I’ve been receiving a virtual tsunami of requests to do a use of force legal analysis of the shooting death of January 6 protestor Ashli Babbitt by Capitol Police Lieutenant Michael Byrd as Babbitt appeared to be attempting to violently breach the barricaded doorway being guarded by Byrd.
In fact, I did a detailed legal analysis of this shooting only days after it occurred—“Capitol Hill Shooting of Ashli Babbitt: Murder or Justified?” (Jan. 12, 2021)—although as with most of our content, access to that analysis was restricted to Law of Self Defense Members, who had the benefit of that analysis almost 8 months ago.
The last few days have seen a resurgence in requests for such a legal analysis of the Babbitt shooting, presumably as a result of two events. First, the August 28 interview of Lt. Byrd by NBC News Correspondent Lester Holt: “Extended Interview: Capitol Police Lt. Michael Byrd Speaks Out.” Second, an opinion piece on that interview published at The Hill by prominent legal expert Jonathan Turley: “Justified shooting or fair game? Shooter of Ashli Babbitt makes shocking admission.”
So, with those two additional pieces of information and opinion tossed into the legal discussion of the shooting death of Ashli Babbitt it seems an appropriate time to re-visit our legal analysis of that tragic event. (Fair warning to Law of Self Defense Members—much of this content is re-packaged from our January 12 analysis to which you’ve already had access.)
For purposes of clarity, the two primary bodies of evidence used for this analysis consist of the apparent camera video of the event itself and the recent television interview of Lt. Byrd:
Video of Event
Lt. Byrd Television Interview
Legal Analysis, Not Political Analysis
Before we dive into this, I’m obliged to caution all of you in the Law of Self Defense community: a proper legal analysis must be limited to the actual relevant evidence and the actual law and must exclude every other factor, because every other factor is by definition irrelevant to the legal analysis.
That includes excluding factors such political opinions and biases, and it includes excluding such sentiments as “but if the other guys had done it!!!!”
Political beliefs and sentiments are perfectly legitimate in any society, and many of us hold our beliefs strongly. That’s as true of me as anyone else. But if we blend politics into our legal analysis, we end up with a very poor, and likely wrong, legal analysis.
For many of you it might be helpful to imagine if the protestors had consisted not of Trump supporters with perfectly legitimate concerns about the integrity of the election, but Black Lives Matters protestors who claim their own legitimate concerns about social justice.
Applying the same law to the same facts should arrive at the same legal outcome, regardless of which of those two groups was protesting. If you arrive at a different legal conclusion based on the group protesting, that’s probably an indication that you’ve allowed your political biases to taint your legal analysis.
Accordingly, in this legal analysis we leave the political considerations, as important as they are to our society, off the table.
I also feel obliged to point out that by all indications Ashli Babbitt appears to have been a loyal American patriot and veteran who was acting with only the best of intentions and without any desire to inflict violence upon anybody on the date of her tragic death. Regardless of whether her shooting meets the legal conditions for a justified use of force, her death is a great loss.
That said, Babbitt’s actual intentions and high character are, in fact and law, irrelevant to whether her shooting was legally justified, for reasons we’ll detail in this analysis.
Fair warning: I recognize that any individual’s politics are deeply embedded within their character, that most of us have long ago “chosen sides,” and there’s nothing wrong with that. Once again, however, politics has no role in coldly reasoned legal analysis, particularly not of a specific use-of-force event.
If you are able to set your politics aside and review this analysis with an open mind, that’s awesome—it doesn’t mean you need to agree, but that’s the only way to garner any value from consuming this analysis. If you are not able to set aside your politics and keep an open mind, however, your time is likely best spent elsewhere than in consuming this analysis.
What Does “Legally Justified” Mean in Use-of-Force Context?
Given that the core question to be addressed by our analysis is whether the shooting death of Ashli Babbitt was legally justified, it’s worth taking a moment to understand what “legally justified” means in this specific use-of-force context.
And perhaps a good way to first approach that issue is to note what “legally justified” does NOT mean in this context.
“Legally justified” does NOT mean that the death of Ashli Babbitt was a good thing.
“Legally justified” does NOT mean that the death of Ashli Babbitt was an absolute necessity.
