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Law of Self Defense Analysis: Jan. 6 Shooting of Ashli Babbitt was Legally Justified

Law of Self Defense Analysis: Jan. 6 Shooting of Ashli Babbitt was Legally Justified

Regardless of whether her shooting meets the legal conditions for a justified use of force, her death is a great loss. A proper legal analysis, however, must be limited to the actual relevant evidence and the actual law and must exclude every other factor.

https://twitter.com/thejaydenxander/status/1347056697899163648

I’ve been receiving a virtual tsunami of requests to do a use of force legal analysis of the shooting death of January 6 protestor Ashli Babbitt by Capit0l Police Lieutenant Michael Byrd as Babbitt appeared to be attempting to violently breach the barricaded doorway being guarded by Byrd.

In fact, I did a detailed legal analysis of this shooting only days after it occurred—“Capitol Hill Shooting of Ashli Babbitt:  Murder or Justified?” (Jan. 12, 2021)—although as with most of our Law of Self Defense content, access to that analysis was restricted to Law of Self Defense Members, who had the benefit of that analysis almost 8 months ago.

The last few days have seen a resurgence in requests for such a legal analysis of the Babbitt shooting, presumably as a result of two events.  First, the August 28 interview of Lt. Byrd by NBC News Correspondent Lester Holt:  “Extended Interview: Capitol Police Lt. Michael Byrd Speaks Out.” Second, an opinion piece on that interview published at The Hill by prominent legal expert Jonathan Turley:  “Justified shooting or fair game? Shooter of Ashli Babbitt makes shocking admission.”

So, with those two additional pieces of information and opinion tossed into the legal discussion of the shooting death of Ashli Babbitt it seems an appropriate time to re-visit our legal analysis of that tragic event.  (Fair warning to Law of Self Defense Members—much of this content is re-packaged from our January 12 analysis to which you’ve already had access.)

For purposes of clarity, the two primary bodies of evidence used for this analysis consist of the apparent camera video of the event itself and the recent television interview of Lt. Byrd:

Video of Event

Lt. Byrd Television Interview

Legal Analysis, Not Political Analysis

Before we dive into this, I’m obliged to caution all of you in the Law of Self Defense community:  a proper legal analysis must be limited to the actual relevant evidence and the actual law and must exclude every other factor, because every other factor is by definition irrelevant to the legal analysis.

That includes excluding factors such political opinions and biases, and it includes excluding such sentiments as “but if the other guys had done it!!!!”

Political beliefs and sentiments are perfectly legitimate in any society, and many of us hold our beliefs strongly.  That’s as true of me as anyone else. But if we blend politics into our legal analysis, we end up with a very poor, and likely wrong, legal analysis.

For many of you it might be helpful to imagine if the protestors had consisted not of Trump supporters with perfectly legitimate concerns about the integrity of the election, but Black Lives Matters protestors who claim their own legitimate concerns about social justice.

Applying the same law to the same facts should arrive at the same legal outcome, regardless of which of those two groups was protesting. If you arrive at a different legal conclusion based on the group protesting, that’s probably an indication that you’ve allowed your political biases to taint your legal analysis.

Accordingly, in this legal analysis we leave the political considerations, as important as they are to our society, off the table.

I also feel obliged to point out that by all indications Ashli Babbitt appears to have been a loyal American patriot and veteran who was acting with only the best of intentions and without any desire to inflict violence upon anybody on the date of her tragic death.  Regardless of whether her shooting meets the legal conditions for a justified use of force, her death is a great loss.

That said, Babbitt’s actual intentions and high character are, in fact and law, irrelevant to whether her shooting was legally justified, for reasons we’ll detail in this analysis.

Fair warning:  I recognize that any individual’s politics are deeply embedded within their character, that most of us have long ago “chosen sides,” and there’s nothing wrong with that.  Once again, however, politics has no role in coldly reasoned legal analysis, particularly not of a specific use-of-force event.

If you are able to set your politics aside and review this analysis with an open mind, that’s awesome—it doesn’t mean you need to agree, but that’s the only way to garner any value from consuming this analysis.  If you are not able to set aside your politics and keep an open mind, however, your time is likely best spent elsewhere than in consuming this analysis.

What Does “Legally Justified” Mean in Use-of-Force Context?

Given that the core question to be addressed by our analysis is whether the shooting death of Ashli Babbitt was legally justified, it’s worth taking a moment to understand what “legally justified” means in this specific use-of-force context.

And perhaps a good way to first approach that issue is to note what “legally justified” does NOT mean in this context.

“Legally justified” does NOT mean that the death of Ashli Babbitt was a good thing.

“Legally justified” does NOT mean that the death of Ashli Babbitt was an absolute necessity.

“Legally justified” does NOT mean that Babbitt intended to harm anyone on the other side of the barricaded doorway she was apparently attempting to breach.

“Legally justified” does NOT mean that Lt. Byrd had a perfect and complete understanding of all the circumstances surrounding the events facing him.

“Legally justified” does NOT mean that Lt. Byrd was a perfect officer who had never in his career made a serious mistake in judgement (e.g., reports of him leaving his service pistol in a bathroom).

“Legally justified” does NOT mean that in order for Byrd to have been justified it is necessary that other officers similarly situated made the same use of force decision, nor that other people acting similarly to Babbitt must have been subject to the same use of force.

“Legally justified” does NOT mean that as a consequence one must accept that everything (or even anything) the Biden administration has done or is doing is to the betterment of America—one can believe with one’s whole heart that the Biden administration specifically and Democrats generally are a disaster for America, and still be obliged to accept the possibility that the shooting death of Ashli Babbitt was legally justified.  These are two entirely separate issues.

“Legally justified” does NOT mean that the Biden administration and Democrats would not be defending this shooting even if it were not justified—presumably, as political actors, they would behave in a politic manner and defend the shooting regardless of its legal merits.

Our role in this analysis, however, is solely focused on legal merit, as already discussed.

All of that is  political stuff is entirely irrelevant to our legal analysis.

Now that we’ve outlined what “legally justified” does NOT mean in this context of the shooting of Ashli Babbitt, let’s consider what it DOES mean.

The shooting of Ashli Babbitt is justified for criminal liability purposes if it would be untenable, to a reasonable degree of legal certainty, for a prosecution to disprove beyond a reasonable doubt that Lt. Byrd had a genuine and reasonable belief that he was facing an unavoidable, unlawful and imminent threat of death or serious bodily injury to either himself or those he has a duty to protect.

It’s important here to understand the prosecution’s burden of proof here, as in any justified use of force case in criminal court.  Lt. Byrd is not obliged to prove that his use of force was absolutely necessary.  He is not obliged to prove that his use of force was probably necessary.  He is not obliged to prove that his use of force was even somewhat necessary. Indeed, he’s not obliged to prove anything, once he’s established a prima facie case of defense of self or others.

Rather, the entire burden of persuasion on the issue of justified use of force is on the prosecution to disprove Byrd’s defense—and not by a little, or a majority, or even by a lot, but to disprove that defense beyond any reasonable doubt.

Normally we think of “reasonable doubt” in the affirmative sense of the prosecution having to prove a crime beyond a reasonable doubt, which means by a huge majority of the evidence.  For our purposes, let’s pretend that this means guilt must be proven not merely by 51% of the evidence, or 70% or even 80%, but by a full 90% of the evidence—beyond any reasonable doubt.

Applying this framework in the use of force context the prosecution’s burden to disprove self-defense beyond a reasonable doubt means that it’s not enough for the prosecution to disprove self-defense by 51% of the evidence, or 70% or even 80%, but rather they must disprove self-defense by a full 90% of the evidence.

Alternatively, this means that if a jury would believe that there’s even a mere 10% chance that Lt. Byrd had a genuine and reasonable belief that he was facing an unavoidable, unlawful and imminent threat of death or serious bodily injury to either himself or those he has a duty to protect—just 10%!—then the jury will be instructed that they will be obliged to acquit Byrd of any criminal offense based on that use of force.

In other words, if the jury has even a reasonable doubt that Byrd’s shooting of Babbitt could have been justified, they are obliged to acquit—and, by extension, Byrd’s shooting of Babbitt will be deemed justified for legal purposes.

(The question is somewhat different in civil court than just described here in the context of criminal law, but for purpose of conciseness I’ll focus here solely on the potential criminal liability of this tragic event.)

In summary, when a legal analysis determines that a use of force was “legally justified” all that requires is that the analyst has concluded to a reasonable degree of legal certainty that they do not believe that they can disprove the justification beyond a reasonable doubt.  That could well mean that they have a 75% belief that the use of force was not justified—but 75% is less than beyond a reasonable doubt (which for discussion purposes we’ve set at 90%), and so the required burden for guilt has not been achieved, and an acquittal would be instructed.

To use a sporting analogy, in American football a touchdown is not achieved if the ball is carried to the 51 yard line, or the 60, 70, 80, or even 90 yard line of the 100 yard playing field.  The ball must reach the far end of the field, period.  If that threshold is not reached, there is no touchdown, however nearly the threshold was almost reached.

So, that’s the bottom line question for our analysis:  Is there, to a reasonable degree of legal certainty, even just a reasonable doubt (for discussion purposes, even just a 10% belief) that Lt. Byrd had a genuine and reasonable belief that he was facing an unavoidable, unlawful and imminent threat of death or serious bodily injury to either himself or those he has a duty to protect?

If the answer to that question is “yes,” even at just 10% belief, then Byrd’s shooting of Babbitt was justified for legal purposes (again, in the context of criminal liability—the legal threshold differs in the context of civil liability).

This is not, by the way, a unique threshold for justified use-of-force for Lt. Byrd—it’s the same threshold applied throughout the United States for any criminal defendant who raises a justified use-of-force legal defense.

The Five Elements of Self-Defense Law

OK, so now we know the key question to be answered in determining whether Lt. Byrd’s shooting of Babbitt was legally justified:  Is there even a mere reasonable doubt that Lt. Byrd had a genuine and reasonable belief that he was facing an unavoidable, unlawful and imminent threat of death or serious bodily injury to either himself or those he has a duty to protect.

As you might expect, each of the italicized terms in that key question are critical factors in arriving at an answer.  Fortunately, there’s a more succinct way of understanding that question so we don’t get too wrapped up in clunky verbiage.

In effect, those italicized critical factors represent the essential five elements of any justified use of force in defense of self or others:  Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.

If you’re unfamiliar with those five elements of self-defense law, then you’ll be doing yourself a real service to at least obtain a copy of our best-selling book which provides a detailed, law-based, yet plain English explanation of how these work in real-world self-defense cases.  For a limited time you can get that book for free (just cover the S&H required to get it to you) here:   “The Law of Self Defense, 3rd Edition” (http://lawofselfdefense.com/freebook).

In brief, however, here’s a concise description of each of these five elements of self-defense law, in the context of Lt. Byrd’s use of force upon Babbitt:

Innocence:  Was Lt. Byrd the non-aggressor in the confrontation?

Imminence:  Was the threat Lt. Byrd was defending against either actually in progress or immediately about to occur?

Proportionality: Given that Lt. Byrd used deadly defensive force, was he facing a threat readily capable of causing him or those he had a duty to protect death or serious bodily injury?

Avoidance:  Did Lt. Byrd violate any legal duty to retreat, if retreat was safely possible for both himself and those he had a duty to protect?

Reasonableness:  Did Lt. Byrd possess a genuine good faith subjective belief in the need to use deadly defensive force, and was that belief objectively reasonable?

If any one of those elements can be disproven beyond any reasonable doubt, then Byrd’s claim of justified use of force fails completely.  If, however, there exists even a mere reasonable doubt in support of each of those elements, then Byrd’s shooting of Babbitt was justified for criminal law purposes.

IMPORTANT:  The only facts relevant to any of this analysis are facts known to Byrd at the time he made his use of force decision.  Facts not known to Byrd can obviously not have played a role in his use-of-force decision making, and cannot be relevant to criminal liability.

For example, some video footage shows other officers a short distance behind Babbitt when she was shot, but Byrd claims he was unaware of the presence of those other officers at the time, and there is no evidence to the contrary—as a result, the actual presence of those officers is not relevant to the analysis of whether Byrd’s use of force was legally justified.

Also relevant would be Byrd’s training and experience as a Capit0l Police officer—conduct consistent with that training and experience would carry a large presumption of having been reasonable (and conduct inconsistent with such training and experience as unreasonable).

Further, it is not required that the “facts” known to Byrd be actually correct—it is merely required that these “facts” be reasonably believed to be true.  For example, Byrd reports that he was receiving radio reports that shots were being fired into the House chambers, a portion of which he was guarding. In fact, no such shots occurred, so this “fact” proved incorrect. Nevertheless, if Byrd reasonably believed this report to be true, he is permitted to base his use-of-force decisions upon this reasonably believed, even if mistaken, “fact.”

Finally, it does not matter what Babbitt’s actual intent was in apparently attempting to violently breach the barricaded doorway that Byrd was guarding, nor the intent of the rest of the crowd apparently working in concert with Babbitt.

Byrd is obviously unable to read the mind of Babbitt, or the others.  Instead, Byrd can only make reasonable inferences of their intent from their actual conduct and other credible reports (even if mistaken) that he is receiving.

So, with that context in mind, let’s consider each of those five elements of self-defense justification in turn, in the context of the facts of this case.

Innocence

The element of Innocence asks that we consider which side in the confrontation was the initial physical aggressor, meaning the first to use or threaten unlawful force, or alternatively whether either side was a provoker with intent, meaning that they provoked the confrontation with the intent of then having an excuse to use force against the other. Either of those loses the element of Innocence and loses self-defense.

It’s frankly difficult to imagine a less aggressive posture than that taken by Lt. Byrd in this instance.  He was literally using a doorway as defensive cover while guarding a barricaded set of locked doors.  It was not the Capitol police officer who went to the protestors, it was the protestors who went to the Capitol police officer.

Further, the protestors had either already unlawfully and forcibly entered the Capitol or were about to unlawfully and forcibly breach areas of the Capitol which the Capitol officer would have reason to believe they did not have permission to lawfully access.

One might argue that at least some protestors had gained initial entry to the Capitol believing they had permission to enter the property—although this particular Capitol police officer may well not have known that, which is the relevant issue—but they certainly were constructively informed that they were being denied permission to proceed further once they reached the barricaded doors.

The ongoing forcible and unlawful attempt to breach the barricaded doors, especially if knowing both that the doors were barricaded against their entry and that there was an armed officer on the other side with his weapon drawn in preparation to use deadly force to prevent any such breach (which would be within the scope of his legal duties), clearly makes the protestors (at least those right at the doors and able to see the barricades and officer’s drawn weapon) the initial physical aggressors in this confrontation.

And no, it’s not true that any American citizen has an absolute non-revocable license to enter the Capitol building, any more than any American citizen has an absolute non-revocable license to enter any other governmental building, like a VA hospital or a Department of Motor Vehicles building.

To think otherwise would mean to accept that, say, squatters (or Antifa or BLM) have an absolute non-revocable license to occupy any government building at any time they choose and stay forever without permission, and that’s clearly not the case.

