fear, mistake, panic, misperception, negligence, or even poor judgment.
Also above, this article showed that the law would deem the cop’s homicidal act “willful” — done with malice aforethought. And this article showed such act is murder.
This section will address the DOJ’s proposition that “the Supreme Court has interpreted [the term “willfully”] to mean that the officer acted with a bad purpose to disregard the law.” That proposition derives from a spurious (I believe disingenuous or deceitful) misapplication of civil-case qualified immunity rules to the matter of criminal [18 U.S. Code § 242] liability of the Babbitt-killing cop.
As observed in this article’s Preface, qualified immunity — solely a civil litigation creature — protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335 (U.S. Supreme Court 1986). See generally Mullenix v. Luna, 577 U.S. 7, 136 S. Ct. 305 (U.S. Supreme Court 2015). That “who knowingly violate the law” limitation does not ever apply to 18 U.S. Code § 242 (criminal) prosecutions — or to prosecutions of “depraved heart” murder or most, if not all, 2nd degree or 3rd degree murder cases.
Ironically, many qualified immunity precedents, including Mullenix v. Luna, supra [see also supra § II.B.2.(d) (pages 12-18, supra)] operate against the DOJ’s duplicitous conflation of qualified immunity rules and rules of 18 U.S. Code § 242 (criminal) prosecution.
I reference specially the rule (a) that in private-party, civil litigation of 4th amendment excessive force claims, the qualified immunity inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition” [Brosseau v. Haugen, supra, quoting Saucier v. Katz, supra] and (b) that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law” — where “knowingly” includes willfully as by conduct of a “depraved heart.”
So, the DOJ’s abstractions — self defense, defense of others, fear, mistake, panic, misperception, negligence, poor judgment — are invalid at least simply because they are abstractions the DOJ did not even begin to try to fit to the actual facts/evidence of the Babbitt-killing case. (And, as shown amply above, the “ fear, mistake, panic, misperception, negligence, or...poor judgment” abstractions are absurdly untenable in a 18 U.S. Code § 242 prosecution of a cop’s lethal use of deadly force.)
If the Babbitt-killing cop acted per mere fear or panic or mistake or misperception or poor judgment, or negligently, the cop was incompetent. Accordingly, should the Babbitt family sue the cop for violation of Ashli’s 4th amendment right, the cop would not be protected by qualified immunity. And such incompetence implies depraved disregard of the overwhelming probability — the patent foreseeability — that the act (firing into a crowd) would kill someone, depraved disregard that the law deems malice aforethought.
The cop’s deadly force was objectively unreasonable — a felonious violation of Babbitt’s 4th amendment right not to suffer unreasonable “seizure.” The Biden DOJ’s non-prosecution decision rests on false premises and reflects racism and flagrant political corruption. The cop murdered Babbitt. When, acting as a cop, a cop murders a suspect, beyond reasonable doubt the cop’s deadly force is a 4th-amendment-violating unreasonable “seizure.”
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The 4th amendment protects individuals against unreasonable seizures, including seizures of the individual’s body. A body seizure is unreasonable if the seizing law enforcement officer uses “excessive force” to seize the individual’s body (to arrest or restrain the individual). Graham v. Connor, 490 U.S. 386 (1989) (the leading case) AND Torres v. Madrid (U.S. Supreme Court decision rendered 25 March 2021), which decision ruled that a law-enforcement officer need not have seized the victim physically to be guilty of using 4th-amendment-violating excessive force. In Torres, supra, the victim thought the involved police were carjackers and fled in her vehicle. The Police officers fired their service pistols 13 times to stop Torres, and two bullets struck her. But Torres managed to escape and drove to a hospital 75 miles away “only to be airlifted...to [another] hospital..., where the police arrested her....” Torres sued the officers. She claimed they used excessive force against her — that the shooting was an unreasonable seizure. The Supreme Court held that the “required ‘corporal seising [sic]...’ can be as readily accomplished by a bullet as by the end of a finger.” The Fourth Amendment’s “focus” is “‘the privacy and security of individuals,’ not the particular manner of ‘arbitrary [governmental] invasion’.” The Court did not address whether the seizure was unreasonable, but only whether the shooting was a seizure. Hence the Court’s decision did not address whether the police were protected by qualified immunity or whether Torres was entitled to damages.
