Yesterday I published a detailed legal analysis of the shooting death of Ashli Babbitt by Capitol Police Lt. Michael Byrd, in response to a recent tsunami of requests to do so. You can find that analysis here: “Sad but True: Jan. 6 Shooting of Ashli Babbitt was Legally Justified.”
Because of the great public interest in this particular case, we are leaving that analysis available on an open-access basis to the general public, rather than restricting it to our Law of Self Defense Members as is our usual practice. We’ll also be leaving today’s content open-access, for similar reasons. So, if you’d like to share either yesterday’s analysis or today’s content with others, feel free.
One of the events that has triggered these recent requests for this legal analysis of the Ashli Babbitt shooting is the publication on August 28, 2021 of an opinion piece by Professor Jonathan Turley in “The Hill,” entitled “Justified shooting or fair game? Shooter of Ashli Babbitt makes shocking admission,” and apparently written in response to a television interview of Lt. Byrd aired earlier that day (you can view that television interview here: “Extended Interview: Capitol Police Lt. Michael Byrd Speaks Out.”)
I feel obliged to note up front that Professor Turley certainly qualifies as one of America’s great legal minds. Although I’ve not had the pleasure of meeting Professor Turley in person, I have had the opportunity read a variety of his legal commentary in different forums, and have invariably found that commentary to be well-informed and insightful.
That said, Professor Turley’s August 28 opinion piece on the Ashli Babbitt shooting falls far short of the stellar quality I’m accustomed to seeing in his work. Indeed, from the perspective of this small-town lawyer claiming some modest expertise in use-of-force law, Professor Turley’s opinion piece seems wildly off the mark, especially coming from a notable legal expert, and can only be described as disappointing.
First, there’s the headline—”Justified shooting or fair game? Shooter of Ashli Babbitt makes shocking admission,” presumably referencing Lt. Byrd’s television interview. OK, fine, let’s take a look at this “shocking admission.”
It must be noted, for those who may not know, that generally speaking the author of any piece of journalism or opinion does not write their own headline, and Professor Turley almost certainly did not write this headline.
That said, I’ve personally viewed the Byrd television interview with great care, and there is literally no “shocking admission” contained anywhere within it. Indeed, the entirety of Byrd’s statements throughout are consistent with a justified use of force. So, the headline itself is utter nonsense. But again, I hesitate to attribute the headline to Professor Turley, for reasons already stated.
The body of the opinion piece can, however, be fairly attributed to Professor Turley, and I’m afraid it’s chock full of irrelevancies and entirely fails utterly to touch upon any actual facet of use-of-force law relevant to determining whether Byrd’s shooting of Babbitt was legally justified.
For example, Turley writes:
[W]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.
What are these “worst suspicions” that were “confirmed” by “Byrd’s interview”? Well, Professor Turley never says explicitly—I suppose we’re just supposed to know these “worst suspicions” intuitively?
If so, having watched every moment of the interview very closely, I can find nothing in Byrd’s interview comments that might qualify as “confirmed” “worst suspicions.” Indeed, I can find nothing in the interview that is inconsistent with a justified use of force.
As for raising “serious questions” about the DOJ and Capital Police reports, I certainly concur that those reports were bizarre for reasons on several levels. But so what?
The justification of Byrd’s use of force is assessed on its own merits and the relevant facts and the law, not on reports written by administrative lawyers (e.g., very low-level political actors) months after the event.
If Byrd’s use of force was legally justified based on the legal merits, there’s no later report in the world that changes that analysis absent new evidence, and none of these reports contain new evidence.
And the converse is even more true—if one believes the use of force was not legally justified, the months-later reports are even more moot. In short, they are irrelevant either way in the context of whether Lt. Byrd’s use of force meets the legal requirements to be justified.
I will note that these bizarre reports do, of course, have political implications. For one, they suggest that the administration itself lacked the legal expertise to confidently find Byrd’s use of force justified, and so engaged in a bunch of hand-waving to craft a narrative of justification they desperately wanted, which in turn creates the appearance of a white-wash and a cover-up.
Nevertheless, the fact that politicians may have acted as politicians are prone to act does not somehow magically make Byrd’s actual use of force unlawful, if it otherwise meets the legal requirements to be justified on its own merits.