“Legally justified” does NOT mean that Babbitt intended to harm anyone on the other side of the barricaded doorway she was apparently attempting to breach.
“Legally justified” does NOT mean that Lt. Byrd had a perfect and complete understanding of all the circumstances surrounding the events facing him.
“Legally justified” does NOT mean that Lt. Byrd was a perfect officer who had never in his career made a serious mistake in judgement (e.g., reports of him leaving his service pistol in a bathroom).
“Legally justified” does NOT mean that in order for Byrd to have been justified it is necessary that other officers similarly situated made the same use of force decision, nor that other people acting similarly to Babbitt must have been subject to the same use of force.
“Legally justified” does NOT mean that as a consequence one must accept that everything (or even anything) the Biden administration has done or is doing is to the betterment of America—one can believe with one’s whole heart that the Biden administration specifically and Democrats generally are a disaster for America, and still be obliged to accept the possibility that the shooting death of Ashli Babbitt was legally justified. These are two entirely separate issues.
“Legally justified” does NOT mean that the Biden administration and Democrats would not be defending this shooting even if it were not justified—presumably, as political actors, they would behave in a politic manner and defend the shooting regardless of its legal merits.
Our role in this analysis, however, is solely focused on legal merit, as already discussed.
All of that is political stuff is entirely irrelevant to our legal analysis.
Now that we’ve outlined what “legally justified” does NOT mean in this context of the shooting of Ashli Babbitt, let’s consider what it DOES mean.
The shooting of Ashli Babbitt is justified for criminal liability purposes if it would be untenable, to a reasonable degree of legal certainty, for a prosecution to disprove beyond a reasonable doubt that Lt. Byrd had a genuine and reasonable belief that he was facing an unavoidable, unlawful and imminent threat of death or serious bodily injury to either himself or those he has a duty to protect.
It’s important here to understand the prosecution’s burden of proof here, as in any justified use of force case in criminal court. Lt. Byrd is not obliged to prove that his use of force was absolutely necessary. He is not obliged to prove that his use of force was probably necessary. He is not obliged to prove that his use of force was even somewhat necessary. Indeed, he’s not obliged to prove anything, once he’s established a prima facie case of defense of self or others.
Rather, the entire burden of persuasion on the issue of justified use of force is on the prosecution to disprove Byrd’s defense—and not by a little, or a majority, or even by a lot, but to disprove that defense beyond any reasonable doubt.
Normally we think of “reasonable doubt” in the affirmative sense of the prosecution having to prove a crime beyond a reasonable doubt, which means by a huge majority of the evidence. For our purposes, let’s pretend that this means guilt must be proven not merely by 51% of the evidence, or 70% or even 80%, but by a full 90% of the evidence—beyond any reasonable doubt.
Applying this framework in the use of force context the prosecution’s burden to disprove self-defense beyond a reasonable doubt means that it’s not enough for the prosecution to disprove self-defense by 51% of the evidence, or 70% or even 80%, but rather they must disprove self-defense by a full 90% of the evidence.
Alternatively, this means that if a jury would believe that there’s even a mere 10% chance that Lt. Byrd had a genuine and reasonable belief that he was facing an unavoidable, unlawful and imminent threat of death or serious bodily injury to either himself or those he has a duty to protect—just 10%!—then the jury will be instructed that they will be obliged to acquit Byrd of any criminal offense based on that use of force.
In other words, if the jury has even a reasonable doubt that Byrd’s shooting of Babbitt could have been justified, they are obliged to acquit—and, by extension, Byrd’s shooting of Babbitt will be deemed justified for legal purposes.
(The question is somewhat different in civil court than just described here in the context of criminal law, but for purpose of conciseness I’ll focus here solely on the potential criminal liability of this tragic event.)
In summary, when a legal analysis determines that a use of force was “legally justified” all that requires is that the analyst has concluded to a reasonable degree of legal certainty that they do not believe that they can disprove the justification beyond a reasonable doubt. That could well mean that they have a 75% belief that the use of force was not justified—but 75% is less than beyond a reasonable doubt (which for discussion purposes we’ve set at 90%), and so the required burden for guilt has not been achieved, and an acquittal would be instructed.