Though Chauvin is White and his victim a Black teen boy and Black cops have victimized White boys and not been prosecuted, I shall not address such disparities — partly because this article would grow to disquisition length and partly because while some such Black cops have eluded prosecution, others have been convicted, just as more-than-few such White cops have. The Floyd-killing/Babbitt-killing comparison suffices to impugn Biden’s administration, “woke” hypocrite Democrat politicians, BLM Blacks, and guilt-ridden “progressive” Whites. Also, if one is not a hypocrite, one must question, stringently, the bona fides of the Trump administration’s not pursuing 18 U.S.C. § 242 civil rights prosecution of Chauvin and his three police cohorts.
Quite so (for the reasons presented in my same 18 April 2021 Substack article), the DOJ ought win four convictions following the 18 USC § 242 indictments it obtained 7 May 2021 against Chauvin and his three cohorts. See supra this article’s § I.A [page 2 (supra)], under heading “Joe Biden’s Department of Justice decides not to prosecute the Black cop who killed Ashli Babbitt, but decides to prosecute cops who killed George Floyd.”
Floyd was prosecuted, or at least arrested and charged, nine times, for felonies at least six times, one time for robbing a pregnant woman and pointing a pistol at her belly or joining in an armed robbery of a woman whom the robbers pistol-whipped in the presence of her children — and for which crime Floyd was sentenced to a prison term. Floyd was arrested or charged at least 19 times during his adulthood. Some woke apologists claim Floyd was fundamentally good and had big dreams. But for most of his adult life, Floyd dealt and used drugs and engaged also in other criminal conduct; and if he had “big dreams,” the dreams never manifested as contributions to society, rather than as social costs.
Per the Air Force Times: “According to service records released by the Air Force Personnel Center, Babbitt served more than 12 years in different parts of the Air Force. She was on active duty from April 2004 to April 2008, and was a reservist from October 2008 to July 2010, AFPC said. The Air National Guard said she was a guardsman from July 2010 to July 2016. (The Air Force initially said Babbitt’s Guard service ended in November 2016.) “AFPC said later on Thursday that Babbitt deployed overseas on multiple occasions, including to Afghanistan in 2005, Iraq in 2006, and the United Arab Emirates in 2012 and 2014. Babbitt’s awards include the Iraq Campaign Medal and the Global War on Terrorism Expeditionary Medal. “She last served on active duty at Dyess Air Force Base in Texas as a security forces controller, a job that usually entails manning gate security at Air Force installations. “The Air National Guard said that when Babbitt separated, she was with the 113th Security Forces Squadron of the DC Air National Guard, which is stationed at Joint Base Andrews in Maryland. Her rank at the time of separation from the Guard was not immediately available.”
