Was the fatal shooting of Ashli Babbitt by plain cloths' Capitol Hill Police Officer, Lt. Michael Byrd, justified?
According to Title 10 of the Code of Federal Regulations on Use of Force by Federal Employees, I don't think so.
Taking all these facts, into account, LT Byrd, with over 20 years of police training and experience, used his service pistol to fire once into the body of someone he only saw for 1 second. If you read this article and consider the facts, I think you will agree with me, that, nothing Ashli Babbitt did in that one second, legally met the standard for the application of deadly force.
Should LT Byrd be charged? Is he guilty of using excessive force, resulting in the death of Ashli Babbitt? Was he ordered to shoot Ashli? If so, why? Was Lt Byrd exonerated because he was a black man shooting an unarmed white woman? Was LT Byrd really the person who shot Ashli? Was Ashli merely trying to climb back out when she was shot? Was this all a tragic accident and the Police are giving LT Byrd a pass? How political is this case?
Lets Take a Look...
Pictured above is the scene is within the capital building on January 6th, 2021. During this incident, there were several people with cell-phone video recorders that recorded the events that lead to the death of Ashli Babbit and posted those videos on YouTube. The first video we cite is the "Jayden Video" (Linked below). "Jayden-Z" (watermarked) has the camera on the far left of the scene. It is focused on a person, holding a side arm, pointed at the door breach. This famous still is from shortly after the Jayden video begins:
(Credit: Watermarked YouTuber Jayden-Z | Reposted by El Pais on YouTube (https://youtu.be/mgnh5jvmuZw) | 00:00:09)
You can see LT Byrd is pointing his pistol at the barricaded entryway, just to the left of the broken window seen above. On the outside of the barrier, is the position from where the videographer is recording. Since this is a steady stream, it begs the question, "Jayden, were you aware that a police officer was pointing a gun at the breach mob?"
The next frame I am gong to show you is at 00:00:13 (Jayden Video).
Notice the handgun changed angle. Lt Byrd is challenging several "threats" and he’s lining up his body with his aim-point. The distance from Babbit to Lt Byrd is less than 15 feet. As you watch the video, listen to the shouting and yelling. I can’t (maybe you can) hear anyone saying that someone has a gun, and "stay away".
In the other video (KAGS, capture shown above), the audio represents that Red-Jacket-Guy is yelling, "He's got a gun!" Both videographers are within a few short feet of each other, the video showing the actual muzzle flash (Jayden), does not record the man in the green hat and red jacket, saying "He's got a gun.". As you may also conclude, there's a question if the KAGS video was edited.)
I find it odd, that the Jayden videographer didn't move away from his perch, nor did several people near Ashli when she fell. The shot "report" audio syncs to the muzzle flash in the Jayden video. Some people near Miss Babbitt seemed to act like the danger was gone right after the shot.
I also find it odd, that I didn’t hear the requisite “Halt, put your hands up!” or “Stand still or I will shoot!” None of the use of force warnings all officers must say, before discharging their firearm. It's important to note that when a suspect has the ability to stop their actions, poses no immediate threat, and can be subdued by less than lethal means, the arresting officer is barred from using deadly force as an expedient means to accomplish what less than lethal force could accomplish. Here is an example of the proper use of a compliance order, even with a weapon involved: OIS (Fox 13 News)
Ashli Babbitt was in that window for only a single second, long after the green hat red jacket guy shouted, "He has a gun!". (Heard only in KAGS video referenced in this article.)
It seems like Lt. Byrd shot Ashli Babbitt, without warning, right after she appeared in the window.
Back to the deadly force topic... The only exception to the zero-warning requirement is if the threat is immediate and you, someone else or your protectee, and you don’t have the ability to prevent death or serious bodily harm. To the casual observer, as well as to the various police professionals who weighed in on this situation, it doesn’t meet that requirement; because of the video evidence we see and hear. Babbit didn't have time to react to a command to stop and go back, before she was shot.
Look at the frames between 00:00:15 and 00:00:17…
Immediately after the muzzle-flash of his sidearm, we see a man with receding close-cropped hair, in a suit with cufflinks. Not a uniform. Not a hat. A plain cloths Capitol Hill Police Officer named Lt. Michael Byrd, according to the Justice Department quickly remove himself from the scene. It gives me the impression that the condition immediately preceding the incident, no longer held LT Byrd's attention.
It was at this specific frame that his gun is fired.
One shot… Then he retreats. But look what happens next… 00:00:17.8
You hear the shot, then the videographer pans right and tracks Babbit as she falls backwards, away from the hole in the window on the right side of the door. One shot. One person shot.
Once the shot is fired, in the Jayden video you don't hear someone say, "It sounds like a gun shot." But in the KAGSTV video, you can clearly hear the voices. Almost like they were dubbed into the video.
