Ashli Babbitt, Capital Police, Civil war, imminent threat of serious bodily injury or death, Insurrection, J6 Committee, January 6, Law of Deadly Force, Liz Cheney, Michael Byrd, Nancy Pelosi, Off. Reggie Tyson, Off. Robbs, Officer Lanciano, Officer Yetter, Pearly Harbor, Sgt. Paul McKenna
I last wrote about the killing of Ashli Babbitt on 08-29-21. The SMM Capital Coverup archive is here. As regular readers know, the law of deadly force was not only violated by Lt. Michael Byrd, it was ignored by Federal law enforcement and Federal prosecutors. Any other police officer, virtually anywhere in America, acting as Byrd did, would have been charged with some variety of murder. For an in-depth review of the facts of that case, visit the 8th update in this series.
I write today because of the efforts of Judicial Watch:
Judicial Watch announced that it received productions of new records totaling 102 pages from the Department of Justice (DOJ) related to the shooting of January 6 protestor Ashli Babbitt that include a memo recommending “that the United States Attorney’s Office for the District of Columbia decline for criminal prosecution the fatal shooting of Ashli McEntee [Babbitt],” also noting that the shooter, U.S. Capitol Police Lt. Michael Byrd, ‘did not create a police report or documents’ related to the shooting of Babbitt.
In this article, I’ll analyze the declination of prosecution obtained by Judicial Watch. That document is available here. The document takes great pains to justify Byrd’s unlawful shooting of Babbitt, by creating an atmosphere of continually violent insurrection on the verge of overthrowing the government. The tone is such one could easily imagine thousands of horned hat wearing barbarians continually rampaging through the Capital, looting, burning, sacking, raping, sewing the corridors with salt, the whole barbarian schtick. The document totally ignores the fact Capital Police Officers opened doors inviting, arguably, most of the protestors into the building, chatting amiably with them and not demanding they leave. Most of those inside quietly and politely took in the sights and all left after a few hours. The document, for reasons unexplained, refers to Babbitt as “Ms. McEntee.” Anyone looking for a second by second, definitive time line of events–absolutely necessary to make a competent charging decision–will be disappointed.
USCP Lieutenant Michael Byrd and USCP Sergeant Paul McKenna, both assigned to the House Chamber security detail, along with USCP Officer Reggie Tyson, and other unidentified officers, assigned to the House Chamber Division, were inside the Speaker’s Lobby when the demonstrators arrived and started their attempts to breach the doors. Lieutenant Byrd and Officer Tyson, along with the unidentified officers, began to barricade the east side glass entry doors with desks, a couch, and chairs. The unidentified officers then responded onto the floor of the House Chamber to assist with escorting members of Congress off the floor. As the last members of Congress were being led off the floor of the House Chamber, Sergeant McKenna also exited the floor into the Speaker’s Lobby. By that point, the demonstrators had broken out three of the four glass doors that led into the Speaker’s Lobby using their hands, sticks, flagpoles, helmets and other unidentified objects, and were then able to reach through the broken glass doors and push the chairs off the top of the barricaded furniture.
Once the demonstrators broke the glass, Lieutenant Byrd took up a tactical position to the immediate right of the barricaded entry doors, Officer Tyson took up a tactical position behind Lieutenant Byrd on the right side behind the third pillar and Sergeant McKenna took up a tactical position behind Officer Tyson and behind the fourth pillar on the right side ofthe Speakers Lobby. All three officers had their service pistols drawn, pointed them in the direction of the barricaded entry doors, and repeatedly instructed the “mob” to get back. The ‘mob’ of demonstrators ignored the officers’ commands and continued to break the glass on the doors in their attempt to breach the Speaker’s Lobby. Suddenly, Ashli McEntee began to crawl through one ofthe doors where the glass was already broken out. As Ms. McEntee was climbing through the door, Lieutenant Byrd stepped forward from his tactical position towards Ms. McEntee and fired one round from his service pistol striking Ms. McEntee in her left shoulder, just below her clavicle. Ms. McEntee then fell back from the doorway and onto the floor.