Professor Turley then writes a paragraph about the virtues of Ashli Babbitt, and I fully concur with those virtues—veteran, patriot, Trump supporter, etc.—but that said all of these are entirely irrelevant to a legal analysis of whether Byrd’s use of force was legally justified.
What matters is not who Babbitt actually was or what she was actually doing and for what actual motive, but rather Byrd’s reasonable perception of the circumstances presented to him. Byrd need not even have been correct about his perceptions—the law does not require perfection—he need merely have made reasonable perceptions, even if mistaken.
Further, Babbitt was a total stranger to Byrd, so there’s nothing about Babbitt’s character that could have played any role whatever in informing Byrd’s use-of-force decision making. Use-of-force law does not require, or allow, us to judge a person’s conduct based on information they could not possibly have possessed at the time.
Professor Turley does accurately notes:
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.
Turley writes that he had immediate concerns about the shooting of Babbitt, and:
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.
Turley does not provide a link to the actual DOJ review and report, but does provide a link to a DOJ press statement referencing the review and report.
I certainly agree that this press statement qualifies as bizarre if it is intended as a use-of-force review, because it doesn’t speak to use-of-force in any traditional sense as a justification for the shooting of Ashli Babbitt. Rather, it merely speaks to whether Lt. Byrd committed a particular and rather obscure civil rights violation upon Babbitt, and summarily concludes that he did not.
That, folks, is not a “use-of-force” review. It is theoretically possible that Byrd did not violate the civil rights statute in question, and yet still committed a murder—a use-of-force review would speak to the possible murder charge, not merely to an obscure civil rights violation, and this DOJ press statement does nothing of the sort. (For an actual example of what an actual use-of-force review based on use-of-force legal principles and actual evidence would look like, I refer you to my legal analysis of yesterday: “ddd”.)
Turley then writes:
“The DOJ statement notably does not say that the shooting was clearly justified.”
This is true, but also irrelevant, because “clearly justified,” whatever that means, is not the legal test for whether a use of force was legally justified. The burden is on the prosecution to disprove justification beyond any reasonable doubt. It is not required that a use of force be “clearly justified” in order to be lawful—it is merely required that there is at least a reasonable doubt that the use-of-force could have been justified.
Turley then references one of the seminal US Supreme Court decisions on police use-of-force, Graham v. Connor, and notes that the decision:
… 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.”
Bizarrely, however, Turley in the next paragraph seems to suggest that ‘an immediate threat to the safety of the officers or others’ can exist only in the context of the suspect being armed with a weapon, writing:
“Under these standards, police officers should not shoot unarmed suspects or rioters without a clear threat to themselves or fellow officers.”
Well, of course officers (and anyone else) should not shoot anyone who is not an unlawful, imminent, deadly force threat to an innocent person (“deadly force threat” meaning a threat of either death or serious bodily injury.) The justification for deadly defensive force requires that the danger being defended against is deadly in nature, as well as unlawful and imminent, in order to be legally justified.
But that condition does not require that the person defended against possessed an artificial weapon—there are many ways in which a deadly force threat can be manifested, and wielding a weapon is only one of those ways. An large male aggressor choking a slight female victim to death would clearly qualify as a deadly force attack, regardless of the absence of an artificial weapon.
Similarly, a mob attack in which a defender was facing a substantial disparity of numbers would also create a circumstance in which the defender was facing a danger of serious bodily injury (so, a deadly force threat).
In short, the disparity of numbers presented by an apparently violent mob are more than sufficient to represent a threat of death or serious bodily injury, even absent the presence of weapons, and that is the legal definition of “deadly harm.”
The law doesn’t care much about the specific nature of the deadly force threat being defended against, it merely cares whether the deadly force threat (danger of death or serious bodily injury) existed, period, whether in the form of a weapon, disparity of numbers, or by any other means.
The presence of a weapon may be dispositive on the question of a the deadly nature of a threat, but the absence of a weapon is not, if there are other circumstances from which a deadly force threat can nevertheless be reasonably perceived—such as a substantial disparity of numbers.
Turley then remarkably commits the logical fallacy of contrasting Byrd’s shooting of Babbitt with an entirely unrelated police use-of-force case. This may be a useful rhetorical tool in a law school classroom—indeed, I will attest that it is a useful rhetorical tool in a law school class—but it is entirely pointless in making an assessment of whether Byrd’s use of force upon Babbitt was legally justified in this specific instance.
