Ashli Babbitt: manslaughter vs. deprivation of rights under color of law Note if you wish to discuss the following questions, rather than make a constructive criticism of the question or answer, I've setup this stack exchange chatroom for discussions. If you have an independent answer, please create a new answer In a recent press release: Department of Justice Closes Investigation into the Death of Ashli Babbitt, the focus of inquiry seemed to be under a civil rights law, rather than the more clear-cut concept of homicide. Months earlier, the DC medical examiner established that Ms. Babbitt's death was a homicide. In the investigation of a homicide, committed by a known person, isn't the normal focus on whether or not the homicide was justified or not? The DOJ said that &quot;The investigation revealed no evidence to establish beyond a reasonable doubt that the officer willfully committed a violation of 18 U.S.C. § 242&quot; (Emphasis mine.) Why would the U.S. Attorney focus on civil-rights law, rather than laws specific to homicide? For example, why not focus on 18 U.S. Code § 1112 - Manslaughter, where the concept of willfulness is not applicable? Why not focus on the statutory use-of-force standard, which requires not only that an officer's belief be reasonable, but that his actions are reasonable and that the officer has exhausted other options. DC Code, § 5–351 states (b) A law enforcement officer shall not use deadly force against a person unless: (1) The law enforcement officer reasonably believes that deadly force is immediately necessary to protect the law enforcement officer or another person, other than the subject of the use of deadly force, from the threat of serious bodily injury or death; (2) The law enforcement officer's actions are reasonable, given the totality of the circumstances; and (3) All other options have been exhausted or do not reasonably lend themselves to the circumstances. It goes on to state definitions of factors to be considered by a trier of fact, such as what the &quot;totality of circumstances&quot; means, including: Whether the subject of the use of deadly force: (i) Possessed or appeared to possess a deadly weapon; and (ii) Refused to comply with the law enforcement officer's lawful order to surrender an object believed to be a deadly weapon prior to the law enforcement officer using deadly force; Judicial Review (expanding scope) Some comments have pointed out that the decision not to charge under manslaughter is prosecutorial discretion. I agree, but find the motives for the decision questionable. How can it be subject to judicial review? @Fizz captured my concern very well in chat, saying &quot;One intersting consequence of that arrangement is that since 242 charges are usually brought when the state fails to do its job prosecuting something, the feds would have had to somewhat implicitly accuse themselves of that if they went for a 242 in DC&quot;.
This reflects a typical division of labor. Normally, the Department of Justice investigates civil rights violations, which it has a division set up to do, while local authorities handle ordinary homicide charges arising (in this case) under the D.C. Code (as another answer notes, this instance didn't obviously fall under Congressionally enacted federal criminal homicide statutes, although there may be some room for ambiguity in that determination, but see Coleman v. United States, 334 F.2d 558 (1964) (&quot;The [District of Columbia] area by no tenable construction can be said to have been within 'the special maritime and territorial jurisdiction of the United States.'&quot;)). Certainly, the DOJ investigation, itself, did not exonerate the officer of a homicide charge, which remained open to be resolved. An internal Capitol Police inquiry subsequently cleared the law enforcement office of homicide charges: An internal investigation has cleared a U.S. Capitol Police officer of any wrongdoing in the fatal shooting of Ashli Babbitt during the siege of the Capitol on Jan. 6, the law enforcement agency announced Monday. The Justice Department previously said the officer would not face criminal charges in the killing of the 35-year-old California woman, who was shot as she tried to force her way through a set of doors deep inside the Capitol. . . . The probe by the U.S. Capitol Police exonerated the officer for his use of force. The department said in a news release outlining the investigation that the officer’s actions were within department policy, which allows deadly force only when an officer reasonably believes they are protecting themselves or others from serious physical harm. The departmental policy described in the news article above closely tracks D.C. Code § 5-351.01 governing when the use of deadly force by a law enforcement officer is justified, which is an affirmative defense to criminal homicide and battery charges. The D.C. Code also expressly recognizes the authority of the Capitol Police as a law enforcement force in the District. A recent general federal law analysis of use of force considerations is described in a July 10, 2020 report of the Congressional Research Service, in light of pending legislation. Of course, Babbitt's next of kin could bring a wrongful death action under the civil rights laws for money damages seeking to second guess the DOJ determination.
