a bad shoot, Ashli Babbitt, Capitol Police, deadly force, Glock 22, Imminence, Lester Holt, Lt. Michael Leroy Byrd, NBC, Peter Principle, Proportionality, Reasonableness, Speaker's Lobby, unsafe gun handling
We finally know, officially, who killed Ashli Babbitt. We know not because the government has finally become honest and told us–government has no conscience–but because the shooter “came out” in an interview with Lester Holt of NBC. The interview was brief, and Holt was, to put it mildly, friendly. OK: he all but gave Byrd a tongue bath. I’ll be quoting portions of the brief, softer than softball, interview shortly, but a version is available here. The entire SMM Capitol Coverup archive is here.
The killer is, as I’ve been reporting with appropriate caveats, Capitol Police Lt. Michael Leroy Byrd. But first, we visit Newsmax.com, for unsurprising news:
The Capitol Police officer who fatally shot Ashli Babbitt during the Jan. 6 attack on the Capitol ‘will not be facing internal discipline,’ Capitol Police said Monday.
After interviewing multiple witnesses and reviewing all the available evidence:
‘[The Department’s] Office of Professional Responsibility (OPR) determined the officer’s conduct was lawful and within Department policy, which says an officer may use deadly force only when the officer reasonably believes that action is in the defense of human life, including the officer’s own life, or in the defense of any person in immediate danger of serious physical injury.’
‘The officer in this case, who is not being identified for the officer’s safety, will not be facing internal discipline.’
For regular readers, this is old news. The DOJ exonerated Lt. Michael Byrd back in April of 2021, as I noted in the third article of this series. The result of the Capitol Police internal “investigation” was as pre-determined as the DOJ whitewash. No investigation was necessary to reach the pre-determined conclusion, which was surely dictated to the Capital Police by their political masters. Disciplining the faux-epically heroic Lt. Byrd would be very damaging to the narrative of a nation half full of domestic terrorists, damaging to the pre-determined findings of the House January 6 Commission, damaging to D/S/C electoral outcomes in the coming 2022 midterm elections, and damaging to the outcome of the civil suit Babbitt’s survivors are filing against Byrd and the government. Can’t have any of that.
This is, in essence, saying the Capital Capitol Police can commit murder at will, as long as a panicky incompetent thinks he, or an institution, is in some vague sort of danger, regardless of the reality of the situation. It’s merely saying: Byrd didn’t violate our rules; we’re not going to put a letter in his file or give him a few days off without pay. Equally cowardly and panicky congresscritters of both parties still think Byrd a hero, and so does Byrd:
LESTER HOLT VOICE OVER: FOR MONTHS HE HAS LIVED IN HIDING. HE SAYS, OVER THIS MOMENT, HIS DECISION TO USE DEADLY FORCE AGAINST A RIOTER AS SHE CLIMBED THROUGH A BARRICADED DOOR THAT LEADS TO THE HOUSE CHAMBER. IN THE MONTHS SINCE, HE’S BEEN THE TARGET OF THREATS.
LESTER HOLT: Could you give us the nature of some of those threats?
LIEUTENANT MICHAEL BYRD: They talked about, you know, killing me, cutting off my head. You know, very vicious and cruel things.
LESTER HOLT: Racist things?
LIEUTENANT MICHAEL BYRD: There were some racist attacks as well. It’s all disheartening because I know I was doing my job.
It’s a job none of the other heavily armed officers present that day thought necessary, but we’ll get to that shortly.
LESTER HOLT: Given the nature of the threats that you describe, do you have any concern about showing your face and identifying yourself?
LIEUTENANT MICHAEL BYRD: Of course, I do. That is a very vital point. And it’s something that is frightening. I believe I showed the utmost courage on January 6th. And it’s time for me to do that now.