To use a sporting analogy, in American football a touchdown is not achieved if the ball is carried to the 51 yard line, or the 60, 70, 80, or even 90 yard line of the 100 yard playing field. The ball must reach the far end of the field, period. If that threshold is not reached, there is no touchdown, however nearly the threshold was almost reached.
So, that’s the bottom line question for our analysis: Is there, to a reasonable degree of legal certainty, even just a reasonable doubt (for discussion purposes, even just a 10% belief) that Lt. Byrd had a genuine and reasonable belief that he was facing an unavoidable, unlawful and imminent threat of death or serious bodily injury to either himself or those he has a duty to protect?
If the answer to that question is “yes,” even at just 10% belief, then Byrd’s shooting of Babbitt was justified for legal purposes (again, in the context of criminal liability—the legal threshold differs in the context of civil liability).
This is not, by the way, a unique threshold for justified use-of-force for Lt. Byrd—it’s the same threshold applied throughout the United States for any criminal defendant who raises a justified use-of-force legal defense.
The Five Elements of Self-Defense Law
OK, so now we know the key question to be answered in determining whether Lt. Byrd’s shooting of Babbitt was legally justified: Is there even a mere reasonable doubt that Lt. Byrd had a genuine and reasonable belief that he was facing an unavoidable, unlawful and imminent threat of death or serious bodily injury to either himself or those he has a duty to protect.
As you might expect, each of the italicized terms in that key question are critical factors in arriving at an answer. Fortunately, there’s a more succinct way of understanding that question so we don’t get too wrapped up in clunky verbiage.
In effect, those italicized critical factors represent the essential five elements of any justified use of force in defense of self or others: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.
If you’re unfamiliar with those five elements of self-defense law, then you’ll be doing yourself a real service to at least obtain a copy of our best-selling book which provides a detailed, law-based, yet plain English explanation of how these work in real-world self-defense cases. For a limited time you can get that book for free (just cover the S&H required to get it to you) here: “The Law of Self Defense, 3rd Edition” (http://lawofselfdefense.com/freebook).
In brief, however, here’s a concise description of each of these five elements of self-defense law, in the context of Lt. Byrd’s use of force upon Babbitt:
Innocence: Was Lt. Byrd the non-aggressor in the confrontation?
Imminence: Was the threat Lt. Byrd was defending against either actually in progress or immediately about to occur?
Proportionality: Given that Lt. Byrd used deadly defensive force, was he facing a threat readily capable of causing him or those he had a duty to protect death or serious bodily injury?
Avoidance: Did Lt. Byrd violate any legal duty to retreat, if retreat was safely possible for both himself and those he had a duty to protect?
Reasonableness: Did Lt. Byrd possess a genuine good faith subjective belief in the need to use deadly defensive force, and was that belief objectively reasonable?
If any one of those elements can be disproven beyond any reasonable doubt, then Byrd’s claim of justified use of force fails completely. If, however, there exists even a mere reasonable doubt in support of each of those elements, then Byrd’s shooting of Babbitt was justified for criminal law purposes.
IMPORTANT: The only facts relevant to any of this analysis are facts known to Byrd at the time he made his use of force decision. Facts not known to Byrd can obviously not have played a role in his use-of-force decision making, and cannot be relevant to criminal liability.
For example, some video footage shows other officers a short distance behind Babbitt when she was shot, but Byrd claims he was unaware of the presence of those other officers at the time, and there is no evidence to the contrary—as a result, the actual presence of those officers is not relevant to the analysis of whether Byrd’s use of force was legally justified.
Also relevant would be Byrd’s training and experience as a Capitol Police officer—conduct consistent with that training and experience would carry a large presumption of having been reasonable (and conduct inconsistent with such training and experience as unreasonable).
Further, it is not required that the “facts” known to Byrd be actually correct—it is merely required that these “facts” be reasonably believed to be true. For example, Byrd reports that he was receiving radio reports that shots were being fired into the House chambers, a portion of which he was guarding. In fact, no such shots occurred, so this “fact” proved incorrect. Nevertheless, if Byrd reasonably believed this report to be true, he is permitted to base his use-of-force decisions upon this reasonably believed, even if mistaken, “fact.”