Then notice what happens…
In the Jayden video, at 00:00:23 Babbit is seen laying on her back, on the floor in front of the window. Here’s what’s odd about this, the reaction to the single shot is “Shots fired”, but the videographer isn’t running away and neither are the two men beside her. How do they know they are safe on this side of the barricade? Where are the people who were helping her through the window? Where they ever arrested for accessory after the fact? Why didn’t she see the man or hear the man with the gun? Why didn’t we hear, “If YOU COME THROUGH THERE I WILL SHOOT YOU!”
Notice what happens NEXT!
None of the other people in the hallway perceived anyone in that hallway a threat. Why did Lt Byrd perceive a threat? Or did he? Or were his orders, “No one gets through that door alive.” which is illegal. Police officers in the "United States" are prohibited from shooting people on sight! (Which literally means, "threat or not", execute them.)
Watch the police interpret the scene…
We have a PC (plain cloths) officer, several uniformed officers, with M-4’s (military rifles). But look at the scene. She wasn’t seen as a threat. She was unarmed. The protestors at the scene know she was unarmed. The police responding didn't put everyone on the ground. The responding officers NEVER radioed that she was a possible threat - BECAUSE SHE WASN’T. The guy who shot her slunk off and disappeared. That officer holding the M-4 at the REAL threat, was told from behind the barricade to stand down. Which you will see he did.
It’s not what the Capital Police did that tells us she wasn’t armed; it’s what they didn’t do and how they didn’t act. If a shot was fired, you CONTROL the crime-scene immediately! You start pointing your weapons at EVERYONE in a friend or foe assessment, especially in close quarters. They put EVERYONE on the ground. ID everyone. Preserve the SCENE. None of that happened.
So, how did they know it was a "friendly" who fired? Over the radio? Why wasn't communication made BEFORE the breath to the sensitive area? Who was responsible for "under-manning" this event and allocating resources securing the most sensitive parts of the grounds?
Knowing what the rules are...
Knowing the rules of FEDERAL protected areas and what the DOJ did after the shooting, saying that no charges will be filed suggest one possibility, but it was never offered.
It might be that she appeared to be breaching a protected national defense exclusion area. Or NDA, where national security secrets were at risk, behind that barrier and deadly force was authorized. However, even if this was the case, the rules still apply. You must give a verbal warning before you can shoot.
However, not one public statement about the incident suggests that National Security was at stake. In fact, if National Security was at stake, then Gen. Milley would have mentioned in Bob Woodward's book, that he was justified in using troops to protect those secrets. The Capital Office building didn't house nuclear, biological or chemical weapons, so what else could it be?
To find that out, I read a lot of articles on this incident and honestly, none of them rise to the level of an authoritative response.
So I will give you one, because I know what I am talking about…
FEDERAL RULES ON DEADLY FORCE
Here’s Title 10, CFR 1047's legal definition of the Use of Deadly Force.
You see, the communication wasn’t there, immediately after the shooting, to indicate that any of 10 CFR 1047.7 requirements were present at the time of the shooting. NONE. By the reactions of those around Babbit, she posed no threat. Not even to the cops who were very close by. They didn't check her backpack for explosives. They didn't rifle through her belongings for a weapon. NOTHING. They just knelt by her. In fact, the tactical team member (helmet and M-4) took in the scene and saw someone appear as a threat, in front of him, but then he realizes it was a police officer and gives him a "thumbs up". Why? Nothing is consistent with normal police procedure and training in this whole thing!
Again, it would make me wonder if Babbit was executed by LT Byrd, under orders from someone inside and now they are covering for him.
I believe there is enough on this video to take to a grand jury. It just seems like the Seargent at Arms or the CHP just don’t want to. They might say, "Unless you were there, you don’t have enough data or experience to look at that video and conclude LT Byrd is guilty of any crime. She was a threat. That's how LT Byrd saw it, so we see it that way as well."
Anyone saying, “She was a threat.”, is lying to you.
Listen to LT Byrd talk about the incident with the news media.
https://youtu.be/2fscQ8PYS-A?t=1 This is the full interview with LT Byrd, so you can hear what he had to say, personally. At 00:15:40, Lt Byrd begins to describe how he thought his options were limited.