There’s even an argument to be made that the protestors attempting to breach the doors guarded by the officer were engaged in provocation with intent—that is, provoke the officer to fire a shot, so that they would then have an excuse to use force against the officer (and, by extension, against those the officer had a duty to protect).  Certainly, the use of agents provocateur by protestors is hardly anything new.

In either case, as the initial aggressors, or perhaps even provokers with intent, the protestors attempting to breach the barricaded doors, with a clearly visible officer presenting his weapon defending those doors against breach fail the element of Innocence, meaning that element accrues to the benefit of Lt. Byrd.

The analysis is even more greatly in Lt. Byrd’s favor if we take into account his statements in his August 28 interview.  Byrd states that he was receiving radio reports of barricaded doorways being violently breached by protestors, of officers being overrun, of officers being “down” (meaning injured and incapacitated to some degree, perhaps fatally), of officers being sprayed with chemical agents, even of an officer having his fingertips blown off, as well as the already mentioned (apparently false) reports of shots being fired into the House chambers.

Again, it is not necessary that any of these reports were factually accurate or true—it is merely required that Byrd had reason to believe them to be true at the time. If so, they can appropriately play a role in his own use-of-force decision-making.

In short, with Lt. Byrd positioned in some degree of cover behind a barricaded doorway between the protestors and himself and others he had a duty to protect, it was clearly the protestors violently breaching that doorway who were the initial physical aggressors in this meeting with Byrd, not Lt. Byrd who sought out a confrontation with the protestors.

The element of Innocence, appears to be checked for the officer—and not by a small margin.

Imminence

Another of the required elements of a justification of self-defense (or defense of others) is Imminence, meaning that the threat against which Byrd was defending was either actually in progress or immediately about to occur.

From Byrd’s perspective, that “threat” would be in the form of the protestors violently breaching the barricaded doors he was guarding.  Once the mob of protestors had breached the doors there was no practical means by which a single officer with a handgun could prevent the protestors from flooding further into the building, and presenting a threat to the (presumably mostly unarmed) other people in the building whom the officer had a duty to protect.

This view is only strengthened in its reasonableness when one recalls that Byrd was receiving credible radio reports of protestors making use of chemical agents on officers and of shots being fired into the House chambers—again, it is not necessary for these reports to have been true, it is only necessary that Byrd had reason to believe them to be true.

The analogy here would be to any normal citizen defending against protestors outside their home.  As long as the protestors remain outside the home, being patient is probably prudent. Once the protestors have forcibly and unlawfully breached the home, however. the threat against the occupants is clearly imminent.

In the home analogy the four walls of the “castle” are the “red line” which when crossed justifies the use of defensive force.  In the instance of the Capitol shooting, the barricaded doors Byrd was defending constitute that red line.

It is notable that although the officer has his gun drawn and pointed at the protestors as they milled outside the barricaded doors, he does not shoot so long as they simply stay on the other side of the doors.  It would appear that he is being patient, again, a prudent choice.

Once an explicit effort is made to breach the doors—in particular, by smashing through the glass upper panel of the door—then the forcible and unlawful entry is in progress, and the threat—again, that the barricaded doorway the guard is defending will be breached—is actually in progress, which certainly meets the conditions of the element of Imminence.

So, when Byrd fired the fatal shot into Ms. Babbitt, could he have had a reasonable perception that the doors he was defending were in the process of being breached?

The evidence suggests that the answer is yes.  At least in the video of the confrontation, it appears that when the shot is fired Ms. Babbitt is in a raised position, as if she were preparing to use her body to smash through the glass upper panel of the door before her, as a first step in affirmatively breaching the barricade.

Indeed, a close examination of the screen capture suggests that at the moment the shot is fired Ms. Babbitt has actually breached the door by extending her leg through the window frame of the door.

That action may well have been the “red line” the officer had mentally drawn as the point at which the threat would have become imminent, and it seems a reasonable one to draw under the circumstances.

It is also notable that the officer used force only against the person apparently affirmatively attempting to breach the barricaded doors, Ms. Babbitt.  The officer did not continue shooting upon the other protestors who were not apparently making such an effort to breach the doors.

Again, I remind the reader that what matters for purpose of this legal analysis is not what Ms. Babbitt’s actual motivation or intent might have been—perhaps her motivation and intent was entirely non-violent—but rather what the reasonable perception of the officer would have been of her conduct, especially under the circumstance of her being accompanied by a group of other protestors, and the radio reports he was receiving whether accurate or not.

Once the protestors at the barricaded doors had made an affirmative effort to forcibly and unlawfully breach that barricade, especially if they knew that they were doing so in the muzzle of a defending officer’s lawfully presented firearm, they presented as a reasonably perceived imminent threat.

So, the element of Imminence, appears to be checked for the officer—and, again, not by a small margin.

Proportionality

The element of Proportionality asks us to consider the degree of force with which the defender was reasonably perceived to be threatened (or which those he had a duty to protect would have been threatened).  Because Lt. Byrd used deadly defensive force the law would generally require that those he used force against presented as a deadly force threat.

Importantly, a deadly force threat does not necessarily require a threat readily capable of killing the defender (or those the defender has a duty to protect), although an apparent threat of death would certainly qualify.  The legal term of art “deadly force” also includes force readily capable of causing serious injury, such as broken bones or head trauma.

So, the question then becomes, did the protestors present as a reasonably perceived threat readily capable of causing death or serious bodily injury to the officer or those the officer had a duty to protect?

The answer to that question almost certainly appears to be, yes—and this despite the protestations of many that the protestors in apparently breaching the barricaded doorway were “unarmed.”

Much is being made by some of the apparent fact that the protestors breaching the barricaded doorway appeared to be “unarmed.”  Indeed, Lt. Byrd himself in his recent television interview states that he could not see any weapons among those on the other side of the door—albeit, he also says that he could see only poorly through the barricade.  Still, one may not simply presume or speculate the presence of weapons as a justification for deadly defensive force.

So does the apparent absence of weapons in the hands of the protestors doom Lt. Byrd’s element of Proportionality, and thus his claim of justified self-defense?

No, because the key question in the context of Proportionality is not whether the other was armed but whether the other was readily capable of inflicting death or serious bodily injury.  The presence of a weapon can affirm such an ability, but such ability can also exist even in the absence of a weapon.  And if that ready ability to inflict death or serious bodily injury exists, the threat is a deadly force threat, regardless of absence of weapons.

In this context, even if the protestors were each and every one entirely unarmed, the sheer disparity of numbers alone would be sufficient to present a threat to the single officer of death or serious bodily injury.  No single person can defend themselves successfully against a swarm of a dozen or even half-dozen protestors, even when the defender is armed with a handgun, and even if the protestors themselves are unarmed.

I don’t believe for a moment that anyone reading this, were they faced with a crowd of dozens of, say, Antifa protestors violently breaching their own home would feel they were not facing a threat of serious bodily injury, even if the Antifa members were apparently “unarmed.”  In fact, in most states such a violent breach would trigger a legal presumption that the home defender was facing a deadly force threat, even if the intrusion were by only one individual and that individual was entirely “unarmed.”

If anything, the presence of Byrd’s handgun means the swarm of protestors would almost certainly be able to disarm him of the firearm, and thus simultaneously arm themselves with deadly force while disarming Byrd.  Once armed with the officer’s pistol, the protestors would then present a clear deadly force threat to not just the officer but to the presumably largely unarmed people the officer had a duty to protect.

Indeed, given that the officer’s weapon was displayed at the protestors, and may therefore have been in plain sight, it would be reasonable for the officer to infer that if the protestors swarmed into his pistol it was only because they believed they could take it from him. The alternative would require believing that the protestors would swarm at the officer simply with the intent that he would shoot them each individually as they approached, and that seems unlikely.

So, even absent weapons of their own, the sheer disparity of numbers allows for a reasonable perception that the protestors presented a threat readily capable of inflicting death or at least serious bodily injury to the officer and those the officer had a duty to protect.

Again, what controls in this instance is not the actual intent or motivation of the protestors, but the reasonable perception of their capabilities by the officer under the circumstances of facing the protestors as they violently breached the barricaded doors he was defending.

But the officer shot only Ms. Babbitt, and surely he did not need to use deadly force to defend against a single unarmed woman, right?

The answer to that question is that Ms. Babbitt and all the other protestors on the other side of that door were acting in apparent concert, as what the officer would have reasonably perceived as a mob.  When defending against a mob, the mob is treated as a collective threat, and each of those working in apparent concert is as responsible as the worst of their actors.  In short, a cooperative mob is not a collection of individuals, it is a single aggressive entity.

To illustrate, if two people are holding your arms so a third can stab you, legally speaking every one of the three is stabbing you, and you can defend against each of those holding your arms with the same deadly defensive force as you can defend against the one holding the knife.

In this instance, if Ms. Babbitt successfully breaches the doors the officer is tasked with defending, it is reasonable to infer that the rest of the protestors will follow her through—after all, they all came together to arrive at the barricade in the first place.

So, on the issue of Proportionality, the question is whether the officer could reasonably have perceived the protestors apparently breaching the barricaded doors he was tasked with guarding as possessing the ready capability of inflicting death or serious bodily injury upon either himself or those he had a duty to protect?

The answer to that question would clearly appear to be, yes.

So, Proportionality, appears to be checked for the officer—and, again, it’s not even really a close call.

Avoidance

The element of Avoidance asks whether the defender violated any legal duty to retreat.  More specifically, was there a legal duty to retreat, was there a completely safe avenue of retreat available to the officer, and if so did he fail to make use of that safe avenue of retreat and therefore violate that legal duty.  If the legal duty exists and safe retreat was practically possible and if the officer violated that legal duty, he loses that element of Avoidance and loses his justification.

The bottom line, however, is that Lt. Byrd was not required to retreat because he was not merely defending himself, but also all the others in the House chambers behind him.  That is, after all, why he was an armed Capitol police officer in the first place.

Even in jurisdictions that normally impose a legal duty to retreat, one is not required to flee from an aggressor and leave other innocents, unable to defend themselves, to the mercy of that aggressor.  If you are attacked while with your small children, and you could safely retreat but your children could not, you are not required to run and leave your children behind.  Same if you were attacked while with your elderly parents, who similarly lacked your ability to flee with complete safety from the attack.

In this instance the officer would not be obliged to flee, and secure his own safety, even if that were possible with complete safety, if it meant leaving behind those he had a legal duty to protect—the presumably unarmed people behind the officer’s barricaded position.

In any case, Lt. Byrd stated in his interview that “once we barricaded the doors, we were essentially trapped. There was no way to retreat, no other way to get out.” Even in a duty-to-retreat jurisdiction, if safe retreat is not possible the duty to retreat does not apply.

In short, in the circumstances facing Lt. Byrd there would be no legal duty to retreat even in a duty-to-retreat jurisdiction, so he could not have violated a legal duty that would not apply.

So, Avoidance, appears to be checked for the officer, again not by a small margin.

Reasonableness

The element of Reasonableness is two-fold. First, it asks whether the officer had a genuine, good-faith, subjective belief in the need to use deadly force in self-defense?  Second, it asks whether that subjective belief was objectively reasonable—that is, would a hypothetical reasonable and prudent person, under the same circumstances, knowing what the officer knows, with the officer’s training and experience, have held the same subjective belief?

For the element of Reasonableness to be satisfied, and thus support a claim of self-defense justification, the answer to both those questions must be, yes.

With respect to the subjective requirement of reasonableness, we obviously don’t have a machine allowing us to read the officer’s mind, so we have to make reasonable inferences from the circumstances, in combination with the officer’s conduct and statements, if any.

Unlike in my first analysis of this event back on January 12, we now do have statements from Lt. Byrd in the form of his recent television interview—and the entirety of those statements are consistent with a genuine, good faith, subjective belief that deadly defensive force was necessary.

Particularly relevant here are the radio reports Byrd received of shots being fired into the House chambers—later shown to be incorrect reports, but nevertheless credibly presented to Byrd and therefore appropriate for him to apply in his threat assessment.

Also relevant were similar reports of officers “down,” meaning incapacitated to some degree.  Also relevant are the other factors presenting themselves directly to Byrd, such as the appearance and sound of the size of the protestors on the other side of the door and their actual violent breach of the barricaded doorway.

Where the elements of Innocence, Imminence, Proportionality, and Avoidance are satisfied, as appears to be the case in this instance, it’s tough to argue that there was not a genuine, good faith, subjective belief in the need to act in self-defense, absent some strong contraindication by the defender.

For example, if a hypothetical defender had social media content that evinced a desire to shoot dead any protestor as a matter of apparent political principle, that might suggest a motive for the shooting other than a subjective belief in the need to use defensive force.  Or if the officer gave a statement after the fact to the effect that “the gun just went off,” and that he never intended to fire at all, that would suggest the absence of a subjective belief in the need to use force (and would further suggest the defense of accident).

Absent any such evidence undermining the officer’s subjective belief in the need to act in self-defense, however, it seems apparent that the circumstances are sufficient to meet a prima facie showing of that subjective belief, and sufficient to prevent a prosecutor from disproving that subjective belief beyond a reasonable doubt.

A subjective belief alone, however, is not sufficient to meet the requirements of the element of Reasonableness, and therefore not sufficient for the legal justification of self-defense.  A genuine, good faith, subjective belief in the need to act in self-defense is insufficient alone to justify a use of force if that subjective belief is objectively unreasonable.

So the next question is whether a hypothetical reasonable and prudent person, in the same circumstances, with the same knowledge, with the same training and experience (or, notably, perhaps lack of training and experience) would have shared that subjective belief of Lt. Byrd.

Here, again, given that the elements of Innocence, Imminence, Avoidance and Proportionality are apparently satisfied, it would be hard to argue against objective reasonableness unless there is strong counter evidence.  Was there information known to the officer that would, or should, have suggested to him that the use of deadly defensive force was not, in fact, reasonable under the circumstances?

The most substantive argument I’ve seen raised on this point is the presence of a number of heavily armed police officers who were present immediately behind the protestors at the door.  These officers were equipped for tactical operations, meaning they were wearing helmets, body armor, had long guns, and so forth.

If the half-dozen or dozen protestors at the barricaded doors were intermingled with four or five heavily armed and equipped police officers, such that these officers could readily intervene in any attempt to breach the barricade, and—importantly—the presence of these officers was known to the Capitol officer who fired the shot, then a good argument could be made that the Capitol officer’s perception of the need to shoot Ms. Babbitt, even if subjectively believed, was objectively unreasonable. And therefore he loses Reasonableness and loses self-defense.

There are two ready counters to this argument, however.

First, any defender in the position of Lt. Byrd—facing an apparent mob of protestors who are apparently breaching the barricaded doors he is defending, and who collectively appear to satisfy (for the officer’s purposes and from his perspective) the elements of Innocence, Imminence, Proportionality, and Avoidance—would be prone to focus a disproportionate share of their attention, and perhaps the entirety of their attention, on the most immediately threatening facets of the scene before them.

That would mean focusing on those right at the doors, including Ms. Babbitt as she apparently rose to smash her leg through the glass of one door as well as the man apparently wielding a stout rod.  I suggest it would be unreasonable for the officer’s vision to also capture what was happening three or four rows of people behind the immediate threat.

