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Saturday, August 28, 2021

Jonathan Turley On The Byrd Interview

Law prof Jonathan Turley weighs in on the shooting of Ashli Babbitt. This follows the exoneration of the Capitol police lieutenant who shot her and his subsequent interview. The point that Turley makes that is most remarkable is that Byrd, in his interview, demolished the rationale that had been advanced to exonerate him. One wonders--at least I do; Turley doesn't mention this--was he not represented by counsel? How could his lawyers have possibly allowed him to say the things he said--in public, on TV? What does this say about America?

Here's Turley's Twitter advert for his article at The Hill. I reviewed some of the comments and the majority of them were ... pretty wild, from the perspective of this lawyer and retired LE guy. Who knew Lefties were such hard assed--not to say, bloodthirsty--law and order types?

I have long expressed doubt over the Babbitt shooting, which directly contradicted standards on the use of lethal force by law enforcement. But what was breathtaking about Byrd’s interview was that he confirmed the worst suspicions about the shooting ...
...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... 
...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. Under Byrd's interpretation, hundreds of rioters could have been gunned down on Jan. 6.


Turley's article today goes into the specifics of the case from the standpoint of legal principles that have long been "settled". In a way, DoJ's handling of the shooting seems similar to FDA's recent "authorization" of Pfizer's vaccine--or whatever actually happened.


Justified shooting or fair game? Shooter of Ashli Babbitt makes shocking admission
...

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 clearly justified. ... 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." ...

Under these standards, police officers should not shoot unarmed suspects or rioters without a clear threat to themselves or fellow officers. ...

Byrd went public soon after the Capitol Police declared "no further action will be taken" in the case. He proceeded to demolish the two official reviews that cleared him.

Byrd described how ... 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."

...

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." ... 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.

Legal experts and the media have avoided the obvious implications of the two reviews in the Babbitt shooting. Under this standard, hundreds of rioters could have been gunned down on Jan. 6 — and officers in cities such as Seattle or Portland, Ore., could have killed hundreds of violent protesters who tried to burn courthouses, took over city halls or occupied police stations during last summer’s widespread rioting. ... According to the DOJ’s Byrd review, officers in those cities would not have been required to see a weapon in order to use lethal force in defending buildings.

Politico reported that Byrd previously was subjected to a disciplinary review when he left his Glock 22 service weapon in a bathroom in the Capitol Visitor Center complex. He reportedly told other officers that his rank as a lieutenant and his role as commander of the House chambers section would protect him and that he expected to “be treated differently.”


72 comments:

  1. For more on the legal aspects of such cases, see Michael L. Ciminelli, ex- Chief of Rochester PD, e.g. https://www.aele.org/Continuum2014.pdf , on “Legal Implications of Use-of-Force Continuums….”

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  2. A few weeks ago, I became very interested in the Ashley Babbitt incident. I argued that the incident was a hoax and that she had not been shot and killed. Since then, however, I have come to recognize that the incident was not a hoax and that she indeed was shot and killed.

    In that process, I studied the incident intensely.

    One consideration that changed my mind was my recognition that many of the protesters were acting as a violent mob -- in particular, at the place where Babbitt was shot.

    I suggest that people watch the so-called Jayden X video (the first video on this webpage), beginning at 34:30. There you will see that a few rioters were breaking through a portal that was blocking the way to the House chamber.

    Babbitt essentially was part of that violent mob that was about to invade the House chamber. She was distinct in that she was the first rioter who was passing through the portal.

    In a few seconds, a lot of other rioters would break through the portal and likewise flood into the House chamber. The shooting of Babbitt stopped that invasion.

    I do think that Byrd should have walked into the empty corridor with his gun drawn, confronted the mob face-to-face with his gun and perhaps fired a warning shot.

    However, if I were in a jury trying Byrd, I think I probably would vote to acquit him.

    (Likewise, I would have voted to acquit Derek Chavin. I disagree with the Black Lives Matter rules about police actions.)

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    1. There is one consideration that I did not understand until recently.

      Byrd did not shoot from the House chamber. Byrd was on the opposite side of the corridor.

      After Babbitt climbed through the window, she would turn right (not left) to go into the chamber. In other words, Byrd (who was on the corridor's left side) was not physically blocking Babbitt's way into the chamber.

