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January 6, 2023, the second anniversary of the murder of Ashli Babbitt by Capitol Police Lt. Michael Byrd. The Capital Police celebrated the occasion by arresting babbitt’s mother, Micki Witthoeft. What horrible offense did she commit ? What transgression required her arrest to protect “our democracy” and prevent another insurrection that would have destroyed the country? Jaywalking.  Your tax dollars at work, gentle readers, forthrightly ensuring social justice.

I last wrote on this topic in June of 2022. The SMM Capitol Coverup archive is here.  The Lamestream Media has done its best to avoid covering Babbitt’s death, and the clownish January 6 Committee absolutely avoided mentioning it. D/S/C spokesliars, political and media—I know: same thing—have virtually universally blamed Babbitt for her death, but as regular readers know, Byrd had no grounds to shoot Babbitt; he murdered her. An example of blaming the victim comes from Dan McLaughlin at National Review, a publication that ought to know better:

Ashli Babbitt, patriot

We should all aspire to be better. Ashli Babbitt did not deserve to die. Like other unarmed people shot by police in a controversial confrontation, however, she made poor choices to put herself in a dangerous position. The result was that a police officer doing his best to protect and serve in chaotic circumstances made a split-second decision with fatal consequences, one he likely regrets but that no sane legal system would treat as a crime. As the Justice Department described the situation in closing its investigation:

‘Ms. Babbitt was among a mob of people that entered the Capitol building and gained access to a hallway outside ‘Speaker’s Lobby,’ which leads to the Chamber of the U.S. House of Representatives. At the time, the USCP [Capitol Police] was evacuating Members from the Chamber, which the mob was trying to enter from multiple doorways. USCP officers used furniture to barricade a set of glass doors separating the hallway and Speaker’s Lobby to try and stop the mob from entering the Speaker’s Lobby and the Chamber, and three officers positioned themselves between the doors and the mob. Members of the mob attempted to break through the doors by striking them and breaking the glass with their hands, flagpoles, helmets, and other objects. Eventually, the three USCP officers positioned outside the doors were forced to evacuate. As members of the mob continued to strike the glass doors, Ms. Babbitt attempted to climb through one of the doors where glass was broken out. An officer inside the Speaker’s Lobby fired one round from his service pistol, striking Ms. Babbitt in the left shoulder, causing her to fall back from the doorway and onto the floor.

As conservatives, we believe as a matter of principle that the rules are the rules, no matter whose ox is being gored. We believe that the cops aren’t always right, but they deserve the benefit of the doubt on tough calls made in the moment. We believe that riots are no way to protest. It would be nice if we weren’t the only ones.

The comments following this article demonstrate two primary things: (1) few, if any, Americans understand the law of deadly force. (2) Virtually all of the people commenting were doing so out of emotion or political orthodoxy. That includes McLaughlin who bought the false government line, essentially claiming the moral high ground for what is nothing more than anti-Trump/Normal American sentiment. McLaughlin’s—and National Review’s–conservatism is far closer to Nancy Pelosi than Jim Jordan.

We have also learned Byrd was exonerated without cooperating in the “investigation” that cleared him. He refused to speak with investigators:

 In fact, investigators cleared Byrd of wrongdoing in the shooting without actually interviewing him about the shooting or threatening him with punishment if he did not cooperate with their criminal investigation.

‘He didn’t provide any statement to [criminal] investigators and they didn’t push him to make a statement,’ Babbitt family attorney Terry Roberts said in an RCI interview. ‘It’s astonishing how skimpy his investigative file is.’

Roberts, who has spoken with the D.C. MPD detective assigned to the case, said the kid-glove treatment of Byrd raises suspicions the investigation was a ‘whitewash.’

The lawyer’s account appears to be backed up by a January 2021 internal affairs report, which notes Byrd ‘declined to provide a statement,’ D.C. MPD documents show.

Asked about it, a D.C. MPD spokeswoman confirmed that Byrd did not cooperate with internal affairs agents or FBI agents, who jointly investigated what was one of the most high-profile officer-involved shooting cases in U.S. history.