That analysis of Lt. Byrd’s specific use of force must be made on its own merits—the fact that some other officer in some other unrelated case may have used force unlawfully is entirely irrelevant to whether Byrd’s use of force was justified in this particular instance.
Turley then writes:
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.
This is pure nonsense.
First, I see no “demolishing” of anything. Byrd’s statements in the television interview may have laid the foundation for a different legal justification than did the reports in question, but it’s entirely possible that both distinct justifications are legally sound. The presentation of a second sound legal justification does not magically make an initial sound legal justification into something that has been “demolished.”
Second, Byrd has no obligation to support any “official reviews” about his use of force—whether his shooting of Babbitt was lawful is entirely independent of whatever some administrative lawyers may have written about the event months later. Lt. Byrd, like any of us, is privileged to have the lawfulness of his use of force evaluated on its own merits.
No matter how bizarre and feckless those two “official reviews” might have been—and they appear to me to be extreme in both regards—that has nothing to do with the underlying legal merits of Byrd’s use of force. Byrd’s use of force doesn’t magically shift from “justified” to “unjustified” because of some administrative report written long after the event.
With respect to Byrd’s firing the shot at Babbitt, Turley then oddly writes:
Byrd could just as well have hit the officers behind Babbitt, who was shot while struggling to squeeze through the window.
Perhaps, but so what? Any time an officer fires a shot, ever, there’s always the possibility that the shot might miss or over-penetrate and strike an unintended target. In the context of legal analysis, however, there’s nothing about use-of-force law that requires as an element of justification the utter lack of any danger to third-parties.
Thus this theoretical danger presented by Byrd’s shot is, first, always present in every police or self-defense shooting ever, and, second, irrelevant to the question of whether firing the shot was legally justified, assuming the shot was fired in an otherwise non-negligent manner (e.g., Byrd didn’t have his eyes clenched shut when he fired, it wasn’t a “warning shot,” etc.).
Then Turley oddly circles back to the “unarmed” facet of his narrative, writing:
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.
Again, the actual legal question is whether Babbitt working in apparent cooperative fashion with the mob behind her to violently breach the barricaded doorway collectively presented a threat of death or seriously bodily injury. This was not Lt. Byrd facing a lone unarmed woman in the form of Ashli Babbitt. This was Lt. Byrd facing a mob violently breaching a barricaded doorway, of whom Babbitt was one member.
A mob is readily capable of causing serious bodily injury to a lone defender, especially when violently breaching a barrier intended to protect that defender and others, and thus represents a deadly force threat. Their possession of weapons is not required in order for the mob to present a threat of serious bodily injury. Disparity of numbers of a violent mob are sufficient to threaten serious bodily injury to Lt. Byrd and those behind him who were presumably unarmed and to whom he had a duty of protection.
Turley then writes another irrelevancy:
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.
Byrd’s use of force must be judged on its own merits. Perhaps an officer standing beside Lt. Byrd in almost the same precise circumstances at the same barricaded doorway and facing the same mob violently breaching that doorway would have some light to shed on the merits of Byrd’s use of force if they themselves decided to not shoot—but perhaps not, even then. After all, a decision to not shoot may also be unreasonable under the circumstances.
In any case, there was no other officers standing beside Lt. Byrd facing the identical circumstances that Byrd was facing. That officers facing different threats in different locations of the building did not feel compelled to use deadly force does nothing to undermine the otherwise justifiable use of force by Byrd. Just as if had they decided to use deadly force elsewhere in the building it would not have necessarily justified a use of deadly force by Byrd. Each instance must be judged on its own merits.
Further, presumably officers being pummeled by actual weapons wielded by the mob, as described by Turley, would have been legally justified in using deadly defensive force. The fact that they may have chosen to not use that legal privilege doesn’t mean the privilege didn’t exist for themselves, and certainly doesn’t mean it didn’t exist for Lt. Byrd.
Turley then even more bizarrely references other riots thousands of miles and months distant from the Capitol protest, specifically in Seattle and Portland, noting that:
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.
First, that other officers in other circumstances chose to not use deadly force does not mean that their use of deadly force would not have been justified.
Second, the use of deadly force would not be justified simply for taking over city halls or occupying police stations in the absence of imminent deadly force threats to innocent persons.