      Therefore, it was reasonable for Byrd to think that shooting Babbitt was the only way he could stop Babbitt (and the rest of the mob) from invading the House chamber.

      ----

      I think that Babbitt actually did not intend to run right into the House chamber. Rather, she intended to turn left and then remove some of the furniture blockade so that she might be able to unlock the doors from the corridor side.

      However, it was reasonable for Byrd to expect her to turn right and run directly into the House chamber.

      Once a large number of rioters had got inside the House chamber, it was likely that removing them might turn into a very violent battle.

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    2. I find your position to be a strange binary.

      Why must Babbitt be dead for the shooting to be a hoax? I can think of several ways for her to die in a hoax, ranging from her participating as a dupe to being goaded into action as a protester.

      I find the actions of the police in the vestibule to be unaccountably strange, especially when they were blocking it the door and simply walked away from it to be followed immediately by "protesters" attacking the it. Plus, there were several SWAT personnel with serious equipment right there.

      I'm willing to give law enforcement some latitude in intense moments like that, but the actions of those in the attack side of the portal were weird at best. The wooz video is a plausible explanation of their behavior even if it's speculation about Babbitt's involvement is wrong.

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    3. "should have walked. with his gun drawn, confronted the mob face-to-face with his gun and perhaps fired a warning shot."
      You have no idea what you're talking about.
      As per SCotUS rulings etc., US cops are trained to never draw the pistol, unless they intend to use it to protect self/ others from *immanent* death/ bodily harm.
      See e.g. http://www.pss.cc/uofm.htm , on
      The Use of Force Paradigm for Enforcement and Corrections, by John C. Desmedt (w Jas. Marsh), which has a big chart to illustrate Model's scenarios.
      Maybe more later, after I'm done w/ a household problem.

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    4. Sorry, the link I gave hours ago is dead, and I don't know how to paste in a scan of Desmedt's chart, so I'll have to quote some from https://www.njsacop.org/rc_files/368/AELE%20Monthly%20Law%20Journal%20-Teaching%204th%20Amendment%20Based%20Use-of-Force.pdf ("Teaching 4th Amendment Based Use-of-Force):

      “ A police officer may not seize an *unarmed*, non-dangerous (fleeing felon) suspect by shooting him dead....
      [A] simple statement by an officer, that *he fears* for his safety, or the safety of others, is not enough; there must be *objective* factors to justify such a concern”.

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    5. And, on the *immanence* aspect, see
      http://www.pacodeandbulletin.gov/Display/pabull?file=/secure/pabulletin/data/vol27/27-1/2.html :

      < ''The Use of Force Paradigm for Enforcement and Corrections,'' as developed by John Desmedt of the Police Safety System, is formally adopted, subscribed and employed.
      Use of Force Considerations:
      a. Subject's *immediate* threat to safety.... >

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    6. More from the page to which I just linked (of Carbon County, PA):

      < Requirements for Righteous Deadly Force
      Accurately assessing a subject's *imminent* potential for attacking in a life threatening manner; the *immediate and simultaneous* existence of intent, *weapon*, delivery system and target.
      Articulating why an officer feared for his/her life or the life of another, when deadly force action was taken.
      *Explaining* why a *lower level* of force was inappropriate and ineffective, and why disengagement was not possible.
      Warning Shots: Warning shots are *strictly prohibited* under all circumstances. >

      No way would Byrd be able to Explain, why a *lower level* of force was inappropriate and ineffective.

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    7. I've never been military or LEO but have always been taught the same. A "warning shot" is for scaring away raccoons....

      If you draw your weapon and point it at anything important, you need to have already made the mental decision that you will shoot. If ultimately you do not need to, thats great of course, but you should never do it as a warning or a scare tactic - you don't wait to cock the hammer or prime/charge the weapon as a scare tactic either - its either ready to fire or you shouldn't have pulled it out to use it. The Hollywood BS is, well, BS.

      -Bee

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  3. Mistcr, I feel like Mike's analysis demands of me, after watching the wooz video, who am I going to believe Mike or my own lying eyes? I could understand if we were told to disregard the Jayden X video as Phony, but if I am to accept that video as an accurate depiction of events the behavior of the people involved does not remotely resemble a mob action. I don't trust anything being put out about this "event" including the claims of ashlii's parents or boyfriend or lawyer. Nothing will be investigated in any depth by ANYONE, count on it. Mark A

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    1. @Mark, I watched the wooz video that Mike linked a while back. While it seemed credible, it jumped around too much.