Finally, it does not matter what Babbitt’s actual intent was in apparently attempting to violently breach the barricaded doorway that Byrd was guarding, nor the intent of the rest of the crowd apparently working in concert with Babbitt.
Byrd is obviously unable to read the mind of Babbitt, or the others. Instead, Byrd can only make reasonable inferences of their intent from their actual conduct and other credible reports (even if mistaken) that he is receiving.
So, with that context in mind, let’s consider each of those five elements of self-defense justification in turn, in the context of the facts of this case.
The element of Innocence asks that we consider which side in the confrontation was the initial physical aggressor, meaning the first to use or threaten unlawful force, or alternatively whether either side was a provoker with intent, meaning that they provoked the confrontation with the intent of then having an excuse to use force against the other. Either of those loses the element of Innocence and loses self-defense.
It’s frankly difficult to imagine a less aggressive posture than that taken by Lt. Byrd in this instance. He was literally using a doorway as defensive cover while guarding a barricaded set of locked doors. It was not the Capitol police officer who went to the protestors, it was the protestors who went to the Capitol police officer.
Further, the protestors had either already unlawfully and forcibly entered the Capitol or were about to unlawfully and forcibly breach areas of the Capitol which the Capitol officer would have reason to believe they did not have permission to lawfully access.
One might argue that at least some protestors had gained initial entry to the Capitol believing they had permission to enter the property—although this particular Capitol police officer may well not have known that, which is the relevant issue—but they certainly were constructively informed that they were being denied permission to proceed further once they reached the barricaded doors.
The ongoing forcible and unlawful attempt to breach the barricaded doors, especially if knowing both that the doors were barricaded against their entry and that there was an armed officer on the other side with his weapon drawn in preparation to use deadly force to prevent any such breach (which would be within the scope of his legal duties), clearly makes the protestors (at least those right at the doors and able to see the barricades and officer’s drawn weapon) the initial physical aggressors in this confrontation.
And no, it’s not true that any American citizen has an absolute non-revocable license to enter the Capitol building, any more than any American citizen has an absolute non-revocable license to enter any other governmental building, like a VA hospital or a Department of Motor Vehicles building.
To think otherwise would mean to accept that, say, squatters (or Antifa or BLM) have an absolute non-revocable license to occupy any government building at any time they choose and stay forever without permission, and that’s clearly not the case.
There’s even an argument to be made that the protestors attempting to breach the doors guarded by the officer were engaged in provocation with intent—that is, provoke the officer to fire a shot, so that they would then have an excuse to use force against the officer (and, by extension, against those the officer had a duty to protect). Certainly, the use of agents provocateur by protestors is hardly anything new.
In either case, as the initial aggressors, or perhaps even provokers with intent, the protestors attempting to breach the barricaded doors, with a clearly visible officer presenting his weapon defending those doors against breach fail the element of Innocence, meaning that element accrues to the benefit of Lt. Byrd.
The analysis is even more greatly in Lt. Byrd’s favor if we take into account his statements in his August 28 interview. Byrd states that he was receiving radio reports of barricaded doorways being violently breached by protestors, of officers being overrun, of officers being “down” (meaning injured and incapacitated to some degree, perhaps fatally), of officers being sprayed with chemical agents, even of an officer having his fingertips blown off, as well as the already mentioned (apparently false) reports of shots being fired into the House chambers.
Again, it is not necessary that any of these reports were factually accurate or true—it is merely required that Byrd had reason to believe them to be true at the time. If so, they can appropriately play a role in his own use-of-force decision-making.
In short, with Lt. Byrd positioned in some degree of cover behind a barricaded doorway between the protestors and himself and others he had a duty to protect, it was clearly the protestors violently breaching that doorway who were the initial physical aggressors in this meeting with Byrd, not Lt. Byrd who sought out a confrontation with the protestors.
The element of Innocence, appears to be checked for the officer—and not by a small margin.
Another of the required elements of a justification of self-defense (or defense of others) is Imminence, meaning that the threat against which Byrd was defending was either actually in progress or immediately about to occur.
From Byrd’s perspective, that “threat” would be in the form of the protestors violently breaching the barricaded doors he was guarding. Once the mob of protestors had breached the doors there was no practical means by which a single officer with a handgun could prevent the protestors from flooding further into the building, and presenting a threat to the (presumably mostly unarmed) other people in the building whom the officer had a duty to protect.