Third, in many of those other riots mentioned by Turley the police simply backed away and let the rioters possess the disputed terrain and property, thus avoiding a direct confrontation and threat to their personal safety and the necessity to use deadly force to protect their lives. Had these same officers been trapped behind barricaded doorways and threatened with imminent deadly force harm they certainly would have been justified in the use of deadly defensive force.
Further, the privilege to defend oneself against unlawful imminent deadly force harm does not diminish simply because their attackers may number in the dozens, or scores, or hundreds. The mob doesn’t magically gain a legal privilege to kill or cause serious bodily injury to innocent persons when it exceeds a certain number of participants.
If the mob presents an unlawful imminent threat of deadly force harm, it may be defended against with deadly defensive force, and that remains true whether the mob numbers 10 or 50 or hundreds of participants. Indeed, if anything the larger the mob the greater the threat, and the greater the justification for the defensive use of deadly force.
Turley continues:
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.
First of all, again, no one is advocating that anyone use deadly defensive force to simply defend a building in the absence of a deadly force threat against innocent life.
And again, there is nothing about use-of-force law that requires a defender to be facing a weapon in order to be privileged to use deadly force in self-defense. The defender needs to be facing a deadly force threat, a threat readily capable of causing death or serious bodily injury, and that threat may be in the form of a weapon or it may not involve a weapon at all—for example, the disparity of numbers of a violent mob would be sufficient to constitute a threat readily capable of causing serious bodily injury, which is the legal definition of deadly force.
Turley then references Byrd’s prior incident of leaving his service pistol in a bathroom—an event entirely irrelevant to whether his shooting of Babbitt was legally justified.
Professor Turley then rather shamefully offers some hearsay from anonymous sources claiming that Byrd “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.’ ”
Really, Professor Turley? I’d expect better from such a prominent criminal law expert than character assassination by hearsay utterly unsupported by evidence or named sources. Would similar unsourced characterizations against you or those you care about be equally palatable?
In any case, even if these unsourced statements were made by Byrd after the fact, that still doesn’t magically and retroactively change a use of force that’s legally justified under the circumstances into one which is not.
Turley nevertheless doubles down on this “different treatment” line, writing:
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.
It certainly seems likely that the political actors defending Byrd would be defending his actions even if his use-of-force upon Babbitt entirely lacked legal merit—those political actors likely don’t care whether the shooting was justified or not, they are going to protect “their team” regardless, which means pushing a narrative of justification regardless of the legal merits.
The fact that these political actors don’t care whether there are legal merits to Byrd’s use of force, however, does not then mean that Byrd’s use of force actually lacks legal merit. The presence or absence of legal merit must be determined based on the actual facts and law of the particular case, and not on the political gamesmanship of others.
Then Turley once again seeks to “shame” Byrd by contrasting him with the other officers that day who did not use deadly force:
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.
Again, the fact that other officers in other parts of the building facing other threats may have made different use of force decisions has nothing to do with whether Byrd, from his own position facing his own apparent threats ,was legally justified in shooting Ashli Babbitt. Byrd’s use of force must be judged on its own legal merits.
Indeed, it’s quite possible that there were many other officers that day who would also have been legally justified in using deadly force—that they didn’t end up using such force does not strip away the justification. Perhaps those other officers chose to take risks that the law does not require them to take? If so, that does not strip Lt. Byrd of his own legal justification.
Before I wrap this up I’ll speculate that perhaps Professor Turley has a sound law- and evidence-based argument for believing that Lt. Byrd’s use of force upon Ashli Babbitt overwhelmingly fails to meet the legal requirements for justification—because that’s the actual legal standard, the claim of justification must be disproven beyond any reasonable doubt in order to lack legal validity.
If Professor Turley has such a law- and evidence-based argument, however, he fails to present any such argument in this op-ed piece, or elsewhere that I’ve seen (his other writings on this subject appear no more substantive than does this op-ed). Which is a shame, as it would be great fun to engage such a tremendous legal intellect on the actual merits of this case, rather than on mere rhetoric.
In short, Professor Turley’s August 28 op-ed following the Byrd interview was a disappointing opinion piece from an American legal expert whose work has almost always in other instances impressed me greatly. Hopefully it’s a transient shortfall—after all, nobody’s perfect.
OK, folks, that’s all I have for all of you today.
Until next time:
Remember
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Stay safe!
