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.
“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.””
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Black privilege.
That racist anti-American POS will get what he deserves!
Did Byrd observe unarmed trespass?
I guess it is time to start shooting them all.
Capitol Police Lt., Michael Byrd, a black, racist, illegal alien, communist (liberal, progressive, socialist, democrat, RINO) and unconstitutional affirmative action project, must be prosecuted to the fullest extent of the law for the willful and deliberate murder of Ashli Babbitt, an unarmed, American, female perpetrator of the crime of misdemeanor civil disobedience.
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“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
– Declaration of Independence, 1776
Very fair and dispassionate analysis by Professor Turley. As he says, the report would justify hundreds of shootings by the cops since Babbitt’s shooting did not stop the rioters.
As the BLM movement insists, it does appear there are two systems of justice in this country. One for BLM protesters, OJ Simpson and George Floyd, another for white conservative unarmed protesters.
“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.”
The officers were not standing directly behind her. There were many insurrectionists in the hallway in between her and the officers behind all of them. Nowhere in the entire column do you note that she started to climb into the Speaker’s Lobby, a highly restricted area that opens directly onto the floor of the House. People were still being evacuated from the House floor. Is there any doubt that she would have opened the door for other insurrectionists after going through?
JT: your unwillingness to include these relevant facts — especially about the Speaker’s Lobby, which has a different legal status than some other parts of the Capitol — weakens your argument.
Is there any doubt that she would have opened the door for other insurrectionists after going through?
I limit my self to facts. Your wild speculation lacks facts. Do you really want people, all people, using this standard for killing others?
(while I know congress critters believe they deserve special protections, the law fails to recognize any)
The Anon poster obviously is lying. We could see the armed police immediately behind her and NO ONE secured the scene or provided any attempts to control the bleeding or to treat Ashli. Be careful what you wish upon others – to those commenting lauding this trash – you are not THE ELITE and the same tactics WILL be used against you!
The police were NOT “immediately behind her.” They were at the end of the hall near the stairwell.
“NO ONE secured the scene or provided any attempts to control the bleeding or to treat Ashli.”
That’s false. She was given first aid.
“you are not THE ELITE”
I agree. You aren’t either.
“the same tactics WILL be used against you!”
I’ve never broken into any building, much less broken into the Capitol with the goal of preventing Congress from certifying the EC vote. If I ever do that, I accept the risk.
I’ve never broken into any building, much less broken into the Capitol with the goal of preventing Congress from certifying the EC vote. If I ever do that, I accept the risk.
You have zero reading comprehension skills
This is about the language gymnastics the DoJ is performing to change all the meaning of words in order to clear an officer of even ,Charges of misconduct. No investigation, no grand jury, no indictments, no charges, no public examination of evidence.
What Prof. Turely is trying to drill into your thick head, THE GOVERNMENT will be the one to determine if you deserve to be executed on site of the crime they declare. If they can ignore the law to clear the Govt of abuse, they have to power to ignore the law and execute you too.
Your pathetic attempt to emotionalize what happened holds no sway with the facts. “prevent congress from certifying” They in fact
They in fact went to petition their govt for redress, to refuse to certify the election. Something the Constitution protects as an enumerated right.
The Government has no power to tell the citizens which things they are prohibited from seeking redress
If you watch the video, there is a uniformed officer directly behind Ms. Babbitt and in the line of fire when she is shot. This officer is clearly surprised by the shot, as his first reaction is to raise his hands up as if saying “I didn’t shoot”. There were other officers with him in that same area, they tried to save Ms.Babbitt.
Just to be clear: since you are okay with an officer or civilian to shoot an unarmed person for a potential or perceived threat, do you agree with the McCloskeys being charged with brandishing weapons at people who broke through a fence, came onto their property, and threatened them in several ways? They shot no one, we’re on their own property, yet were arrested and charged essentially for defending their home from violent trespassers.