This view is only strengthened in its reasonableness when one recalls that Byrd was receiving credible radio reports of protestors making use of chemical agents on officers and of shots being fired into the House chambers—again, it is not necessary for these reports to have been true, it is only necessary that Byrd had reason to believe them to be true.
The analogy here would be to any normal citizen defending against protestors outside their home. As long as the protestors remain outside the home, being patient is probably prudent. Once the protestors have forcibly and unlawfully breached the home, however. the threat against the occupants is clearly imminent.
In the home analogy the four walls of the “castle” are the “red line” which when crossed justifies the use of defensive force. In the instance of the Capitol shooting, the barricaded doors Byrd was defending constitute that red line.
It is notable that although the officer has his gun drawn and pointed at the protestors as they milled outside the barricaded doors, he does not shoot so long as they simply stay on the other side of the doors. It would appear that he is being patient, again, a prudent choice.
Once an explicit effort is made to breach the doors—in particular, by smashing through the glass upper panel of the door—then the forcible and unlawful entry is in progress, and the threat—again, that the barricaded doorway the guard is defending will be breached—is actually in progress, which certainly meets the conditions of the element of Imminence.
So, when Byrd fired the fatal shot into Ms. Babbitt, could he have had a reasonable perception that the doors he was defending were in the process of being breached?
The evidence suggests that the answer is yes. At least in the video of the confrontation, it appears that when the shot is fired Ms. Babbitt is in a raised position, as if she were preparing to use her body to smash through the glass upper panel of the door before her, as a first step in affirmatively breaching the barricade.
Indeed, a close examination of the screen capture suggests that at the moment the shot is fired Ms. Babbitt has actually breached the door by extending her leg through the window frame of the door.
That action may well have been the “red line” the officer had mentally drawn as the point at which the threat would have become imminent, and it seems a reasonable one to draw under the circumstances.
It is also notable that the officer used force only against the person apparently affirmatively attempting to breach the barricaded doors, Ms. Babbitt. The officer did not continue shooting upon the other protestors who were not apparently making such an effort to breach the doors.
Again, I remind the reader that what matters for purpose of this legal analysis is not what Ms. Babbitt’s actual motivation or intent might have been—perhaps her motivation and intent was entirely non-violent—but rather what the reasonable perception of the officer would have been of her conduct, especially under the circumstance of her being accompanied by a group of other protestors, and the radio reports he was receiving whether accurate or not.
Once the protestors at the barricaded doors had made an affirmative effort to forcibly and unlawfully breach that barricade, especially if they knew that they were doing so in the muzzle of a defending officer’s lawfully presented firearm, they presented as a reasonably perceived imminent threat.
So, the element of Imminence, appears to be checked for the officer—and, again, not by a small margin.
The element of Proportionality asks us to consider the degree of force with which the defender was reasonably perceived to be threatened (or which those he had a duty to protect would have been threatened). Because Lt. Byrd used deadly defensive force the law would generally require that those he used force against presented as a deadly force threat.
Importantly, a deadly force threat does not necessarily require a threat readily capable of killing the defender (or those the defender has a duty to protect), although an apparent threat of death would certainly qualify. The legal term of art “deadly force” also includes force readily capable of causing serious injury, such as broken bones or head trauma.
So, the question then becomes, did the protestors present as a reasonably perceived threat readily capable of causing death or serious bodily injury to the officer or those the officer had a duty to protect?
The answer to that question almost certainly appears to be, yes—and this despite the protestations of many that the protestors in apparently breaching the barricaded doorway were “unarmed.”
Much is being made by some of the apparent fact that the protestors breaching the barricaded doorway appeared to be “unarmed.” Indeed, Lt. Byrd himself in his recent television interview states that he could not see any weapons among those on the other side of the door—albeit, he also says that he could see only poorly through the barricade. Still, one may not simply presume or speculate the presence of weapons as a justification for deadly defensive force.
So does the apparent absence of weapons in the hands of the protestors doom Lt. Byrd’s element of Proportionality, and thus his claim of justified self-defense?
