Capitol rioter Ashli Babbitt's family sues for records on officer who fatally shot her

Tear gas is released into a crowd of protesters during clashes with Capitol police at a rally to contest the certification of the 2020 U.S. presidential election results by the U.S. Congress, at the U.S. Capitol Building in Washington, January 6, 2021.

Shannon Stapleton | Reuters

The family of Capitol rioter Ashli Babbitt is suing to force Washington, D.C., to hand over records revealing the identity of the police officer who fatally shot her during the Jan. 6 invasion.

The family is also demanding access to video footage of the shooting, witness statements and documents gathered during the Metropolitan Police Department's investigation of the incident, according to the lawsuit.

The litigation is separate from a forthcoming lawsuit in which Babbitt's family plans to demand "well above $10 million" from the U.S. Capitol Police, a lawyer for the family told CNBC.

The civil suit, filed last week in the Superior Court of the District of Columbia, comes more than a month after the Department of Justice announced it would not pursue criminal charges against the Capitol police officer who fatally shot Babbitt.

Days after that mid-April decision was unveiled, Babbitt's husband Aaron Babbitt filed a request for records from the MPD under the Freedom of Information Act, according to the lawsuit.

But the police department has "failed to comply" with the FOIA request, the lawsuit says, by missing a May 12 deadline to either provide the materials to Aaron Babbitt or notify him that he would not be given access to them.

A spokesman for the MPD declined CNBC's request for a statement, saying that the department does not comment on pending litigation.

Babbitt family lawyer Terrell Roberts said in an email Tuesday that the purpose of the FOIA suit is to uncover the findings of the probe and the shooter's identity.

Roberts also said that a yet-to-be-filed lawsuit, which will demand millions in recovery from losses, "does not hinge on the current FOIA action against DC's police department."

That forthcoming legal action will allege the USCP violated Babbitt's constitutional right against the use of excessive force "and possibly failure to train, discipline and supervise the officer who killed Babbitt," Roberts told CNBC in a previous email.

The lawsuit will seek "an amount well above $10 million" in recovery from losses, he said.

This driver's license photo from the Maryland Motor Vehicle Administration (MVA), provided to AP by the Calvert County Sheriff's Office, shows Ashli Babbitt.

Maryland MVA | Courtesy of the Calvert County Sheriff's Office via AP

Babbitt, a 35-year-old Air Force veteran, was one of hundreds of former President Donald Trump's supporters who stormed the Capitol on Jan. 6. The invasion derailed the confirmation of President Joe Biden's electoral victory and forced a joint session of Congress into hiding.

The break-in followed Trump insisting at a nearby rally that his followers should march to the Capitol and pressure Republicans not to accept the results of the election. The invasion resulted in five deaths.

MPD's Internal Affairs Division, along with two civil rights offices within the U.S. Attorney's Office for the D.C., "conducted a thorough investigation" into Babbitt's shooting, the Justice Department said in an April 14 press release.

Those teams sifted through video footage on social media, the autopsy results and statements from the officer who fired the gun and others on the scene, the DOJ said.

"Based on that investigation, officials determined that there is insufficient evidence to support a criminal prosecution," the DOJ said.

"The investigation revealed no evidence to establish beyond a reasonable doubt that the officer willfully committed a violation" of a federal criminal civil rights statute, the press release said.

Babbitt and a group of rioters gained access to a hallway outside the Speaker's Lobby, which leads to the House chamber.

She tried to climb head first through the broken glass window of a door separating the hallway from the lobby, which had been barricaded from the inside with furniture. Other members of the crowd had broken out chunks of glass on the doors while pounding on them "with their hands, flagpoles, helmets, and other objects," the DOJ's press release said.

An officer inside the lobby who had drawn his service pistol shot Babbitt once in the left shoulder, causing her to fall backward onto the floor. She was tended to by a USCP emergency response team before being transported to Washington Hospital Center, where she died, the DOJ said.

On the far right, Babbitt is now being cast as a martyr. A crowdfunding page for Babbitt's "official memorial" has raised more than $90,000 since it was created, purportedly by her sister in law, three days after the invasion.

A pro-Babbitt group held a rally in California state capitol over the weekend, reportedly clashing with another group that had gathered to memorialize Breonna Taylor, who was fatally shot by police in her Louisville apartment in March 2020.

An initial scheduling conference in the FOIA lawsuit is set for Sept. 3 at 9:30 a.m. before Judge Florence Pan.

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