Keep in mind, gentle readers, Byrd isn’t making decisions like this himself. He is being directed by his political masters, likely through the DOJ, who will be defending the lawsuit. They will use every dirty trick imaginable, and will not be bothered by trifles like the law. They will find as many judges amenable to this as necessary; there are plenty in DC. Byrd appeared for an interview because his masters believe it’s a good PR/legal/political move. Do not doubt for a moment Holt is onboard, and he and Byrd knew every question and answer—the absolute limits—before the interview was filmed, and then very carefully edited under DOJ supervision.
Byrd, following the script speaks of being frightened, and hearing, via radio of “officers being overrun, officers being down,” and of shots fired. The only shot fired that day was fired by Byrd as he killed Ashli Babbitt. Not a single gun was discovered on anyone, other than government personnel, that day. This is an interesting admission:
LESTER HOLT VOICE OVER: HE SAYS OFFICERS BARRICADED THE DOOR. WHAT HE CONSIDERED THE LAST LINE OF DEFENSE.
LIEUTENANT MICHAEL BYRD: I had been yelling and screaming as loud as I was, ‘Please stop. Get back. Get back. Stop.’ We had our weapons drawn.
None of the video available to the public backs Byrd. There is no evidence he said anything before killing Babbitt. The government has untold hours of video they refuse to release, violating their legal duty to provide exculpatory evidence to the hundreds of defendants they’ve arrested.
LESTER HOLT VOICE OVER: BYRD, ONLY HIS HAND AND GUN VISIBLE, TARGETED A FIGURE TRYING TO CLIMB THROUGH A WINDOW.
HE FIRED A SINGLE FATAL SHOT HITTING ASHLI BABBIT. SHE WAS 35 YEARS OLD, AN AIR FORCE VETERAN, TRUMP SUPPORTER AND QANON FOLLOWER.
LESTER HOLT: We see your arm out there for a considerable amount of time. Were you wavering?
LIEUTENANT MICHAEL BYRD: I was again taking a tactical stance. You’re ultimately hoping your commands will be complied with and unfortunately they were not.
Byrd is implying Babbit’s supposed failure to comply gave him lawful justification to kill her. It absolutely did not.
LESTER HOLT: When you fired, what could you see? Where were you aiming?
LIEUTENANT MICHAEL BYRD: You’re taught to aim for center mass. The subject was sideways and I couldn’t see her full motion of her hands or anything. So I guess her movement caused the discharge to fall where it did.
Babbit was not moving when Byrd fired. If he was aiming at the center of her chest, he missed badly, shooting her in the neck.
LESTER HOLT: And what did you think this individual was doing at that moment?
LIEUTENANT MICHAEL BYRD: She was posing a threat to the House of Representatives.
Holt does not ask obvious, essential, questions: “what kind of threat? What was she doing that posed that threat?” He did give a brief voiceover that mentioned some of the Babbitt family’s attorney’s comments, but never touched on the real issues.
LESTER HOLT: Her family points out that she was not armed.
LIEUTENANT MICHAEL BYRD: That’s correct.
LESTER HOLT: The fact that you weren’t aware whether she was armed or not, did that alter the decision making?
LIEUTENANT MICHAEL BYRD: It did not.
And there is where the government lost the civil case—if the judge is honest. I’ll explain shortly. again this question, Holt almost sounds like a journalist. He did not, of course, followup on Byrd’s incredibly weak, inadequate, and clearly scripted, answer:
LESTER HOLT: What are we to make of the fact that there were other officers in potentially life threatening situations who didn’t use their service weapons that day?
LIEUTENANT MICHAEL BYRD: I’m sure it was a terrifying situation. And I can only control my reaction, my training, my expertise. That would be upon them to speak for themselves.
What Holt likely doesn’t know is the absolutely necessary legal criteria for the use of deadly force. Few do. What he missed too is the other officers, because they do know those criteria, or simply by luck, did not kill anyone, because they had no lawful cause to do so, even though some were physically attacked and injured. Byrd was not. Byrd’s training and expertise are clearly dangerously, horribly faulty. Holt asked Byrd about his leaving his handgun in a bathroom in 2019, giving Byrd the opportunity to confirm it, and to explain it away. Holt, as usual, did not follow up.