Even setting that practical consideration aside, however, the video suggests strongly that in fact the heavily armed officers were not at all visible to the Capitol officer as he fired the shot.  How could this be so?  Because those heavily armed officers were climbing a flight of stairs behind the protestors at the time the shot was fired and had not yet risen to the same level as the protestors.

Indeed, the officers are still walking up the stairway even as Ms. Babbitt is being lowered to the floor, a full 8 seconds after the Capitol officer has fired his shot:

Thus at the time the Capitol officer fired his shot, 8 seconds prior to the image above, the heavily armed officers would almost certainly have been much lower on the stairway, and well below the Capitol officer’s line of sight.  And if their presence was unknown to the Capitol officer, their presence could not undermine the objective reasonableness of his perception of the need to use defensive force.

It is also worth noting that Lt. Byrd himself states in his recent television interview that he had no knowledge of those other officers located behind the protestors who were violently breaching the barricaded doorway:

“I later found out there were officers on the other side of the door .  I had no knowledge that those officers were there, I had no visual or communication with them.  There was no call over the radio explaining to me that those officers were there.”

So, Reasonableness, both subjective and objective, appears to be checked for the officer.

To A Reasonable Degree of Legal Certainty: Justified

Recall that the fundamental questions in this case, as in any use-of-force case involving the justifications of self-defense or defense of others is:

Is it tenable, given the evidence, that that prosecution can disprove any one of the required elements of self-defense—either Innocence, Imminence, Proportionality, Avoidance or Reasonablenessbeyond a reasonable doubt?

I would suggest that the answer to this question is, no.

When Ashli Babbitt at the head of a mob violently breached the barricaded doorway being guarded by Lt. Byrd, especially in the context of the other reports—whether accurate or not—of violent protestor conduct, Byrd almost certainly had a genuine, good faith subjective and objectively reasonable belief that he and those he had a duty to protect were facing an unlawful imminent threat of deadly force harm, justifying the use of deadly defensive force.

And the prospects of this belief being disproved beyond any reasonable doubt, I suggest, are vanishingly slight.

Therefore the conclusion of the legal analysis must be that to a reasonable degree of legal certainty the Capitol officer’s shooting of Ms. Babbitt was justified for legal purposes.

And again, this is the case regardless of Ms. Babbitt’s actual intent or motivations or character or goodness, all of which may have been as white as the driven snow. I expect that all of us, including Lt. Byrd who shot her, would much prefer that Ms. Babbitt was still with us today.

It’s also the case regardless of the arguably well-earned contempt in which the Biden administration is held by tens of millions of patriotic Americans.

Ms. Babbitt’s apparently high character and the valid political sentiments of patriotic Americans are both extremely important matters.  They are also, however, matters entirely distinct from whether Lt. Byrd’s use of force upon Ms. Babbitt was legally justified under the circumstances presented to him.

OK, folks, that’s all I have for all of you today.

Until next time:

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

IMPORTANT:  Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.

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Comments

I know I’ve read More than one comment that pretty much said “wait till Andrew Branco weighs in, he’ll tell you how wrong this cop was”. Figure they will not only be disappointed, they probably won’t read the whole post, instead, just jump into the comments and take a position he already flattened.

In the end, I’m glad I read the article. It left me with one thought – you should publish the whole article As a pamphlet sized case-study. It was that good.

    ruralguy in reply to Doc-Wahala. | September 2, 2021 at 1:56 am

    Honestly? Think about it. Andrew Branco promotes legal defense. His logic above amplifies material evidence to fit a defense that justifies this murder. Look at it from Ashli Babbitt’s perspective instead: Innocence: Michael Bryd had the gun. Neither she nor the mob had any gun. He heard on the radio that shots might have been fired, elsewhere, but he had no evidence Ashli had a gun nor this particular group storming the door had any guns. He had no evidence they posed any threat, nor fired any shots. He had the firepower. Imminence: He had no proof this mob’s breaking down a door was a direct threat to himself or others. A mob breaking down a door isn’t evidence they intended to harm him. What is the evidence the mob had a violent intent or he was in danger? Neither Ashli nor this group breaking down the door did anything to harm anyone. Michael Bryd saw no evidence of violence other than his murder of Ashli. Proportionality: He claims he asked the mob to back off, but there appears to be no video evidence of this. Ashli Babbitt appears not to have seen him. He appears to have not given her any warning. Even if they heard his order, that doesn’t give him the right to open fire. He needs evidence they have the means and intent to harm him. There is no evidence of that at all. He never saw Ashli Babbitt wield a weapon or even face him. There is no evidence his response was proportional to her actions. No evidence of a warning. Reasonable: Ashli Babbitt appears not to have seen him, nor heard from him. She was ambushed. The evidence indicates his intent was to murder one of the mob, to get them to back off. There was no evidence to show any self defense in his mind, or any other intent other than an execution to get the crowd to back off.

      Milhouse in reply to ruralguy. | September 2, 2021 at 11:07 am

      The victim’s point of view is irrelevant; she isn’t on trial here. She’s already been judged by the Most Supreme Court of all, Whose decisions are absolutely final. We can only hope that she came out of that trial vindicated.

      When deciding whether to prosecute someone we must imagine what an honest and properly-instructed jury would do, and a jury must always look at things from the defendant’s point of view, and decide what they would do if they were in the defendant’s shoes, seeing only what he saw and knowing only what he knew at the time.

        ruralguy in reply to Milhouse. | September 2, 2021 at 3:11 pm

        When I said look at it from Ashli’s perspective, I am saying include all the material evidence of the incident that should have been observed by Michael Bryd: the mob and Ashli showed no evidence of a violent intent towards anyone, they appeared not even aware of Bryd, the video doesn’t seem to support Byrd’s claim that he gave them a warning, etc.

          Milhouse in reply to ruralguy. | September 2, 2021 at 5:08 pm

          Breaking in through a barricaded door is violence. A mob breaking in somewhere is by definition showing violent intent. And every individual outside that door was part of the same mob that had attacked police, sprayed them, and (as far as Byrd knew) opened fire. As Branca says, a mob functions as a single entity.

          ruralguy in reply to ruralguy. | September 2, 2021 at 8:35 pm

          Breaking down a door isn’t a sufficient reason, legally, to shoot someone. All laws, even stand-your-ground laws, are rooted in the right to self defense which has been determine over the centuries, by five principals:
          1- You must not be the aggressor (neither Ashli nor the mob seemed aware of Michael Bryd)
          2- Only use enough force to counter the threat and no more. Legal minds call this the ” you cannot bring a gun to a fistfight” principle. Michaell Bryd fails this case badly. Michael Bryd saw no evidence of a gun in this group.
          3- Have a reasonable belief that force is necessary. Again, this group never showed any violence. In the entire Jan 6 incident, the only person to shoot someone was Michael Bryd.
          4- Have a reasonable belief an attack is imminent (same)
          5- Retreat (if possible) ( this is why he has no right to claim self defense if he could have exited through the back, as reported)

          Given these key principles, Michael Bryd really cannot claim self defense.

        DaveGinOly in reply to Milhouse. | September 2, 2021 at 8:59 pm

        In reply to your next comment (to which I am unable to reply), the mob’s “violence” was directed against property, not people. Violence directed against property does not suggest that violence is being threatened against people. There was nothing at the scene that suggested any person was physically at risk. You don’t shoot people in a crowd who are not threatening physical violence against people because you’ve heard reports of physical violence against people elsewhere in the overall disturbance. If you could, police would be able to shoot random rioters committing crimes against property because a rioter on another block threw an incendiary device at some officers. It doesn’t work that way. There is a reason why store owners aren’t allowed to shoot rioters who smash their windows and steal their stuff, even with other rioters are torching businesses.

        Officer Byrd doesn’t get to presume Babbitt intended physical violence against people, neither because she has directed physical violence against property, nor because other rioters elsewhere, and not even at the scene of Babbitt’s death were committing violent crimes against people. Ashli Babbitt was not the crowd, she did not represent the rioters in aggregate.

          “There was nothing at the scene that suggested any person was physically at risk.”

          This is nonsense. Officers were, in fact, being injured. Byrd was receiving radio reports of “officer down” (meaning incapacitated, perhaps killed) as well as shots being fired onto the House chamber floor. That some of these reports later proved incorrect doesn’t change the fact that Byrd would reasonably have presumed them to be accurate. In any case, it’s not reasonable to assume the people violently breaching the barricaded doorway intended to stop after they destroyed the barricade, so this was NOT merely a threat to property–one does not destroy a barricade to destroy a barricade, one destroys a barricade to proceed beyond the barricade. “Beyond” is the are containing the innocent people Lt. Byrd had a legal duty to defend against a violent mob. That’s a threat to persons.

          Patrick Henry, the 2nd in reply to DaveGinOly. | September 6, 2021 at 11:53 am

          Sorry Andrew, what you posted is nonsense. He can’t use what OTHER people are doing to justify what he did to a SPECIFIC person. Did he have reason to believe this SPECIFIC person was causing harm? No he did not. She was climbing in. While destroying a barricade is property damage, it does not necessarily lead to human injury. And even still, he had other options than firing. Running over to her and arresting her – yes even at gun point. If she continued to advance then he would be legally justified in shooting. But not when he did.

          So you are totally wrong. He was not legally justified. It was not reasonable to fire at that moment. He had avoidance to do something else. There was no imminence because nobody was in danger and the victim had shown zero threat of bodily harm. It was not proportion to the danger for the same reason. There was no innocence by the shooter, as he advanced and shot.

          So in all the test, this shooting fails it. Byrd should be arrested and charged with Murder, because that’s what this is. Murder.

Boy do I disagree and I believe MANY legal minds also would disagree

I not being a legal mind besides the point

    Dathurtz in reply to gonzotx. | September 1, 2021 at 9:20 pm

    If that’s the law, then the law sucks. I am no legal expert and have no basis to contradict Mr. Branca’s reasoning. Of course, of we apply this reasoning, then an awful lot of BLM’rs could have been legally killed.

      Gremlin1974 in reply to Dathurtz. | September 2, 2021 at 11:52 am

      Strictly according to the law, quite a few of them could have been killed. However, remember that law only comes into play IF the shot is fired. I would bet there are hundreds if not thousands of situations everyday where “deadly force” COULD be used and isn’t. That is why it is taken on an individual basis.

        Dathurtz in reply to Gremlin1974. | September 2, 2021 at 12:32 pm

        Yes. I do think the overall story here is the disparity of “But the other side!!!” because it shows our two-tiered legal system. I’m a legal outsider, but it seems to me that most miscarriages of justice occur either in the DA”s discretion or by a jury not faithfully serving the law. A lot of people seem to not be afforded the beyond a reasonable doubt standard.

        I admit this case upsets me and I am unable to process it as I should because of that. I think a LOT of people are always gonna have a big problem with “Big dude shoots little, unarmed woman” no matter any other factors. Especially in our two-tiered system.

Sorry about the misspell. Didn’t catch the autocorrect.

Thank you, Mr. Branca. Halfway through your excellent analysis I found myself agreeing with what I knew your conclusion would be.

My one point of disagreement is that LT. Bryson seems to approach the area with his finger on the trigger. This seems to point to his intent to engage with his firearm regardless of the true situation

    That could just be crappy training. This is the man, after all, that left his loaded service weapon in the Capitol Center visitor’s restroom for hours before it was found in a security sweep. He didn’t even realize it was gone.

    DaveGinOly in reply to christopherb. | September 2, 2021 at 9:03 pm

    I agree. It shows his decision to shoot had already been made. Cops are taught to keep their booger hooks off the bang switch until they’re ready to shoot that person over there. Byrd was ready to shoot, even if he hadn’t yet picked his target.

    It’s arguably the result of poor or no training, but a DA would press the point, and compare Byrd to the only other officer whose trigger finger can be seen, outside the trigger guard (and he was closer to the door than Byrd at the time).

Bother.
Blast and drat.
Not what I wanted to hear. But what I said to my lawyer is “I pay you to tell me what I need to know.”
Thank you for all your many good columns and reams of sound advice. And a cool head with sobering commentary.
Most unfortunate.

“A subjective belief alone, however, is not sufficient to meet the requirements of the element of Reasonableness, and therefore not sufficient for the legal justification of self-defense. A genuine, good faith, subjective belief in the need to act in self-defense is insufficient alone to justify a use of force if that subjective belief is objectively unreasonable.
So the next question is whether a hypothetical reasonable and prudent person, in the same circumstances, with the same knowledge, with the same training and experience (or, notably, perhaps lack of training and experience) would have shared that subjective belief of Lt. Byrd.”

Yes… and this is the whole point of having a jury. The jury defines “reasonableness” in that they either agree or disagree that they would have performed the same action in the same circumstances in possession of the same facts. The members of the jury define the “reasonable person” by comprising the “reasonable person” themselves.

Instead, what we got was no trial by peers… just a judgment of “reasonableness” decided by handler, who were at best “not disinterested” and at worst “politically biased.”

    mark311 in reply to henrybowman. | September 2, 2021 at 2:09 am

    @henrybowman

    Flat out no, their needs to be a reasonable basis to bring a prosecution. In this case it’s pretty obvious that the case is extremely weak. That would be a frivolous prosecution and would waste time and money for no good reason. If that standard had been used by the Trump legal team we wouldn’t have had this situation in the first place.

    Milhouse in reply to henrybowman. | September 2, 2021 at 3:37 am

    Yes, but to justify bringing it to a jury a prosecutor must believe that he can prove to the jury, beyond reasonable doubt, that the shooting was not reasonable. If he doesn’t believe he can do that, he can’t bring the charges in the first place.

      Edward in reply to Milhouse. | September 2, 2021 at 7:38 am

      Put even more simply, if the Assistant US Attorney* (AUSA) does not believe he has a much better than even chance of obtaining a guilty verdict, he will not take a case to the Grand Jury for anything other than a perfunctory No Bill.

      * It’s DC, a section of the US Attorney’s Office acts as District Attorney.

      MarkS in reply to Milhouse. | September 2, 2021 at 7:46 am

      Prosecutors bring dubious charges frequently..just look at 1/6…the process is the punishment

        In this case, the process is the protection. The Party does not want this case prosecuted, therefore the minions of the Party follow their unspoken commands. You can bet cold hard cash that if an unarmed female BLM protester had been shot crawling through a broken window during a Republican-controlled House and Senate period, Washington would have burned for months, from end to end.

        Sure they do–and when they do, that’s a political decision, not a legal decision. Elect better prosecutors.

          henrybowman in reply to Andrew Branca. | September 2, 2021 at 5:51 pm

          Telling citizens from Texas, Montana, Arizona, Florida to “elect better prosecutors” in Washington DC is really rubbing salt in the wound.

        Milhouse in reply to MarkS. | September 2, 2021 at 11:15 am

        .

        Prosecutors bring dubious charges frequently

        And we roundly condemn them every time they do. Because it’s unethical. So it would be equally unethical in this case.

        It’s all very well to demand equal application of the laws, but that’s not what this analysis is about. This is not about whether, as a matter of politics, we should expose the prosecutors’ hypocrisy. It’s about whether charges are truly justified; whether we would bring charges if it were up to us. And Mr Branca’s answer is that no, we couldn’t do that. It would be wrong, and wrong doesn’t become right just because other people are also doing wrong.