      I'm glad he posted the apparently unedited JaydenX video. It gives a better sense of how the guards and SWAT were behaving.

      It seems like they had the manpower and equipment they needed to prevent anyone breaking the glass. And it seems like they moved out of the way to allow people to break the glass.

      I'm persuaded that the Oath Keepers' involvement was an FBI op. With everything else we have seen and heard, it's entirely believable that the scene at the portal was scripted to a large extent.

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    2. The Capitol Police - three? four? - who were guarding the locked and barricaded doors to the Speaker’s Lobby left because they were frightened of the crowd. One was even crying to another that he wanted to see his family again. They were said to have been unarmed. When they left, several in the front of the crowd were emboldened and bashed on the glass. One in particular. The others in that area just watched an Jayden X filmed it.

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    3. Most of the people standing by that door were doing nothing. Watching the two or so who were bashing the door. Jayden X was filming. No riot. The two or maybe three bashing the door seemed to be trying to rev things up but were getting nowhere.

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    4. That version of the JaydenX video is a series of clips. (The part in the upper hall by the doors is considerably shorter than his original that I saw just after January 6.) When the FBI demanded his film, all that he had taken that day, he gave them a copy from his computer so that they would not take his phone. That is what he said/wrote.

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  4. I argued that the incident was a hoax and that she had not been shot and killed.

    I thought four years of Brian Cates lunacy was all I'd be forced to endure.

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    1. I would guess that at least 90% of the readers here have no idea what the "Brian Cates lunacy" is.

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    2. Lol, I was just think of old drawandstrike the other day. From memory, he recanted and admitted he was wrong - I think he was just a genuinely misguided rube, ensnared by what was probably an FBI psyop.

      As for Babbit, hoax is a strong word, but that infamous Jayden X video posits some strong questions. In any case, the default status today is to assume the worst of the Deep State until proven otherwise. Seeing as the DS were all up in the Jan 6 machinations, it's fair to assume things are not what they seem until proven otherwise.

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    3. I think he was ultimately hired by Epoch News, at least temporarily, so who's the rube.

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  5. I am responding her to the above comments of mistcr (3:53 PM) and Anonymous (4:58 PM).

    I was convinced by the Wooz News video. On my own blog, I posted about three dozen articles analyzing the video. I posted comments on various blogs and sent e-mails to various people, persuading people to watch the video.

    I changed my mind because I watched a couple other videos about the event. Since I changed my mind, I removed the three dozen articles from my blog, and I started over with an article titled I've changed my mind about the Ashli Babbitt incident. Since then, I've posted a few more articles about the incident on my blog. I invite you to read them and to think about them.

    After I watched the Jayden X video from beginning to end -- about 40 minutes -- I recognized that my basic understanding of the situation inside the Capitol building was wrong.

    The situation was so chaotic that I no longer thought that the Babbitt incident was staged.

    Later I read the New York Times special section about January 6, and I recognized that quite a few of the protesters were rioting violently. That caused me further to think that the Babbitt incident was not staged in any way.

    In regard, in particular, to the shooting of Babbitt, I advise you to watch the Jayden X video beginning at 34:30. A few protesters were attacking the portal very violently. They had broken through the windows and were about to break through the doors.

    If Babbitt had not been shot, then the rioters would have broken through the portal and invaded the House Chamber -- within one minute.

    Then what? Would a violent battle -- perhaps with guns on both sides -- be fought in the House Chamber?

    In this situation, I perceive that Byrd's actions can be plausibly justified as reasonable. I would like to know much more about the incident, but right now I think I probably would vote to acquit him (just as I would have voted to acquit Chauvin).

    -----

    I want to be clear that only a few of the protesters were violent. I think that most of them entered the Capitol Building peacefully and were simply wandering around inside the building peacefully.

    However, they were able to enter the building peacefully because the initial rioters had broken into the building violently.

    In particular, most of the protesters in the area where Babbitt was shot were just watching peacefully.

    Babbitt herself is not seen doing any violent acts. However, she was in the midst of a few people who were attacking the portal violently.