For regular readers, what follows will be a bit repetitive, but one can never study the criteria for the use of deadly force too much. As always, keep in mind, I have not seen the official reports, not that they would likely be very helpful, their conclusions known before the “investigations” began. My inferences and conclusions are drawn based on the video, photographs, and reporting in the public domain. Should errors be brought to my attention, unlike the media, I will immediately, prominently, correct them. Byrd’s own admissions should be, in an honest courtroom, deadly to the government’s defense of the civil suit.
Deadly force is authorized only when a reasonable police officer would believe they are facing an imminent threat of serious bodily injury to oneself or another. There are three primary criteria that apply to this case, and to all shootings by police officers:
Imminence: one can’t use deadly force against a possible attack, or against an attack that might happen at some time in the future. Officers aren’t required to be mind readers. The observable threat must be real, clearly about to occur–within mere seconds of occurring–or already occurring.
Proportionality: the threat can’t be of humiliation or minor injury. A reasonable person–a reasonable police officer–must believe nothing less, at that moment, than deadly force will suffice. They must believe they’re facing–or another is facing–at the moment they pull the trigger, a threat—an imminent threat–of serious bodily injury or death, and deadly force is necessary to stop it.
Reasonableness: a reasonable person in the same circumstances would be compelled to use deadly force. To do anything less would be unreasonable and would result in serious bodily injury or death to the officer or an innocent.
Notice there is nothing in these criteria about issuing any kind of warning prior to using force. The law does not require warnings, though any professional, non-panicky officer will try to use words to avoid using force, if they have time, and if doing so is reasonable. There is no legal or moral requirement for warnings, and even if a warning is given and ignored, absent the fulfillment of each and every criteria at the moment the trigger is pulled, deadly force is not lawful.
Now that we have Byrd’s own account, let’s analyze the situation more completely. We know Byrd was in the house chamber, which by that time had, reportedly, been evacuated. The Representatives weren’t there. They were elsewhere, safe, under constant armed guard. Photographs reveal the doors to the Speaker’s Lobby, the hallway immediately outside the chamber, were not only barricaded with heavy furniture, but covered by multiple agents, their guns drawn.
We also know Byrd was demonstrating a fundamental lack of gun safety. Professionals never put their trigger finger on the trigger until the moment they are about to fire, leaving it instead firmly in contact with the frame of their handgun, just as the agent to Byrd’s front/left is demonstrating. This is a fundamental safety issue, because under stress, it’s all too easy to pull the trigger accidentally. Glocks—Byrd is carrying a Glock 22, a .40 S&W caliber handgun—have 5.5 pound standard trigger pulls, which is relatively light. Knowing of Byrd’s abandonment of his handgun, his lack of handgun safety skills is not unexpected.
We know a small group of protestors had been trying to break out the glass on a row of doors/windows opening into the hallway of the Speaker’s Lobby, but when Byrd entered that hallway, alone, had succeeded only in breaking out the window at the far right. When Byrd was briefly observing Babbitt, and as he shot her, no one was trying to break the glass or push in the doors. This is likely because multiple officers in armor, carrying long guns, were on the opposite side mixed in with the protestors.
Ashli Babbitt somehow managed to climb onto the narrow window ledge where the glass had been, and was not moving, but was precariously perched there, both hands grasping the edges of the frame to keep her balance. She had no visible weapons in her hands (she had no weapons of any kind). She could not have; both were occupied keeping her from falling.
Keep in mind in order for Byrd to be in that hallway, he had to—apparently alone—breach the barricades that had been erected inside the chamber, open the door, and step out into the alcove of that door to the chamber. We have no idea why he did that. If the situation were so dire, why would he breach the barricaded chamber, opening it to attack? He claimed to have been locked/barricaded inside, with no escape, which supposedly heightened the danger, giving him justification for shooting Babbitt, yet he opened the chamber to attack and expose himself to the deadly danger Babbitt represented? We have no idea if any of the investigators with the DOJ or Capitol Police bothered to ask such questions, questions any competent investigator would consider basic and essential.