There were about eight or ten “insurrectionists” there, making a lot of noise. There were a lot more cops in the lobby behind the door, and coming up the stairs behind the little group.
If Byrd was a white police officer and Babbitt was an unarmed black woman does anyone really doubt.. for a second.. that there would be ongoing riots in all democrat run big cites across the country? That the media would be screaming “SYSTEMATIC RACISM” and egging on the rioters while their so-called legal “experts” would on TV nightly lambasting the decision not to prosecute the officer?
Very few of the insurrectionists were Black. The vast majority were white.
john sullivan, the guy exhorting them in the background, and, in fact, the videographer,is a “career” anarchist and is black.
“Babbitt is considered by many to be fair game because she was labeled an “insurrectionist.” ”
The left label men as women.
Larry elder is labled the Black Face of White supremacy.
Depends what the definition of, is, is
There are 24 different genders( labels follow the science,
the left created a whole new protected class, merely by how a person sates their sexual desires
Tbis is why the left spend so much time redefining words.
If you define the words you win the debate
.
We have been 20 months allowing the government to suspend the bill of rights because the flu has been labeled a pandemic
Next cums guns (the Center of Disease Control has been trying to lable gun crimes a health problem for decades
The of course CAGCC has been “labled” a health issue.
Byrd is the personification of a cowardly hysteric. His identity was hidden for so long because the case just doesn’t fit the Dem narrative: black cop, white female victim — how can they chant “all cops are racists” when they have direct proof that even black cops can make disastrous errors. And it wouldn’t be the first time. But more than anything, cases like this are so blatantly political and hypocritical as to convince the public that the entire judicial system is built on a house of cards. Let’s not hear anymore about those criminal saints BLM demands we all bow down to. It’s just a power game.
Errors? Nothing erroneous about it. As has been said if it was a white police officer killing a black woman, we’d never have heard the last of it- whatever the circumstances were and protest wouldn’t have stopped until he’d been jailed for 25 years. Other way round..well, that’s OK apparently.
Had he not shot, the rioters would have had direct access to Members of Congress. That would have been very dangerous because the mob was openly out to get them, and thus he was fully justified in shooting.
BS
Not one person attempted to attack members of congress before or after Babbit was murdered.
True enough for 1-6, But talking to Rand Paul and Steve Scalise will give good perspective about whether the left or the right utilizes terrorists actions to advance their cause.
That’s because they didn’t reach any members of Congress. Some had erected a gallows outside and were chanting their desire to hang Pence and Pelosi. I’m inclined to believe that some would have killed Pence and Pelosi and some others in Congress if they’d found them.
. Some had erected a gallows outside and were chanting their desire to hang Pence and Pelosi. I’m inclined to believe that some would have killed Pence and Pelosi and some others in Congress if they’d found them.
Great assumption since none of them came with weapons. The FBI, after 8 months of investigation, found Zero intent to hurt a soul. Its stupid on stilts, to still be using wild speculation to sate your blood lust. Pushing the Big LIe about what happened 1-6-21
Symbolic.
What about that terrorist that posed for a photo of holding the severed head of the President of the Untied States? She should have have been executed?
If only that were true. In the true spirit of Jefferson I think it would be a good thing for the nation if every now and then a few wer drug from Congress and hung from the nearest lamp post. It might serve to remind the others how tenuous their position is.
Had he not shot, the rioters would have had direct access to Members of Congress.
You ignore all the things the cop DID NOT KNOW. But you’re a great mind reader and seer into the future.
That is NOT a legal standard. The cop that is convicted of killing Floyd tried to use that defense and was denied. Floyd could havegotten up and killed somebody. He could have been out of his mind on meth, he could have murdered innocents on the street.
That Couple in Missouri they tried to charge with a crime, for standing on their property holding legal weapons, should have loaded their guns and killed as many as they could, then reloaded and kept shooting, The rioters already had breached the private gate and mobs across the nation had already killed dozens. They feared for their safety, AND the safety of their neighbors.