–Andrew
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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Andrew, you remind me of another outstanding attorney: Alan Dershowitz.
Like Dershowitz, you tell it like it is no matter the consequences. Such firm integrity is very rare these days if not almost extinct.
That’s why whenever I run across one of your postings I sit up and take notice. Thank you for putting it on the line. We’re all better for it.
High praise, indeed! That’s very kind of you.
–Andrew
How Alan Dershowitz bullied rape victims to protect a serial child molester
https://www.jewworldorder.org/how-alan-dershowitz-bullied-rape-victims-to-protect-a-serial-child-molester/
Kudos! Excellent, start to finish!
I’m so glad you’re able and willing to analyze the facts and the law thoroughly and dispassionately, eschewing irrelevant political concerns.
To those who think it’s okay to engage in violent mob action, or to excuse it, because the other side gets away with it, if you don’t like Anti1A and bLM, don’t act like them.
1. Why do you conflate the law of self defense for a civilian with the law for the judicious use of deadly force by an LEO?
2. The US Supreme Court case Graham v Conner established an objective reasonableness standard for law enforcement officers accused of using excessive force, whereas the Trayvon Martin case in Florida used a subjective standard for self defense under Florida law.
3.
Police officers are citizens and just like every other citizen their use of force may be justified by the same law any person’s use of force in self defense or defense of others. Police officers may also, in addition to there right as citizens to use force in self defense and defense of others, use force and justify their use of force under special statutes that give police officers an additional means of justifiction for using force when a citizen would not be justified in using force. Normally, there is no need for a police officer to justify his use of force with the use of force statutes that apply to all citizens, but he can do that if he chooses too. A policce officer can be justified in using force by more than just one law.
Granam v Conner was not a criminal case and it had to do with constitutional law, rather than state criminal law. The same use of force that violates a citizens constitutional rights may not be criminal under state law because the state has the authority to decide what conduct is an offense in the state.
As an LEO, if I violate my department’s use of force policy, I can be charged just as anybody else for imperfect self-defense or completely unjustifiable homicide. How did Lt Byrd obtain the firearm with which he shot Ashli Babbitt? If he obtained it from the Capitol Police, and they vouched for his training and competence with that firearm, do you think that then confers a different standard upon him as an LEO than a citizen who purchases his own firearm and uses it in alleged self-defense without being certified by a government agency to do so?
Would you fire upon a woman crawling through your bedroom window? If so, under which statute(s) and or precedent would you justify that as self-defense? Do you know what an affirmative defense is? Have you ever fired a weapon in self-defense or at a suspect in the normal course of your duty?
Has Graham v. Connor ever been cited in any criminal case or its paradigm for justifiable use of force accepted as the standard? To which state law do you refer that would be in force on the Capitol grounds? Is US Constitutional Law in force on Capitol grounds? Do you know what it means to construe a state’s constitution as being In Pari Materia with the US Constitution?
“Would you fire upon a woman crawling through your bedroom window?”
Anyone violently breaching a window in my home should expect to be met with deadly defensive force in defense of myself, my wife, and my two small children.
And that’s especially true if they are at the head of a violent mob.
–Andrew
Al, you can not be charged with a criminal offense for violating your department’s use of force policy. Your department does not have legal authority to declare conduct a criminal offense in your state. Your department might fire your ass for violating department policy, but your department cannot prosecute you for a criminal offense and the state cannot prosecute you for a criminal offense for violating department policy.
I would fire upon a woman crawling through my bedroom window if the entry was unlawful and I believed force was necessary to defend myself or others from a use or imminent use of unlawful force. I would justify that use of force by RSMO 563.031 (1) which gives a person the legal right to use force upon another at the time and in the degree they reasonably believe to be necessary to defend against what they reasonably believe to be the other’s use or imminent use of unlawful force, and creats a legal presumption that it is reasonable to believe deadly force is necessary when the other is attempting to make an unlawful entry into habitation. I could justify that use of force by the Missouri Constitution or the Missouri statute that adopts the common law of England, but that wouldn’t be necessary since the justifications for the use of force under the Missouri Constitution and the English common law have been codified under RSMO 563.031.
While I have been unhappy with your analysis of Ashley’s shooting, it was entirely consistent with what you have been hammering into your readers. Your consistency is admirable, if a bit annoying. I would hope that police offices would be held to a higher standard than than the regular man-on-the-street, but apparently not.