Byrd watched Babbitt for a short time, how long, we cannot tell with certainty from the video available. But we do know he pointed his gun at her, moved rapidly forward about six feet, and fired a single shot from close range–on the order of 10 feet–according to reports, striking her in the neck. Babbitt immediately fell, limp, back through the opening, landing hard on her back, dying, perhaps paralyzed. She quickly died.
From the photo above, we can see the doors were also barricaded, and there appears to be no one in the hallway, certainly not in the immediate area, but Byrd, and Babbitt precariously balancing on the narrow window ledge. There is no evidence whatever Byrd ever warned Babbitt, or if he did, she heard him. There is no evidence, no indication, Babbitt was even aware he was there, pointing his handgun at her from close range. Again, warnings are entirely irrelevant, a distraction at best, a lie at worst.
Imminence: Byrd tells us: “She was posing a threat to the House of Representatives.” All he could see was a tiny woman—5’2”, 100+ pounds—precariously balanced on a ledge. Both hands were clutching the window edges. He could see, at best, her left hand, which held no weapon. If he could not see her right hand, where is the threat that justifies shooting? She, apart from tottering on the ledge, was motionless. She was not in the hallway. She was doing nothing any reasonable police officer could have considered threatening. Byrd was the only person in the area, and he had her covered with his handgun from about 10 feet away. Where is the imminent threat of serious bodily injury or death to Byrd? Remember, at the instant he fires, he does so lawfully only because of the imminent threat of serious bodily injury or death to himself or another. Nothing less justifies shooting at that moment.
Where is the imminent threat of serious bodily injury or death to another in that vacant hallway? Even if armed, in order to injure a Representative, Babbitt would have had to enter the hallway, uninjured, overcome Byrd, breach the barricaded house chamber, and only then could she have potentially—not imminently—injured one of the armed agents within, who like Byrd, had their guns drawn. She posed no threat at all, certainly not an imminent threat, to the Representatives; they weren’t there. Interesting that Holt didn’t think to ask where they were.
Even if Babbitt had gained the hallway uninjured and advanced on Byrd, he would have had no grounds to shoot. Many officers elsewhere that day were actually physically attacked and injured, yet did not shoot. If a man of Byrd’s size and supposed training and experience could not subdue a tiny, unarmed woman without resorting to gunfire, what’s he doing in police work? One does not lawfully use deadly force to defend property or an institution.
Proportionality: Officers must exhaust every lesser use of force before using deadly force—if possible. Sometimes it isn’t. Sometimes things happen so fast an officer can’t employ lesser, escalating, force. That was not the case here. Remember where Babbit was and what she was doing when Byrd killed her. Here are only some of the options a reasonable, professional officer could have employed, options police officers employ in similar situations every day:
1) Approach closely enough so you’re sure you have Babbitt’s attention—make eye contact–and order her to go back through the frame. “What are you doing? Let me help you back to the other side.”
2) Simply walk over to Babbitt and ease her back through the frame to the other side. She was off balance; it would be easy.
3) If you didn’t care if you injured her, push her back through the frame. If you thought she was the vanguard of a mob that was about to follow her though the frame–video and photos illustrate that supposition was nonsense–why not?
4) Get the attention of the many armored and armed officers on Babbitt’s side of the doors to pull her back to their side.
5) Help Babbitt through the frame, arrest and handcuff her.
It would seem Byrd–any reasonable officer–had many options other than shooting Babbitt in the neck.
Byrd actually admits he couldn’t tell if she was armed. THEN YOU DON’T SHOOT! If Babbitt is not doing anything threatening, or if you have no idea if she’s armed, where’s the threat, any threat?
Reasonableness: The law does not require officers to be absolutely perfect, to do everything as perfectly as it could possibly be done. It does require them to be reasonable, to do what a reasonable police officer in like circumstances would do. Multiple armed and armored officers were as close to Babbitt, perhaps closer, than Byrd, yet they saw no need to shoot her. Indeed, the available video suggests they were shocked when Byrd shot her. I’ve already demonstrated there was no imminent threat to Byrd, or to anyone else. Byrd claims Babbitt was a threat to the House of Representatives, but we know there were no representatives present to threaten, and we know one may not shoot to protect an institution, no matter how exalted those not occupying it when Babbitt was shot might consider it.