No, because the key question in the context of Proportionality is not whether the other was armed but whether the other was readily capable of inflicting death or serious bodily injury. The presence of a weapon can affirm such an ability, but such ability can also exist even in the absence of a weapon. And if that ready ability to inflict death or serious bodily injury exists, the threat is a deadly force threat, regardless of absence of weapons.
In this context, even if the protestors were each and every one entirely unarmed, the sheer disparity of numbers alone would be sufficient to present a threat to the single officer of death or serious bodily injury. No single person can defend themselves successfully against a swarm of a dozen or even half-dozen protestors, even when the defender is armed with a handgun, and even if the protestors themselves are unarmed.
I don’t believe for a moment that anyone reading this, were they faced with a crowd of dozens of, say, Antifa protestors violently breaching their own home would feel they were not facing a threat of serious bodily injury, even if the Antifa members were apparently “unarmed.” In fact, in most states such a violent breach would trigger a legal presumption that the home defender was facing a deadly force threat, even if the intrusion were by only one individual and that individual was entirely “unarmed.”
If anything, the presence of Byrd’s handgun means the swarm of protestors would almost certainly be able to disarm him of the firearm, and thus simultaneously arm themselves with deadly force while disarming Byrd. Once armed with the officer’s pistol, the protestors would then present a clear deadly force threat to not just the officer but to the presumably largely unarmed people the officer had a duty to protect.
Indeed, given that the officer’s weapon was displayed at the protestors, and may therefore have been in plain sight, it would be reasonable for the officer to infer that if the protestors swarmed into his pistol it was only because they believed they could take it from him. The alternative would require believing that the protestors would swarm at the officer simply with the intent that he would shoot them each individually as they approached, and that seems unlikely.
So, even absent weapons of their own, the sheer disparity of numbers allows for a reasonable perception that the protestors presented a threat readily capable of inflicting death or at least serious bodily injury to the officer and those the officer had a duty to protect.
Again, what controls in this instance is not the actual intent or motivation of the protestors, but the reasonable perception of their capabilities by the officer under the circumstances of facing the protestors as they violently breached the barricaded doors he was defending.
But the officer shot only Ms. Babbitt, and surely he did not need to use deadly force to defend against a single unarmed woman, right?
The answer to that question is that Ms. Babbitt and all the other protestors on the other side of that door were acting in apparent concert, as what the officer would have reasonably perceived as a mob. When defending against a mob, the mob is treated as a collective threat, and each of those working in apparent concert is as responsible as the worst of their actors. In short, a cooperative mob is not a collection of individuals, it is a single aggressive entity.
To illustrate, if two people are holding your arms so a third can stab you, legally speaking every one of the three is stabbing you, and you can defend against each of those holding your arms with the same deadly defensive force as you can defend against the one holding the knife.
In this instance, if Ms. Babbitt successfully breaches the doors the officer is tasked with defending, it is reasonable to infer that the rest of the protestors will follow her through—after all, they all came together to arrive at the barricade in the first place.
So, on the issue of Proportionality, the question is whether the officer could reasonably have perceived the protestors apparently breaching the barricaded doors he was tasked with guarding as possessing the ready capability of inflicting death or serious bodily injury upon either himself or those he had a duty to protect?
The answer to that question would clearly appear to be, yes.
So, Proportionality, appears to be checked for the officer—and, again, it’s not even really a close call.
The element of Avoidance asks whether the defender violated any legal duty to retreat. More specifically, was there a legal duty to retreat, was there a completely safe avenue of retreat available to the officer, and if so did he fail to make use of that safe avenue of retreat and therefore violate that legal duty. If the legal duty exists and safe retreat was practically possible and if the officer violated that legal duty, he loses that element of Avoidance and loses his justification.
The bottom line, however, is that Lt. Byrd was not required to retreat because he was not merely defending himself, but also all the others in the House chambers behind him. That is, after all, why he was an armed Capitol police officer in the first place.
Even in jurisdictions that normally impose a legal duty to retreat, one is not required to flee from an aggressor and leave other innocents, unable to defend themselves, to the mercy of that aggressor. If you are attacked while with your small children, and you could safely retreat but your children could not, you are not required to run and leave your children behind. Same if you were attacked while with your elderly parents, who similarly lacked your ability to flee with complete safety from the attack.
