Michael Byrd, the U.S. Capitol Police officer who shot and killed Ashli Babbitt, a January 6th rioter who tried to climb into the Speaker’s Lobby, has come forward to tell the world of his own heroism, drawing some sober commentary and some ridicule.
My own inclination is to give much benefit of the doubt to policemen and very little to members of mobs. I’m pleased that so many progressives have the same inclination. No doubt it will carry over to the next widely publicized police shooting. Still, the benefit of the doubt can’t be infinite, as our friends on the Left show by continuing to excoriate officers who have been cleared after intensive investigations (such as Darren Wilson, exonerated by two state prosecutors, a grand jury and the Obama Justice Department).
Looking, then, at what is known about the Byrd-Babbitt confrontation (less than in many parallel cases, as the Capitol Police hold the evidence close to their kevlar vests), I believe that there are three separate questions to ask:
1. From the point of view of Officer Byrd on January 6th, having only the information that he possessed at that time, was the use of deadly force justified? His stated perception is, “I saved countless lives” by killing Ashli Babbitt.
2. Knowing what we know now, what his perception, whether or not objectively correct, reasonable?
3. Knowing what we know now, was his perception correct?
If the answers to the first two questions are “yes”, I would conclude that the officer did his duty, whether or not the answer to question three is also “yes”. If the answer to the first question is “no”, he is a murderer. If the answer to the second is “no”, he deserves severe discipline. Whether that should include criminal charges depends on a more fine-grained inquiry than the current set of publicly available information makes possible.
We have Officer Byrd’s word for his subjective belief at the time. He could be lying. He might have had some special reason for shooting Ashli Babbitt, or he might have hated all women or all white people or all Trump supporters or all military veterans. But I’ve read nothing worse about him than that he once left a loaded pistol in a Capitol Visitor Center bathroom, a bit of carelessness that appears to be endemic among his colleagues. Nor is his claim about his perception implausible. There were thousands of rioters, some of whom fought with the police. It’s easy to believe that someone in the midst of the chaos would have sincerely believed that it was life-threatening.
Was that belief reasonable? That is harder to evaluate. One would need better evidence about what the scene looked like. How fierce was the mob’s anger? Were there signs that it possessed deadly weapons? Was it advancing like an avenging horde? What assaults had Officer Byrd witnessed?
One piece of evidence on this point is the fact that, despite being attacked by the mob and suffering injuries, no other policeman found it necessary to open fire or, so far as I can discern, draw a gun. That suggests that the other defenders saw the situation as less dire than did Officer Byrd. But that inference isn’t strong enough to support a solid conclusion. For the moment, our answer to this question must be, “Don’t know”.
The answer to the third question is easier. No defenders of the building were killed, notwithstanding false accounts of Officer Brian Sicknick’s death. The FBI reportedly has found no evidence of a coordinated assault on the Capitol. The charges brought against the roughly 600 persons who have been arrested show that the event was no “peaceful protest”, but they fall well short of what one would expect from an armed and deadly insurrection. While some 50 people have been charged with bringing “deadly or dangerous” weapons into the Capitol, there are no charges of firearms possession inside the building (nor has any news story that I’ve seen mentioned edged weapons). “Deadly or dangerous” covers much territory. (One person, a probationary employee of the DEA, has been charged with carrying a gun on “restricted ground” outside the Capitol building.)
It seems beyond dispute that no law enforcement personnel were in danger of being murdered on January 6th. Officer Byrd’s killing of an unarmed woman may well have been justified, but the count of lives that he saved is zero. He is, on present evidence, neither a villain nor a hero, just a cop who evidently was trying to do his job. He deserves a degree of sympathy, as do all other policemen who find themselves in similar circumstances.
Further Reading: Jonathan Turley, “Justified shooting or fair game? Shooter of Ashli Babbitt makes shocking admission”. Professor Turley knows far more about the applicable criminal law than I ever will and answers my “Question 2” with an emphatic “no”.
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.
A response to Professor Turley
Jack Dunphy, “Capitol Police Officer Who Shot Ashli Babbitt Speaks (but Shouldn't Have)” (by a serving police officer; sharply critical of Officer Byrd’s actions)
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