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    1. Babbitt didn't do any violent acts but she was surrounded by people who broke windows and set her up. Why didn't your hero Byrd shoot them instead of just her?

      Chauvin didn't shoot anybody. That seems to elude you as you're trying to compare Byrd to him.

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    2. You bet, Capt., Chauvin didn't shoot anybody.
      Whether Chauvin ignored his training may be open to dispute, but this Byrd case is about as easy as it gets, unless the Prosecution is totally in the tank.

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    3. Most likely, Byrd knew good and damn well, that any
      Prosecution would be totally in the tank.

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    4. --Babbitt herself is not seen doing any violent acts. However, she was in the midst of a few people who were attacking the portal violently.--

      So you would vote to acquit a cop who shot someone you admit is not seen doing any violent acts on your own personal supposition of what would have occurred if she hadn't been shot?
      How many people not doing any violent acts would he have been allowed to shoot if the crowd didn't stop? Enough to block the doorway like cordwood?
      If what he did was justifiable why did none of the other cops present do so?
      Your position is untenable, illogical and indicates you probably shouldn't serve on any juries.

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    5. That creepy Merrick Garland as AG in the tank? What are the chances after 20 Repukes voted to confirm him.

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    6. Yeah, mudpup, he shouldn't serve on *any* juries.

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    7. It'd be a gem, to see this Mr. Sylwester debate Turley on this!

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    8. I'm not gonna pile on. If you still think the chaotic scene justifies lethal force after jury instructions, so be it.

      I'm still struggling with your flip flop. You seem to be arguing more about justification of Byrd's actions. But I haven't heard you say anything convincing about the activities on the other side of the portal.

      I saw an exchange on your blog about blood spatter being absorbed by clothing. Makes sense to me, although that was not the only observation that wooz made about blood. But it's the behavior of the guards / cops / heavily armed folks on the other side of the portal that is inexplicable.

      They just seem so casual, especially before and somewhat after the shooting. I think it begs for explanation.

      And the guy who got interviewed later, with blood on his hands. Gave conflicting accounts in two different interviews; maybe just adrenaline... Nevertheless, Is he in solitary? By J6 standards he ought to be, right? Or is he protected like Stewart Rhodes?

      There's legit issues there. I respect your willingness to be persuaded off a major claim like that, but it seems like you flipped based on a couple details which, in my view, are not essential to the overall theory.

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  6. I watched - as soon as he gave it to news media - the video that John Sullian aka Jayden had just taken in the little hallway area in front of the glass-paned doors to the Speaker’s Gallery. Tiny Ashli Babbitt could be seen circulating among the much taller men by the doors until she found one who would boost her on his back. She simply could not see over the men and through the glass doors. She ended up looking through a badly broken upper part of a tall glass door pane. The lower part of the shattered glass pane was still fixed in the door frame, so would have presented a serious hazard to anyone trying to climb through. Her climbing through or attempting to climb through did not happen. That is a media construct that has been latched onto by some. She didn’t do it. She was still on the hallway side of the door when Byrd’s bullet hit her from a very short distance away and she pitched backward all the way to the floor from the man’s upper back. (Where is he? has been my question.)

    Byrd had been hiding in a room off the Speaker’s Lobby, immediately to the left of the doors. Jayden’s video caught his forearm come forward out the door, suit coat, white cuff, black skin and white and black beaded bracelet, his right hand holding the gun, finger on the trigger and he shot immediately. One rapid, continuous action/move as his arm shot out of the door until he pulled the trigger and she pitched backward. The sound on Jayden’s video was very good. Byrd gave no warning. As for what he could see, all he could see was a woman’s face and upper body rather high up on the other side of the broken glass door pane. Not crawling through.

    Byrd is a cold-blooded killer who knows he has gotten away with things because of his rank and most probably his race. In Holt’s so-called interview (were Byrd’s eyes constantly shooting to his right so that he could read a script or a teleprompter?) he was squirrely. Twitchy. And he lied.

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    1. That's how I saw it, and you can pretty much count on it that that's how Turley--a very experienced defense lawyer and a student and proponent of the rule of law--saw it as well.