Clearly, Babbitt violated Code of District of Columbia § 22–3302 (unlawful entry) and Code of District of Columbia § 22–1322 (“Rioting or inciting to riot”). And, per application of Code of District of Columbia § 22–1805a, very likely Babbitt conspired to riot or to enter the Capitol unlawfully. Babbitt may have violated also Code of District of Columbia § 22–303 (“Malicious burning, destruction, or injury of another’s property”) or, per application of Code of District of Columbia § 22–1805a (conspiring to injure another’s property), 18 U.S. Code § 1361 (injury or depredation of federal government property), 18 U.S. Code § 2383 (“Rebellion or insurrection,” or assisting such conduct), 18 U.S. Code § 2384 (“Seditious conspiracy,” where two or more people conspire, e.g., “to oppose by force the authority [of the United States]” or “by force to prevent, hinder, or delay the execution of any law of the United States”). I have not seen any video evidence that suggests Babbitt injured the Capitol or any chattel within or adjacent to it. I have seen a video shows that (perhaps with assistance) Babbitt tried to climb through a partly broken window of an interior door of the Capitol; but I could not see in any video anything that suggests Babbitt helped break that window. The DOJ asserted: “Members of the mob attempted to break through the doors by striking them and breaking the glass with their hands, flagpoles, helmets, and other objects. “Eventually, the three USCP officers positioned outside the doors were forced to evacuate. As members of the mob continued to strike the glass doors, Ms. Babbitt attempted to climb through one of the doors where glass was broken out.” Surely, Biden’s pro-Black/anti-White, racist, anti-Trump/anti-populist/anti-conservative DOJ would have asserted Babbitt broke or attempted to break the glass had any evidence even vaguely supported such assertion, which would provide speciously-arguable support of the DOJ’s deciding not to prosecute the cop. The Washington Post asserted: “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 tweet read: “It will be 1776 all over again...only bigger and better.” Respecting Babbitt’s possible intentions concerning the 6 January protest, The Guardian asserted this: “On Twitter, Babbitt had been sharing messages urging people like herself to take action, with messages like: “Your government doesn’t fear you anymore. That needs to change. ASAP.” “* * * “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!” “* * * “It was amazing to get to see the president talk.” “We are walking to the Capitol in a mob. There is a sea of nothing but red, white and blue patriots.” Bellingcat reported that (apparently in February 2020) Babbitt tweeted the following: “the gov has failed us but #WeThePeople got this “they have no idea how bad it is going to be for them in Nov” Bellingcat reported also part of the above-quoted report of The Guardian: “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!” The same Bellingcat report asserts that in video footage of the events of, and surrounding, the breaking of the glass of the interior Capitol door, one can witness two action-sequences supportive of the DOJ’s assertion that the Babbibb-killing Black cop could have believed, “reasonably,” that he needed to shoot Babbitt “in self defense or in defense of” members of Congress. Per Bellingcat: “Babbitt [was] yelling at the officers guarding the door as...the mob start[s] to smash through them [i.e., ‘through’ the officers]. “* * * “As...police...and staff guarding the door were...escorted away, Babbitt pushed to the...front of the crowd and climbed through the smashed door into the Speaker’s Lobby.” [Emphases & ellipses mine, LRJ] Many times, I viewed and listened to both of the two videos that Bellingham linked to its report. I did not encounter Babbitt’s yelling at officers guarding the door or pushing “to the very front of the crowd” or climbing through the smashed door into the main hall [“Speaker's Lobby”]. Perhaps I could not witness such events — those Bellingcat claimed occurred— because: (a) one video simply did not show what Bellingcat claimed occurred (and the narrator said that Babbitt attempted to climb through the break of the door’s glass) (b) the other video presented the events in four simultaneously running frames, the fast simultaneous running of which rendered effectively impossible my apprehending clearly all of the near-kaleidoscopically-occurring details of the myriad micro-events involved [I wonder how Bellingcat’s staff could account, precisely as Bellingcat claimed, such wildly happening interacting four motion picture frames — unless they had consumed LSD, magic mushrooms, or another hallucinogen or suffered hallucinogenic psychosis.] This much is clear: (1) Babbitt did not get through the door before the cop shot her. (2) All sources agree Babbitt was unarmed. (3) Babbitt was never close to the cop. (4) No evidence suggests Babbitt designed, or appeared to intend, to attack the cop or anyone else. Below, this article debunks the DOJ’s assertion that the cop’s lethal act was justified or excusable because the cop could have believed, “reasonably,” that he needed to shoot Babbitt “in self-defense or in defense of...Members of Congress and others [leaving] the House Chamber” or because he acted “out of fear” he felt reasonably. Also below, this article shows that if, as the DOJ hypothesized, the cop acted per “mistake, panic, misperception, negligence, or...poor judgment,” still he committed depraved heart murder and violated Babbitt’s 4th amendment right not to suffer unreasonable seizure.