You don’t want to live by the standards you are advocating for.
Having been a Federal agent for 31 years and a firearms instructor for part of that, the standard for an agent to discharge their weapon has always been that there must be the presence of a threat of IMMINENT death or grievous bodily harm to yourself or a third party. Neither of these circumstances existed in the shooting of Ashli Babbitt.
Do you agree that the protesters did grievous bodily harm to many of the police that day?
Was Byrd in IMMEDIATE danger of harm? No? He’s a murder.
Agreed. Firearms safety says you never put your finger on the trigger until you are ready to shoot. There are pictures of Byrd with his finger on the trigger of his weapon, while other officers have their fingers on the trigger guard in a safe, but ready position. This gives ample cause to wonder about his fitness not only to carry a firearm, but to be on the Capitol police.
What a crock……..defend what?……The Squawk ers “fearing” for their sorry arzz..lives aren’t worth defending…..
I am a former City Police Officer and a former Federal Special Agent….and I agree with everything the Good Professor has said about this tragic shooting of Ms. Babbitt.
Nothing in my past experience, training, or study would in any way even begin to offer a justification for Officer Byrd to have discharged his service weapon…..nothing!
This case should be taken over by a Special Prosecutor, have a proper investigation performed, evidence presented to a Grand Jury and upon indictment be prosecuted for Murder.
There is plenty of video available to anyone that cares to look for them….carefully review them…and see the Good Professor correctly and precisely states what transpired that sad day.
Byrd’s own video showing him relating his actions that day and what he based them upon also are the best direct evidence of a completely un-justified shooting.
Byrd claimed to be a Hero….he is not…..he is a Murderer who is getting away with that crime because of a corrupt Department of Justice under the Biden Administration.
You wonder why people would do as they did on January 6th if they had faith in our system of government?
How does this cover up work to improve the People’s view of Government in this Country?
I like the Good Professor’s analogy re the Use of Force the DOJ is espousing by means of this cover up and sham of an investigation.
Let’s see the Seattle, Portland, Kenosha, Milwaukee, and yes…even the DC Police start using the “new” DOJ use of force standards and start gunning down Rioters.
What will you on the Left say then?
She was climbing into the Speaker’s Lobby. The Speaker’s Lobby isn’t in “Seattle, Portland, Kenosha, Milwaukee” or elsewhere in “DC.” Have you read the law about the Speaker’s Lobby?
For example, 40 U.S. Code § 5104 includes “An individual or group of individuals may not willfully and knowingly —
(A) enter or remain on the floor of either House of Congress or in any cloakroom or lobby adjacent to that floor…” (emphasis added)
The Speaker’s Lobby is adjacent to the floor of the House.
Turley consistently omits this legally relevant fact.
What’s the rest of the story? Has Byrd been returned to his job and given his weapon to carry again?
He got a gold medal for that day. Congress voted for it, and Biden gave them their participation trophies.
If she had not been wearing a backpack I would say that it was not a justified shooting. However the backpack makes her potential bomber under the circumstances. If a man or woman charged a Secret Service protected person while wearing a backpack they would be shot justifiably. She made a terrible mistake and paid for it with her life. It was a shame but it was her own fault. If she had been empty handed and not wearing a backpack would not have been shot. I worked with the Secret Service as a detailee from another law enforcement agency and that is what I would have done.
How many Antifa Thugs wear back packs……can we now start shooting them on sight at a riot?
She was empty handed….she was using her hands to try to climb through the window……how could she be a threat doing that?
Use what little gray matter you have rather than clinging to old talking points you read somewhere.
Do give us a detailed explanation of the Use of Force Policies you were instructed upon, received training for, and the Laws you were working under.
For those not knowing….when Michael says he was “detailed” to the Secret Service…that means he was on the outside Ring of security….or at best….on the second ring….but never the first Ring (that closest to the Protectee).