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  7. It would have been tough for the relatively few men in that small lobby area to break those sturdy old doors down. Behind them was barricade of heavy-looking wood furniture. Sturdy stuff, piled almost to the level of the glass panes. And persons could be seen at a distance, down the hallway. Two, maybe three men, broke the glass panes, only one of which broke through. The story has been embellished by Byrd to save his skin and those who really didn’t see anything but internet opinions of others who seem not to have seen the actual events on reliable video.

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  8. Wooz News? Isn’t that the comedian who takes real news footage and develops his own dramatic counter-narrative videos? His videos aren’t actual news reports but reworked, manipulated news video clips.

    From his website:

    Wooz News
    Messenger of Political Mockery SLAMS the Media On His New Late-Night Show!

    www.youtube.com/channel/UC0do3QDDQuTqsvQaueqskxw

    He writes about himself:

    Mass media critic and self-proclaimed motivator of the masses, Wooz brings his sassy, smart and satirical point of view to a range of current and relevant issues in his very own comedy show. The weekly topical series hosted, written, and edited by Wooz, provides wry commentary on contemporary issues of the day, political dishonesty, online viral video clips, society, celebrities, and other parts of popular culture and stereotypes.

    From the ingenious to the absurd and tasteless, messenger of political mockery, Wooz, sheds light on the true hilarity of our political system in this evidence-based comedy series.

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    1. @bebe there's the messenger, and then there's the message. wooz's edits seem to me to be largely to slow down Jayden X's film and call attention to details that you wouldn't normally catch watching in real time. Real details apparently. I have heard no one discount the validity of the video itself. If you watch either version, same characters, same actions. Just like Russia hoax the "government" only makes info public on it's timetable. Byrd goes for interviews after he is exonerated. No one is investigating this, no one is digging into the details, interviewing the people in that room. Nor Publishing ANYTHING. Let's hear from "Ruffio" that violent Trump Supporter who broke the windows with the helmet. Who's helmet? And let's stop to ask why the undermanned and seriously stretched Minneapolis police department was able to secure a precinct building such that very motivated rioters had to endeavor to burn it down from the outside, but the federal government, with tons of advance notice and apparently FBI infiltration and monitoring couldn't secure the nation's capitol? Or take any example from Portland of protecting federal buildings. But okay, Byrd had to shoot an unarmed woman because he alone was the last line of defense for vulnerable lawmakers? Kinda starting to feel like the Afghanistan withdrawal isn't it? I'd say wooz is going light on these clowns, they need our full derision. If someone actually was killed in that lobby, I'm afraid I'm going to need a full forensic audit (sic). Mark A

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    2. Mark A, WoozNews’ owner tells us that he uses news video and then clips and manipulates it and adds his own storyline. He is a comedian who does his own version of satirization of the news. In this case he has apparently convinced some that his version is the truth. They overlook his own caveat about what he does. Surreal.

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    3. PS to Mark A, how many people have you shown the WoozNews video to?

      I have heard no one discount the validity of the video itself.

      I watched the full original shortly after it was posted in in January, right after January 6. Before anyone had any chance to tinker with it. I’ll stick with my eyes and mind rather than those of a comedian with his own agenda. And Wooz admits he has an agenda.

      I don’t do gullible.

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  9. Mike,
    Byrd is a coward. If you got his underpants from that day you'd find them urine stained from him peeing his pants in that chamber. He did what cowards do. He killed an unarmed woman.
    He should beg forgiveness from God and not try to justify his cowardly actions.

    PS: What if the protestors got into the chamber. They aren't armed. Did he fear they would beat people to death? No, there was no risk of death to those in the capital. That wasn't a killer mob.

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  10. mistcr at 7:01 AM
    It seems like they had the manpower and equipment they needed to prevent anyone breaking the glass. And it seems like they moved out of the way to allow people to break the glass.

    I guess that what happened is that Capitol guards who were standing in front of the portal were told to move aside because an armed "emergency response team" was coming up the stairs to deal with the rioters who were attacking the portal.

    However, Babbitt was shot before the emergency response team reached the portal.

    The departure of the guards from the portal while the portal was being attacked is a mystery that should be explained.

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    1. There are a lot of questions re January 6 that still need answering. Turley, of course, is addressing this from his expertise as a criminal defense attorney rather than addressing issues that are broader in their implications.