Per Code of the District of Columbia § 22–2104(a)-(b), 1st degree murder sentence shall be at least 30 years but not greater than life imprisonment without chance of parole, except that the court may impose a sentence longer than 60 years only in accordance with § 22-2104.01 (sentencing procedure for 1st degree murder) or § 24-403.01(b-2) (which provides that a court may impose sentence longer than 60 years only if certain procedural niceties occur). Per Code of the District of Columbia § 22–2104(c), the 2nd degree murder punishment is incarceration of not more than life, except that the court may impose a prison sentence in excess of 40 years only in accordance with § 24-403.01(b-2), supra (which provides that a court may impose sentence longer than 60 years only if certain procedural niceties occur).
The Babbit family’s attorney, Terrell Roberts, has addressed the matter of whether the cop identified himself and uttered an adequate warning, or any warning: “While the officer's attorney says he clearly identified himself before shooting, and ordered the mob not to come through the window...Roberts says there’s no sign of that on the video. “* * * “We've interviewed several witnesses on the same side of the door with Ashli Babbitt.... They didn't hear any kind of warning. I think a reasonable officer would know, given the noise on the other side of the door, that anything that he's saying would not be heard. In fact, if you watch the video carefully, there's an officer in a suit that strolls across the hallway at the time that he is supposedly yelling an announcement, who doesn't even seem to react to that.” This is the sum of the DOJ assertions that could be anywise relevant to whether the cop uttered a warning: “Officials examined video footage posted on social media, statements from the officer involved and other officers and witnesses to the events, physical evidence from the scene of the shooting.... “* * * “An officer inside the Speaker’s Lobby fired one round from his service pistol, striking Ms. Babbitt in the left shoulder, causing her to fall back from the doorway and onto the floor. A USCP emergency response team, which had begun making its way into the hallway to try and subdue the mob, administered aid to Ms. Babbitt....” Those assertions do not even intimate that anyone uttered any pertinent warning or that anyone said that the killer-cop uttered a warning.
This is the sum of the DOJ assertions that could be anywise relevant to whether the cop uttered a warning: “Officials examined video footage posted on social media, statements from the officer involved and other officers and witnesses to the events, physical evidence from the scene of the shooting.... “* * * “An officer inside the Speaker’s Lobby fired one round from his service pistol, striking Ms. Babbitt in the left shoulder, causing her to fall back from the doorway and onto the floor. A USCP emergency response team, which had begun making its way into the hallway to try and subdue the mob, administered aid to Ms. Babbitt....” Those assertions do not even intimate that anyone uttered any pertinent warning or that anyone said that the killer-cop uttered a warning.
Remove from consideration the bogus argument that Babbitt’s military history, her angry, irrational, overly emotional tweets, and her one-time vehicular aggression [see supra] could have rendered “reasonable” the cop’s shooting Babbitt to defend himself or others. Neither any person’s statement nor any other evidence suggests the cop knew anything of Babbitt’s background. But suppose the cop knew Babbitt’s history. The knowledge would be legally irrelevant to whether the cop’s lethal act was “self defense.” Derek Chauvin could not excuse or justify murdering George Floyd by referencing Floyd’s criminal record and Floyd’s drug-use (a) because Floyd was unarmed and not actually threatening any arresting officer and (b) because even a hardened criminal is entitled not to suffer official use of excessive force. Just so, the Babbitt-killing cop’s conduct must be judged (a) by whether Babbitt actually threatened him (the killer cop) or another person and (b) whether unarmed Babbitt’s actual behavior clearly indicated she threatened to do physical harm to the cop or anyone else. The killer cop was a trained police officer — presumably taught both the constitutional rights of “suspects” and sundry means of subduing unarmed “suspects,” even armed “suspects,” without using deadly force. Below, this article will elaborate with fitting judicial precedents.