    DaveGinOly in reply to henrybowman. | September 2, 2021 at 9:13 pm

    “So the next question is whether a hypothetical reasonable and prudent person, in the same circumstances, with the same knowledge, with the same training and experience (or, notably, perhaps lack of training and experience) would have shared that subjective belief of Lt. Byrd.”

    No need for hypothetical persons, there were actual persons at the scene, and all around the Capitol, who demonstrated by their actions (or rather the lack thereof) that Byrd’s decision to shoot was unreasonable. There were officers standing by his side, who were present at the scene before he appeared, who already had their sidearms pointed at the door (a door which was still barricaded, the breach was made in a window thereof) who did not fire their weapons even when Byrd fired his (no sympathetic reactions to gunshots fired). In fact, no other service weapons were fired that day, even by officers who were physically attacked. The consensus of the officers, by their own restraint, was that the use of lethal force was not legally justified and/or unnecessary in any of the many various scenarios that played out that day.

    Lt. Byrd stands alone in his estimate of the situation at the door, and in how his awareness (as misinformed as it may have been) of the overall situation affected him. No other officer was so affected. (Makes me wonder if the radio calls about “shots fired” are a figment of his imagination, devised, even if subconsciously, to justify his actions after the fact.)

      Patrick Henry, the 2nd in reply to DaveGinOly. | September 6, 2021 at 11:55 am

      Except his reasonable needs to be based on THIS specific person, not what OTHER people are doing. And in this case, he had no reasonable belief that she intended to cause bodily harm. So what he did was not justified in the situation. And hence it was clear Murder.

Subotai Bahadur | September 1, 2021 at 9:48 pm

I would note that it is quite possible for an act, especially by an agent of the State, to be technically legal and still morally and politically an abomination. To be honest today, speaking out against the regime or seeking redress of grievances in any way that cannot be easily ignored by the regime or their press flunkies carries the risk of death or imprisonment without due process under conditions that are a violation of the Constitution.

I will note, as a retired Peace Officer, that the conditions the 1/6 prisoners are being held under are what is referred to in the business as “Administrative Segregation-Max.”. For a convicted felon to be held under those conditions [23 hour a day lockdown, vastly limited possessions and toiletries, no visitation] Federal courts have ruled that there have to be specific acts matching certain specific criteria that constitute a danger to themselves, other inmates, or staff that are proved in a recorded hearing. Further, there have to be periodic reviews and re-hearings to prove that those criteria are still being met, or they must be released to a lower custody classification. As far as I have been able to determine, none of these requirements have been met. Further, access to legal representation seems to be barred.

Politically and morally, the social contract has the appearance of having been broken by the State by the killing of Babbitt and the imprisonment without trial of others. In that case, it is not unreasonable for people to believe that their lives and liberty are in danger from the State and that the normal, peaceful, responses are null and void.

When people no longer believe in due process or the law, they turn to other things. It has happened before in our history. As the British were retreating from Concord and Lexington they came to a place called Meriam’s Corner where the road turned back towards Boston. That also happened to be where the militias of all the surrounding villages and towns met as they raced to respond [without orders or command structure] to a reported unprovoked attack by British troops on American civilians. Without orders or plan of attack, Americans began to try to destroy those they believed had attacked them. This ended with the siege of Boston, the Battle of Bunker Hill, and the Declaration of Independence.

When people have to come to believe that morally and politically there is no hope under the law, they turn to other means. This is not necessarily a good thing, because there is no way to predict the outcome. But a government acting as a tyrant will get a response appropriate to what people see, and not just what the statute books say.

Subotai Bahadur

I had a lengthy comment prepared, and the web page crashed – for the 4th time since I started reading. I’ve been having a lot of trouble with LI since the number of ads increased…

But the substance of my comment was said by HenryBowman. Officer Byrd’s interview is not testimony, it’s public relations. He should have been indicted and put on the stand for cross-examination before a jury.

Mr Branca,

I hope this comment finds you well. Unfortunately I cannot agree with your analysis. As a former police officer there was simply no justification for this woman to have been murdered in our capitol by the capitol police.

And please understand this, she was murdered by the capitol police officer.

She was no threat to anyone. She carried nothing more than a flag, she offered no threat of life threatening injury to anyone. She was not engaged in anything that offered any threat to anyone except maybe getting herself cut climbing over a window. And the best charge she would have received if she were still alive to stand trial was trespassing, which is a misdeameanor in every state that I am aware of.

I mean you no disrespect sir, but I disagree with you on all counts.

    She scared (a panicked, incompetent) and frightened Byrd. Evidently that was enough.

    First thing to consider is that a law enforcement officer’s actions are governed by the law and Standard Operating Procedures. The law of self defense is applicable to average citizens who have not (presumably) received the extensive training in use of force which LEOs are required to have (presumably even Capitol PD officers). If we do not hold LEOs to the higher standards their training dictates, why bother to have LEOs at all?

    OTOH, there is no way on God’s Green Earth that that particular LEO would ever be convicted by a DC Jury.

      Edward in reply to Edward. | September 1, 2021 at 10:44 pm

      Forgot to add that Byrd was not engaged in self defense, he was ostensibly involved in enforcing the law. But still, I believe he could say I killed her and wanted to, and still he wouldn’t be convicted by a DC Jury.

        donewiththis in reply to Edward. | September 1, 2021 at 11:12 pm

        Hey Edward,

        Believe me, I wish no one any grief on this site, I rarely if ever even post anything on the internet. I have however been through the police training. The rules are fairly simple. If someone is presenting an immenent threat of serious bodily harm or death to you or another individual as can be reasonably understood by a jury, then you as a police officer have the authority to use deadly force to stop the attack. Not to kill, but to stop it.

        I see no way what so ever that Ashli Babbit could have presented such a threat that would justify this capitol police officer to shoot her in the throat while carrying a flag. It is simply not justified in my honest opinion with my prior life’s experience.

        I am not a legal expert, and I do not claim to be. But this is my “Learned Experience”. I understand this to be the newest greatest thing. 🙂

        Be good all.

          I agree with you. I’m a retired LEO and fully understand the use of force rules as (at least a bit more than 4 decades ago) taught at FLETC. Byrd could have effected an arrest with little effort. Given the precarious perch Ms. Babbitt was occupying, he could have simply pulled her through and onto the floor to handcuff her He could have pushed her back for the Capitol PD officers arriving to deal with her. Instead he chose to use deadly force without appropriate justification.

          Andrew is correct that prosecutors would have a problem obtaining a conviction, but not for the reasons he elucidates. It would be a DC Jury and, given the circumstances and politicization, I firmly believe it would be next to impossible for Byrd to be convicted by such a jury.

          Chewbacca in reply to donewiththis. | September 2, 2021 at 6:05 pm

          You say you have “been through the police training”. Have you ever been employed as a police officer or acted in that capacity in any way? Reasonable use of force changes with the particular conditions of each incident. In this case it wasn’t just Babbitt trying to breach the door. It was a large group of people who would appear to anyone on the other side of the door to have violent intentions. It wasn’t just Babbitt the officer would have to take into consideration when deciding how they were going to react.

          Edward, I think if you were being completely honest you would admit that one officer alone placing someone under arrest is not a desirable situation because it can get out of hand with no warning. Add a crowd who is obviously with the person and already showing they are a destructive mob and you would not even attempt to make that arrest by yourself. The very likely thing that would happen is you would be attacked by that group with the intent to harm you, or at the very least to free the person you are arresting.

          donewiththis in reply to donewiththis. | September 3, 2021 at 8:55 pm

          Edward,

          I don’t quite get the reply system on the site since I tend not to post crap on the interwebs, but I thank you for the comments you made to my post. I am not able to reply to you it appears under the comments that you made afterwards.

          Ashli Babbit was being stupid. And officer Byrd should have done exactly as you said. He should have simply arrested her, *IF* she even managed to get her silly ass through a window to assault these officers holding nothing more than a flag.

          If you are also former LEO, you will understand what I am saying. This woman presented no threat of serious bodily harm or death to anyone except maybe herself. The use of deadly force against this woman was clearly not warrented even by the video Mr. Branca himself tied onto this post.

          I also understand as a former LEO that perception matters. If this man believed his life was in danger, then I understand what would stand at trial.

          Unfortunately in this case we will never know, since the government has covered it all, and this man will never stand trial.

          With that said, Mr. Branca I appreciate the effort you put into your post and the fact that you are answering. It was a long well thought out post.

          This is a good website with good people on it. Hope it continues. I just don’t agree with the post.

          Happy Holidays all.

          donewiththis in reply to donewiththis. | September 3, 2021 at 9:40 pm

          Mr. Chewbacca.

          I have to say the same thing to you, I cannot reply to your comment, but here you go.

          Yes, I was a police officer for about 7 years, and not in Mayberry. I was on the street of a rather violent city.

          There is simply no justification for this shooting. It was unwarrented.

      gatorbait in reply to Edward. | September 2, 2021 at 1:37 am

      I’ve watched many many hours of Branca online and DVD and am shocked at how he rationalizes aspects of this one. If the shooter can’t see a weapon, and not even the hands, he is a sniveling coward to claim he was in imminent danger and that lethal “response” (response to WHAT, exactly?) was necessary. Professional? Hardly. Not with judgement like that.

      This one should be up to a jury to establish the reasonableness; but I agree that there wouldn’t be a chance in hell of a jury of DC citizens who would convict.

        There is no question the Branca has a superior analytical mind for parsing facts and situational analysis into legal questions in the area of use of force in our society.

        That said the things that frustrate me when reading his analysis he seems to have determined the answer and then justifies his conclusion, and the citizen is always held to a higher standard than the “professional LEO”.

        This is clearly demonstrated a few comments above: Byrd was not acting in self-defense nor at the time he used deadly force in defense of others. Again, as noted in comments above he could have used non lethal force / actions to dissuade or detain Babbitt.

        Byrd was also in a command position (or was he promoted because of the passage of time ?) yet he acted as if alone; there is no evidence (to my knowledge) that he instructed those with him to assume defensive postures / stations, requested back-up, informed superiors of the possible breach and asked for instructions from those who would have likely had a bigger picture available to them, or why he could not have considered retreat.

        I find the argument that misinformation was coming to him unconvincing – as it is irrelevant; his own observed circumstances was not similar (did he hear shots fired ?). …

        Finally, did Byrd speak to Babbitt, warn her, present himself so she was aware of the imminent threat to her life her actions were creating ?

        One shot targeting the head (he did not target her neck) from a position of cover such that Babbitt likely was unaware of his presence – he was shooting to kill not to stop a threat.

        J. Branca, as a member of the “public jury” you have solicited: I still have “reasonable doubt”.

        Chewbacca in reply to gatorbait. | September 2, 2021 at 5:18 pm

        The problem is that you seem to have no knowledge of laws that cover the use of deadly force. A person doesn’t have to have a weapon to justify deadly force. There are other factors that can make the use of deadly force completely reasonable and justified. Those include the number of suspects/offenders, the size and physical condition of both the suspect and the officer, the officer’s knowledge of the suspect’s training (think MMA fighter, etc.), the information that has been relayed to the officer by other people, and many other things. In this case there was a large group of people breaking through the door who could easily be presumed to have the intention of harming the officer and/or those he was there to protect. The fact that there is video of people beating officers that day makes this presumption extremely reasonable. Babbit was the first one through the door was the only reason she was the target. One shot was fired and the mob no longer made any further attempts to breach the door. It was an effective shot. Sad that she got caught up in the moment and didn’t use her knowledge of deadly force that she would have learned as a member of the Air Force Security Forces to know what not to do. It used to be something that was constantly briefed prior to almost every shift when I was doing that job back when we were called Security Police.

          gatorbait in reply to Chewbacca. | September 2, 2021 at 5:57 pm

          Yep. No knowledge whatsoever. Completely ignorant. I’m so happy you have clued me in that I’ve learned nothing from all those dollars and hours with Branca’s instruction. What a waste. Never would have realized it without you, the guru.

          On the other hand, I believe there is always a factor of subjectivity in almost every aspect of the interpretation of the law and I strongly disagree with Branca.

      DaveGinOly in reply to Edward. | September 2, 2021 at 9:35 pm

      It’s funny that trained LEOs have lower standard for engagement than do civilians. (e.g., Byrd admits he didn’t see a weapon, and the person he shot was not engaged in a violent act against another person, nor was she personally threatening same – Babbitt couldn’t be shot as a stand-in for others committing actual violence against LEOs elsewhere on the Capitol grounds). LEOs are often deferred to due to their experience and familiarity with criminal types, while citizens are expected to know the law, and apply it without fault (without the LEOs training, experience, and (usually) backup/partner), in the very few seconds of a violent encounter. Here’s something I wrote here in 2019 concerning how a citizen-shooter is held to the law (slightly modified for this use):

      Comment in response to a comment about Andrew Branca’s analysis of this incident:
      https://legalinsurrection.com/2019/09/shoot-or-no-shoot-knife-attack-on-children/

      (The courts are a place for “calm, rational and reasoned” thought, stated a commenter.)

      Yes, and very much separated in time and space from (the) potentially lethal attacks (faced by the citizen). This is what is wrong with our self-defense laws – they require people under extreme psychological distress to accurately assess an unexpected, violent, and fluid situation, to evaluate that situation with an expert-level analysis of applicable law (this alone presumes knowledge of the law in excess of what may be required in any particular circumstance – there can be no gaps in your knowledge and understanding), to accurately judge the level of the threat (without perfect information), and to do so in a matter of a few fractions of a second while the majority of your brain’s computing power is just trying to keep you alive.

      You can see how long it took Andrew to explain all of this. (the “Legal Analysis” alone is 926 words.) And even so, there are doubtless people equally informed about the subject who would find something in his analysis with which to disagree. But this is how a victim’s reaction to an attack will be analyzed in a court of law. Is this fair? Reasonable? Just?

      I am fairly certain that most people who lawfully use lethal force to defend themselves do not do any of the analysis Andrew writes about above. Even if they are experts in the field, violence can be so sudden and unexpected that there is simply not enough time to do the analysis and survive. Most defenders who had “good shoots” were probably just lucky that the stars were in alignment for them. It’s almost a certainty that even if they did analyze the situation before shooting, their analysis was almost certainly faulty, if for no other reason than a lack of perfect information.

    moonmoth in reply to donewiththis. | September 2, 2021 at 1:32 pm

    “And please understand this, she was murdered by the capitol police officer.”

    Please understand that we are not justified in saying that she was “murdered” unless the shooting was legally unjustified.

    No offense taken. 🙂

      Ashli Babbitt was murdered. I am not a lawyer or LIO but I have stayed in a Holliday Inn where I watched a police officer be convicted of murder in a situation extremely more volatile than this one. And if you didn’t know, lady Justice can see out of one eye.

Considering that his past recklessness and careless of leaving a gun in a restroom unattended, I would fine him lacking in judgement. For him to misjudge the risk of immediately doom is in his character. There is no reason why he could not have retreated.

    Gremlin1974 in reply to MarkSmith. | September 2, 2021 at 12:03 pm

    Frankly, he should have been relieved of duty and put on a desk until he could be quietly retired for leaving a loaded firearm in a public restroom and not noticing it’s absence for hours. However, that didn’t happen which was probably related directly to the melanin content of his skin. So I actually put a fair amount of blame on his superiors for leaving someone with such poor judgement in that position or any position of responsibility. He should have been guarding the evidence locker and nothing more.

