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.
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:
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
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