‘MPD did not formally interview Lt. Byrd,’ deputy D.C. MPD communications director Kristen Metzger said. And, ‘He didn’t give a statement while under the U.S. Attorney’s Office investigation.’

Generally, police officers who refuse to cooperate in an internal investigation may be fired. These days, any police officer involved in a shooting would be foolish to speak to investigators without an attorney. Byrd had all the legal representation he needed, and a government predisposed to exonerate him, yet he refused to cooperate, and the government let him get away with it. Keep in mind the government has thousands of hours of video. It’s a virtual certainty they knew exactly what happened. They had much better photographic evidence than what I’ve been able to find, yet they exonerated Byrd for murder.

Andrea Widberg at The American Thinker, writes about a Tucker Carlson monologue on Babbitt’s death. In that article, she writes about journalist Tayler Hansen who was present before, during and after Babbitt’s murder. Remember how Babbit has been portrayed as a violent insurrectionist who got what she deserved.

Hansen was following Babbit, who was talking on a cell phone and did not appear to know where she was.

Not exactly the acts of an insurrectionist.

The “CERT Team” about which Hansen speaks was a heavily armed SWAT team, which was only a few feet behind Babbitt when she was killed. That team, and two other officers on the other sides of the doors with Byrd, did not see Babbitt as any kind of threat. Every indication is they were shocked when she was shot and fell backward to the floor.

The profit about which Hansen speaks is the proceeds of a Go Fund Me account set up for Byrd.

This, I’m sure, is no surprise. I’ve covered the criteria necessary to the lawful use of deadly force before in the archive, but in light of what we now know, it may be useful to consider them again. I’ll not cover the criteria of innocence and avoidance, as they don’t generally apply to police officers acting under color of law, doing their duty.  The remaining three, however, do apply to the police:

Imminence: One can’t use deadly force against a possible attack, or against an attack that might happen at some time in the future. The 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.  That’s because there is, all too often, no time to do any such thing.  Deadly force situations often happen very, very quickly, and if one doesn’t respond equally quickly, they end up seriously dead.  Understanding this reality, the law does not require warnings, though if there is time, and this is highly situational, any professional officer will try to use words to avoid having to use force.  Still, it is not required, legally or morally, and anyone failing to respond to a warning is not, merely by failing to respond, fair game. If the criteria for the use of deadly force are not present, no warning—mere words—fulfill those criteria.

Byrd is at top, center in this photo

Let’s apply the three criteria, briefly, to what we now, circa January, 2023, know about Babbitt’s murder.  Byrd had been in the locked and barricaded chamber.  For reasons unknown, he, apparently alone, breached those barricades and locked doors, to enter the empty hallway outside the chamber.  He stood in an alcove with a bank of locked doors to his immediate right. Byrd’s media—not official—testimony is he fired to save the lives of everyone in that barricaded chamber. Why he felt the need to breach that barricade, opening the chamber to the danger Byrd claims was presetnt, remains unexplained.

Notice Byrd has his finger on the trigger, a major safety violation

On the other side of those locked doors to the Speaker’s Lobby were a number of protestors.  A single protestor had broken out the window on one of the doors, the door farthest from Byrd and the chamber. We now know Babbitt repeatedly tried to stop him and deescalate the situation. As Byrd stood there, no one was trying to break any additional windows, nor were they trying to break through the doors.  This is likely because there were many uniformed, helmeted Capital Police—the CERT Team–most carrying long guns, right there on the opposite side of the locked doors from Byrd. They were just a few feet behind Babbitt, just out of the view of the camera in the photo below.  It’s equally likely Babbitt had succeeded in stopping them.

Ashley Babbitt on the ledge (flag backpack)

Ashli Babbitt, all 5’2”, 110 pounds of her, managed to climb up onto the narrow door ledge where the window glass was only minutes earlier.  That was the only broken out window in that bank of doors.  She was precariously perched, crouched, both feet on the ledge, both hands holding the sides of the frame.  She had nothing in her hands—she couldn’t; she was trying to maintain her balance—and no one could have possibly, reasonably believed she was a threat to anyone.