Byrd is a coward who should be pushed out but will probably get a raise.

On that much we can probably all agree.

Chauvin was legally justified in what he did to restrain Floyd. In our present system of ‘justice’, such as it is, that didn’t make any difference whatsoever.

Chauvin is going to spend many, many years in prison for murder. He may even be murdered in prison.

Meanwhile, Byrd will make a lot of money giving interviews and on the inevitable book deal. He may even get one of those HUGE advance royalty checks Dem publishers love to give out knowing they’ll never sell enough books to cover it. Byrd will be treated as a hero for the rest of his life by many.

Something ain’t right.

That is the crux of the enormous problem we have. And the festering and growing divide.

If anyone can bring better legal arguments against the most knowledgeable self-defense attorney in the country, I’m all for it. I never see it.

People are pissed. I get that. Emotions and politics don’t supersede our laws, which is something few bother to look at.

I’m disappointed in the discourse in this country.

    donewiththis in reply to Colonel Travis. | September 2, 2021 at 12:08 am

    Colonel,

    The laws are very simple. The police cannot shoot someone in their neck when they present no threat of serious bodily harm or death to either the police or someone the police are protecting.

    There is no emotion here, and there should not be any politics. There is no issue with the discourse in this county as far as this issue is concerned. And the law is simple.

    The criminal capitol cop murdered a woman, there is simply no question about this, and he should be prosecuted no differently than Chauvin was, but he will not be because of the politics you decry.

    I have a hard time hearing what you are saying.

      Colonel Travis in reply to donewiththis. | September 2, 2021 at 1:56 am

      Of course you have a hard time. You’ve given no legal argument whatsoever.

        donewiththis in reply to Colonel Travis. | September 2, 2021 at 3:14 am

        I guess if I am going to post here occasionally I will get “Milhoused”. LOL Been reading this forum for years.

        I have given no legal arguments? I am not a filthy corrupt defense attorney sir, but yes, I gave you the exact legal definition of when police officers are allowed to use deadly force to stop a deadly attack. I was taught it and learned it well. And then I lived it for a whole lot of years.

        What did Ashli Babbit do that she deserved to be shot in the throat? Trespassing?

        The law, at least as it was taught to me, says you don’t get to shoot unarmed civilians in the throat because you don’t like their politics and the flag they are carrying on their back.

        No police officer that I ever worked with would shoot this poor girl. At worst we would have knocked her silly ass on the head with the Glock and sent her home.

        Stop lying Colonel.

          Colonel Travis in reply to donewiththis. | September 2, 2021 at 4:40 am

          No, you didn’t give an exact legal definition of when officers (and not just officers, but anyone) may use deadly force. You skipped a significant chunk of what’s required. If you gave an exact legal definition I would have not said what I said. An exact legal definition would have been, at a minimum, the length of Branca’s post here. You gave your opinion that she wasn’t a threat. Based on what? Your say so? That’s not how self-defense law works. She wasn’t armed? That’s not how self-defense law works. I don’t care how many times you say you think you know how all this works. Trust me, you don’t know.

          You blew off every legal principle Branca spells out. I can guarantee you I have multiple more hours of self-defense law classroom time than you will find in any law school in the country. Why do I even bother saying this? Because if I, a layman, know for a fact that you don’t know what you’re talking about, instead of bragging about how much you think you know, please take the time to learn all the things you don’t. This stuff is barely taught in law schools and to police. How do I know this? Because over the years I’ve talked to people who train the trainers! I don’t know what you were taught. All I know is that it was insufficient. That’s not your fault, and I don’t criticize you except that you think you know enough. Learning is a lifelong journey. It doesn’t end when class or your shift is over. I don’t know if this applies to someone who calls me a liar. Take the emotion out<— see this?

          Either we follow the law or we don't. There is no jurisdiction in the country that doesn't require all five legal principles in this post in one way or another. In order to claim self defense, you have to clear all five hurdles. All of them. If you fail one, you go to prison. That's why Byrd isn't on trial.

          Either we adhere to self-defense law standards or we don't. I don't know why this is so hard to understand. That's where we are now. The law becomes politicized. Sorry, I will never stand for that.

          On his site, Branca told me he will probably lose subscribers because of his analysis. That would be a shame, because you will find no superior source to understand this or any other important case in America. No one comes close to doing what he does, educating anyone who wants to understand the law.

          .

          Either we follow the law or we don’t. […] Either we adhere to self-defense law standards or we don’t.

          Exactly. It seems like the majority of commenters on this site decide their positions based on whose ox is gored, and can’t even understand the concept of not doing so.

          henrybowman in reply to donewiththis. | September 2, 2021 at 5:55 pm

          Let’s just say we’re tired of living in a country where all the “mistakes” get lodged against one political persuasion, while all the “benefits of the doubt” accrue to the other.

          donewiththis in reply to donewiththis. | September 3, 2021 at 9:56 pm

          “Either we follow the law or we don’t. There is no jurisdiction in the country that doesn’t require all five legal principles in this post in one way or another. In order to claim self defense, you have to clear all five hurdles. All of them. If you fail one, you go to prison. That’s why Byrd isn’t on trial.”

          I swear I am not trying to screw with you guys, but I don’t understand the commenting on this site. Sometimes it’s reply and sometimes not.

          Colonel,

          What could Ashli Babbit do to cause you serious bodily harm or death, while her two hands were busy carrying a flag? How could she kill you or harm you seriously? Do you believe she could kick you in the nuts so hard that you will die? All while she was trying to put her leg through a broken piece of glass?

          If you believe this, you are quite frankly crazy.

        DaveGinOly in reply to Colonel Travis. | September 2, 2021 at 10:38 pm

        In response to your post below, where you say, “You gave your opinion that she wasn’t a threat. Based on what? Your say so?”

        Based on the actions and judgment of other officers present at the scene, who had their sidearms in hand, pointed at the door, and did not fire. Byrd is the standout among all the officers who survived all of the violence that day, as the only officer to decide shooting was justified and necessary. It seems he was just a wee bit out of step, especially considering the violence he observed at the scene was against property. Nobody at the scene where Babbitt was shot was known by Byrd to have lifted a finger against any other person.

      That’s the problem! Emotions and politics have superceded the law and a lot of us are pissed because of it.

    paracelsus in reply to Colonel Travis. | September 2, 2021 at 12:30 am

    She hadn’t even entered the building, only her leg. So I’d like to ask: What was the distance between the woman and the police officer when he pulled the trigger?
    If someone is entering my abode and I feared for my life, I believe I would have to wait until that person had fully crossed the threshold before pulling the trigger. I believe that is the law in most states today.

Me, I’ll just wait and see how much Uncle Sugar ends up paying out in civil damages, or as a civil settlement, and that’ll tell me how much the government itself agrees with Andrew.

    Criminal liability ≠ civil liability, as noted in the post.

      maxmillion in reply to Andrew Branca. | September 2, 2021 at 1:27 pm

      Only insofar as standard of proof goes, beyond a reasonable doubt versus preponderance of the evidence, otherwise it’s the same. If it was a good shoot, it was a good shoot either way. So we’ll see.

    Gremlin1974 in reply to maxmillion. | September 2, 2021 at 12:10 pm

    I would be surprised if there is any payout to the family. I fully expect the government will take this one to the mat so to speak. Also, not to put too fine a point on it, but there aren’t any Benjamin Crumps and his ilk that will be crawling out from under their rocks to help this ladies family.

Russ from Winterset | September 1, 2021 at 10:47 pm

I would agree with your point that based on the facts known at this point in time, the shooting is justified.

At the same time, I believe that no investigation has been undertaken at this point in time. Those responsible for investigating this incident are politically inclined to use this incident for the purposes of discrediting President Trump and his supporters. I do not believe that an honest attempt to find the facts of this incident has occurred.

As you said, based on the facts in evidence so far, the Capitol Police officer cannot be found guilty. Whether or not this incident is ever honestly investigated will depend on who wins the upcoming midterms. And even then, career employees of the DOJ and other agencies will have a say in the matter as well.

So justice in this matter will probably have to wait on the advent of pork aviation.

The physical actions of Michael Bryd meet the requirement of “actus reus” of a criminal act. The state of mind of the criminal act requires a general intent to kill, a specific intent, or recklessness/criminal negligence. It’s hard to show the first two, but negligence seems provable.

Innocence: Michael Bryd had a gun. The mob didn’t. He heard on the radio that shots might have been fired, elsewhere, but he had no evidence this mob fired any shots. He had no evidence they had any weapon, nor posed any threat. He had no proof this mob’s breaking down a door was a direct threat to himself or others.

Imminence: He had no proof the mob intended to harm him or others. A mob breaking down a door isn’t evidence they intend on harming him. What is the evidence this mob intended any violence?

Proportionality: He claims he asked the mob to back off, but there appears to be no video evidence of this. Ashli Babbitt appears not to have seen him. He appears to have not given her any warning. Even if they heard, his order doesn’t give him the right to open fire. He needs evidence they have the means and intent to harm him. There is no evidence of that at all. He never saw Ashli Babbitt wield a weapon or even face him. There is no evidence his response was proportional to her actions. No evidence of a warning.

Reasonable: Ashli Babbitt appears not to have seen him, nor heard from him. She was ambushed. This is hardly reasonable.

This act of violence is clearly a crime, with a mens rea indicating negligence and either specific or general intent. There is nothing reasonable about Michael Bryd’s responses.

IANAL but if the shooting is “… justified for criminal liability purposes if it would be untenable, to a reasonable degree of legal certainty, for a prosecution to disprove beyond a reasonable doubt that Lt. Byrd had a genuine and reasonable belief that he was facing an unavoidable, unlawful and imminent threat of death or serious bodily injury to either himself or those he has a duty to protect” then wouldn’t that be dependent on jurisdiction?

Washington DNC is the most heavily Democrat ‘state’ in the country with over 92% of votes going to Biden. While political preference doesn’t directly parallel support|opposition to Byrd|Babbitt, there seems to be a fair bit of correlation. Thus mightn’t the arguments presented here – and please note I am NOT accusing Branca of bias, largely be dependent on where any such prosecution was held?

1. Was Byrd or Babbitt the aggressor? Byrd fired the moment the ‘barricade’ was threatened. While Byrd reports hearing about chemical agents and shots fired, what was the basis of these claims? If he panicked andor misheard his actions may not have been reasonable.

3. Was the force used proportional? A single punch is capable of causing serious injury and death. If all that is required is for the ‘other’ to be capable of inflicting death or serious bodily injury then deadly force is always justified unless the other party is a quadraplegic or lacking both arms.

Yes if Antifa (lone individual or group) breach a private residence most non-Leftists would hold a lethal response justified. A trained officer versus a single unarmed woman though? Branca postulates the mob could have disarmed Byrd, but that’s only if Byrd failed to subdue Babbitt with non-lethal force. Remember she appears unaware of any threat to her safety until being fatally shot. While the officer and weapon are visible on the video, there’s no evidence Babbitt was aware of them. Again the force strikes me as disproportional.

4. Byrd claimed those he was protecting were unable to retreat. Is this true? Is there only a single point of access? This seems like a dangerous fire hazard if so.

5. While Byrd’s statements show he believed lethal force was required, many still contend a hypothetical reasonable and prudent person would not have acted as he did, that a soldier for instance in Byrd’s position would likely be facing a court martial for murder.

thalesofmiletus | September 1, 2021 at 11:35 pm

An impartial jury should decide Officer Byrd’s fate. Absent a legal hearing, everything is just Public Relations.

As much as I hate to admit it, I think Branca is correct, especially if Byrd truly was hearing reports of violent acts on his radio. If that is really true, it is a very relevant fact.

I agree with this analysis and also that her death was a tragedy. I think an objective public investigation should have been done to bring these points out in the open. I wish we based opinions not on politics but on evidence and legal reasoning.

Serious question:

Is the competency of the officer involved relevant to any of the five elements and the conclusion of “justifiable”?

(I am not just speaking to the forgotten gun in the bathroom in 2019. There’s more than just that.)

    It could be. For example, had Byrd fired a “warning shot,” as some have argued, and the fired round had gone on to injure or kill someone, that certainly would have been an act of incompetence that justified criminal charges based on recklessness. Of course, that didn’t happen. is there are particular act of recklessness in the moment of the event that you have in mind?

      LibraryGryffon in reply to Andrew Branca. | September 2, 2021 at 2:10 pm

      I think people are referring to both his history (of having left a loaded firearm unattended in a bathroom) and that there is photographic evidence that he spent much of the “insurrection” with his finger on the trigger, so at the least very poor trigger discipline, possibly that he was planning on shooting at something/someone in the very near future.

      donewiththis in reply to Andrew Branca. | September 4, 2021 at 10:47 pm

      Who has argued that Byrd should have fired a “warning shot”? I think you are incorrect sir. There is certainly no police officer trained in this nation arguing for “warning shots”.

      Warning shots don’t exist except in the minds of the Libs of Tik Tok.

      Several stills of Byrd stumbling around the chambers’ seats, long before he shot Babbitt, carrying a large package crammed against his chest with one arm and his other arm ending with his hand holding his weapon, *with his finger on the trigger*.

      This alone would prove Byrd’s incompetence. Aside from the fact that any who have handled firearms know that Rule #3 of firearm safety is never put you finger on the trigger until you are ready to fire, given that his weapon, a Glock22, has no hard safety, his mishandling of it is especially grievous, and telling.

      As you say above, yours is non-political analysis and I understand you are a defense attorney. However, that you accept without question the PR “testimony” given by the defendant in a friendly TV interview is rather frightening. Yes, we have seen many political indictments.

      But to us out here who see the judge, jury, prosecutor, defense attorney, and defendant all on the same side, this is an obvious political non-indictment.

If nothing else, a charge of negligent homicide would seem appropriate. Let the jury decide. That is what the system is for.

Before anything else:

s/Capital/Capitol/g

Antifundamentalist | September 2, 2021 at 2:48 am

Yep, pretty much what I’ve thought since I saw the video the first time. When stripped of political bias, the shooting was legally justified. Anyone coming through a broken window at a barricaded door intends nothing good to the people on the other side of that door. When accompanied by a mob waiting to follow them through they become definitive threat. You don’t wait until they are on top of you to start stopping them.

    FortesFortunaJuvat in reply to Antifundamentalist. | September 2, 2021 at 9:59 am

    Applying the standard of others similarly situated you, and Mr. Branco, would be incorrect. The facts demonstrate byrd acted against his training and killed someone who posed no threat to himself or anyone else. byrd’s fellow officers and officers and personnel from other agencies present at the Capitol that day prove the point.

    LongTimeReader in reply to Antifundamentalist. | September 2, 2021 at 11:05 am

    Same, I didn’t feel like being excoriated over it so kept my opinion to myself. I have read enough Branca that I feel I have a grasp of self defense statute, minus the depth and experience he brings to the table.

    I would expect Babbit to have acted in the same manner had she been the one posted at that location. It’s that simple.

      “I would expect Babbit to have acted in the same manner had she been the one posted at that location. It’s that simple.”