You are asking a different question The title to the earlier question -- &quot;Do the police have a civil duty to do their job&quot; -- is slightly misleading. The question is not whether the policy have an abstract &quot;civil&quot; duty to enforce the law, but whether they have a specific &quot;constitutional&quot; duty to do so. If they do have such a specific duty, then, as they OP says, they could &quot;be sued for not doing their job.&quot; As ohwilleke explains thoroughly, the answer to this question is &quot;no.&quot; The Supreme Court has consistently held there is no constitutional right to police enforcement of the law. In particular, the SCt has held that police aren't violating the 14th Amendment when they don't &quot;do their job.&quot; According to the Court, someone who is hurt when the police don't enforce the law, is not deprived of &quot;life, liberty or property without due process of law.&quot; This in turn means that the people who are hurt can't sue the police under §1983, which allows people to sue state or local officials who violate their constitutional rights. As you point out, the Nevada statute clearly requires officers to make an arrest in some cases. However, this requirement is not absolute; the statute also creates an exception to the requirement: a peace officer shall, unless mitigating circumstances exist, arrest a person when the peace officer has probable cause to believe that the person to be arrested has...committed a battery upon his or her spouse.. The statute goes on to explicitly exempt the officer and her department from liability if she decides not to make an arrest: Nothing in this section shall be construed to impose liability upon a peace officer or his or her employer for a determination made in good faith by the peace officer not to arrest a person pursuant to this section. Thus, the statute sends mixed signals to police officers. On the one hand, it requires them to make arrests in some domestic violence cases; on the other hand, it says they are not liable if they ignore this requirement. Taken together, the Nevada statute and the SCt's decisions mean people who are hurt if police don't make an arrest under 171.137 cannot sue the police under either state or federal law.
What they teach in self-defense courses is legally irrelevant, though has a practical basis. Under the law, options 1 and 2 are &quot;preferred&quot; because those actions cannot be considered criminal. Shooting a person is potentially a crime (assault or homicide): but it can be legally excused under those circumstances deemed to be &quot;self defense&quot;. If shooting a person is justified in self defense, it isn't assault or murder. It is legally &quot;better&quot; to main than to kill, because maiming is less force than killing, and the general rule is that one should use the least force necessary to defend yourself. That is because on the one hand you should not use force against another person, but on the other hand you have a right to live and if a person attempts to deprive you of your life, you are justified to use force to stop them. The degree of force allowed is related to the threat posed. Every legal system encourages putting &quot;shoot to kill&quot; in last place – no jurisdiction favors using maximum possible force in self defense. I think what is confusing you is that as a practical matter, shooting to maim is riskier, and the consequences of erring in favor of less force may be your death. It has nothing to do with killing witnesses (which is illegal), even if that is what they taught you in your self defense class. Brandishing a weapon is also illegal but involves even less force, and is even less effective as a means of self defense.
This is currently untested but the U.S. Supreme Court did leave the door open to allow someone to plead the 5th amendment in order to hide their identity. In Hiibel v. Nevada the U.S. Supreme Court held that the petitioner did not have a 5th amendment right to withhold his name from a questioning police officer. The Supreme Court held that Mr. Hiibel could be arrested for failing to identify himself because Nevada's statute requiring identification was narrowly tailored and was not vague. The police officer who stopped Mr. Hiibel had reasonable suspicion that a crime had occurred and Mr. Hiibel could have satisfied Nevada's statute by simply stating his name; there was no requirement to turn over any papers or other documentation. The final paragraph of the opinion speaks of the importance of the narrow scope of the disclosure requirement and then goes on and states: ...Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances...Even witnesses who plan to invoke the Fifth Amendment privilege answer when their names are called to take the stand. Still, a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense. In that case, the court can then consider whether the privilege applies, and, if the Fifth Amendment has been violated, what remedy must follow. We do not resolve those questions here. While the court is leaving unanswered the question of whether there are circumstances where one may refuse to identify themselves, they are making it quite clear that such a situation would be very different than the case decided in Hiibel. There is a strong hint that they would uphold Fifth Amendment privilege in the situation you posit.