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    2. Mike, the unarmed guards’ leaving the locked, barricaded doors, has been explained. They were afraid of the two or three militants in the front - the ones who broke the glass door panes. One guard told another that he was afraid, that he wanted to see his wife and children again. There was a significant police presence. A plain clothes (senior?) CP officer and the response team was already on the stair.

      With all respect, I’m afraid your defense of Byrd would crash and burn in a courtroom.

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    3. They [the guards in front of the portal] were afraid of the two or three militants in the front - the ones who broke the glass door panes. One guard told another that he was afraid, that he wanted to see his wife and children again.

      Maybe so. I myself have not seen that explanation. For now, I'll take your word for it.

      When I watch the videos, I have the impression that the guards moved away from the portal about the same time that the emergency response team began to climb up the stairs.

      Therefore, I assume that guards were informed that the team was on its way, and so the guards could move aside.

      I would like a more detailed explanation from the Government.

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    4. Bebe : With all respect, I’m afraid your defense of Byrd would crash and burn in a courtroom.

      I do not imagine myself being a lawyer at a trial of Byrd.

      Rather, I imagine myself being merely a juror.

      Here I am saying only how I think now that I would vote in the jury room.

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  11. aNanyMouse
    US cops are trained to never draw the pistol, unless they intend to use it to protect self/ others from *immanent* death/ bodily harm. ... A police officer may not seize an *unarmed*, non-dangerous (fleeing felon) suspect by shooting him dead ... Warning shots are *strictly prohibited* under all circumstances.

    The legal considerations might be different when a police officer is dealing with an aggressive, rioting mob.

    If I were a juror trying Byrd, I would be interested in the lawyers' arguments about that consideration.

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    1. Mike, except for the two or three guys breaking the glass door panes, Byrd would have seen no “aggressive, rioting mob” on the landing outside. I didn’t either. Just a bunch of guys standing around. And CP officers. Armed officers. And one CP plain clothes who was one of the first to come to Ashli’s aid as he’d been standing close by.

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    2. That's a point I make, above--re his lawyers: Surely Byrd had one or more lawyers; what could they be thinking in letting him go public and say the things he did? "An aggressive, rioting mob" implies that people's lives were at risk--yet that appears not to have been the case at all. Also, given his rank as Lt., why wasn't Byrd organizing some response at the door instead of popping out of hiding and killing a girl on the other side of a barrier? Police don't simply gun down people, even when rioting. The basic principle--immanent death/bodily harm--remains operative.

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    3. I basically agree with the two comments above, from Bebe and Mark.

      I do not say that Byrd's actions were optimal. On the contrary, I always have said that he should have walked out into the corridor with his gun drawn and confronted the protesters face-to-face.

      However, his less-than-optimal actions might not be criminal.

      I'm just saying that right now, knowing what I know right now, I think I probably would vote to acquit him.

      -----

      In the past, I've said also that maybe Byrd should have fired a warning shot. However, now I realize that might have been too reckless. A warning shot might have hit someone accidentally.

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    4. "Warning shots" While I can't find if the US Capitol police are permitted to use "warning shots", their use is controversial and often banned by LE agencies. Cranking off a round in a corridor where the bullet could ricochet out of control is widely recognized as a bad idea.

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    5. Until I'm shown a single LE agency which allows warning shots, I'll bet ranch that their use is always banned by all LE agencies.
      For starters, think about the vivid impact upon LEOs at a (crime?) scene, when they first hear a gunshot.

      Likewise, with deadly force "when a police officer is dealing with an aggressive, rioting mob."
      The legal considerations about deadly force in riots were not one scintilla different (from a normal street situation), when I was taking a "riot control" course in a major PD academy.
      The main point of such a course was to show, how strategic thinking had changed from the time of the riots of the 60s, e.g. when the CPD trapped the slew of Lefties into a brawl, instead of trying to steer them away (ideally into smaller groups) from where the Wheels (e.g. Dem delegates) were hanging.

      So again, I'll bet ranch, that there's *nothing* different now, about Use of Force doctrine in riot situations, than in post-1960s decades.
      This is starting to really seem lame, except that I'll bet most "educated" people, incl. the MSM, are so pathetically ignorant of such basic stuff, tho they've been screaming into our ears for over a year now, about "excessive force", w/o bothering to do a scintilla of homework about it.
      Guys like Turley may as well be talking to schools of fish, as to the MSM etc.