Why was she doing that? The government investigation apparently didn’t bother to try to find out. They didn’t want to know.  Hansen’s account suggests she might have been trying to get to the other side to communicate with officers in a further attempt to calm things down.

Byrd at the moment of firing

Yet, Byrd rushed about 6’ toward her into the hallway, fully extended his .40 caliber Glock handgun, and shot her in the shoulder.  The bullet traversed her throat and lung.  She immediately fell backward, making no attempt to break her fall, landing on the floor—hard–-on her back, dying.

Ashli Babbitt is dying at this officer’s feet

Some in the crowd, and the Capital police who were right there, tried to help her, but she was mortally wounded and died shortly thereafter.  No one could have known with certainty she was unarmed until later, but no one could have reasonably believed she was armed either—there was no indication of that, ever.

The narrative is Byrd repeatedly warned her before firing, but if so, no one present heard any such thing, and no warning is audible on the video evidence in the public domain.  Even if Byrd did warn her, there is no evidence she heard him or that she was ever aware of his presence.  And once again, it is entirely irrelevant.  This is what is solely relevant:

Imminence: we have video of the shooting, so we know no reasonable person could have believed Ashli Babbit, balanced precariously on the ledge, both hands occupied keeping her balance, was any kind of imminent threat to anyone. There were multiple, long gun armed officers behind her, within a few feet of her.  All Byrd needed to do was take a moment to get their attention and gesture to them to pull her back on their side of the doors.  In his unofficial statement, Byrd claimed there were no officers present on the other side of the doors. His implication was he was all that stood between the murder of everyone in the barricaded chamber he only minutes earlier breached and the crazed violent crowd only moments from attacking in an irresistible wave of insurrectionist violence.

Remember too the doors to the House chamber were still locked and barricaded and covered by multiple armed agents.  Even if tiny Ashli Babbit—5’2”, 100 pounds–managed to jump down to the floor of the hallway outside the House chamber without hurting herself, to do any damage to the members of Congress who had already been evacuated and were continuously guarded by armed agents, she would have to get past Byrd, who was aiming his handgun at her, the locked and barricaded chamber doors and the many armed agents manning those barricades.

The armed CERT Team on the other side of the Speaker’s Lobby doors had the crowd under control.  There was no threat forthcoming from that vector.  Even if Babbit tried to enter the locked, barricaded and heavily guarded chamber, the epically heroic Lt. Byrd stood manfully in her way.  If he could not handle—without resorting to deadly force—a single tiny woman who we now know was trying to prevent violence, what was he doing in the Capital Police at the rank of Lieutenant?

We know Babbitt, when shot, was no threat—imminent or otherwise–to anyone.  She was not in a position to be a threat to anyone, nor could any reasonable, non-panicky person have believed she was.  It’s never enough to think someone might be a threat of some kind at some time in the future.  We’re speaking about killing people.  The threat has to be obvious and imminent, not just a moment’s panic, but supportable by evidence.  Anyone using deadly force has to be able to clearly explain the threat, it’s imminence, and why it was necessary to shoot at that moment.   Boyd never did that. Clearly, he fails the imminence test, there is no possible justification for shooting and we need analyze no further—failing to fulfill any element of the criteria means the shooting was unlawful; it’s not a 70% passes situation–but for the purposes of this article, we continue.

Proportionality: deadly force is lawful only when one is presented with the imminent threat of serious bodily injury or death, when a reasonable person would believe if they did not shoot at that instant, they, or another, would be, imminently—right then and there–seriously injured or killed.  There is no evidence Babbitt ever saw Byrd, in fact, all known evidence indicates she did not.  Where is the threat to Byrd?  We now know there were two other officers present close to the doors. We also know they did not see Babbitt as a threat. They saw no need to use force of any kind against her.  Where is any threat to others? 