In this instance the officer would not be obliged to flee, and secure his own safety, even if that were possible with complete safety, if it meant leaving behind those he had a legal duty to protect—the presumably unarmed people behind the officer’s barricaded position.
In any case, Lt. Byrd stated in his interview that “once we barricaded the doors, we were essentially trapped. There was no way to retreat, no other way to get out.” Even in a duty-to-retreat jurisdiction, if safe retreat is not possible the duty to retreat does not apply.
In short, in the circumstances facing Lt. Byrd there would be no legal duty to retreat even in a duty-to-retreat jurisdiction, so he could not have violated a legal duty that would not apply.
So, Avoidance, appears to be checked for the officer, again not by a small margin.
The element of Reasonableness is two-fold. First, it asks whether the officer had a genuine, good-faith, subjective belief in the need to use deadly force in self-defense? Second, it asks whether that subjective belief was objectively reasonable—that is, would a hypothetical reasonable and prudent person, under the same circumstances, knowing what the officer knows, with the officer’s training and experience, have held the same subjective belief?
For the element of Reasonableness to be satisfied, and thus support a claim of self-defense justification, the answer to both those questions must be, yes.
With respect to the subjective requirement of reasonableness, we obviously don’t have a machine allowing us to read the officer’s mind, so we have to make reasonable inferences from the circumstances, in combination with the officer’s conduct and statements, if any.
Unlike in my first analysis of this event back on January 12, we now do have statements from Lt. Byrd in the form of his recent television interview—and the entirety of those statements are consistent with a genuine, good faith, subjective belief that deadly defensive force was necessary.
Particularly relevant here are the radio reports Byrd received of shots being fired into the House chambers—later shown to be incorrect reports, but nevertheless credibly presented to Byrd and therefore appropriate for him to apply in his threat assessment.
Also relevant were similar reports of officers “down,” meaning incapacitated to some degree. Also relevant are the other factors presenting themselves directly to Byrd, such as the appearance and sound of the size of the protestors on the other side of the door and their actual violent breach of the barricaded doorway.
Where the elements of Innocence, Imminence, Proportionality, and Avoidance are satisfied, as appears to be the case in this instance, it’s tough to argue that there was not a genuine, good faith, subjective belief in the need to act in self-defense, absent some strong contraindication by the defender.
For example, if a hypothetical defender had social media content that evinced a desire to shoot dead any protestor as a matter of apparent political principle, that might suggest a motive for the shooting other than a subjective belief in the need to use defensive force. Or if the officer gave a statement after the fact to the effect that “the gun just went off,” and that he never intended to fire at all, that would suggest the absence of a subjective belief in the need to use force (and would further suggest the defense of accident).
Absent any such evidence undermining the officer’s subjective belief in the need to act in self-defense, however, it seems apparent that the circumstances are sufficient to meet a prima facie showing of that subjective belief, and sufficient to prevent a prosecutor from disproving that subjective belief beyond a reasonable doubt.
A subjective belief alone, however, is not sufficient to meet the requirements of the element of Reasonableness, and therefore not sufficient for the legal justification of self-defense. A genuine, good faith, subjective belief in the need to act in self-defense is insufficient alone to justify a use of force if that subjective belief is objectively unreasonable.
So the next question is whether a hypothetical reasonable and prudent person, in the same circumstances, with the same knowledge, with the same training and experience (or, notably, perhaps lack of training and experience) would have shared that subjective belief of Lt. Byrd.
Here, again, given that the elements of Innocence, Imminence, Avoidance and Proportionality are apparently satisfied, it would be hard to argue against objective reasonableness unless there is strong counter evidence. Was there information known to the officer that would, or should, have suggested to him that the use of deadly defensive force was not, in fact, reasonable under the circumstances?
The most substantive argument I’ve seen raised on this point is the presence of a number of heavily armed police officers who were present immediately behind the protestors at the door. These officers were equipped for tactical operations, meaning they were wearing helmets, body armor, had long guns, and so forth.
If the half-dozen or dozen protestors at the barricaded doors were intermingled with four or five heavily armed and equipped police officers, such that these officers could readily intervene in any attempt to breach the barricade, and—importantly—the presence of these officers was known to the Capitol officer who fired the shot, then a good argument could be made that the Capitol officer’s perception of the need to shoot Ms. Babbitt, even if subjectively believed, was objectively unreasonable. And therefore he loses Reasonableness and loses self-defense.