In a Washington Post article, Byrd is quoted:
‘I could not fully see her hands or what was in the backpack or what the intentions are,’ Byrd told Holt. ‘But they had shown violence leading up to that point.’
Babbitt was unarmed, though Byrd could not know that when he shot her any more than he could have known she was armed. Knowing neither, where was the imminent threat? Who are “they,” where were they and what threat were they making at the moment Byrd fired to justify shooting Babbitt? Unarmed people can present imminent threats of serious bodily injury or death, but not Ashli Babbitt, not on January 6, 2021, not at the instant a panicky, foolish police administrator shot her. No reasonable person, seeing what Byrd saw, could have believed the only reasonable course of action was shooting Ashli Byrd. A supposed, non-deadly threat of violence occurring at some point in the past, or elsewhere, is not grounds for deadly force when none is occurring where one is standing.
But Byrd heard radio traffic of officers down, officers in danger, shots fired! He thought himself possessed of the “utmost courage,” and believed he was defending the House of Representative! Unless he can articulate, specifically and exactly what Ashli Babbitt was doing, at the moment he shot her, to present an imminent—right now—threat of serious bodily injury or death to himself or another, when he fired he committed some degree of murder. If he can’t, and we’ve already proved Byrd failed the imminence and proportionality tests, he fails the reasonableness test as well.
Honest, professional officers in the Capitol Police know this was, in police parlance, a “bad shoot.” Honest, professional prosecutors in the Department of Justice, if any such thing exists there these days, know this was some degree of murder. I’ve explained the law as it’s taught to police officers across the nation. Based on all I know and can infer, Byrd is no hero. He’s an unlawful killer, a premeditated murderer.
If I’m right, why are so many in politics, in the media, and even some lawyers, saying otherwise? There is the narrative of the worst attack on America since Pearl Harbor, an insurrection that came within an instant of toppling the government, a nation of domestic terrorists, which justifies a two-tiered justice system and the infringement of constitutional rights to maintain. Admitting Byrd murdered Babbitt would make the Jan. 6 Commission rather—irrelevant, an exercise in crude, cynical politics rather than a noble hunt for the truth on behalf of—domestic terrorists? There are mid term elections to win, a public to distract, political fortunes to be lost or made, and Ashli Babbitt was not one of the self-imagined elite. Her life doesn’t matter.
Take the example of Paul Mirengoff, an attorney, writing at Powerline:
What did Byrd know about Babbitt and her intentions? He says ‘I could not fully see her hands or what was in the backpack or what the intentions are, but they [the mob] had shown violence leading up to that point.’ Byrd adds that he was a aware of reports (erroneous as it turned out) of gunfire by protesters.
If Byrd’s rendition of the facts is true, it seems to me that he was justified in shooting Babbitt. In police shootings of lawbreakers who threaten officer safety or the safety of others, it is always my position that the officer has the right to shoot. He need not wait to be certain that lives are in danger. It’s enough that the victim breaks the law, ignores police warnings, and surges forward towards the officer or those he’s charged with protecting.
In Byrd’s account, all of these conditions are met.
If a BLM mob storms a courthouse or a police station and, ignoring an officer’s command, surges towards the occupants, I will defend that officer if he or she stops the mob by shooting the person leading the charge. I see no reason to analyze Byrd’s conduct differently. (The left, by contrast, would condemn the officer in the BLM case while having no problem with the shooting of Babbitt.)
Is Byrd’s account true? I don’t know for sure.