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  12. Captain Hate at 8:08 PM
    Babbitt didn't do any violent acts but she was surrounded by people who broke windows and set her up. Why didn't your hero Byrd shoot them instead of just her?

    Chauvin didn't shoot anybody. That seems to elude you as you're trying to compare Byrd to him.


    Babbitt was the only person who actually was moving through the portal.

    I mentioned the Chauvin case because I do not agree with Black Lives Matter doctrine that police must allow anyone to do anything. I think that the police should be allowed to use force -- sometimes including deadly force -- to deal with people who are violently non-compliant.

    Furthermore, I think that the police must deal with mobs more forcefully than they deal with individuals.

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    1. Mike, one more time. She was NOT moving through the portal. No thinking person would go through a sharp broken hole in the top of a tall glass pane with the remaining sharp glass shard still fixed in the lower part of the pane. Her nose might have been through it. She was not climbing through that dangerous hole. Early on, one witness on the scene said she had wanted to get up high so that she could take a picture with her cell phone.

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    2. one witness on the scene said she had wanted to get up high so that she could take a picture with her cell phone.

      Maybe that is all she was trying to do.

      I would like to know whether she told anyone her intention.

      In any case, Byrd apparently thought she was going through the window into the corridor. From Byrd's perspective, that perception was reasonable.

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    3. How would I have known about the cell phone story if a witness had not told it. As I recall he was dressed in blue, but I might have remembered his clothing incorrectly.

      How do you know what Byrd was thinking? Tell us: Is that what you’d have done? Are you running through this and projecting and thus self-protecting?

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    4. How would I have known about the cell phone story if a witness had not told it.

      Lots of people say lots of things.

      Yes, maybe Babbitt just wanted to take a photo with her cell phone. And maybe not.

      All I know about the cell-phone explanation is what you wrote here.

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  13. mudpuppy at 8:26 AM
    So you would vote to acquit a cop who shot someone you admit is not seen doing any violent acts ... How many people not doing any violent acts would he have been allowed to shoot if the crowd didn't stop?

    I think the jurors in a trial of Byrd would be told to decide whether Byrd acted reasonably at that moment in that situation.

    Byrd's knowledge at that moment was limited. He did not know whether the rioters were armed. He did not know what Babbitt intended to do. He did not know how many people would invade the House Chamber and what they would do there. And so forth and so on.

    He perceived that Babbitt was part of a violent mob that was breaking through a locked and barricaded portal and that they were close to the House Chamber.

    In fact, Byrd's shooting of Babbitt did end the mob's violent attack on the portal.

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    1. The juror's would also be instructed that "reasonability" in that context is governed by whether a reasonable police officer believed he was in imminent danger of death/great bodily harm. There are standard "model" jury instructions for all situations and "hey, seems reasonable to me" isn't one of them.

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    2. ... whether a reasonable police officer believed he was in imminent danger of death/great bodily harm.

      This situation was very unusual.

      He was (I think) a Capitol guard whose special job was to protect the Capitol Building -- in particular, the House Chamber.

      And it was reasonable for him to perceive that a mob (possibly armed) was breaking through a locked and blockaded portal, from where the could invade the House Chamber within the next minute.

      And Babbitt seemed to be the mob's first person passing through the portal.

      And at a Byrd trial, all his supervisors surely would testify that Byrd acted correctly in the situation, in accordance with all the regulations and instructions.

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    3. a Capitol guard whose special job was to protect the Capitol Building -- in particular, the House Chamber.a Capitol guard whose special job was to protect the Capitol Building -- in particular, the House Chamber.

      This is not true. He was not charged with guarding a building against humans. According to Wikipedia, "The USCP protects House and Senate leaders, other Congresspeople depending on individual risk analysis, lawmakers' state and district offices (with the help of local police), and "off-campus" events like presidential nominating conventions."

      No doubt, like other police they also protect against property damage, but the same rules--property v. human life--apply. No property--not even the US Capitol--takes precedence over human life. Direct killing of a human being is not allowed unless other lives are endangered.

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    4. When I said his job was to protect the Capitol building, I did not mean just the structure. I meant also the people inside the building.

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    5. Your previous words suggested quite clearly that the USCP's "special" duty is somehow different than the usual LE agency duty. It's not, and you should make your words clear, because every word matters in legal contexts.