There are two ready counters to this argument, however.
First, any defender in the position of Lt. Byrd—facing an apparent mob of protestors who are apparently breaching the barricaded doors he is defending, and who collectively appear to satisfy (for the officer’s purposes and from his perspective) the elements of Innocence, Imminence, Proportionality, and Avoidance—would be prone to focus a disproportionate share of their attention, and perhaps the entirety of their attention, on the most immediately threatening facets of the scene before them.
That would mean focusing on those right at the doors, including Ms. Babbitt as she apparently rose to smash her leg through the glass of one door as well as the man apparently wielding a stout rod. I suggest it would be unreasonable for the officer’s vision to also capture what was happening three or four rows of people behind the immediate threat.
Even setting that practical consideration aside, however, the video suggests strongly that in fact the heavily armed officers were not at all visible to the Capitol officer as he fired the shot. How could this be so? Because those heavily armed officers were climbing a flight of stairs behind the protestors at the time the shot was fired and had not yet risen to the same level as the protestors.
Indeed, the officers are still walking up the stairway even as Ms. Babbitt is being lowered to the floor, a full 8 seconds after the Capitol officer has fired his shot:
Thus at the time the Capitol officer fired his shot, 8 seconds prior to the image above, the heavily armed officers would almost certainly have been much lower on the stairway, and well below the Capitol officer’s line of sight. And if their presence was unknown to the Capitol officer, their presence could not undermine the objective reasonableness of his perception of the need to use defensive force.
It is also worth noting that Lt. Byrd himself states in his recent television interview that he had no knowledge of those other officers located behind the protestors who were violently breaching the barricaded doorway:
“I later found out there were officers on the other side of the door . I had no knowledge that those officers were there, I had no visual or communication with them. There was no call over the radio explaining to me that those officers were there.”
So, Reasonableness, both subjective and objective, appears to be checked for the officer.
To A Reasonable Degree of Legal Certainty: Justified
Recall that the fundamental questions in this case, as in any use-of-force case involving the justifications of self-defense or defense of others is:
Is it tenable, given the evidence, that that prosecution can disprove any one of the required elements of self-defense—either Innocence, Imminence, Proportionality, Avoidance or Reasonableness—beyond a reasonable doubt?
I would suggest that the answer to this question is, no.
When Ashli Babbitt at the head of a mob violently breached the barricaded doorway being guarded by Lt. Byrd, especially in the context of the other reports—whether accurate or not—of violent protestor conduct, Byrd almost certainly had a genuine, good faith subjective and objectively reasonable belief that he and those he had a duty to protect were facing an unlawful imminent threat of deadly force harm, justifying the use of deadly defensive force.
And the prospects of this belief being disproved beyond any reasonable doubt, I suggest, are vanishingly slight.
Therefore the conclusion of the legal analysis must be that to a reasonable degree of legal certainty the Capitol officer’s shooting of Ms. Babbitt was justified for legal purposes.
And again, this is the case regardless of Ms. Babbitt’s actual intent or motivations or character or goodness, all of which may have been as white as the driven snow. I expect that all of us, including Lt. Byrd who shot her, would much prefer that Ms. Babbitt was still with us today.
It’s also the case regardless of the arguably well-earned contempt in which the Biden administration is held by tens of millions of patriotic Americans.
Ms. Babbitt’s apparently high character and the valid political sentiments of patriotic Americans are both extremely important matters. They are also, however, matters entirely distinct from whether Lt. Byrd’s use of force upon Ms. Babbitt was legally justified under the circumstances presented to him.
OK, folks, that’s all I have for all of you today.
Until next time:
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
IMPORTANT: We encourage civil and reasoned debate among Members in the comments. That said, comments reflect the legal opinions of those who authored them only, and no comment should be assumed to reflect the legal opinion of, or be assumed to be shared by, Attorney Andrew F. Branca, except those authored by Attorney Branca. Law of Self Defense LLC does not systemically moderate comments for legal correctness, and we suggest that all comments be viewed with an appropriately critical eye and a grain of salt.
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