Babbitt was precariously balanced on a wooden door ledge only about 2” wide, crouched, and both hands were occupied keeping her from falling.  Not one of them, including Byrd, saw a weapon in either of Babbitt’s hands. Where was any threat of any kind at the moment Byrd pulled the trigger?  Could he not simply have walked a few feet and eased the off-balance, vulnerable Babbitt back through the door to the other side?  Could he not have enlisted the help of one of the many officers on both sides of the doors to help him, or to personally move Babbitt?  Was his only possible lawful, moral and practical option, at that moment, to shoot Babbitt?

If it was not, Byrd fails the proportionality test.

Reasonableness: We already know the answer to this criteria.  No reasonable person, beholding Ashli Babbitt precariously perched on that ledge could have reasonably believed she was any kind of danger.  They might only reasonably believe she was in imminent danger of falling and hurting herself.  All of the other officers present, on both sides of the door, did not see Babbitt as any kind of a threat. Even if she managed to reach Byrd’s side of the door uninjured, a reasonable person would still need some specific, observed, articulable threat prior to using any level of force.  Remember, we’re talking about what, if any force was lawful at the moment Byrd’s shot was fired.  No one was trying to breach those doors, and only tiny Ashli Babbitt crouched on that ledge, unmoving.  Byrd had a great many options far short of deadly force.  Byrd failed the reasonableness test.

“Protestors” trying to save Ashli Babbitt

Police officers can scream “stop or I’ll shoot!”  They can flash the message on a digital billboard.  They can deliver it in writing.  They can accompany the message with music and choreography, but unless they can articulate, and back with evidence, that each of the three criteria—not just one or two, but all three—were operant and fulfilled at the moment they pulled the trigger, they have not acted lawfully, but have committed some degree of murder.  It doesn’t matter if they’re scared.  It doesn’t matter if they think they’re protecting a bunch of panicky, cowardly congressmen (Byrd wasn’t; they had all been evacuated and were constantly under guard), if the three criteria are not, at the moment of firing, completely fulfilled, if every other reasonable police officer in the world would not have fired at that instant—remember, the multiple officers armed with long guns mere feet from Babbitt obviously didn’t think her a threat, nor did the two other officers on Byrd’s side of the doors–they cannot lawfully shoot.

Some who should know better have argued because there was violence ongoing somewhere at the capital, Byrd was justified in killing Babbitt. No sane American wants to live in a country under those rules. They’re arguing because violence, even something of a riot, might be happening somewhere nearby, somewhere no one present by those doors could see or hear, except perhaps maybe in a occasional radio transmission, every officer present anywhere on the Capital grounds was in a free fire zone. They could shoot anyone and everyone at will. The criteria necessary for lawfully using deadly force were suspended because of INSURRECTION, and TRUMP! Are we truly ready to tell the police reason no longer applies? They no longer have to calmly, professionally analyze what is happening around them—what’s happening elsewhere doesn’t matter–before using force?

Byrd with his finger on the trigger, an inexcusable safety violation

Because a foolish, panicky police administrator, a man who left his handgun in a bathroom in the past, a man with negligent, deadly dangerous firearm skills, a man who for reasons still unexplained breached the locked and barricaded chamber, a man who panicked at no threat and fired, Ashli Babbitt is dead.  Because the Democrat/Socialist/Communist controlled House and Senate needs the events of January 6, 2021 to be worse than Pearl Harbor, an insurrection that came within a millimeter of bringing down our republic, because they needed that distraction for the 2022 mid terms and need it for the 2024 elections, it’s unlikely the heroic Byrd will ever be called to criminal account for his murder of Ashli Babbitt.

Will House Republicans investigate? Will they release the thousands of hours of video, and particularly the video of Babbitt’s murder? Should a republican take the White House in 2024, will a competent, non-political investigation of Byrd be undertaken (there is no statue of limitations on murder)? Republicans are promising much at the moment. I doubt many expect them, based on past performance, to deliver.

credit: twitter.com

Ashli Babbitt, a veteran who tried to prevent violence at the Capital, deserved better. So do we all.