Your analysis provides us the protections that we all have when a firearm is discharged in self-defense. It is inconvenient that it also protects Lt. Byrd, but it is illuminating for us all to know what standards we would be held to, if we had to defend ourselves. This all comes under the rubric of having to carry water on both shoulders.
As was mentioned above your integrity in analyzing the facts as they would be seen by a court is important to us all here on your website.
I am unhappy with Andrew Branca’s analysis too. Although I’m not entirely convinced the shooting was justified, if I were on a jury evaluating this police officer’s actions, and assuming that I only had Anrdrew Branca’s analysis, the officer’s testimony, and Turley’s analysis, (in other words, the Prosecution was unable to provide anything more substantiative than what has been presented here), I’d have to find the officer justified in the shooting, as much as I may disgree with it.
Having said that, what disturbs me more, is that if this case is ever brought into a courtroom, there’s a very strong probability that a jury called upon to find guilt or innocence (as we have seen in recent trials) will very likely have very strong political opinions (and in some cases, the threat of riots) that will sway their judgement, rather than let analysis like Andrew Branca’s win the day.
There was a time in America when an American lawyer could convince an American jury that British soldiers were justified in shooting and killing Americans because those Americans were rioting and threatening the lives of those British soldiers. While I’d like to think that was exemplar of our system of justice back then, rather than just a fluke, it saddens me that nowadays such judgements seem more like a fluke, rather than what we can expect, from our judicial system!
1. Why do you conflate the law of self defense for a civilian with the law for the judicious use of deadly force by an LEO? An LEO may violate his/her agency’s use of force policy and be fired as a result, without rising to the level of a criminal act. Conversely, an LEO may be cleared by his/her agency, but convicted criminally for the same set of operative facts.
2. The US Supreme Court case Graham v Conner established an objective reasonableness standard for law enforcement officers accused of using excessive force, whereas the Trayvon Martin case in Florida used a subjective standard for self defense under Florida law.
3. Lt Byrd was accompanied by other officers on his side of the door. He had no way of knowing whether he and his officers outnumbered those accompanying Ashli Babbitt on the other side of the door, other than assumption. So why use the disparity of force/numbers argument to justify his actions?
4. Ashli Babbitt was the only one “breaching” the door, therefore why use the argument that he was in fear of imminent death or bodily harm from a mob, when he did not observe a mob coming through the door?
5. Lt Byrd was shooting one handed, had his finger on the trigger the whole time his weapon was drawn (even prior to the mob reaching the door), gave no verbal warning to stop, did not attempt to shove her back through the window or arrest her, did not attempt to use a taser, baton, or OC spray, claims to have shot at her center of mass at point blank range hitting her neck instead, and was pictured with his finger on the trigger of his pistol while inside the House chamber prior to this incident.
6. Law enforcement officers are trained to know their target(s) and what is beyond (the backstop, if any). Did Lt Byrd meet that universal LEO standard of training?
7. Since Lieutenant Byrd admitted he could not see through the wooden door to know whether Ashli Babbitt was armed, he could also not see whether there was a mob or other law enforcement personnel beyond that door.
8. None of the other reasonable and prudent officers, similarly situated to Lieutenant Byrd on his side of the door fired their weapons. Do you believe that demonstrates that he acted unreasonably under the circumstances using the objective standard established by Graham v. Conner?
“1. Why do you conflate the law of self defense for a civilian with the law for the judicious use of deadly force by an LEO? An LEO may violate his/her agency’s use of force policy and be fired as a result, without rising to the level of a criminal act. Conversely, an LEO may be cleared by his/her agency, but convicted criminally for the same set of operative facts.”
A police officer does not lose his civilian right of self-defense just because he wears a badge. Department use-of-force policies do not reduce his inherent right to defend his life from unlawful attack (violating such policies may cost him his job, it does not create criminal liability). And, of course, an officer may theoretically act consistent with departmental policy and yet have committed a murder–but no murder occurred here, as explained at length.
“2. The US Supreme Court case Graham v Conner established an objective reasonableness standard for law enforcement officers accused of using excessive force, whereas the Trayvon Martin case in Florida used a subjective standard for self defense under Florida law.”
