Three years ago, Republican Rep. Andrew Clyde was roundly derided for describing the January 6 Insurrection as a “normal tourist visit.” Images of Clyde in the House chamber, standing mouth agape in fear behind a Capitol Police Officer with his gun drawn put paid to his ridiculous attempt to whitewash a violent attempted coup.
But if you keep feeding your hungry fans a lie for long enough, eventually they’ll swallow it whole. A quarter of Americans now believe that the attack on the Capitol was instigated by FBI provocateurs, and it has become Republican dogma that the January 6 defendants are political prisoners. Trump promises to pardon them if elected in November (right after he pardons himself, of course), and Rep. Elise Stefanik actually called them “hostages” this weekend on NBC’s “Meet the Press.” And so it was probably inevitable that we’d see a wrongful death lawsuit seeking to recast Ashli Babbitt as a holy martyr.
That lawsuit arrived on Friday, just a day before the third anniversary of the attack, and was spearheaded by the conservative legal group Judicial Watch on behalf of Babbitt’s husband and her estate. Babbitt was shot by a Capitol Police Officer as she climbed through a broken window and tried to enter the House Chamber.
Or as the complaint describes it:
Ashli loved her country and wanted to show her support for President Trump’s America First policies and to see and hear the president speak live while he remained in office. Ashli did not go to Washington as part of a group or for any unlawful or nefarious purpose. She was there to exercise what she believed were her God-given, American liberties and freedoms.
Here on Planet Earth, Lt. Byrd has already been investigated and cleared twice, once by the US Capitol Police and once by the Justice Department. This is a wholly performative exercise in service of retconning the events of that day into a noble protest of peaceful patriots. But if you’re gonna lie, lie big, right? So Judicial Watch swings for the fences with a demand of $30 million from the US government under the Federal Tort Claims Act (FTCA).
The theory of the case is that Lt. Michael Byrd, who fired the fatal shot, should have reasoned with the mob laying siege to the Capitol and threatening to “Hang Mike Pence!” before using lethal force. It faults Lt. Byrd for imperfect knowledge in a fast-moving, chaotic situation. For instance, it alleges that Lt. Byrd should have disregarded a radio report of shots fired:
A reasonably prudent officer in Lt. Byrd’s position would not have relied on the call without some investigation because Sgt. Paul McKenna canceled the call almost immediately after it was made and announced that the sound was glass breaking, then re-issued the shots fired call, creating substantial uncertainty about the call’s accuracy.
This thing appears to be on somewhat shaky ground with regard to the statute of limitations as well. Under both DC law and the Federal Tort Claims Act, the SOL is two years. The plaintiffs claim that the action isn’t time-barred, however, because they were awaiting a final disposition on their administrative claims “as required by 28 U.S.C. §§ 2401 and 2675.” They reason that they had two years under § 2401 to seek administrative relief from the Capitol Police, and then another six months under § 2675 before the agency’s inaction was deemed a final judgement. (“The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.”)
Indeed, Babbitt’s family did seek such relief on January 6, 2023. But as they admit in their own complaint, they also sought it on May 7, 2021, June 28, 2021, September 15, 2021, and February 8, 2022. And while some of those petitions are denominated as “amendments,” it’s not entirely clear why the deemed denial isn’t a tiny speck in the rearview mirror at this point.
So perhaps we’ll see this thing dismissed on jurisdictional grounds before getting to the gravamen of the complaint, at which point they can claim that Judge Cynthia Bashant, an Obama appointee, is biased, and continue with their martyrology mythmaking. Win, win!
Estate of Ashli Babbitt v. US [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.