Protesters can be seen in the reflection of a D.C. police vehicle window.
D.C. police vehicle Credit: Darrow Montgomery/File

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The two MPD officers facing criminal charges in the 2020 death of Karon Hylton-Brown are asking a judge to dismiss the case. Officer Terence Sutton and Lt. Andrew Zabavsky filed separate motions in U.S. District Court, made public late last week, claiming, among other things, that prosecutors acted improperly during grand jury proceedings. Zabavsky claims he is being unfairly prosecuted due to his race (Zabavsky is White).

Throughout their motions, Sutton and Zabavsky attempt to vilify Hylton-Brown, who was 20 years old when he was killed during a vehicle pursuit, by calling attention to his touches with the criminal justice system. It’s a well-worn police tactic used to justify officers’ actions and smear victims of police brutality in the public’s eye.

Sutton’s motion, for example, says “despite being only 20-years of age,” Hylton-Brown had multiple pending criminal cases in D.C. as well as charges in Montgomery County, suggesting he had a “strong motive to flee.”

The motion goes on to say Hylton-Brown was wearing an ankle monitoring device when he arrived at the hospital and had more than $3,000 in his pocket. “We think not even grand jurors would misunderstand the meaning of this evidence,” Sutton’s motion says, erroneously suggesting that Hylton-Brown “may well have forfeited” the cash “if stopped by police.” The motion also lists the drugs found in Hylton-Brown’s system during the autopsy.

Zabavsky’s motion refers to the deceased father, son, and brother as “the gang member,” rather than by his name.

“There are two things going on when they do that,” says Jonathan Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “The first is that they want to demonize the victim here. They want to make people not care about him, and paint him to be this really bad guy who was harming the community.”

But Smith, who was chief of the Justice Department’s special litigation section of the Civil Rights Division from 2010 to 2015, says there is also some legal relevance to the strategy. Sutton is essentially trying to show that he was justified in pursuing Hylton-Brown that night and therefore cannot be charged with a crime.

But “that’s a factual question for the jury,” Smith says. “So I think this is really more to start to undermine the victim here before the court and the public.”

The officers also allege that prosecutors acted improperly when they presented evidence to the grand jury. Although much of their motions on this point are redacted (because grand jury proceedings happen behind closed doors), the officers claim that prosecutors did not provide jurors with exculpatory evidence, such as Hylton-Brown’s criminal record.

Again, Smith doesn’t find that argument particularly persuasive. Prosecutors have broad discretion to bring charges, and they have no obligation to present exonerating or exculpatory evidence to grand juries, he says.

“They’re essentially trying to paint their clients as victims of the Black Lives Matter movement and protests of that summer,” Smith says of the lawyers for Sutton and Zabavsky. “And say, ‘And by the way, this is a really bad guy who was on our radar screen, so we didn’t do anything wrong.’ And that’s just smearing the victim, and I don’t think the judge will be impressed by it.”

In response to the motions, Assistant U.S. Attorney Risa Berkower says the officers “offer no argument or evidence that they were prejudiced by the supposed errors—i.e., that they would not have been indicted but for them—and their claims for dismissal should be rejected on that basis alone. Moreover, their claims are based on a factually incorrect recitation of what occurred before the grand jury, and they have failed to show any error at all.”

Sutton and his attorneys argue that he cannot be charged with murder because he did not violate Hylton-Brown’s constitutional rights. But Berkower says in her response that a constitutional violation is not required. “Any jurisdiction can establish additional legal requirements above constitutional minimums for any person’s conduct, including (and perhaps especially) those individuals in whom the state vests its police powers,” Berkower writes in court documents.

And Zabavsky and his attorneys claim he is being selectively prosecuted “to prevent further discord in the district [and] based upon his race and occupation.” Federal prosecutors deny the accusation, and proving a claim of selective prosecution is incredibly difficult, Smith says.

“Another way to think of it is, had a Black officer been involved, that Black officer would not have been charged and that strikes me as very, very difficult to do,” he says.

Sutton is facing second degree murder charges, and both he and Zabavsky are charged with conspiracy and obstruction of justice. In October of 2020, Sutton attempted to stop Hylton-Brown for riding a motorized scooter on the sidewalk and because the 20-year-old was not wearing a helmet. Hylton-Brown did not stop, so Sutton chased him in an unmarked police vehicle through city streets, running multiple stop signs and at one point reaching 45 miles per hour, according to the indictment issued last year. The vehicle chase ended when Hylton-Brown rode from an alley onto Kennedy Street NW and a motorist fatally struck him.

Then, prosecutors allege, Sutton and Zabavsky worked together to hide their involvement in the fatal incident and obstruct an investigation as they received updates about Hylton-Brown’s condition at the hospital.

On the whole, Smith doesn’t expect that Judge Paul Friedman will dismiss the charges based on the arguments the officers are making. He adds that although the officers are entitled to a defense, their attempts to smear Hylton-Brown are concerning.

“While these officers are entitled to say what they say, I find the tone of their briefs to be very, very troubling and emblematic of what is in some ways really wrong with the way law enforcement operates in the city and in the nation,” he says.