Attorneys, unless specialists in self-defense law, generally know little about it. This is not a blanket indictment of attorneys. The law is vast and voluminous, so lawyers specialize. Do Mirengoff’s inferences stand up to the reality of the situation or the law? There was no mob attacking Byrd. I point this out not to attack Mirengoff, but merely to make the point most lawyers know little about these issues. Even Mirengoff admits Byrd had no idea of Babbitt’s intentions or if she was armed, and he presents no evidence of any threat, let alone an imminent threat. If officers, as Mirengoff suggests, really don’t have to wait to be reasonably certain lives are in imminent danger… Would you, gentle readers, want to live in a country like that? The DC self-imagined political elite apparently want you to do just that.
Why did Byrd do it? I am now engaging in speculation—mostly. We know by his admissions and actions, he was panicky, frightened out of his wits, and unsafely wielded his handgun. How did such a person retain their job, to say nothing of holding a management position? Honest police officers will admit they are often afraid, but they are exposed to fear so often they learn to deal with it; they don’t let it control them. In police work, there are always officers who are so unfit for the job, so actively dangerous to themselves, their fellow officers and the public, something must be done. In unionized shops, or civil service, it’s almost impossible to fire people. Sometimes one is an untouchable minority or member of another favored victim group. Perhaps higher ranking officers, for whatever reason, think the screw up one of their own and want to protect them. In such cases, the only option is promotion, promote them away from direct, dangerous contact with the public. Put them where they’re unlikely to kill anyone; it’s a sort of perverse Peter Principle in action. Sure, they’ll make a mess of things, perhaps even damage careers, but what else can be done with such people? Honest, professional cops will tell you every police agency has such people. I’ve had back channel information indicating Byrd is just such a screwup.
Was that the case here? I’ve no way to tell, though Byrd’s abandonment of his handgun in a bathroom, his dangerous handling of his weapon, and his panicky, utterly unreasonable and unlawful shooting of Babbitt, are certainly suggestive.
There is much more to come in this case, and I’ll continue to report as necessary. But know this: Michael Leroy Byrd is a courageous hero only if heroism is defined by murdering an unarmed, non-threatening, helpless woman. That’s D/S/C heroism for you, circa 2021.
UPDATE, 08-29-21, 1930 MT: Noted law professor Jonathan Turley, notably shares my opinion on this case. He made many of the same points. This is not surprising in that the law does not change, Byrd violated it and will not be held accountable. Any and all honest cops, former cops, and prosecutors, given the same evidence and examining the same law, should come to the same conclusions. I hadn’t seen Turley’s article until long after I posted and scheduled this article. Turley’s article at The Hill, is available here.
Legal experts and the media have avoided the obvious implications of the two reviews in the Babbitt shooting. Under this standard, hundreds of rioters could have been gunned down on Jan. 6 — and officers in cities such as Seattle or Portland, Ore., could have killed hundreds of violent protesters who tried to burn courthouses, took over city halls or occupied police stations during last summer’s widespread rioting. In all of those protests, a small number of activists from both political extremes showed up prepared for violence and pushed others to riot. 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.
And any officer who followed the DOJ’s logic in shooting rioters, or that of Paul Mirengoff of Powerline, would be looking at a death sentence. There really is a two-tiered system of justice in America, circa 2021.
The DOJ report did not read like any post-shooting review I have read as a criminal defense attorney or law professor. The DOJ statement notably does not say that the shooting was clearly justified. Instead, it stressed that ‘prosecutors would have to prove not only that the officer used force that was constitutionally unreasonable, but that the officer did so ‘willfully.’ It seemed simply to shrug and say that the DOJ did not believe it could prove ‘a bad purpose to disregard the law’ and that ‘evidence that an officer acted out of fear, mistake, panic, misperception, negligence, or even poor judgment cannot establish the high level of intent.’
What incredible nonsense. Fear, panic, negligence and poor judgement are absolutely factors that can and should establish Byrd did not fulfill the necessary criteria for the use of deadly force. We really wish to excuse those failings in police officers, particularly when they result in the murders of innocents? Turley continues:
Under these standards, police officers should not shoot unarmed suspects or rioters without a clear threat to themselves or fellow officers. That even applies to armed suspects who fail to obey orders.
I believe I made exactly those points. Imagine that.