      Indeed. If Babbitt were still in the Air Force and tasked with guarding while armed a barricaded gate at a military facility, and that gate was being violently breached by a mob, what would one expect her to do under those circumstances?

I found the analysis persuasive. I am left with questions about the “investigation”. The authorities kept everything a deep dark secret. When they finally released something it was just unsupported conclusions.

Byrd says he and his charges could not retreat. Yet, after the shot was fired. they left out the back. There are some serious holes in what we know.

    The conduct of the officials “investigating” and “reporting” on this event has been atrocious, as has the substance of their efforts–and that certainly has not helped public perception of the event. They’ve made the whole after-event process look like a cover-up, when that was entirely unnecessary. I suspect a lack of legal competence and a fear that analysis would not support a justifiable shooting when they very desperately needed it to be a justified shooting.

    Those, again, are political considerations, however, and have nothing to do with the actual legal merits of the case.

      “Nothing to do with the actual legal merits of the case?” Are you serious? If they did indeed exit out the back, that piece of evidence degrades the probativeness of one of your key arguments.

        Milhouse in reply to ruralguy. | September 2, 2021 at 12:08 pm

        No, it doesn’t, because they had no duty to retreat, and indeed a duty not to retreat.

        That they later did exit is irrelevant, because the circumstances had dramatically changed. The mob was no longer breaking in, so there was no need for them to stay there.

          ruralguy in reply to Milhouse. | September 2, 2021 at 3:03 pm

          If there was a back exit, that would contradict Bryd’s claim they were trapped. If he lied to justify this as self defense, then that indicates he was attempting to cover up his claim of acting in self defense. Yes, they had no duty to retreat, but that changes their intent from self defense to defending property. In that case, he would have to defend shooting Ashli Babbitt, with a different intent.

          Milhouse in reply to Milhouse. | September 2, 2021 at 7:35 pm

          Wrong. No duty to retreat means that the possibility of retreat is completely irrelevant to a self-defense claim. Even if he could have retreated in complete safety, he was entitled (and in this case required) to remain there, and would thus be justified in shooting in defense of self and others. That’s what “stand your ground” means. For ordinary people SYG is the law in 37 states; for police it’s a whole lot more than that (maybe all 50). (Think of the Amadou Diallo case. NY is a duty-to-retreat state, except for police.)

          ruralguy in reply to Milhouse. | September 2, 2021 at 8:56 pm

          Self defense in the Washington DC district does require retreat, IF it is safe to do so. Retreat is a necessary principle in self defense case law. Even in stand your ground states, the retreat issue is complex, because what the defendant does reflects on his intent. Those five principles of self defense is relevant to show intent.

          LongTimeReader in reply to Milhouse. | September 3, 2021 at 6:48 am

          @ruralguy Self defense may require a duty to retreat in DC but I can’t imagine that same requirement applies for any on duty officer going about their lawful duties.

“So the next question is whether a hypothetical reasonable and prudent person, in the same circumstances, with the same knowledge, with the same training and experience (or, notably, perhaps lack of training and experience) would have shared that subjective belief of Lt. Byrd.”

Clearly the answer is a RESOUNDING NO since no other officers, who were in EXACTLY the same situation and same place as Byrd shot and killed any other protestors through that entire day.

Im sorry but doubling down on your first incorrect “judgement” that killing her still was justified doesnt make this any less wrong than it initially was.

From the standpoint of a defense attorney, Mr. Branca’s analysis is fine. My issue? Let’s hear from the Prosecution now.

Prosecutors all over this country indict and take to court police all the time for possible criminal activity that comes nowhere near the level of this case. I mean, an unarmed veteran is dead!

This case should have gone to a jury, Let our system make the decision, not the Capitol Police investigating themselves.

    Subotai Bahadur in reply to jack crabb. | September 2, 2021 at 9:08 pm

    The case could not be allowed to go to a jury because a) the evidence presented would have to be public and could not be concealed from the prols, b) there is no guarantee that the agent of the State would be acquitted, and c) such knowledge or a lack of an acquittal would be defamatory to the Nomenklatura and lessen obedience of the prols to the State.

    There is some /s there, but a very limited amount.

    Subotai Bahadur

When you must toss up a word salad that large to try to convince, you have failed. Let any resident of DC shoot an unarmed intruder crawling through your window and there would be a prosecution

    Milhouse in reply to MarkS. | September 2, 2021 at 7:41 pm

    That’s just not true.

      DaveGinOly in reply to Milhouse. | September 2, 2021 at 11:03 pm

      Mark S: Let any resident of DC shoot an unarmed intruder crawling through your window and there would be a prosecution
      Milhouse: That’s just not true.

      How about if you’re an armed couple in St. Louis merely brandishing firearms in an attempt to keep a crowd (that violently breached a barrier, therefore meeting today’s standard for “violence” capable of instilling fear for one’s life or the lives of others) from attacking your property and your persons? I seem to recall a case in which such people were charged. They didn’t even shoot anyone, much less kill anyone. A prosecutor thought fit to put them to the test of a jury. (I know they plead, but the point is they were charged and could have been prosecuted.)

        Again, a POLITICAL COMPLAINT, not a LEGAL complaint. In any case, there was far more grounds to argue that the McCloskey’s conduct exceeded the bounds of use-of-force law than there is to argue that Lt. Byrd’s conduct did so. Unlike Lt. Byrd, the McCloskeys did not stay in a position of safety and compel the threat to come to them, they exited a position of safety and moved to the threat.

        I would not have charged the McCloskeys under the circumstances, but that doesn’t mean they made the best decisions under the circumstances–indeed, their own conduct is what made them vulnerable to their legal perils. Had they simply stayed in their home, armed and prepared to defend it, they would have had no legal complications whatever.

Wow, Mr. Branca just technically made the argument for the shooting deaths of Michael Brown and Breonna Taylor. The reasonable threat was real (no Taylor didn’t fire but the boyfriend she harbored did). The 5 points really connected.
Mr. Branca should have defended Derek Chauvin. With George Floyd’s history, he likely could have gotten him a not guilty verdict with an unbiased jury.
What Mr. Branca did was give us the technicalities of the law. Those technicalities don’t always agree with reality but they SHOULD be equally applied. If they had been equally applied, the riots of last summer would have been short lived and could have ended quickly. With the history, all 5 criteria were met multiple times, especially considering the constant attacks on the police by the rioters. Thanks for clearing this up!

    The shooting deaths of Michael Brown and Breonna Taylor WERE indeed also both entirely legally justified. It’s also likely that had he been given an actual fair and impartial jury Derek Chauvin would have been acquitted–we’ll never know, because that didn’t happen. In any case, not even the prosecution ever claimed that Chauvin intentionally killed Floyd. So I fail to understand your point.

    Milhouse in reply to 20keto20. | September 2, 2021 at 7:48 pm

    Mr Branca didn’t “technically” make the case for the Brown shooting. If I recall correctly he explicitly made it, and at considerable length.

    I don’t recall him writing about the Taylor shooting, but there’s no doubt that the cops were justified in shooting. (Other than the one who shot into the wrong apartment; he was very lucky that he didn’t hit anyone.)

So Rittenouse, the kid who shot in self-defense in Wisconsin, should be a slam-dunk case of justified force.

Then why are the prosecutors going after Rittenhouse with such fervor ?
> I’m guessing you will chalk it up to politics infecting the judicial process.

    “I’m guessing you will chalk it up to politics infecting the judicial process.”

    Correct.

      Did you ever do a similar analysis on Rittenhouse? Would love to read that.

        henrybowman in reply to Think38. | September 2, 2021 at 5:58 pm

        Until “all” the evidence comes out in trial, that’s not a reasonable expenditure of effort.
        For example, we had no idea (until the trial) that the prosecution would be forced to retreat from “knee on his neck” to “knee on his shoulder.” Nobody expected that.

        I’ve done roughly a dozen blog posts/videos/podcasts on the Rittenhouse case, including a detailed analysis of self-defense justification based on the extensive video of the events involved. All of those are accessible only by Law of Self Defense Members, however. If you’d care to try out a trial membership, 99 cents for two weeks of unlimited access, you can point your browser to the URL below (if you remain a member, it’s only about 25 cents a day, less than $10 a month): http://lawofselfdefense.com/trial

    Milhouse in reply to Ben Kent. | September 2, 2021 at 7:50 pm

    .

    So Rittenouse, the kid who shot in self-defense in Wisconsin, should be a slam-dunk case of justified force.

    Absolutely. In any normal situation he’d have got a commendation, not a arrest warrant. The fact that he’s being persecuted (not prosecuted) is not a reason to go after Mr Byrd.

Interesting how laws differ. In my state, you shoot someone and they don’t have a gun or are unarmed you are going to jail. Even the cops are put on leave and that normally means exactly that.

    henrybowman in reply to 2smartforlibs. | September 2, 2021 at 6:00 pm

    In my old state, you shoot someone who is armed to the teeth, screaming death threats, and has set fire to your house, and you’re going to jail anyway. You may eventually get out, but everybody goes, no exceptions.
    Just one of the many reasons it is my “old” state.

FortesFortunaJuvat | September 2, 2021 at 9:34 am

This case is extremely simple and too many people are desperately attempting to over complicate it in order to serve their preconceived ideas of “justice”. Consider:

* byrd is/was(?) tasked with protecting members of Congress. How many members of Congress were in immediate danger from Ms. Babbitt’s actions?

* from byrd’s vantage point, how many weapons were brandished by Ms. Babbit?

* from byrd’s vantage point, what immediate threat does a person whose hands are obviously empty of any weapons, and is using her hands to facilitate her entry through a door window, pose to any person within reach of her hands?

The answer to all three questions is “none”.

Based on the answers to those questions, byrd had no moral or legal justification to use deadly force against an obviously unarmed person who was in no position to rationally pose an immediate threat to him or anyone else.

Police officers of every sort (that would include the CP) are trained to be situationally aware at all times while on duty. That situational awareness is trained into them from the beginning. In potential threat situations that situational awareness jumps into overdrive and extremely minute details jump out. It causes a constant and very rapid repetitive scanning process to occur at speed levels most people never reach. Ask me how I know.

That training, in and of itself, puts police officers in a different category from “John Doe, citizen”. That training elevates the responsibility of police officers to act with a higher level of awareness. That training does not justify them making decisions based on probability but, on fact. And the facts do not support the conclusion that the shooting of Ms. Babbit was justified, at all. Again, ask me how I know.

byrd knew no one was in sufficiently close proximity to Ms. Babbitt who could be harmed by her presence. byrd knew that Ms. Babbit was not holding any weapons. byrd knew that Ms. Babbit was not able to manage entry through that window in a way that posed any immediate threat to anyone. Knowing all of that, byrd shot her.

There was no “sefl-defense”. There was simply murder.

    from byrd’s vantage point, what immediate threat does a person whose hands are obviously empty of any weapons, and is using her hands to facilitate her entry through a door window, pose to any person within reach of her hands?

    Bingo.

Every time I watch the video, it seems like Byrd panicked and pulled the trigger. He’s lucky he didn’t hit of the officers standing directly behind Babbitt, who could have easily stopped or restrained her from scaling the doorway, but did nothing because they evidently didn’t see her as a threat. This was a very unnecessary shooting, despite what our government and the law may say. Lives saved = 0, Lives taken = 1.

“It is also notable that the officer used force only against the person apparently affirmatively attempting to breach the barricaded doors, Ms. Babbitt.”

“ …apparently affirmatively attempting to breach…” Ashli Babbitt

Ms. Babbitt was not the only person making the attempt, and, anyway, it was the mob, which undoubtedly was a frightening sight to behold, I’d have had my finger on the trigger, not her per se that posed the overarching threat.

Would the same defense of Officer Byrd obtain, once he saw the leg, had he randomly fired through the so-called barricade, killing some other member of the mob?

Also, I guess there is no provision based in law to require a warning shot. Did anyone else notice how quickly the individuals dropped their toys and hit the floor when they heard the shot fired? Won’t see those folks celebrating Bastille Day.

    MarkSmith in reply to thetaqjr. | September 2, 2021 at 11:29 am

    “a warning shot. ” please?! stop that. If you have a gun and you are going to use it, Warning shots are stupid and dangerous. How many videos have been posted where the person shot keeps coming.

      Gremlin1974 in reply to MarkSmith. | September 2, 2021 at 12:24 pm

      INHO, if you have time to fire a warning shot then you were not in Imminent danger and therefore it is not a justified used of deadly force/Self Defense.

      You don’t shoot to warn, you shoot to stop an imminent threat, period.

    Chewbacca in reply to thetaqjr. | September 2, 2021 at 5:34 pm

    Warning shots are absolutely not a thing in law enforcement.

      henrybowman in reply to Chewbacca. | September 2, 2021 at 6:07 pm

      Verbal warnings, however, are, especially when there is no clear threat.
      Byrd didn’t even bother to invoke the ever-popular “surreptitious motion” of a hand to justify the lack of one.
      No “halt and put your hands up.”
      Just boom.

in my humble opinion, byrd’s claims of ” imminence ” and ” proportionionality ” can both be dismissed by one simple fact: he is the ONLY peace officer (among many who were in close proximity to him as well as those who were in close proximity to the protestors) who discharged his weapon that day–this ” imminent threat ” was not felt or perceived by quite a few of his colleagues that day

    Gremlin1974 in reply to texansamurai. | September 2, 2021 at 12:29 pm

    Incorrect. In fact it is only Byrds actions that day that matter. Your argument isn’t actually about imminence or proportionality, it would actually be reasonableness. However, even in that argument only Byrds and they Hypothetical “Reasonable Person” are considered.

    How the other officers reacted is completely irrelevant, just as how I feel I would have acted is irrelevant.

Mr Branca,

I applaud your integrity in continuing to present an unbiased analysis of the facts and the intersection of the law with these facts. I will not be cancelling my subscription to your site. I for one, appreciate your willingness to express unpopular opinion about an emotionally charged, political flashpoint moment in which a Citizen was killed.

For those who disagree then take the same basic fact pattern and substitute Antifa. I submit that the outrage would be significantly less from ‘our’ side. I would hope we could all be honest enough to admit that.

    That’s very kind of you. As always, I just call ’em like I see ’em. I can do no other. 🙂

    DaveGinOly in reply to CommoChief. | September 2, 2021 at 11:12 pm

    Substitute Antifa and some here may well agree the shooting was justified. But the officer doing the shooting would be prosecuted too. Not saying that would be justified either, but everyone here knows that’s how it would go down if the shoe was on the other foot. Because of that, it creates an expectation of a similar reaction when one of ours takes a bullet. And we don’t get that reaction. This dichotomy works to the advantage of our political opponents and it must be stopped.

      There is not a person here who would not be cheering the shooting of an antifa puke who did the exact same thing if it were January, 2017 and the puke was a part of the antifa/BLM mob contesting the 2016 election results. That is Andrew’s point. If we would cheer the shooting of an antifa loon in similar circumstances, we have to pause and think about what is driving our take on this shooting. Is it politics, even feelz, or an actual adherenece to the letter and spirit of the law? We all know the uncomfortable answer.