Unbeknownst to Lieutenant Byrd or the other officers in the Speaker’s Lobby, a USCP Containment Emergency Response Team (CERT) was coming up the east stairwell towards the Speaker’s Lobby at the same time Ms. McEntee was climbing through the door. The CERT officers arrived right before Lieutenant Byrd fired the round and Ms. McEntee fell to the floor, and immediately began to administer aid. A short time later, the CERT officers carried Ms. McEntee down the east side stairwell into an area where members of the District of Columbia Fire and Emergency Medical Services (DCFEMS) Medic 10 were stationed. DCFEMS began to render medical aid and transported Ms. McEntee to MedStar, Washington Hospital Center. While at the hospital, Ms. McEntee succumbed to her injuries and was pronounced dead at 3:15 p.m.
What’s interesting, and previously unknown, in this passage is there were two other officers covering the locked and barricaded doors to the Speaker’s Lobby. Byrd was not alone, heroically protecting the members of Congress who had already been evacuated. The document also claims Byrd and the others didn’t know a tactical team, armed with long guns and tactical geared up, were on the opposite side of the doors, behind Babbitt and the other protestors. This is, of course, nonsense. All they had to do was look through the glass to see them—each of the doors spanning the hallway had large glass windows. The document does not address why multiple officers on both sides of the doorway did not think Babbitt a deadly threat. If Byrd was right, why didn’t they all shoot her?
There has been a great deal of misinformation about how Babbitt died. The document, if it can be believed, resolves that:
On January 7, 2021, an autopsy was performed by Francisco Diaz, M.D. of the Office of the ChiefMedical Examiner (OCME) for the District of Columbia. Dr. Diaz determined that Ms. McEntee’s death was caused by a gunshot wound to the left anterior shoulder. The bullet travelled left to right causing injuries to blood vessels; her trachea, and her right lung, before lodging in the right anterior shoulder area. The manner of death Was ruled a homicide.
One of the two officers watching the doors was Sgt. McKenna, who only heard a gunshot and saw Babbitt falling backward. The document vaguely portrays him as fearing an imminent breach of the doors, but what it doesn’t do is portray McKenna as seeing, in Babbitt, an imminent treat of serious bodily injury or death to himself or others.
Sergeant McKenna advised that he was approximately three to four pillars back from Lieutenant Byrd, who was positioned closest to the barricaded doors. Sergeant McKenna explained that he did not know who had discharged their pistol until he spoke with Lieutenant Byrd a couple of moments after this incident occurred. Sergeant McKenna related that Lieutenant Byrd looked upset and stated, ‘I was the one who took the shot.’
The other officer present was Officer Tyson, who also did not perceive any imminent danger from Babbitt. He too did not see who fired the shot, but saw her falling backward. This is significant:
Officer Tyson did not observe the demonstrator in possession of any weapons, but his attention was drawn to her because she was climbing through a broken out window pane. After he heard the gunshot, he and Lieutenant Byrd maintained their covered positions behind the pillars and continued scanning for other threats. Although no other demonstrators attempted to come through, the crowd did not disperse and continued to chant and yell.
Why any of the three would have drawn their weapons and pointed them at the doors remains a mystery. Yes, there was a broken window, but there was no imminent danger of a breach. Any reasonable officer would have seen there was no danger. All they needed to do was walk over to Babbitt and helped her down, forward or backward, and stand near the broken window to prevent anyone else from entering. Remember: a fully armed and outfitted SWAT team was behind the handful of protestors on the other side of the doors. Unless the Capital Police is hiring the blind, the officers on both sides merely had to look through the glass to see each other.
Many commentators have observed no one present heard any verbal warnings before Byrd shot Babbitt. The document takes pains to try to establish the officers were yelling commands such as “stay back,” and “back up.” This is irrelevant. If the criteria for the use of deadly force are present, no verbal warnings of any kind are necessary, and if they are not, yelling at Babbitt does not create them. What is particularly significant is Tyson saw no weapons. As I’ve previously noted, Babbitt’s hands were occupied with holding onto the window frame as she precariously perched on the narrow door frame. She was a tiny woman–just over 5 feet and just over 100 pounds–and even if she managed to jump down to the floor uninjured, would have posed no danger to three, manly, armed federal officers, though the document tries to portray Byrd as afraid she might have somehow wrested his handgun away from him.