We believe there are three key points in this interview. 1) Pictured in the KAGS video were officers on the other side of the doors, who had eye contact with Lt. Byrd and knew he had his gun drawn. In Byrd's interview, at no time does he say, "I ordered those officers to go lethal, as this was a protection zone for several dignitaries." None of the officers on the "other side of the barricade" were informed of priority protectees nearby. Yet in the Jayden video, you can clearly see tactical officers with heavy weapons, appear very quickly after Lt Byrd's shot and miraculously were communicated with, from beyond the barrier. That officer with the M-4, stands down. While Ashli has blood coming out of her mouth, laying on the floor. 2) Lt. Bryd says that he was pleading with the rioters to stand back. Which is NOT the proper command when you are "standing off" a person posing a threat to your protectee(s). This either indicates a lack of training, carelessness or he was ordered to shoot anyone who comes through that barrier. With his mask on, if he was yelling his compliance orders, he certainly didn't come across to the crowd. It was only the green-hat-red-jacket man who yelled "He has a gun!", if the audio in that video is real. Ashli Babbit didn't have time to "pose an imminent threat" as the LawFare article cites, below. 3) No avenue of escape? This is clearly not the case, because the office he had his back to lead to a hallway where more doors and other people were. Just by virtue of the fire code, we know there was another way out. He had a tactical team within seconds. His radio didn't work? In the Jaden video, there as many as 10 armed police officers in the immediate area. Lt Byrd had enough firepower nearby to clear the hallway and get his protectee's out.
This is a write-up by "LawFare", a national security topics website. Evaluating the Police Shooting of Ashli Babbitt - Lawfare (lawfareblog.com)
I have a problem with this comment. Had the LawFare experts closely reviewed the KAGS video at the writing of this article, (see below) they would have seen a Capitol Hill Police Officer without any riot gear on, peacefully walk away from the barricaded door, after communicating with someone unseen. I get how no one was willing to stand between the mob and these doors; but if there was someone or something on the other side of those doors, that deserved a serious threat response such as the use of deadly force, no one communicated that to the masked officer seen here.
Additionally, once Red-Jacket-Green-Hat guy yells, "He's got a gun!" and tries to discourage others from bashing in the barricade and trying to enter the "restricted area", a POLICE OFFICER very "tuned into" such things, would have done more to intervein against the mob.
My question, at this junction, is this: "Why were the cops, not the cops, until after the shot was fired? Why was the mob, not the mob, after the shot was fired?"
The DOJ Write-up and the 4th Amendment
Linked here, is the DOJ write-up on the incident. Department of Justice Closes Investigation into the Death of Ashli Babbitt | USAO-DC | Department of Justice Nowhere in this report, did the DOJ address the lack of a verbal compliance warning, or the investigation into the reason why Ashli was crawling through the window. In the above interview, the contradictions between Byrd's own account and the DOJ's writeup, seems suspect.
"Eventually, the three USCP officers positioned outside the doors were forced to evacuate." This statement on the part of the DOJ, is suspect, because neither the Jayden video or the KAGS video show officers being assaulted. One officer in the Jayden video simply clears out as the "mob" starts to assault the barricade. Judging by the amount of material in front of the door, the protectees had plenty of time to secure themselves without the need for an exclusion zone. What's even more disturbing is that right after the shot, LT Byrd disappears from sight, backing back into the office he was guarding. It's almost like the narrative was being crafted to portray the situation as dire, when it really wasn't.
Noticeably absent from the report is the "justification" basis. The official statement merely says, "We looked into this and there's nothing to see here. If you search for the word, "threat", or "deadly force" in the official statement, you might be surprised to learn that neither word is used. However, if you look at the Lawfare article referenced above, more of a legal discussion of use-of-force, you will find "threat" mentioned over 10 times and "deadly" mention three times. In my experience, you can't write an "officer-involved-shooting" report without referencing the threat and why the use of deadly force was justified or not.
Also, notice that the DOJ never cited Title 10 of the US CFR, which actually governs the use of force by federal employees. Instead, they cite 18 U.S.C. § 242. Do you know what that is? I will tell you:
Notice "on account of such person being an alien" or skin "color" or "race"... This is a civil rights statute. Why would the DOJ take a use-of-force issue and turn it into a civil rights issue? Why not Title 10 of the CFR, which is what the full second of interaction between Babbitt and Byrd amounted to. Byrd was never accused of hating whites. Why did they make it a civil rights issue? There has to be a reason.
The 4th Amendment says the State can't deprive someone of their right to life, without due cause. In the case of the Federal Government, you can't judge the case on skin color before you judge the case based on the elements of lawful compliance with Title 10 CFR § 1047.7.
Here is a video of a journalist present at the time of the shooting, describing what Ashli was doing, the day of the shooting and leading up to her fatal encounter with LT Byrd. (22) Videos taken by journalist Tayler Hansen prove Ashli Babbitt was not violent inside US Capitol - YouTube
The GAO report on Jan 6th, is linked here: GAO-22-104829, CAPITOL ATTACK: Additional Actions Needed to Better Prepare Capitol Police Officers for Violent Demonstrations
The US Capital Police Assistant Chief's report is here: 20210225.pdf (documentcloud.org)