      Should Ashli still be alive? Yes. Should Byrd be swaggering about “saving countless lives”? Absolutely not. He’s a self-important, inept, cowardly little man who should be, in my opinion, permanently assigned desk duty. In Siberia. But everything is not political as the left dearly wants us to believe; sometimes, good people, caught up in the heat of the moment, or whatever, do incredibly stupid things.

      I bet if you told Ashli a week before this incident that she would be breaking through a barricaded door, using her body to shatter the glass on that door, sticking her leg through that broken glass portion in an apparent attempt to enter an area where elected officials were validating election results, she would have told you that you are crazy. From what I have read about her, she was a normal person who was just caught up in the moment. What else can explain a grown woman attempting to bust through a barricaded door by busting out the glass and breech the barricaded area with her leg (surely she intended to bring her whole body through, right?)? This is not rational. People don’t plan to go that far, they just do in the frenzy of the moment, and in this case, she did. To tragic results.

      Yes, it would be completely different if the cop were white, the mob full of antifa/blm lunatics, Babbitt a black woman, and yes, the law would have been applied completely differently. This is to the Democrats’ shame and disgrace. It is infuriating that the law does not apply to their brown shirts and assorted rapists, murderers, looters, vandals, arsonists, etc. But we don’t uphold the law by deciding that we . . . reject it and instead think our side should be exempt from legal standards and laws. That way lies ruin and true anarchy.

Mr. Branca, I do not necessarily disagree with your legal analysis but I would note that the parameters of self-defense and defense of others vary from jurisdiction to jurisdiction. You do not cite any particular statute or case law in the above analysis so it is difficult to ascertain whether your analysis is based on general principles of self-defense or on the standards that are utilized in the District of Columbia. Here is a link to a pattern instruction that is given in the District of Columbia:

https://mpdc.dc.gov/sites/default/files/dc/sites/mpdc/page_content/attachments/District%20Law%20Pertaining%20to%20Self%20Defense.pdf

That being said, you assume that everything that Officer Byrd said is true. There is a question of credibility given the charged political atmosphere these days as well as his own personal political biases and those of his department that are not being considered. His own biases may have tainted his determination in using force here particularly when no other person in all of the tumult of January 6 discharged a weapon.

Further, your analysis seems to be rather sparse on analysis of Officer Byrd’s training and the standards to which he is held as a Capitol police officer. You mention it, but you do not really discuss that what is reasonable for one person may be different for someone like Officer Byrd, who is presumably a highly trained professional in the measured use of force than for a homeowner. Reasonableness is fact-specific. For example, in the Chauvin trial, there was a great deal of testimony from experts pertaining to Officer Chauvin’s training, education, experience, etc. on whether his use of force was excessive.

Additionally, the standards of the department he is employed by are relevant as well. What are the standards of the Capital Police Department on the use of force? Would not an analysis of the standards of the Capital Police Department be warranted as well in your calculus of the reasonableness of Officer Byrd’s actions? A serious evaluation of Officer Byrd’s
training, etc as well as a discussion of the standards of the department he works for would be necessary to determine the reasonableness of his belief on the necessity or right to use deadly force here.

All that being said, you may be very well correct in your analysis that Officer Byrd is not guilty of murdering Ashli Babbitt. However, I would have been far more comfortable with a jury acquitting him given the fact that she was unarmed than some anonymous prosecutor who may have been simply ordered by his superiors not to charge him.

    “Mr. Branca, I do not necessarily disagree with your legal analysis but I would note that the parameters of self-defense and defense of others vary from jurisdiction to jurisdiction. ”

    Marginally, but not enough to matter on the facts of this case. Self-defense and defense of others law is about 80% the same across all US jurisdictions–as one might imagine, given how well-established a body of law it is.

    My analysis assumes a version of use-of-force law most challenging for Lt. Byrd (e.g., assumes there could be a legal duty to retreat argued).

      henrybowman in reply to Andrew Branca. | September 2, 2021 at 6:24 pm

      The big difference is whether the jurisdiction treats claims of self-defense as “rights-based pleas” or as “affirmative defenses.” Under the first, the prosecution has the burden of proving the defendant’s guilt. Under the second, the defense has the burden of proving the defendant’s innocence (contrary to what most of us believe as the “American rule”).

      Arizona cops lobbied the legislature to switch to the “affirmative defense” rule between 1997 and 2006, which resulted in a travesty of justice for a fellow named Harold Fish that required two state law changes to remedy (the second because the legislature neglected to make the first law retroactive).

      I checked early on to see which of these rules DC used, and apparently theirs is rights-based.

        Currently, every state places the burden of persuasion on the state to disprove self-defense beyond a reasonable doubt, once the defendant has made a prima facie claim of self-defense (the burden of production, a very low threshold). Ohio was the last holdout, but changed several years ago to the majority position.
        –Andrew —

theduchessofkitty | September 2, 2021 at 10:45 am

When a situation gets heated as in a battlefield, confusion can derail even our best intentions. In the fog of the fire, people do get harmed, even without realizing so. Mistakes do happen. It is very probable this woman wasn’t there to cause any trouble. Can anyone argue beyond any doubt she was?

There is no doubt in my mind Andrew’s argument passes legal muster, and that Capitol Police officer will walk scot-free if it ever faced a criminal court. However, I’m afraid to say the real issue won’t be dealt with in the courts.

The real issue is this: can you say, discuss, or argue the same thing before this poor woman’s family with a straight face?

    Yes, I could.

    Do I believe her death was necessary? Hell No!

    Do I believe her death was right? Hell No!

    Do I believe her death was a tragedy? Yes!

    Do I find Lt. Byrd and his claims of saving lives and his claims of his own supposed courage detestable, disgusting, honorless, and horrid? Hell Yes!

    Do I believe that Lt. Byrd is an incompetent who should have been relieved of duty long ago due to past actions? Hell Yes!

    Do I believe we have an imperfect justice system that in order to protect the rights of the innocent might mean that sometime the guilty go free, but it is the best system I have seen so far? Yes!

    Do I believe that her death was legally justified? Unfortunately, Yes.

      donewiththis in reply to Gremlin1974. | September 3, 2021 at 11:58 pm

      No, it simply was not. The coward shot an unarmed women who presented no threat to the safety of himself or anyone around him.

      He is a muderer and should be tried as such. He will not be because our government itself is so corrupt that nothing makes any sense anymore.

First, I’d like to point out that if the leftist activist/inciter John Sullivan had not shot video of the event and promptly distributed it out on the internet as fast as he did, we would be looking at a far different claim: “Capitol Police officer shoots and kills woman who attacked him in the building.” We still do not have building surveillance video of the event or practically *any* of the area during 1/6. Much like the “Vicious insurrectionist murders Capitol Police officer with fire extinguisher” lie slowly converted into “Guy with unused pepper spray in backpack accused of maybe doing something” as the video of bystanders and participants leaked out, lies tend to wither and die as actual footage of events are released. (although sometimes video can be deceiving too, etc…)

But we do have video of this event, and it shows the CP officer had several options when confronted by an unarmed small woman crawling through a broken window:
1-Do nothing, much like all the rest of his CP peers on both sides of the door.
2-Call out to the woman and inform her she was breaking the law.
3-Confront the woman, put her in handcuffs, and arrest her.
4-Draw his gun and threaten the woman if she did not withdraw.
5-Shoot her.
6-Unload a magazine into her in blind panic.

There were quite a number of CP officers and the like in the 1/6 area. Nearly all of them selected Option 1, with a few Option 2. Extremely few picked Option 3, even against the idiot leaving with the lectern or Mr. Buffalo Hat.

Only one officer took Option 4. Thankfully, he did not escalate to Option 5, but I suspect it was close.

We do not know why he did it, or his state of mind. We only know what he told a friendly reporter, and that tells volumes. In his mind, there is no fault that should reflect on himself. It’s all somebody else, it’s not me, etc… That speaks volumes.

    It’s a rather obvious logical fallacy to argue that because other officers facing other threats under other circumstances chose not to use deadly force, that this means that Lt. Byrd lacked legal justification for his own use of deadly force.

    For all we know, those other officers were ALSO legally justified in using deadly force, and chose to assume risks (both for themselves and others they had a duty to protect) that the law does not oblige them to assume. That in no way diminishes the privilege of Lt. Byrd to use deadly force as permitted by law.

Ok, I will take the bait:

Innocence Duty to protect? Protect what? The chamber had been evacuated right?

Imminence “meaning that the threat against which Byrd was defending was either actually in progress or immediately about to occur.”

Considering that Bryd knew that there were thousands of peace keepers in play and likely knew that agents were embedded in the crowd, him judgement was off. The contextual situation that it was Byrd as the last stop before all hell broke loose is BS. Byrd assessed the situation wrong and it was not the first time he has done this.

Avoidance Again, if the chamber was evacuated, he had no reason to stand ground.

Proportionality The straw man of Antifa attacking my house is not a good example unless you put a few other police in the antifa mix and the fact that your house is surround by police. Context is everything. Bryd misjudged. To assume that he is the only gatekeeper and protector and last line of defense id BS.

Reasonableness I think you answered this. Out of all the peace keeper fire arms there how many fired their guns? Zero! What made Byrd so special that he could? State of mind? Well we know he is careless or why not apply that standard here.

Something else to think about. If the crowd was so dangerous, do you really think that just shoot one would stop it? That crowd could have destroyed that place and everyone in there. Recklessly shooting someone could have indicted a full blown riot. Nobody was in harms way at that time. Bryd made poor judgement and should be held accountable.

The standard for reasonable doubt is a joke. Rittenhouse case should be open and shut but lives on. The guy following every self defense rule he could of and he is still charged. Bryd is not even challenged.

I still believe she was not actually shot that day. She might be dead, but she was not shot that day. Wacked out as it may be, it is a coverup no matter what and Bryd is the fall guy. If she really was shot that day, Bryd was the only incompetent twit that fired his gun out of 1000s of gun carrying officers. That alone puts his judgement in question.

    “Innocence Duty to protect? Protect what? The chamber had been evacuated right?’

    No.

    “The contextual situation that it was Byrd as the last stop before all hell broke loose is BS.”

    No.

    “Again, if the chamber was evacuated, he had no reason to stand ground.”

    No. The chamber was not evacuated–but even if it had been, Byrd also has a right to defend himself, as well as others.

    “The straw man of Antifa attacking my house is not a good example unless you put a few other police in the antifa mix and the fact that your house is surround by police. ”

    No. The officers behind Babbitt were still coming up the stairs a full 8 seconds after the shot was fired, and were almost certainly not visible to Byrd at the time he fired. If so, they are irrelevant ot the his use-of-force justification.

    “Out of all the peace keeper fire arms there how many fired their guns? Zero! ”

    A logical fallacy and legally irrelevant, for reasons discussed immediately above.

    “Rittenhouse case should be open and shut but lives on.”

    Sure, Rittenhouse is a politically motivated prosecution, not one based on legal merit. My analysis here is a legal analysis, because I’m a lawyer who does law. If you’d like a political analysis, I’m sure there are others here on Legal Insurrection who could do a bang-up job on those issues.

      MarkSmith in reply to Andrew Branca. | September 2, 2021 at 11:58 am

      “No. The officers behind Babbitt were still coming up the stairs a full 8 seconds after the shot was fired, and were almost certainly not visible to Byrd at the time he fired. If so, they are irrelevant ot the his use-of-force justification. “</i?

      So Byrd was the only CP officer on that side of the door? Sounds like some pretty poor planning to me. Contextually, the other officers on the other side of the door do not matter as you say. Situational awareness is what matters. Bryd assumed wrong. In fact, I think he was reckless shooting in to a crowd.

      “No. The chamber was not evacuated–but even if it had been, Byrd also has a right to defend himself, as well as others.”

      Do you know if the chamber was evacuated? I heard stories of members being escorted out. I have not heard anything of the sort that is was not. Who was Bryd defending? As for himself, he could flee if it was just him and based on crowd size, it would have been his best option. What happened to the other CP? What did they do?

      A logical fallacy and legally irrelevant, for reasons discussed immediately above.

      Disagree. It the test is reasonable judgement, then 50 other CP on that side of the dooor used reasonable judgement did not to use force. What made Bryd special?

      DanGregory.com in reply to Andrew Branca. | September 2, 2021 at 12:24 pm

      Andrew, this article and all of your rebuttal comments are utter balderdash. The shooter is a public servant, who was acting an armed official capacity. He shot Ashli for only one of two reasons: #1 He was following orders (rules of engagement); #2 He was acting on his own initiative. If he was following orders, and his rules of engagement allowed this shooting, the rules of engagement were defective and he was too stupid to know that (or did not care). But if he was acting on his own initiative, he had no reasonable basis to shoot. His supposed imperative to self-defense does not trump his duty as an armed public servant to tread lightly. Not only that, but officers who are armed on duty must be willing to face a higher degree of risk than a private citizen acting in a non-official capacity. This shooting is equally egregious as Michael Slager shooting Walter Scott. It’s self-evident that Byrd did not need to shoot Babbitt; and it’s plain as day that Byrd, by virtue of his duty in public officer role, was obligated to observe more details before shooting. No rational person could conclude that Babbitt had any chance of getting the drop on Byrd, even if she has been armed. Byrd had his gun trained on her; she was strenuously wiggling through a small opening. What controls in that situation are the rules of engagement Byrd was under – not his personal fears which might relate to his personal thoughts of self-defense. As an armed public officer on duty, he was obligated to adhere to the rules of engagement, not succumb to his personal fears.

        .

        His supposed imperative to self-defense does not trump his duty as an armed public servant to tread lightly. Not only that, but officers who are armed on duty must be willing to face a higher degree of risk than a private citizen acting in a non-official capacity.

        That is utter BS. There is no “duty as an armed public servant to tread lightly”.

        donewiththis in reply to DanGregory.com. | September 3, 2021 at 11:07 pm

        I would offer you possibility number 3 sir.

        He simply didn’t like Trump supporters, and decided to murder one. Then his crime was covered up by other filthy politicians who were in complete agreement.

        But hey, what do I know?

        Be well sir.

    MarkSmith in reply to MarkSmith. | September 2, 2021 at 11:34 am

    Sorry about all the bolding on the last statement.

On the other hand, I’ve read extensive commentary by a retired police officer who says, among other things,

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.

https://statelymcdanielmanor.wordpress.com/2021/08/29/capitol-coverup-8-killer-self-identifies/

Granted, he’s not a lawyer, but he was trained in use of force, and unlike a use of force lawyer, if he gets the law wrong, he, personally, winds up in jail over it.

    MarkSmith in reply to karl_lembke. | September 2, 2021 at 11:36 am

    Can a thousand gun carrying offices that day be wrong? Stately McDaniel is always a good read.

      MarkSmith in reply to MarkSmith. | September 2, 2021 at 11:41 am

      Question, how many guns by officers have been pulled at the White House BLM/Antifa riots? How many protesters shot? (though I am pretty sure they would shoot if the the President was there and they breached the fence. The CP know there would be a big crowd that day.
      Considering that the FBI was acting as an advocate, they should be held accountable to.

      Negligence is screaming everywhere on this. As we watch them work so hard to cover it up.

    Mike McDaniel does good work generally, and I like him personally, but that particular post is substantively defective on both the relevant law and the actual demonstrable facts of this particular case.