There is a brief section about other officers afraid for their lives, who bravely ran away, but it first noted:
Officer Yetter described Ms. McEntee as passionate about what she was doing and screamingand yelling. Sergeant Lively recalls McEntee being at the front of the crowd at the doors to the Speaker’s Lobby. Ms. McEntee was the only woman in the front of the crowd, Officer Lanciano pushed her back at one point, but she returned back to the front of the crowd.
There is now substantial evidence Babbitt’s “screaming and yelling” was directed at telling the other protestors to stand down. There is, of course, no mention of this. The next section is about the tactical team officers, who also only heard a gunshot and saw Babbitt falling.
After the CERT officers heard the shot, Ofc Robbs then ‘saw several plain clothes officers with their guns drawn, that they were actually in the Speaker’s Lobby. Their guns pointed back towards our direction and the direction of the protestors.’ Officer Smith heard Officer Robbs yell ‘blue, blue, blue,’ after determining that the shot was fired by a USCP officer. Officer Robbs then gave the officers in the Speaker’s Lobby ‘a thumbs up, trying to let them know there’s police out here.’ Officer Sikes and Officer Robbs then started to render aid to Ms. McEntee.
What the document succeeds in portraying to this point—page 27 of a 93 page document—is the Capital Police, in a panic, utterly unaware of each other, and incapable of professionally and non-violently dealing with the situation.
Officer Brown climbed through the broken glass door into the Speaker’s Lobby after he saw two other CERT officers inside the Speaker’s Lobby. According to Officer Brown. Lieutenant Byrd was ‘down and out and almost in tears when he saw him inside the Speaker’s Lobby.
I’m sure he was, but not because of the humanity of it all. He had to know he had unlawfully killed an innocent woman. This pretty much sums up what every CP witness didn’t have to say:
CERT officers did not see who fired the shot from inside the Speaker’s Lobby, and also did not communicate with any officers inside the Speaker’s Lobby prior to the shooting.
Ain’t nobody saw nothin’. This too is significant:
Lieutenant Byrd has been employed by USCP for 27 years. He did not create any police reports or documents relating to the incident, and did not provide an official statement regarding the use of force. Lieutenant Byrd did agree to participate with his counsel, Mark Schamel, in a voluntary debrief and walk-though of the scene on January 29, 2021.
We have only his lawyer prepared statement, second hand, through the authors of the document. These days, any officer involved in a shooting will not talk without an attorney, however, if that officer was legally justified, we’d expect them to submit to an interview and carefully outline their justification. That was apparently not done here. This is the vague statement with which prosecutors justified murder:
Lieutenant Byrd heard glass breaking and saw some of the items used to barricade the doors being pushed down. Lieutenant Byrd continued to tell the rioters to ‘get back, get back!’ Lieutenant Byrd then saw a rioter with a backpack on start to climb through one of the broken glass doors. Lieutenant Byrd saw the rioter ‘as a threat,’ so he stepped forward from his tactical positon and fired one round at the rioter. The rioter fell back out of the opening and Lieutenant Byrd eventually stepped back into the seated area of the Speaker’s Lobby before confirming to other USCP officers that arrived on the scene that he was the one that fired his service weapon.
The rest of the narrative portion of the document consists of a roundabout recitation of various court decisions more or less relevant to the use of deadly force. However, these citations are written in such a way as to ignore the holdings which would inevitably charge any other officer who did as Byrd did. This is a clearly political, not legal, decision:
In the present matter, there is insufficient evidence to refute Lieutenant Byrd’s description of the circumstances, corroborated by the civilian and officer witness statements, under which he fired his weapon at Ms. McEntee and caused her death. The government would have to provenot only that Lieutenant Byrd used force that was constitutionally unreasonable, but that he did so ‘willfully,’ which the Supreme Court has interpreted to mean he acted with a bad purpose to disregard the law. As this requirement has been interpreted by the courts, evidence that an officer acted out of fear, mistake, panic, misperception, negligence, or even poor judgment cannot establish the high level of intent required under Section 242.
