Attorneys for the estate of Ashli Babbitt have filed opposition to an attempt by the U.S. Department of Justice to move a $30 million wrongful-death lawsuit brought by her widower from San Diego federal court to Washington.
A hearing on the request is scheduled for April 8 in San Diego before U.S. District Judge Cynthia Bashant, a 2014 appointee of President Barack Obama.
Robert Patrick Sticht, a Los Angeles-based attorney for Judicial Watch Inc.—which represents Mr. Babbitt in the lawsuit—filed an opposition to the DOJ motion, saying the litigation in Ms. Babbitt’s death would not get a fair hearing in Washington D.C.
“You cannot convince me that somehow what she was doing was somehow justified and the police did not have a justification for taking the actions that they took,” Judge Walton said about Ms. Babbitt, according to the court transcript. “You can’t convince me of that.”
“Walton made other biased comments on the record,” Mr. Sticht wrote, “Including, ‘Well, she shouldn’t have been coming through the window,’ and ‘this man who was protecting the Capitol [Byrd] ends up being called a thug ... that is just mind-boggling.’”
Mr. Sticht added, “Unfortunately, Judge Walton is speaking what many others are at least thinking behind the bench in the District of Columbia.”
Ms. Babbitt, an Air Force and National Guard veteran from Ocean Beach, California, was shot by Mr. Byrd at 2:44 p.m. on Jan. 6 at the entrance to the Speaker’s Lobby at the U.S. Capitol.
At the time, she was attempting to climb into a broken window to the right of the entry door during rioting in the hallway. She was pronounced dead at 3:15 p.m. that day at a local Washington hospital.
In the $30 million lawsuit, Judicial Watch called the shooting an “ambush murder” and asserted that Mr. Byrd, now a USCP captain, was negligent in the use of his firearm and in his faulty assessment that the unarmed, 5-foot-2-inch Ms. Babbitt posed an imminent threat to his life.
Mr. Byrd, whose identity was hidden by the DOJ and Capitol Police for eight months before he appeared for an interview on NBC News, was not charged in the shooting.
The DOJ declined to pursue a case against him in April 2021. Capitol Police eventually cleared him to return to duty at the U.S. Capitol.
“All of the events at issue occurred in Washington D.C.,” the DOJ wrote in its motion for venue change. “A substantial, if not overwhelming, majority of witnesses and documentary and physical evidence are located there, as are both parties’ counsel.
“Transfer to Washington D.C. would thereby reduce the costs, burdens, and inconvenience to the parties and witnesses.”
‘Attacked and Terrorized’
The DOJ argued that Washington is the proper forum because “the Jan. 6 attack directly affected members of the local community, including the police officers, Congressional staff members, and other employees who were attacked and terrorized that day.“Accordingly, transfer to the District of Columbia is proper.”
The change-of-venue petition is somewhat ironic since the DOJ has successfully argued against dozens if not more than 100 of change-of-venue motions from Jan. 6 defendants seeking to move their cases out of Washington.
Not a single change of venue has been granted in the nearly 1,260 Jan. 6 cases.
The change-of-venue motion makes reference to the 140 police officers injured on Jan. 6, the death of USCP Officer Brian Sicknick from a stroke, and the suicides of USCP Officer Howard Liebengood, and Metropolitan Police Department Officer Jeffrey Smith.
“By its motion, defendant hopes to unfairly and unjustly connect Ashli Babbitt to violence, injuries, and deaths for which she is blameless,” Mr. Sticht wrote.
“And connect her by association to thousands of individuals convicted of misdemeanors and felonies for which she was never charged and is unable to present a defense due to the lawless actions of one of defendant’s employees in shooting and killing her.”
The DOJ said many witnesses it would call are based in the Washington area.
Mr. Sticht countered that the DOJ’s list of possible witnesses failed to mention at least 30 people who witnessed the shooting who are scattered about the country. They would have to travel to trial no matter what, he said.
A possible key witness for the plaintiffs will be Dr. Austin Harris, a California physician who tried to render medical aid to Ms. Babbitt after the shooting but was forced away from the scene as he checked her vital signs, Mr. Sticht wrote.
Much of the evidence in the case, such as reports, documents, and videos, “can easily be accessed and presented electronically,” Mr. Sticht wrote.
Federal case law gives strong deference to a plaintiff’s preferred judicial district in which to bring a lawsuit, he said.
San Diego is the proper venue given Ms. Babbitt’s longstanding ties to the community and Mr. Babbitt’s residence there, he said.
Ms. Babbitt was born and raised in Lakeside, California. She enlisted in the U.S. Air Force at age 17 and went on her first deployment at Eilson Air Force Base near Fairbanks, Alaska.
“Ashli served as a military police officer and guarded high-value military assets and troops and high-level national security officials and dignitaries in the Middle East, as well as captured terrorists and even nuclear weapons,” Mr. Sticht wrote. “Ashli also conducted presidential security.
“Ashli deployed down range on at least four separate occasions in support of Operation Iraqi Freedom and Operation Enduring Freedom, maintaining security for her area of responsibility, and also deployed to the United Arab Emirates and Korea.”
“The Justice Department has made no effort to transfer venue in the related matter,” he wrote, “but has instead answered the complaint, and it would promote efficiency and the ends of justice for both matters to remain in this district.”