Graham v. Connor (not “Conner”) governs police use of force for civil liability purposes, and also did not involve a legal defense of justification. It literally has nothing to do with the facts of this case or an analysis of criminal liability of this case. Also, every claim of self-defense justification involves both a subjective and objective component.
“3. Lt Byrd was accompanied by other officers on his side of the door. He had no way of knowing whether he and his officers outnumbered those accompanying Ashli Babbitt on the other side of the door, other than assumption. So why use the disparity of force/numbers argument to justify his actions?”
Lt. Byrd states that there were no other officers in immediate proximity on his side of the door to help him guard the barricaded doorway being violently breached by the mob. No such other officers appear on the available video, nor is there any other evidence of other officers immediately supporting Byrd on his side of the door. So, so much for that.
“4. Ashli Babbitt was the only one “breaching” the door, therefore why use the argument that he was in fear of imminent death or bodily harm from a mob, when he did not observe a mob coming through the door?”
Babbitt was acting in concert with a mob. A mob is a collective threat. The members of the mob did not arrive for each their own independent purposes. When one member of the collective mob working cooperatively is breaching a barricaded doorway, it is reasonable to infer that the mob is breaching the barricaded doorway. The threat was not merely Ashli Babbitt violently breaching the barricaded doorway, the threat was the mob violently breaching the barricaded doorway.
“5. Lt Byrd was shooting one handed, had his finger on the trigger the whole time his weapon was drawn (even prior to the mob reaching the door), gave no verbal warning to stop, did not attempt to shove her back through the window or arrest her, did not attempt to use a taser, baton, or OC spray, claims to have shot at her center of mass at point blank range hitting her neck instead, and was pictured with his finger on the trigger of his pistol while inside the House chamber prior to this incident.”
All of this is entirely irrelevant to the question of whether Byrd’s use of force was legally justified. Having a finger on the trigger is not a criminal violation. There is no legal duty to give a verbal warning, but in any case it is uncontested that Byrd did in fact give verbal warnings (see his TV interview, and there is no evidence to the contrary). Byrd is under no obligation to leave a position of safety and increase his jeopardy to attempt to push back a mob violently breaching a barricade before he can lawfully act in self-defense. Non-deadly force wielded by a lone defender is unlikely to be effective against a mob violently breaching a doorway, and so is not an appropriate tactical option in that circumstance when the lone defender also has a legal duty to the protection of people behind him. The point of impact of the round in no way disproves the intended target of the round–police officers shooting at center mass routinely hit suspects in the legs or miss entirely. Etc.
“6. Law enforcement officers are trained to know their target(s) and what is beyond (the backstop, if any). Did Lt Byrd meet that universal LEO standard of training?”
Shooting in self-defense while facing a life-threatening attack is not the same as shooting at the range. The law of self-defense does not require a safe backstop. If it did, nobody would be legally permitted to shoot in self-defense without first clearing the background–meaning, nobody not in the middle of a dessert or on an actual gun range would be privileged to shoot in self-defense. Clearly that’s an idiotic proposition.
“7. Since Lieutenant Byrd admitted he could not see through the wooden door to know whether Ashli Babbitt was armed, he could also not see whether there was a mob or other law enforcement personnel beyond that door.”
Byrd never said he couldn’t see through the barricaded doorway at all, he said he couldn’t see weapons through the doorway. Weapons are not required in order for the threat to be deadly in nature, the disparity of numbers of a violent mob are sufficient to cause serious bodily injury, which is deadly force for legal purposes. Once the mob began to violently breach the barricaded doorway it constituted an imminent threat of unlawful deadly force, justifying the use of deadly defensive force.
“8. None of the other reasonable and prudent officers, similarly situated to Lieutenant Byrd on his side of the door fired their weapons. Do you believe that demonstrates that he acted unreasonably under the circumstances using the objective standard established by Graham v. Conner?.”
The fact that other officers not facing precisely the same circumstances made different use-of-force decisions in no way voids the justification of Byrd facing his own threat circumstances. For all we know other officers in the building were also privileged to use deadly defensive force, but chose to risk the lives of the people they had a duty to protect rather than have to undergo administrative review–not at all sure that’s the more “reasonable” position. In any case, Byrd’s use-of-force must be judged on its own merits, not on the basis of what happened elsewhere in the building under other circumstances unknown to him.