If he had gunned down people for wearing a back pack he would have had to carry a lot of ammunition.
Michael….in my PSD Detail work I also worked in concert with the Secret Service….at the closest level of security….right next to the Principle being guarded….not just in the outer rings.
So I know what our Rules were….and I can assure you we would not. have fired a round or even have displayed a firearm but would have used plain old overwhelming physical force on a “threat” that did not present a weapon of any kind.
So pardon me if I find your post to be supercilious.
Then I’d say it’s a good thing you no longer do.
backpack makes her potential bomber under the circumstances
Terrible standard.
First you must start with the premise that power corrupts. Government Power is what the BoR was drafted to protect citizens from.
To put a target on any person that carries a backpack, bag, brief case, satchel, etal is insane. That gives Government much to broad of license. If Law Enforcement is granted such leeway, are citizens also allowed to make such assumptions? We must always remember. The power you are granting, is actually power delegated to the government, by the People. The government does not have power. ONLY power that is delegated, from those that poses the power.
Excellent!! So now we can shoot any Antifa we see with a back pack?? (there probably ARE bombs in theirs) Great!!! Good to know this is legal now.
A remarkably stupid man shoots an unarmed woman and boasts about it.
The media lies about the events and peabrained liberals fix those lies in their minds.
The establishment links arms to deny the murder of a despised minority (yes, Trump supporters are a despised minority in the eyes of Washington).
Posters like Justice Holmes (who seems mentally on par with the Capitol shooter) falls back on insults because he cannot refute Turley.
Liberals are (for the most part), intellectually dishonest.
Professor Turley has to play it sort of straight. I doubt he buys the insane nonsense put out by official sources.
It is good that Professor Turley continues to write about this. Very few others are doing so. I do wish, however, that he would address himself to how DOJ avoided having to reach a potentially adverse conclusion by focusing only on a possible civil rights crime rather than one of the varieties of homicide. It is this that allowed them to say that even if Byrd’s actions were constitutionally unreasonable (that is, unjustifiable under the constitutional standards that are a defense to an otherwise criminal use of force) he could only be prosecuted successfully if he acted “wilfully”. If DOJ had examined this as a homicide, all the states of mind they dismissed as irrelevant in a criminal civil rights violation would have been relevant.
Well said. I have been thinking precisely the same on that issue.
You should read up on California AB55 and if you think this is about the virus after that there is no hope.
She was illegally entering the Capital bldg to take control and threatened those inside by coming through the door and by coming up the outer steps.
Shoot em all!
Just like Pelosi and the FBI planned.
Do you REALLY want a war between left and right?
That is what “they” want a fake left -right civil war – so they can bring in the UN rapers, Pedos and baby killers – so they they can continue the destruction of the greatest and only moral country ever in history. So the Euro-trash “inbreds,” NOT “elites”can get back completely to their feudal parasitic lives and regression to the Stone Age. They have been trying since 1791.
Do you REALLY want a war between left and right in the United States? If so, I know which side my money is on.
Have the FBI identified those dressed in black bloc who were bashing the windows and then lifting Babbitt up to push her through the window? THOSE are the infiltrators who need to be identified. I suspect a setup and foul play.
A man with GUN
Afraid of a woman without a GUN.
Shooting into a crowd that included cops by a stooge pasty cop, GMAB. And the stooge hits the target (not where he aimed of course) from 25 feet away. Sure. All the world is a stage and anyone connected to the government is an actor and bad ones at that.
Imagine if she was really shot?
You really are a disgrace but nothing you say or do surprises me anymore.
I find this article to be well written and well reasoned. What is it exactly that you find disgraceful?
What precisely do you find disgraceful about an article questioning the legality of a police shooting?
JH
I frequently laugh at Anonymous eb and Natacha, overlooking your silly comments.
My apologies, your silliness deserves an occasional callout.