Is Ashli Babbit’s Killer Guilty of Murder? Part 2

One August 9, I wrote a blog post entitled “Is Ashli Babbit’s Killer Guilty of Murder?” in which I pointed out, 

Just because a police officer might be scared of retaliation for killing a citizen is no reason to keep his identity and his version of events secret.The criminal justice system doesn’t operate like that. Police work is inherently dangerous business. If people don’t want to incur that danger, then they shouldn’t become police officers. To use danger surrounding police work to shroud a police killing of a citizen in secrecy is totally illegitimate. Justice demands full transparency of all matters relating to Ashli Babbitt’s killing.

On August 27, Ashli Babbit’s killer surfaced and identified himself in an interview with NBC that people can watch on YouTube. Her killer is a man named Michael Byrd, who is a lieutenant with the Washington, D.C., Capitol police. During the January 6 protests, he said he was in charge of security for the U.S. House of Representatives.

Based on what Byrd said in the interview, there is no doubt that prior to shooting Ashli Babbit, he was afraid, very afraid. Near the end of the interview, he acknowledged that fact: “I was very afraid. There is nothing wrong with being afraid.”

When asked whether he is still afraid today, he responded: “I am. I am afraid because I know that there are people who disagree with my actions on January 6.” In other words, he’s afraid that people are going to retaliate against him for shooting Babbit, which is why he waited seven months to publicly identify himself.

There is one big problem, however: Under the law, being afraid does not justify the use of deadly force against another person. Placing the highest value on the sanctity of human life, the law required Byrd to reasonably believe that Ashli Babbit posed a significant danger of serious bodily injury or death to Byrd or someone else. 

In other words, being afraid that Babbit might — or potentially could — pose a danger of serious bodily injury or death is not enough to justify killing her. Byrd had to reasonably believe that Babbit posed such a danger at the moment he shot her.

Was it reasonable for Byrd to believe that? 

In the interview, Byrd confirmed that he never saw a gun or other weapon in Babbit’s hand or anything that resembled a weapon.

He shot her anyway because he had heard on a radio that shots had been fired elsewhere in the Capitol. The reports were false. But even if he believed them to be true, what do shots having been fired elsewhere have to do with Ashli Babbit? The fact is that she had fired no shots whatsoever. Moreover, no one around her had fired any shots. That’s because neither Babbit nor anyone with her had a gun.

Byrd said that under the law it doesn’t matter whether she’s armed or not. Oh, but it does matter in terms of determining whether his killing her was reasonable or not. 

In their press release announcing their exoneration of Byrd, the Capitol police said, “Your actions potentially saved members of staff from serious injury and possible death.” Byrd stated: “I know that day I saved countless lives. I know members of Congress as well as my fellow officers and staff were in jeopardy and in serious danger.”

Those statements are ludicrous because no one’s life was ever in danger of serious injury or death. Given that Byrd and the Capital police now know that none of the protestors, including Babbit, was armed and, equally important, never tried to injure or kill anyone, how can they honestly say that Byrd saved countless lives or “potentially” saved countless lives?

Byrd had a moral and legal duty to wait until it was reasonable to believe his life or other lives were in grave danger before he shot Babbit. If that meant waiting for the protestors to enter the room, so be it. After all, he was armed and therefore had the means of defending himself and others should the need arise. At the moment of her killing, Babbit posed no threat to Byrd at all. For him to be afraid of what he imagined was going to happen if Babbit and her fellow protestors entered the room is not enough to justify his killing of Babbit.

In other words, if Babbit and the protestors had come through the door and begun beating up Byrd or other people in the room, that would have been one thing. But to shoot a person because the shooter was afraid of what might happen if they entered the room is quite another thing. It is, of course, revealing, that the Capital protestors didn’t beat up or kill anyone or try to do so during the protests. 

Byrd told the interviewer that he ordered the protestors to stop trying to bash down the door and that they didn’t comply with his order. He said, “Their failure to comply required me to take the appropriate action to save the lives of members of Congress and myself and my fellow officers.”

Is Babbit’s refusal to comply with Byrd’s order enough to justify shooting her? It is not. Again, the test for using deadly force is not whether someone violates a police officer’s warning. It’s whether the police officer reasonably believed that at the moment of the shooting, he was in danger of serious bodily injury or death.

Let’s take a private-sector example. Suppose you’re on one side of the street and a gang of 25 protestors is breaking into a store across the street and looting it. You don’t see them brandishing any guns. They haven’t shot or killed anyone.

They start to cross the street and head in your direction. You have a concealed-carry permit. You’re carrying your gun. They get within 10 feet of you. They are screaming and yelling. You are deeply afraid. You pull out your gun and fire at them, killing one of them. 

One thing is certain: You had better have a good lawyer because it is almost a certainty that you are going to be charged with murder. The prosecutor is going to contend that while you were no doubt afraid of the gang, you nonetheless had no right to shoot at the gang because you were never being threatened with deadly force or with serious bodily harm.

The same principle applies to Michael Byrd. Just because he was afraid of something that might happen or potentially could happen was not enough for him to use deadly force that snuffed out the life of another human being. 

There is something else to consider. As the federal government becomes more autocratic, there is the possibility of more protests, such as those that occurred during the Vietnam War. If Byrd’s case is the test now for using deadly force against protestors, the lives of lots of protestors are going to be in jeopardy.

It’s of course not surprising that the Capitol Police and the Justice Department have exonerated Byrd. But he might well find out that a jury in a civil suit brought by Ashli Babbit’s family for her wrongful death might not do the same. 

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