George Washington University law professor Jonathan Turley is raising questions about the shooting of Ashli Babbitt and making some of the same points that I made after I saw the interview on Thursday that Lt. Michael Byrd gave to NBC's Lester Holt.
The media has largely ignored the questions about the propriety of the shooting, because they were against Babbitt's political beliefs. But the same standards of whether an officer is justified when shooting should apply whoever the person shot is — be they Trump supporter or BLM person.
Just as an aside, I can't recall even one BLM/Antifa person shot by a police officer in response to all the horribly violent things they did over the past year. As Turley points out, not one other officer who was present fired on any of the other rioters during the Capitol riot, despite other circumstances in which some were, in fact, attacked by rioters.
The question should be: is the person a threat justifying the use of deadly force? You don't get to shoot someone for being an unarmed trespasser during a riot. In the case of Babbitt, she was unarmed, as far as we know, hadn't attacked anyone, was standing outside the door with multiple other officers, who she had not attacked or hurt. She was climbing through a window when she was shot, not physically threatening Byrd or others.
Turley notes how the DOJ review was not saying that Byrd was clearly justified. Instead, it was saying he didn't have a “bad purpose” behind his actions.
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. [….]
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.”
Translation: even if it was fear and poor judgement, too bad; they're not going to go after him.
Byrd spoke to Holt after the internal reviews indicated that no one would be pursuing charges against him.
In an exclusive interview with @LesterHoltNBC, Capitol Police Lieutenant Michael Byrd describes why he’s choosing to identify himself. Byrd shares his account of the January 6 riot, as officers barricaded the door and he fired a single shot, killing Ashli Babbitt. pic.twitter.com/5E7KPtxNc2
— NBC Nightly News with Lester Holt (@NBCNightlyNews) August 26, 2021
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.
Additionally, as I previously reported, Byrd admitted he didn't know whether she was armed or not, and that not being armed wouldn't change his actions. That was a pretty stunning comment. So, he isn't even arguing he shot her because he thought she was armed or could have been armed. Plus, as I previously said, there were tactical officers right behind Babbitt who had just come up the stairs, who likely were coming to replace the Capitol Police officers who had been in front of the door.
So no, Byrd didn't even have to shoot her, since those officers would have been there to defend the floor literally within a second. He didn't really “save lives,” since she didn't appear to be threatening anyone, but he did take one. As a 28-year officer, is there no other way he's learned to stop a small, unarmed woman trespasser — other than shooting her?
This interview really did him no favors, even if he thinks he is in the clear from any prosecution.
This is also an officer who has a bit of a history: leaving his service gun in a bathroom in the Capitol Visitor Center. It was later found by a security sweep later night, as Politico reported.
Byrd at the time said that with his rank as a lieutenant and his role as commander of the House chambers section, he told his colleagues that he expected to “be treated differently” in terms of consequences. Byrd did remain on the job in the days after his weapon was discovered.
Turley makes another point which is rather important, not just for this matter, but as a general point for the future.
If the DOJ and the Capitol Police are saying he was justified in shooting an unarmed trespasser, then are they saying that all the other unarmed trespassers who were there could just be shot as well, even without physically threatening an officer? That's the logical extension of that conclusion — and that's pretty troubling.