When the LEO violently assaulted the citizen on the easement is he out of his jurisdiction? No. Federal law enforcement officers' jurisdiction generally* includes the entire US. Federal and state jurisdiction are said to be concurrent with one another. If the federal law enforcement officer has a lawful basis to effect an arrest, the arrest can be effected on a state† highway easement. Is there any immediate or long term consequence for an officer committing crimes or doing so egregiously (with or without qualified immunity) out of his jurisdiction as opposed to doing so in his jurisdiction? If the officer were outside his jurisdiction (which isn't the case here) then the officer is generally treated as any other private individual. In this case, &quot;outside his jurisdiction&quot; means &quot;in another country,&quot; which brings up all sorts of additional complications that aren't really in scope here, largely because the laws and legal systems of other countries are different from those in the US. Are there any nuances to jurisdiction and law enforcement by LEOs that a first amendment auditor should be aware of? There are plenty, but perhaps the most prominent one, if the internet is any guide, is that an officer is not required to articulate the basis for reasonable suspicion or probable cause at the time of a Terry stop or an arrest. The time for this is much later, after a judge is involved. Arguing with an officer on this score is just going to make things worse. Instead, one should cooperate while stating one's objections clearly and calmly, especially making it clear that cooperation does not imply consent. * Some categories of officers do have more limited jurisdiction: thanks to cpast for the example of park rangers, whose jurisdiction is essentially restricted to national parks. The officers in this case are CBP field officers. There is a wide misconception that CBP officers' jurisdiction is limited to within 100 miles of the border, but that 100-mile limit only applies to their power to board and search vessels and vehicles without a warrant in order to prevent illegal entry into the US. Their power to make warrantless arrests &quot;for any offence against the United States&quot; committed in their presence is not geographically restricted. † The original video was filmed in South Portland, Maine, and the roadway is a municipal street, Gannett Drive, to be precise. The point remains, however, that it is a public right-of-way, and federal officers are not &quot;out of their jurisdiction&quot; simply because they've left a federal facility and entered a public place.
The answer is somewhat similar to the "corollary" question, in that this wouldn't be the only information taken into account at a motion to suppress and one would need know why the officer requested (in your scenario demanded) to search you in the first place. There are scenarios whereby he could search you without benefit of a warrant. Was he chasing you from a crime scene? Were you attempting to flee? Did he see something illegal before demanding the search that may have made it legal despite you thinking it not? The analysis is different if you are in the car versus in your house. That said, regardless of where, a consent search is just not likely to happen in this way. In your car, the officer has the right to take your keys to "secure the scene," or if there is a reasonable suspicion that you may attempt to flee. Typically, the officer will say "turn off your car" without taking your keys. Despite what's typical, though, they certainly can take your keys if circumstances make it necessary and that (the mere taking of keys) does not constitute a search. Keep in mind that the police can search a car without a warrant in a number of circumstances, without your consent, that would not be available to them with a dwelling. Courts will typically give police much more latitude to search a vehicle than a home. Under the "automobile exception" to the search warrant requirement, individuals have less of an expectation of privacy when driving a car and there is also a much greater chance of losing the evidence in a car vs. a dwelling, since it's mobile. Generally, the police can search your car if: You have given the officer consent (in this scenario you've not &ndash; unless you hand them the keys without protesting &ndash; and then this would be considered implied consent); The officer has probable cause to believe there is evidence of a crime in your car; The officer reasonably believes a search is necessary for their own protection (e.g., they can search for a weapon, if they have reasonable suspicion); You have been arrested and the search is related to that arrest (such as for drunk driving or for drugs, they can search for alcohol or drugs). There are tons of contextually specific rules that dictate when each of these situations is OK, and when they're not, as well as where they can search under what scenarios. It is not a one size fits all analysis. In fact, warrantless and consent searches may be some of the most variable analyses criminal attorneys and judges undertake to explore. The law on these topics is voluminous. Searching your car after you've given the officer the keys, assuming there was no basis and you actually said "you're not consenting," can result in suppression, but not necessarily as the fight is a lot tougher when it comes to a car. (E.g., if you said no earlier, but then handed the cop the keys later without renewing the objection, this could be considered an implied consent.) Similar to the other question, there is also going to be a whole other side to the story, with evidence aside from your testimony dictating what the ruling will be. A dwelling is different from a car, although your question makes some assumptions here that I would find very hard to see happening in real life (having represented both police, municipalities, and defendants to criminal searches).... It would be highly unlikely for an officer to threaten to break in like this ... especially in a dwelling where neighbors and passersby can see what's happening and would not only watch, but would probably video it. This is not to suggest that threats and actual wrongdoing doesn't happen, it's just not typically in this way. Police know the law. They rarely do things so blatantly unlawful that not only will nearly ensure that any evidence is inadmissible, but (in a case like this) where they will also probably lose their job. Short of a pursuit where the police are chasing someone into a house, I have never heard of a forced entry in a situation like you're describing. While we don't know the circumstances leading to the encounter, I am assuming that the search isn't pursuant to a