      MarkSmith in reply to Andrew Branca. | September 2, 2021 at 12:28 pm

      At the end of the day it really does not matter. Yes, the reasonable doubt case has been made, but Bryd did not use reasonable judgement. I hope a civil case is made. They should win. Bryd was no hero.

      Our laws are not being applied equally.

        Subotai Bahadur in reply to MarkSmith. | September 2, 2021 at 9:20 pm

        The belief that a civil case can at least partially right the wrong here is based on the belief that a civil court will apply the law correctly and equally. That may be assuming facts no longer in evidence.

        Subotai Bahadur

doesn’t the fact that byrd was the ONLY one to fire speak a bit to his state of mind? that he was the ONLY one to perceive an ” imminent threat ? ” that he might in fact have been in a state of panic, or perhaps more accurately, wrong in his assessment of the situation ? if that’s a possibility, then couldn’t that also mean that he was wrong in his other conclusions/actions ? if he were indeed there by himself, as comparing his actions/conclusions to a home invasion scenario would presume, perhaps he could claim justification–but he was surrounded by other armed/trained officers(witnesses), literally at arms length, and THEY perceived no imminent threat, no need for lethal force

again, doesn’t that speak to his state of mind? and he shoots and kills an unarmed lady as a result–an indisputable fact

whether thru stupidity/panic/ill-conceived assessment, she is dead as a result of his actions–don’t know if it was deliberate or not (and truly hope it was not) but at the very least he seems negligent in his actions and if that’s true, then certainly could not be a lawful act of self-defense

I keep seeing people mention that other officers did not fire their weapons as evidence Byrd did something unlawful. Just a point: it was reported that as Capitol officers were overran, a lietuenant ordered officers against using lethal force. Not sure the details of that specific order or if it was rescinded.

A good many officers were probably justified to use lethal force but the resulting response to that force would have resulted in many officer deaths, I fear.

    I keep seeing people mention that other officers did not fire their weapons as evidence Byrd did something unlawful..

    It’s evidence that none of the other officers there perceived a deadly force threat.

      LongTimeReader in reply to Grey_Man. | September 2, 2021 at 2:17 pm

      It’s not really relevant, none of those officers who didn’t fire were in the precise situation Byrd was in. Byrd was in the Speakers Lobby with a gaggle of politicians and Mike Pence very close by. The other officers were scattered about elsewhere, dealing with their own unique situations.

        Some were getting hit with fire extinguishers. Allegedly.

        Look, if you buy the the official narrative of anything that occurred on 1/6, including Byrd’s murder of Ashli Babbitt, you’re beyond help. Just keep doing whatever it is tools like yourself do.

        DaveGinOly in reply to LongTimeReader. | September 2, 2021 at 11:25 pm

        There were at least two other officers at the barricaded door with Byrd. They can be seen in a still from a video, although I don’t recall if both could be seen with guns in their hands (one certainly was – had his sidearm pointed at the door). In fact, those two officers were at the barricaded door before Byrd arrived there, because he came up behind them – they were already at the door. Grey_Man is not referring to the officers who came up behind the crowd on the other side of the door.

          LongTimeReader in reply to DaveGinOly. | September 3, 2021 at 6:39 am

          I have yet to see any other officers on Byrd’s side of the door in the short videos of her shooting. I rewatched the second angle of one yesterday to refresh my memory. It definitely debunks some assertions I see claimed here. i.e. Byrd’s trigger discipline.

          Kindly point me towards any *video* source that shows any other officer come up on Byrd’s side of the door after the officers on the mob side have left their posts outside the Speaker’s Lobby. I am happy to watch and gain understanding if I am incorrect on something.

Wow, a lot of commenters with their partisan blinders on.

Thanks Andrew, excellent analysis as usual.

So would the others in the mob be at risk of murder charges given they were participants?

Andrzejr2 (właso) | September 2, 2021 at 1:45 pm

From Byrd’s perspective, that “threat” would be in the form of the protestors violently breaching the barricaded doors he was guarding. Once the mob of protestors had breached the doors there was no practical means by which a single officer with a handgun could prevent the protestors from flooding further into the building, and presenting a threat to the (presumably mostly unarmed) other people in the building whom the officer had a duty to protec

From Byrd’s perspective?

What mob? Byrd didn’t see the victim well, did he see the mob?
If the mob broke down the door? Byrd saw the mob breaking down the door, did he hear the door pounding? The mob was breaking down the door, did Ashli ​​Babbitt attack the door himself? What did Byrd see from his hideout around the corner where he waited for someone outside of the year to come out and shoot him? It was enough for him to see the victim’s leg and move on. He moved to increase the angle of view and be able to target the victim’s throat as it was impossible from his ambush (small angle to the door).

Byrd’s claim fails on proportionality, despite Branca’s word vomit. Usually his analysis is spot on. Here he may be protecting his federal law enforcement relationships.

Andrzejr2 (właso) | September 2, 2021 at 2:54 pm

From Byrd’s perspective?
We have a video made from the crowd’s perspective and we don’t see Byrd’s eyes on it. Then how does Byrd see the crowd? Is there any legal solution to this debt, Mr. Andrew Branca?

    So your argument is that because you didn’t see Byrd’s eyes in the video then he couldn’t possibly have seen something that’s happening in the video? Wow.

      Andrzejr2 (właso) in reply to Chewbacca. | September 3, 2021 at 2:09 pm

      No, my argument is that if I can’t see someone on the other side of the wall, then someone who might be there can’t see me. Of course it is different with You and Byrd, you see through the wall.

Lets say that the person killed like that was a black women in downtown Milwaukee or Minneapolis. What would be the conclusion then? Justifiable homicide? Is there something wrong with this picture?

I disagree. She was endangering nobody. She was no more a danger than any other protesters there, how many others were shot and killed?

Fantastic analysis as always, Andrew. I think that you are correct in your assessment both of the lack of a case against Byrd and in the emotional, politically-charged (and completely understandable) pushback on your law-based analysis.

You always manage to sweep aside the politics, the butt-hurt, and the anger and focus on the actual incident as it unfolded and provide cogent and inarguable reasons for your legal conclusions. You are just as correct here as you were in the analyses with which our readers agreed, but emotions are running high, as is simmering anger at the injustice of, for example, the treatment of the Jan 6 rioters vs. that of their burning, looting, and murdering fellow criminals.

Sure, “parading” and “trespassing” are minor infractions, but the politicization of that stuff is really making people on both sides completely crazy. Thank you for being a sane voice in a sea of crazy.

The man with a knife who is threatening from behind a 15-foot tall chain link fence can’t be shot (in a common scenario set out in courses on the law of self-defense), but can you shoot his unarmed buddy who crawls under the fence yet is not actually presenting a threat? No, you can’t treat the buddy as a stand-in for even an actual threat. The buddy must present an actual or perceived threat of death or grave bodily harm by himself in order to use lethal force against him.

A fact of the situation is that the crowd had not penetrated the barrier at the time Babbitt was shot. Only in the case of the breach of the barricade could the potential threat posed by the crowd have possibly been realized. Entry via the broken window seems to have been difficult for Babbitt, who was both climbing and being pushed through, and she was not a large person, indicating that the police could not have been rushed through such a small entry point. Even if Babbitt could be considered “the tip of the spear”, at best, Byrd fired based on conjecture that 1.) the barricade would be burst; and 2.) the crowd, when it came through the door, would present a threat to the lives of the people in the chamber.

    Byrd should not have fired. At all. That is not the issue here, though. The issue is whether or not the shooting was legally justified. Andrew has, I think convincingly, shown that it was and that given the burden of proof on the prosecution side, the prosecution would be suicidal to pursue a case it cannot make.

    It can be true that Byrd is a complete disgrace to his uniform, to his fellow Capitol Hill LEOs, and to himself and that he should never have shot Ashli at the same time that it is true that the shooting was legally justified. Embrace the power of “and.”

      Gotta give Dave some credit. So is it legal hunting season on rioters or not? If not, then why? Also, ask the question, if a reasonable LEO would not have fired, what was different about Byrd? Why does he get the pass?

        He doesn’t “get a pass.” Other LEO’s weren’t firing because they were not standing behind a barricaded entrance. From what I can tell, the only barricades (and this was one as we can plainly see in the video), were in the Capitol interior, near where the government was convening. This was a clearly barricaded entrance, no one waving trespassers through, no one high-fiving the selfie-takers, this was a literal red line. Seriously, would you be defending the antifa puke who crossed this line? There is no way you would, so this is just ridiculous preening.

        Tell me that if this happened to an antfa/BLM loon, in exactly this way, leg through door, swirling mob behind her, reports of shots fired and officers harmed, you would be whinging on about it. You would be cheering it. And so would I. Because it’s a freaking lawful shooting. On its face.

        He doesn’t “get a pass,” he did the right thing in the right moment. And there is no way in hell you would say otherwise if it were an antifa or BLM puke he shot. You know it. I know it. Now own it.

          MarkSmith in reply to Fuzzy Slippers. | September 3, 2021 at 9:56 am

          Other LEO’s weren’t firing because they were not standing behind a barricaded entrance.

          So Bryd put himself in a position that endangered his life! Geez, how many LEO’s were there and were endangered?

          Unlike BLM who were throwing frozen water bottles, Bryd was only under a perceived threat. How come the LEO at the door where the crowd was pushing at them did not pull their guns. They were under a helva lot more threat than Byrd. Video proves it. This does not help that there is a picture of Byrd with his gun in the chamber with his finger on the trigger. The guy is a mess.

          His judgement was poor. He got a pass and is actually being called a hero. You even said he should not have shot! How about you own that one.

          Red line my rats… Q-man was all over the red line and he was not shot.

          Should have charge him at minimum with Negligence Homicide

          The entrance was barricaded because that was the tactical position chosen by those protecting the Capitol interior, it’s not freaking rocket science, MarkS.

          What BLM did is not relevant to this case. At all. The question here is was the Byrd shooting of Babbitt legally justified. And it is. No prosecutor can possibly take this case because they would lose. Was he wrong, should he have shot? Yes and no, in my opinion. That doesn’t change the law or the burden of proof Andrew has laid out.

          Helpful tip: when you see a barricaded door with Capitol Hill (or any LEO) defending it, don’t try to crash through it, you may die.

          Look, I hate that Babbitt died. I hate that this incompetent lunatic shot her. But this is not about emotion or BLM or anything but what Andrew has laid out.

          We are all angry about the injustice of the way the Jan 6 people are being treated, especially when compared to the treatment of the antifa/BLM who we all know and saw on video did far far worse (including trying to murder LEOs barricaded in a building they then set on fire). The disparity is the injustice, but we don’t fix that by tossing legal principles and standards out the window. Do not become what the left already thinks you are–just like them. Ever.

He doesn’t “get a pass,” he did the right thing in the right moment.
___________________________________________________________

actually, by most accounts/opinions of those present, he did the WRONG thing but luckily for him the ” law ” was grey enough to protect him

also disagree your assumption “no way would say otherwise if antifa/etc”

he shot/killed an american citizen that was not a threat to him for the heinous act of protesting an event they felt was illegal/unfair–a right guaranteed/protected in the constitution

however you paint it, he set a rather breathtaking precedent that could potentially effect every one of us

personally, believe he panicked–unless you’ve experienced panic personally/at close range (have done both) you’re ignoring a fundamental biological reaction to stress/fear and its effect on judgment

he’s not man enough to admit it (or lacks the character to do so) and you know what? if he HAD admitted it, i could understand–he’s flesh and blood after all, he’s human–and it would also dismiss all the careful/thoughtful legal analyses with that one statement from him

I think there is at least some dubious legal analysis here. For example on the question that Byrd was firing in the direction of other police officers:

For example, some video footage shows other officers a short distance behind Babbitt when she was shot, but Byrd claims he was unaware of the presence of those other officers at the time, and there is no evidence to the contrary—as a result, the actual presence of those officers is not relevant to the analysis of whether Byrd’s use of force was legally justified.

So you take his claims fully at face value? The claims of a man who obviously has a conflict of interest here? He has everything to lose and nothing to gain if he admitted to seeing the SWAT officers who were standing right behind Babbit. Whether he actually saw them or not and fired negligently is a determination of fact, and it’s a jury’s duty to determine that.

Further, it is not required that the “facts” known to Byrd be actually correct—it is merely required that these “facts” be reasonably believed to be true. For example, Byrd reports that he was receiving radio reports that shots were being fired into the House chambers, a portion of which he was guarding. In fact, no such shots occurred, so this “fact” proved incorrect. Nevertheless, if Byrd reasonably believed this report to be true, he is permitted to base his use-of-force decisions upon this reasonably believed, even if mistaken, “fact.”

Were there actual radio reports saying this? Did anyone else report hearing them? It’s very possible, but I’m wondering if again you are taking Byrd’s own statements as verified facts.

I don’t believe for a moment that anyone reading this, were they faced with a crowd of dozens of, say, Antifa protestors violently breaching their own home would feel they were not facing a threat of serious bodily injury, even if the Antifa members were apparently “unarmed.”

By that standard, the infamous shooting of the students at Kent State in 1970 was legally justified. In fact, possibly the shootings of protesters in Tiananmen Square in 1989. Now it’s true that both governments saw these actions as legally in the clear, but history has made another judgement.

    Again, these are largely POLITICAL complaints, not LEGAL complaints.

    I do LAW. If you want to complain about POLITICS, that’s awesome, but you’ll need to find someone else to fight with about it.

    –Andrew

      John Rohan in reply to Andrew Branca. | September 3, 2021 at 8:22 pm

      You do law, yet you are taking Byrd’s statements at face value? That’s not a “political” complaint, it’s a legal one.

      Since Byrd has every reason to portray himself in the best light to avoid any possible criminal charges, that’s dubious. That’s why we have juries, not defendants, making determinations of fact.

        donewiththis in reply to John Rohan. | September 4, 2021 at 12:04 am

        Bryd will never stand trial simple for the fact that our federal government is corrupt beyond all understanding. He is guilty but he will walk because Schumer and Pelosi love him, and those two have him on TV trying to save his ass.

        I am done with this.

        Mr. Branca, I do however give you big credits. You wrote this thing which I consider to be a turd, but you stepped up and defended it.

        +1 for you on that.

        Happy holidays all.

        Be good.

        moonmoth in reply to John Rohan. | September 4, 2021 at 2:32 pm

        You asked Mr Branca, “You do law, yet you are taking Byrd’s statements at face value? “
        As Mr Branca emphasized repeatedly, he was presenting the case that the Prosecution would have to disprove beyond a reasonable doubt.

Richard Aubrey | September 4, 2021 at 5:00 pm

Is a “”genuine belief” in the mind of a moron legally useful?
If Babbit had successufully breached the door and attacked Byrd, somebody would eventually have told him. It’s the courteous thing to do.
A baton upside the head would have been excessive.
I have no idea what this woman was doing in AF security. Five foot two, 125 pounds. The intimidating size necessary to get a couple of drunk Airmen to knock it off was missing.
I’m a foot taller and twice her weight. Even completely unarmed, what could I do to protect myself against her that wouldn’t be excessive?

How fast did the mob stop so that Byrd was satisfied he didn’t need to empty his magazine?

Mr. B. is making a case for what Byrd thought in a case where there was little reason for him to think it. He could think it, but “reasonable”?

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