Recall that in 2017, Derek Chauvin applied a potentially lethal neck-compression hold to a 14-years-old Black boy whose head Chauvin beat viciously with a flashlight. See supra endnote 2 & related text. In law, sometimes two similar “bad acts” can evince a certain bad-act “pattern” that can premise a finding concerning a bias indicating the motive, intent, absence of mistake, or lack of accident of a crime. See Federal Rules of Evidence Rule 404(b)(1)-404(b)(2): “(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. “(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” So, in the case of the Black Capitol cop’s killing Babbitt, a proper question is whether the killer-cop’s prior behavior involved a “pattern” that evinced anti-White bigotry that could have motivated his firing his gun into the all-White, Trump supporting, anti-Biden, anti-woke, anti-BLM, anti-Democrat crowd or even specifically at Babbitt, a White woman whose apparel included a“patriotic” a stars-and-stripes garment. I do not mean that I believe the killer-cop shot into the crowd because he hated its White-ness. I mean only that the possibility deserved serious investigation that the woke, Trump-despising, BLM-worshiping, Black-vote-seeking Biden DOJ failed, impugnably, to conduct.
To understand “foreseeability,” “proximate cause,” legal pertinence of pre-existing physical condition, see Part One and Part Two of my 18 April 2021 Substack article that proves George Floyd was murdered by Derek Chauvin and Chauvin’s police cohorts. In the Babbitt murder case, “foreseeability,” “proximate cause,” and “pre-existing physical condition are not issues.
Respecting the cause of Ashil Babbitt’s death, the DOJ’s notice of non-prosecution stated: “An officer inside the Speaker’s Lobby fired one round from his service pistol, striking Ms. Babbitt in the left shoulder, causing her to fall back from the doorway and onto the floor. A USCP emergency response team...administered aid to Ms. Babbitt, who was transported to Washington Hospital Center, where she succumbed to her injuries.” [Emphases & ellipsis mine, LRJ] As the DOJ’s non-prosecution-notice observed, an autopsy was preformed on Babbitt’s body. See second paragraph of the DOJ’s notice. The medical examiner ruled Babbitt’s death homicide cause by the bullet the cop fired into Babbitt’s body. Compare this and this and this and this.
The Court of Appeals affirmed Koon’s conviction, also. A state’s (or its subdivision’s) police officers bear a 14th amendment duty not to permit other officers to violate a victim’s 4th amendment right of not suffering a police officer’s applying excessive force to a victim. In his appeal of his conviction, Koon challenged the trial court’s instructions. One instruction was: “A police officer, having a right to arrest a person who has committed a crime, has an equal duty to protect that person from unreasonable assault or injury from any source while that person is in official custody. In other words, a police officer has a duty to insure that persons in official custody are not unreasonably assaulted by others, including police officers.” The Court of Appeals held the instruction correct. Koon, a sergeant, took control of King’s arrest and of all other officers present. He permitted the brutal, gravely harmful, unnecessary beating of King. The 4th & 14th amendments and 42 U.S. Code § 1983 required that Koon intercede and prevent the needless, flagrant assault of a suspect rendered thoroughly harmless. Koon knew his command-position mandated he prevent Powell’s illegal injury of King. Koon’s inaction’s natural and probable consequence was King’s grave injury. Hence, Koon’s conduct was willful. A police officer’s 14th amendment due process duty-of-protection applies not only to a command officer’s supervising another officer’s arrest, attempted arrest, or post-arrest restraint of a “suspect.” That duty applies also to the officer who conducts the arrest, attempted arrest, or post-arrest restraint. The arresting or restraining officer is duty-bound not to harm the “suspect” except as is reasonably necessary to legitimate enforcement of law. Babbitt’s killer violated that duty. And, especially (but not only) because the violation was a “depraved heart” act, the violation was a willful (malice aforethought) deadly assault, hence murder. In Bracken v. Okura, 869 F. 3d 771 (9th Circuit