chase, since you're having a discussion with the officer and if you're chased from the scene of a crime and run into your house, they're coming in. They are not having discussions. However, since we don't know what the circumstances are that lead to you being approached in the first place, it's difficult to analyze whether he has the right to enter warrantlessly. What we do know is that with a dwelling, it is much less likely to be lawful. As with the other question, the analysis as to whether consent was given or not is far from simple. Suspects are much less likely to give consent to search a dwelling as they are a car, and if they do, the search is often limited to a certain area, so chances of suppression are much better. That said, others will often give consent to the police when requested of them (spouses, kids, landlords, hotel owners, etc). Just imagine ... there are literally thousands of warrantless searches done every single year in the U.S., nearly all of which are alleged to be based on some form of consent. Assume every one of those people has a lawyer; that means nearly every one of those cases is arguing the consent was bad, some way, some how. Duress is one of the most common arguments when someone gives permission; either explicitly (like what you are proposing), implicitly (they came with 10 grimacing cops, so the guy thought he didn't have a choice). Most of the time, however, there is no duress, people just simply didn't know they can say no, or they think the cops won't find what they're hiding. Cops can do a lot of things to get you to allow for a warrantless search. They can even lie to people to get them to consent, and officers are not required to notify the suspect that he has a right to refuse to consent (however, telling the suspect they have the right to refuse is helpful to rebut the coercion argument). In United States v. Mendenhall, "The fact that the officers themselves informed the respondent that she was free to withhold her consent substantially lessened the probability that their conduct could reasonably have appeared to her to be coercive." Keep in mind, a big part of the reason why these scenarios are unlikely is not just that the police can find a way in that won't be so challengeable, if they really can't get a legitimate warrant and need to find a deleterious way in. It's also because 9 in 10 times when a police officer does a consent search, the suspect signs a consent form. That's not to say that people don't get coerced or get searched due to duress, they do. But typically not in so blatant a way. There are shades of grey in most of these cases. So, to answer whether you can get the search suppressed if it leads to an arrest under these facts; the only answer that is definite, is that nobody can be sure. If consent searches, their exceptions, and all ways the evidence gets in and the evidence is kept out interests you ... read these two law review articles. There are probably 200 cases footnoted between them! http://www.bu.edu/law/faculty/scholarship/workingpapers/documents/MaclinT011508.pdf http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-81-6-Sutherland.pdf
There is pretty much never a right to retaliate against harm to oneself, even blatantly unlawful harm. There is a right to defend oneself and others. One can use force to stop someone from inflicting unlawful or unjustified harm, or to prevent someone from inflicting such harm when the harm is imminent. One is not permitted to use more force than is "reasonably required" under the actual circumstances. This is true in pretty much every jurisdiction that i know of. The details on how much force will be considered "reasonable" will vary. In some jurisdictions there is, under some circumstances, a s"duty to retreat". This generally means that if a person attacked can avoid the harm by fleeing with reasonable safety, that person must do so rather than using force in self-defense. In some jurisdictions this "duty to retreat" applies id the victim is attacked in public, but not in the victim's own home. The right to self defense does not apply when the "attacker" is an agent of the state acting lawfully. For example, a prison guard taking a condemned prisoner to a death sentence cannot be attacked on the grounds that the prisoner is engaging in self defense. In theory a police officer engaging an excessive force, particularly unjustified deadly force, may be resisted in self-defense. But courts are quite reluctant to find such resistance justified in practice. There generally must be very clear evidence of egregious misconduct for the court to rule for the non-police person in such a case. Note that "self" defense can equally be defense of another person. Pretty much all the same rules apply. Self defense applies no matter who the attacker is, but that force is reasonable may vary depending on the attacker. Only such force as is reasonably required to stop or prevent the harm may be used with a justification of self-defense.
There is a good amount of case law addressing this question going back two centuries. Legally, as soon as you are subject to "excessive force," you are allowed to defend yourself as you would against any assault, even if that force is being used in the course of an otherwise lawful arrest. Furthermore, in some states you are still allowed to resist unlawful arrest. Unfortunately, the matter is no longer as clear as it used to be. (There is a lot of material on this subject; just search for resisting unlawful arrest.) For example, police reflexively invoke a virtual safe harbor by shouting, "Stop resisting!" while battering arrest subjects. Video evidence has uncovered a plethora of examples in which this was done to subjects who were not only not resisting, but even later determined to have been incapable of resisting. If you intend to defend yourself against police, even when justified by law, you need to realize that the system is stacked against you. Police carry the means of escalating to lethal force. So, for example, if you are being beaten but you are potentially able to physically overpower and restrain an officer, you will likely then be met with baton blows or tasers. Since a baton is a deadly weapon, you would be (in theory) justified in shooting an officer attacking you with one. But as soon as any officer shouts "gun!" you will be shot, and most likely killed. Police seem to be given the benefit of the doubt by prosecutors and grand juries when they claim, "I feared for my life." You (even if you survive) will likely have any such claim subject to a full criminal trial. So even though you can legally defend yourself against excessive police force, these days you will almost certainly be unable to in practice.