Because Ms. McEntee was an active participant in a ‘mob’ that had just illegally entered the Capitol building, and then broke out the glass doors and removed barricades to forcefully gain entry into the Speaker’s Lobby, there is insufficient evidence to refute Lieutenant Byrd’s fear for his life or the life of others at the time he discharged his weapon. Therefore, there is insufficient evidence to prove beyond a reasonable doubt that he willfully deprived Ms. McEntee of a right protected by the Constitution or laws of the United States.
Accordingly, I recommend declination of this matter.
Nonsense. With the limited information I’ve seen, there is more than enough evidence to determine Byrd acted unlawfully. These people surely have video I haven’t seen, and have access to far more evidence. The mere fact multiple officers were observing Byrd, yet knew they had no grounds to shoot her, is compelling evidence of Byrd’s negligent killing of Babbitt. If Byrd was fully justified, were the other officers negligent? In failing to shoot Babbitt, did they incompetently endanger our Democracy?
What’s missing in this document is the text of any witness statements. We do not have the reports of individual officers, though we are assured none of them really saw anything other than Babbitt falling backward after they heard an unexpected shot. We have only the briefest summary of what Byrd may or may not have said. The document tries to justify Byrd’s shooting by crying “mob!” “Riot!” as though that justifies Byrd’s actions. There was violence that day, but not in the Speaker’s Lobby when Byrd killed Babbitt. We are led to believe there was a huge mob, fronted by Babbitt, trying to break through the doors to commit mayhem. Photographs of the event, and I’m sure unreleased video, show a group of perhaps 20, who, as Babbitt perched on the door, were not actively trying to break through, and were, in fact, flanked by the armed tactical team.
If that handful of protestors actually posed an imminent threat, the tactical team was in a position to stop them, one and all. Obviously, they, saw no need to shoot anyone.
By all means, take the link to the 8th article in this series, which explains in detail why Byrd did not have cause to shoot Babbitt. What this document reveals is he had even less cause than I understood when I wrote that article. He was not alone in watching the doors. Two other officers were close, though it’s likely Byrd, in a panic, had no idea they were there, just as he probably wasn’t aware the tactical team was present. All he had to do was take a few seconds to look around, but I suspect he was so frightened he couldn’t.
We don’t know if every officer and every potential witness was properly interviewed. In any officer involved shooting, that would be the bare minimum required. In such interviews, which would normally take hours for each, every second would be nailed down. There were be no question about whether each officer knew others were present, if they communicated in any way, and why, exactly, the two other officers present—right there watching Babbitt–didn’t see her as a deadly threat when Byrd claimed he did. Byrd saying he saw Babbitt as “a threat” would not be remotely enough. As I noted in the 8th article, Byrd actually admitting he couldn’t tell if Babbitt was armed, so why the hell did he shoot a tiny woman who, perched on that door frame, could not possibly pose a threat?!
Competent investigators would nail down, second by second, exactly what she was doing at the moment Byrd fired that would have convinced a reasonable police officer Babbitt was an imminent threat of serious bodily injury to himself or others. Saying: “If she got in, others might have followed, and bad things might have happened” is not nearly enough, yet that is precisely the justification for murder the document provides.
Final Thoughts: Based on this document, it’s clear the exoneration of Byrd was an entirely political decision having nothing to do with the facts of the case. No Capitol Police Officer is going to be portrayed as anything short of a heroic victim, because to do that would obliterate the narrative of an insurrection worse than Pearl Harbor and the Civil War.
I suspect were all of the documents and video relating to this case ever made public, we would discover there was little or no attempt to competently interview anyone, and those that were interviewed were handled with kid gloves. Likely, they were led to avoid making any statement damaging to the narrative, and were even forced to commit perjury. Any competent police officer would know this was a bad shoot, but woe to any Capital Police officer who even hinted at such a thing.
Ashli Babbitt, veteran and patriot, died that the indescribably vile Nancy Pelosi might walk away unscathed, despite her evil intent and incompetence. Or was it she wanted violence at the Capital that day? She, after all, turned down 20,00 National Guard troops, and allowed the Capital Police to be entirely unprepared, despite knowing what could happen. Babbitt died that useful idiot Liz Cheney could obsessively pursue Donald Trump to the gates of Hell and that the January 6 Committee might ignore the real failures of that day and instead conduct a Stalinist show trial. She died that partisan politics might prevail over the rule of law.