Here’s an idea–if you come across a barricaded doorway in a building protected by armed security personnel who have a duty to protect the people within, perhaps don’t lead a mob in violently breaching that barricaded position.
Well said.
Great work Andrew. Your passion and intellect is impressive. Thanks.
Andrew, why did you repeatedly refer to the beyond reasonable doubt standard when Lt Byrd was never a defendant? As far as we know, the investigations were merely to ascertain whether he complied with his agency’s use of force policy (if that). If he was indeed a “person of interest”, how would that have changed your analysis in light of the standard of proof for probable cause to arrest him, rather than the standard you addressed, necessary to convict him?
The standard I addressed is the only standard by which he could be convicted if he sought to justify his shooting of benefit of self-defense and/or defense of others–as he naturally would do, were he criminally charged for that use of force. The final determination of whether his use of force was legally justified can only be determined in the context of him being a criminal defendant–if he were a defendant, would his use of force be found legally justified? The answer is, yes.
His departmental policies might be of interest in terms of departmental discipline, but they in no way diminish his own personal rights to self-defense and defense of others–a police officer does not lose his right to defend his life, the same as any other human being, because he wears a badge.
–Andrew
I believe that using the term legally justifiable in this case is a poor choice of words. Legally excusable would be a better description. The officer’s statement that he believes he saved lives is at best self serving. Other officers who were receiving the same radio calls and were if fact under physical assault by demonstrators didn’t fire their weapons. If a homeowner in DC or anywhere for that matter killed someone who had an arm or leg through their door but was still outside they would be charged and the prosecutor would claim that they panicked and acted unreasonably.
A homicide is justified in self defense when it is permitted by the law. The English homicide that was excused from felony on the grounds of necessary self defense was not adopted in the United States because it was repugnant to the U.S. Constitution. In America, those homicides that were merely excused from felony on the grounds of self defense under English law were merged with those homicides in self defense that were justified under the English law and not a crime at all. The only unjustified homicide excused from felony left then under the English common law was the homicide that was excused from felony under the English law on the grounds of accident (a lawful act, in a lawful manner, without any intent to cause injury). The act that caused this homicide was not unintentional and therefore the homicide was not an excusable homicide.
In most states, whether or not a homicide victim had an arm or a leg through through the door isn’t going to determine whether or not the slayer is charged. It might be a factor in determining whether or not a person should be charged, but it would not be a determinative factor.
The same officer’s statement is at WORST self-serving — he may genuinely believe he saved lives, and maybe he actually did. Anyway, self-serving isn’t always bad, except possibly to a purely altruistic saint.
How can an intruder have an arm or a leg through a door or a window and not be inside the house? Aren’t a person’s body parts part of that person’s body?
The shooting was certainly justifiable. It wasn’t like a case of mistake of fact in which it would merely be excusable. The law clearly allows for deadly self-defense action against a deadly threat.
Reasonable mistake of fact makes a homicide justified, not excusable. Unreasonable mistake of fact makes a homicide felonious. The only homicide that is excusable in America is the accidential homicide.
I think professor John Turley made a serious mistake when he included himself in the class of persons familiar with the law governing police use of force. He should have remembered that it was better to keep your mouth shut and be thought a fool than to open it and let everyone know for certain.
I thought Michael Byrd’s extended interview was remarkble in that he did not say one thing that would give a reasonable man cause to even suspect that the Ashley Babbitt homicide might not fall under the category of a justified homicide in Michael Byrd.
I did see evidence sufficient to give a reasonable man probable cause to believe that the Ashley Babbitt homicide fell within the category of a felony homicide in Ashley Babbitt under the common law of England that was in force and effect in England and America in 1776.
Thank you for this analysis.
While I am “disappointed” that “our side” was in the wrong with this issue and angry about how all this went down, I am grateful for the logical and objective application of the law to this specific event.
It gives me pause, because my takeaway from this case is very serious, in that it involves politics and the possibility of war.
It is obvious, to me at least, that events in Western states and cities could have, and should have, ended with many scenarios just like this one, with dead people and police justified shootings. The only difference is that the liberal politicians in those cases gave specific orders to allow the criminal behavior and for the police to stand down; but in this case the Capitol Police were given the charge of enforcing the law and doing their duty.
Of course, as you said, those that did their sworn duty at the Capitol cannot be judged by comparison to those who did NOT do their duties in Oregon…