U.S. Ct of Appeals 2017), Chung, a police officer was moonlighting as a private security guard of a hotel. While working that job, Chung wore his Honolulu Police uniform. Chung used his police badge’s authority to enable him detain a hotel patron, Dillon Bracken. Hotel personnel had decided to issue Bracken an internal “trespass” warning. Chung did not contend Bracken had committed a crime. But Chung helped detain Braken; and hotel security guards assaulted Bracken while Chung helped detain him. Bracken filed a 42 U.S.C. § 1983 suit against Okura. Bracken alleged Chung violated his 14th amendment due process rights by failing to intercede and stop the assault. The Court held [some ellipses original, other ellipses mine]: “When an officer's affirmative conduct creates a foreseeable risk of harm to the plaintiff, the officer will be liable for failing to intercede if the officer demonstrates "deliberate indifference" to the plaintiff's plight. *** “...[A] reasonable jury could find that Chung engaged in affirmative conduct that exposed Bracken to foreseeable harm. Even as...the alleged assault began and it became foreseeable that Bracken would suffer harm, Chung affirmatively prevented Bracken from leaving the party and ensured that Bracken remained under the control of the hotel's security guards. * * * As a trained police officer, Chung should have known the guards were overreacting and exposing Bracken to injury. “A jury could also find that Chung showed "deliberate indifference...in the presence of [the] known danger, created by [his] conduct." * * * ...[A] jury could find that Chung knew the security guards were hurting Bracken and deliberately chose to do nothing about it. ... ‘The deliberate indifference standard... requires that the defendant have actual knowledge of, or willfully ignore, impending harm.’ ***” Again, willfulness was imputed to the culprit. Again the reasons were: (a) the culprit cop’s training and his legal and constitutional duty; (b) the cop’s acting with apparent deliberate indifference to the illegal harm his indifference and duty-violation would foreseeably cause, an indifference that violated his legal and constitutional duty that his training must have instilled in him. Chung’s wrongful inaction could not be justified or excused by mistake, misperception, negligence, fear, poor judgment, self-defense, or defense of others. Perhaps Bracken might have resisted detention with possibly harmful aggression. But, like Babbitt, Bracken was unarmed and had not acted so as possibly to threaten to harm Chung, the hotel security guards, other hotel employees, or guests of the hotel.
See also endnote 15 & see above in this section & supra § IIB2(b) [pages 10-12 (supra)] & infra §§ IIB2(c)-IIB2(d) [pages 12-18 (infra)] & infra § III [page 19 (infra)].
“Negligence” consists of failing to use reasonable prudence or failing to act with the care that would have been exercised, in the same circumstances, by a person exercising ordinary reasonable prudence or by a reasonably prudent person. See, e.g., this and this and this and this and this. The “reasonable prudent person” standard is an objective one — determined by a court. Even in a case where a police officer’s conduct is the issue, still objective reasonableness is the standard. Suppose, in a defendant professional’s field, some other professional may have acted as did the defendant or the defendant acted per some subjective “reason” another such professional might “understand” or for which another professional might feel sympathy. Still, the issue will be the objective question of what a reasonable, prudent professional would have done in the circumstances in which the defendant acted. Compare, e.g., Stansbury v. California, 511 US 318, at pp.323-325 (U.S. Supreme Court 1994); Berkemer v. McCarty, 468 US 420, at pp.430-442 (U.S. Supreme Court 1984); Yarborough v. Alvarado, 541 US 652 (U.S. Supreme Court 2004), at pp.674-675, dissent of Justices Breyer, Stevens, Souter, and Ginsburg referencing Stansbury v. California and Berkemer v. McCarty, supra, in describing “negligence” in a police-action context.
See supra § I.B. “(1) Use of Civil-litigation Precedents & (2) Such Precedents’ Significance Respecting (i) Whether Babbitt’s Killer Murdered Babbitt & (ii) Whether The DOJ Could Win a Civil Rights Prosecution of Babbitt’s Killer” pages 2-4 (supra).