NBC News screen grab a moment before Babbitt was shot
Ashli Babbitt was shot dead on January 6th while rushing through the Capitol to prevent votes from being counted. Now her estate wants to sue the Capitol Police and the (not yet named) officials for unjustified death.
This is perhaps one of the dumber ideas I’ve heard. Sue the people charged with defending the republic while you are part of a crowd trying to overthrow them by force? Seriously?
I get calls about bad cases with some frequency. I wrote a few years ago that the most important word for a personal injury attorney is “no”. That hasn’t changed.
And bringing an illegal death suit for the death of a child – regardless of the context – is fraught with more than the usual emotions. Worst of all are those that occur in connection with suicide and the question asked is why did a doctor fail to give proper treatment in the days / weeks / months before.
And the only thing that has to be absolutely 100% crystal clear is this: the customer will never be happy. Never. Ever. It is impossible if a child is lost.
And now we’re adding a case that is impossible to win in a court or jury. Will the lawyers only do this for the public? I’ve known probably hundreds of personal injury attorneys here in New York. I can’t think of anyone who would bring such a suit.
Worse for the family, the Babbit Estate may face a counterclaim for deliberately inflicting emotional distress if the officer who shot them suffered. Few would be surprised if he had post-traumatic stress disorder.
Such cases are very difficult to win because of the exceptionally high bar that needs to be resolved to get there. But the (New York) rule is: It has to be:
“Anyone who deliberately or recklessly inflicts severe emotional stress on another through extreme and outrageous behavior is liable for such emotional stress” (restatement) [Second] of Torts § 46  ). ”
In fact, by 1993 the standard was so high that the appellate court (Howell v NY Post) wrote, “Everyone has failed at the deliberate infliction of emotional strain claims examined by this court because the alleged behavior was insufficiently outrageous.”
The New York Court of Appeals wrote: “Liability has only been established when the behavior is of such an outrageous character and degree that it goes beyond all possible limits of propriety and is considered cruel and utterly intolerable in a civilized community . “
Would a violent insurrection satisfy this if the same standard applies wherever action is brought?
The Capitol Police will never settle. If the lawsuit survives a dismissal motion or a summary judgment motion based on controversial facts, they lose the trial.
This can only end badly for Ashli Babbitt’s family. There is no other possible ending.
And the estate (if he has any assets) could cause harm to the officer who shot them. Just because a family wants to sue does not mean that a lawyer should facilitate such destructive behavior.