Here is my column in The Hill on the recent interview of Lt. Michael Byrd who was the hitherto unnamed Capitol Hill officer who shot Ashli Babbitt on January 6th. The interview was notable in an admission that Byrd made about what he actually saw . . . and what he did not see.
Here is the column:
“That’s my job.” Those three words summed up a controversial interview this week with the long-unnamed officer who shot and killed Ashli Babbitt on Jan. 6. Shortly after being cleared by the Capitol Police in the shooting, Lt. Michael Byrd went public in an NBC interview, insisting that he “saved countless lives” by shooting the unarmed protester.
I have long expressed doubt over the Babbitt shooting, which directly contradicted standards on the use of lethal force by law enforcement. But what was breathtaking about Byrd’s interview was that he confirmed the worst suspicions about the shooting and raised serious questions over the incident reviews by the Department of Justice (DOJ) and, most recently, the Capitol Police.
Babbitt, 35, was an Air Force veteran and ardent supporter of former President Trump. She came to Washington to protest the certification of the presidential Electoral College results and stormed into the Capitol when security lines collapsed. She had no criminal record but clearly engaged in criminal conduct that day by entering Capitol and disobeying police commands. The question, however, has been why this unarmed trespasser deserved to die.
When protesters rushed to the House chamber, police barricaded the chamber’s doors; Capitol Police were on both sides, with officers standing directly behind Babbitt. Babbitt and others began to force their way through, and Babbitt started to climb through a broken window. That is when Byrd killed her.
At the time, some of us familiar with the rules governing police use of force raised concerns over the shooting. Those concerns were heightened by the DOJ’s bizarre review and report, which stated the governing standards but then seemed to brush them aside to clear Byrd.
The DOJ report did not read like any post-shooting review I have read as a criminal defense attorney or law professor. The DOJ statement notably does not say that the shooting was clearly justified. Instead, it stressed that “prosecutors would have to prove not only that the officer used force that was constitutionally unreasonable, but that the officer did so ‘willfully.’” It seemed simply to shrug and say that the DOJ did not believe it could prove “a bad purpose to disregard the law” and that “evidence that an officer acted out of fear, mistake, panic, misperception, negligence, or even poor judgment cannot establish the high level of intent.”
While the Supreme Court, in cases such as Graham v. Connor, has said that courts must consider “the facts and circumstances of each particular case,” it has emphasized that lethal force must be used only against someone who is “an immediate threat to the safety of the officers or others, and … is actively resisting arrest or attempting to evade arrest by flight.” Particularly with armed assailants, the standard governing “imminent harm” recognizes that these decisions must often be made in the most chaotic and brief encounters.
Under these standards, police officers should not shoot unarmed suspects or rioters without a clear threat to themselves or fellow officers. That even applies to armed suspects who fail to obey orders. Indeed, Huntsville police officer William “Ben” Darby recently was convicted for killing a suicidal man holding a gun to his own head. Despite being cleared by a police review board, Darby was prosecuted, found guilty and sentenced to 25 years in prison, even though Darby said he feared for the safety of himself and fellow officers. Yet law professors and experts who have praised such prosecutions in the past have been conspicuously silent over the shooting of an unarmed woman who had officers in front of and behind her on Jan. 6.
Byrd went public soon after the Capitol Police declared “no further action will be taken” in the case. He proceeded to demolish the two official reviews that cleared him.
Byrd described how he was “trapped” with other officers as “the chants got louder” with what “sounded like hundreds of people outside of that door.” He said he yelled for all of the protesters to stop: “I tried to wait as long as I could. I hoped and prayed no one tried to enter through those doors. But their failure to comply required me to take the appropriate action to save the lives of members of Congress and myself and my fellow officers.”
Byrd could just as well have hit the officers behind Babbitt, who was shot while struggling to squeeze through the window.
Of all of the lines from Byrd, this one stands out: “I could not fully see her hands or what was in the backpack or what the intentions are.” So, Byrd admitted he did not see a weapon or an immediate threat from Babbitt beyond her trying to enter through the window. Nevertheless, Byrd boasted, “I know that day I saved countless lives.” He ignored that Babbitt was the one person killed during the riot. (Two protesters died of natural causes and a third from an amphetamine overdose; one police officer died the next day from natural causes, and four officers have committed suicide since then.) No other officers facing similar threats shot anyone in any other part of the Capitol, even those who were attacked by rioters armed with clubs or other objects.
Legal experts and the media have avoided the obvious implications of the two reviews in the Babbitt shooting. Under this standard, hundreds of rioters could have been gunned down on Jan. 6 — and officers in cities such as Seattle or Portland, Ore., could have killed hundreds of violent protesters who tried to burn courthouses, took over city halls or occupied police stations during last summer’s widespread rioting. In all of those protests, a small number of activists from both political extremes showed up prepared for violence and pushed others to riot. Many violent protesters wear backpacks but officers are not allowed to just shoot them in case they contain bombs or other devices.
According to the DOJ’s Byrd review, officers in those cities would not have been required to see a weapon in order to use lethal force in defending buildings. Just as Byrd was apparently authorized to shoot Babbitt as the first person through the window, he presumably could have shot the next ten or more persons. Likewise, in cities like Portland, police could have shot dozens protesters trying to take over police stations and courthouses, including many wearing backpacks.
Politico reported that Byrd previously was subjected to a disciplinary review when he left his Glock 22 service weapon in a bathroom in the Capitol Visitor Center complex. He reportedly told other officers that his rank as a lieutenant and his role as commander of the House chambers section would protect him and that he expected to “be treated differently.”
In the Babbitt shooting, the different treatment seems driven more by the identity of the person shot than the shooter. Babbitt is considered by many to be fair game because she was labeled an “insurrectionist.” To describe her shooting as unjustified would be to invite accusations of supporting sedition or insurrection. Thus, it is not enough to condemn her actions (as most of us have done); you must not question her killing.
Like many, I condemned the Jan. 6 riot (along with those who fueled the unhinged anger that led to the violence) as the desecration of our Capitol and our constitutional process. But that doesn’t mean rioting should be treated as a license for the use of lethal force, particularly against unarmed suspects. The “job” of officers, to which Byrd referred, often demands a courage and restraint that few of us could muster. As shown by every other officer that day, it is a job that is often defined by abstinence from rather than application of lethal force. It was the rest of the force who refrained from using lethal force, despite being attacked, that were the extraordinary embodiments of the principles governing their profession.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.