What Did You Say?

Report: The Officer Who Killed Ashli Babbitt Had a Long History of Disciplinary and Training Problems

By: Jonathan Turley | November 21, 2024

Read more at https://jonathanturley.org/2024/11/21/report-the-officer-who-killed-ashli-babbitt-had-a-long-history-of-disciplinary-and-training-problems/

I have previously written about the dubious investigations of the shooting of Ashli Babbitt on Jan. 6th and the alleged violation of the standards for the use of lethal force by the officer who shot her. I strongly disagreed with the findings of investigations by the Capitol Police and the Justice Department in clearing Captain Michael Byrd, who shot the unarmed protester. Now, Just the News has an alarming report of the record of Byrd that only magnifies these concerns.

Liberal politicians and pundits often refer to multiple deaths from the Jan. 6th riot. In reality, only one person died that day, and that was Babbitt, who was shot while trying to climb through a window. However, the media lionized Byrd and portrayed the killing of the unarmed Babbitt as clearly justified. That is in sharp contrast to the approach that the media has taken in other shootings by law enforcement. An unjustified killing by police on that day was inconsistent with the public narrative pushed by the pundits and the press.

As I have previously written, what occurred on Jan. 6th was a disgrace. However, it was a riot, not an insurrection. (It was certainly not an act of terrorism as claimed by some Democratic politicians). A protest at the Capitol resulted in a complete breakdown of the inadequate security precautions, a failure that House Speaker Nancy Pelosi privately admitted but only recently was disclosed. The failure of Pelosi and others to properly prepare for the protest, despite the offer of President Donald Trump of 10,000 National Guard troops, does not excuse the conduct of the rioters who attacked the Capitol, interrupted the constitutional process, and committed property damage.

Babbitt was one of those rioters. She was wrong in her actions, but the penalty for breaking a window and unauthorized entry is not death in this country. I previously spoke with her mother, Micki Witthoeft, and her husband, Aaron Babbitt, about their continuing effort to expose what occurred that day.

The new report confirms what many of us had previously heard about the Byrd controversy.

Babbitt, 35, was an Air Force veteran and Trump supporter who participated in the riot three years ago. She was clearly committing criminal acts of trespass, property damage, and other offenses.  However, the question is whether an officer is justified in shooting a protester when he admits that he did not see any weapon before discharging his weapon.

Just to recap what we previously discussed in the earlier column:

When protesters rushed to the House chamber, police barricaded the chamber’s doors; Capitol Police were on both sides, with officers standing directly behind Babbitt. Babbitt and others began to force their way through, and Babbitt started to climb through a broken window. That is when Byrd killed her.

At the time, some of us familiar with the rules governing police use of force raised concerns over the shooting. Those concerns were heightened by the DOJ’s bizarre review and report, which stated the governing standards but then seemed to brush them aside to clear Byrd.

The DOJ report did not read like any post-shooting review I have read as a criminal defense attorney or law professor. The DOJ statement notably does not say that the shooting was justified. Instead, it stressed that “prosecutors would have to prove not only that the officer used force that was constitutionally unreasonable, but that the officer did so ‘willfully.’” It seemed simply to shrug and say that the DOJ did not believe it could prove “a bad purpose to disregard the law” and that “evidence that an officer acted out of fear, mistake, panic, misperception, negligence, or even poor judgment cannot establish the high level of intent.”

While the Supreme Court, in cases such as Graham v. Connor, has said that courts must consider “the facts and circumstances of each particular case,” it has emphasized that lethal force must be used only against someone who is “an immediate threat to the safety of the officers or others, and … is actively resisting arrest or attempting to evade arrest by flight.” Particularly with armed assailants, the standard governing “imminent harm” recognizes that these decisions must often be made in the most chaotic and brief encounters.

Under these standards, police officers should not shoot unarmed suspects or rioters without a clear threat to themselves or fellow officers. That even applies to armed suspects who fail to obey orders. Indeed, Huntsville police officer William “Ben” Darby was convicted of killing a suicidal man holding a gun to his head. Despite being cleared by a police review board, Darby was prosecuted, found guilty, and sentenced to 25 years in prison, even though Darby said he feared for the safety of himself and fellow officers. Yet law professors and experts who have praised such prosecutions in the past have been conspicuously silent over the shooting of an unarmed woman who had officers in front of and behind her on Jan. 6.

Byrd went public soon after the Capitol Police declared that “no further action will be taken” in the case. He then demolished the two official reviews that cleared him.

Byrd described how he was “trapped” with other officers as “the chants got louder” with what “sounded like hundreds of people outside of that door.” He said he yelled for all of the protesters to stop: “I tried to wait as long as I could. I hoped and prayed no one tried to enter through those doors. But 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.”

Byrd could just as well have hit the officers behind Babbitt, who was shot while struggling to squeeze through the window.

Of all of the lines from Byrd, this one stands out: “I could not fully see her hands or what was in the backpack or what the intentions are.” So, Byrd admitted he did not see a weapon or an immediate threat from Babbitt beyond her trying to enter through the window. Nevertheless, Byrd boasted, “I know that day I saved countless lives.” He ignored that Babbitt was the one person killed during the riot. (Two protesters died of natural causes and a third from an amphetamine overdose; one police officer died the next day from natural causes, and four officers have committed suicide since then.) No other officers facing similar threats shot anyone in any other part of the Capitol, even those who were attacked by rioters armed with clubs or other objects.

The new report confirms prior accounts that Byrd had prior disciplinary and training issues. According to Just the News, they included “a failed shotgun qualification test, a failed FBI background check for a weapon’s purchase, a 33-day suspension for a lost weapon and referral to Maryland state prosecutors for firing his gun at a stolen car fleeing his neighborhood.”

Given this history and the shooting of Babbitt, Rep. Barry Loudermilk, R-Ga., the chair of the House Administration Oversight Subcommittee investigation, wrote to express concern over Byrd’s promotion to captain. Those incidents included Byrd firing at a car and allegedly misrepresenting the incident in claiming that “he fired at a vehicle trying to strike him when the evidence fellow officers found at the scene indicated he shot at the vehicle after it had already passed him and no longer posed a threat.” The letter states the Office of Professional Responsibility found that the evidence did not support his claim and “OPR concluded that the evidence suggests Byrd ‘discharged his service weapon at the vans after they passed him by.’”

The concern is that the political environment — and powerful interests in Congress — demanded that Byrd be cleared. As discussed in my new book, “The Indispensable Right,” the Justice Department had publicly pledged to bring “shock and awe” in prosecuting anyone associated with the riot. Finding that the only person killed that day was an unjustified shooting would not exactly fit with the narrative.

The incidents also include allegations of improper handling of his weapon, including reports that Byrd left his service weapon in a public bathroom in the Capitol Visitor Center complex used by tourists and visitors.

The Babbitt family has continued to fight to force the facts into the open and has filed a civil case. A trial is now set for 2026.

Here is his letter detailing the disciplinary problems of Captain Byrd:

11.20.2024 Letter From Rep. Barry Loudermilk to USCP Chief of Police Manger.pdf

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”