      "whose special job was to protect the Capitol Building -- in particular, the House Chamber."

      It's clear that you were attempting to build a rationale around the idea of protecting property, and that this property was somehow different than other property when it comes to the deliberate taking of a human life. Even now you say "also the people" and "not just the structure." You should be saying "Primarily the people and secondarily--and within reasonable bounds--the structure."

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    6. Yeah, Byrd did not know whether the rioters were armed.
      And, in routine traffic stops, no LEOs *know* whether the blowers of stop signs etc. are armed.
      By your lights, are (somewhere near half of) blowers of stop signs evidently fair game for (trigger-happy) LEOs, if the LEO speculates that the driver or his pals *may* be armed?
      Mark's point stands, w/ added emphasis:
      Direct killing of a human being is not allowed, unless other lives are *immanently* endangered.

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    7. It's clear that you were attempting to build a rationale around the idea of protecting property, and that this property was somehow different than other property when it comes to the deliberate taking of a human life.

      You are wrong about what I was attempting to communicate.


      And then when I clarify for you what I was attempting to communicate, you reject it.

      I suggest that you accept what I tell you about my own meaning. That makes a better discussion.

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    8. "accept what I tell you about my own meaning"

      I accepted what you said at the beginning, and then you claimed you meant something different than what you said. That doesn't make for a good discussion.

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  14. Bebe at 10:15 PM
    Her climbing through or attempting to climb through did not happen. That is a media construct that has been latched onto by some. She didn’t do it. She was still on the hallway side of the door when Byrd’s bullet hit her from a very short distance away and she pitched backward all the way to the floor from the man’s upper back.

    On the videos I watched, it's hard to see for sure what Babbitt was doing. My guess is that she was about to jump down into the empty corridor, where she intended to move some of the furniture blockade and unlock the doors.

    I always have said that Byrd should have walked out into the empty corridor with his gun drawn and encountered the protesters face-to-face. That action alone might have stopped the violent attack on the portal and caused Babbitt to back down.

    Also, Byrd could have seen the situation better.

    I think that the legal issue is not whether me might have acted better. Rather, the issue is whether he acted reasonably.

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  15. Bebe at 10:20
    It would have been tough for the relatively few men in that small lobby area to break those sturdy old doors down.

    When I watch the Jayden X video, I perceive that they indeed where breaking through the doors.

    Byrd could see that the doors would be broken through in just a few more seconds.

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  16. Bebe at 10:38 PM
    Wooz News? Isn’t that the comedian who takes real news footage and develops his own dramatic counter-narrative videos? His videos aren’t actual news reports but reworked, manipulated news video clips.

    The guy who did the Wooz News video does not consider it to be a joke. The video depicts his real opinion about the event.

    Listen to a radio interview of him about his video

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    1. “…his real opinion…”. One comedian’s “real opinion” is compelling? His “real opinion” that Ashli Babbitt was not really murdered but that it was all faked with a belt around her middle full of fake blood”? We’re supposed to believe it? If this is truly his “real opinion” he is so far off the rails he may never find his way back… I cannot believe that any thinking person would swallow his “real opinion” whole…

      I know what I saw. And even you had to finally admit that Ashli was dead. Now her killer says, yes, I shot her.

      I won’t go down the rabbit hole with Wooz and you.

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    2. @bebe, just wondering where the fbi op stopped and the genuine violent mob started? No need to cover the whole incident let's just take the speaker's lobby there, let's go person by person, shall we? Let's start with Jayden himself, our putative videographer? What the hell Is Jayden doing there at the front of this so-described (politically conveniently) Trump-supporting violent mob? Mark A

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  17. Byrd mentioned receiving numerous death threats after the shooting...how could this be no one knew his identity until he outed himself?

    Makes me question his entire story.

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    1. His story is a construct, put together far after the fact. His lying was obvious in his demeanor … He knows what he did. He knows he jumped slick when he got away with leaving his loaded weapon in the Capitol men’s room - even bragged that he escaped that one because of his high position. He is trying to do the same thing now. Believes that so far it has worked. But it’s not over.

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  18. A wise friend once advised “in some discussions, at some point, it’s just as well to let the puppy have the sock”...

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    1. chomp, chomp, chomp, yip! yip! you want to know what else seems strange to me (there's a list of 100 things but this one will do)? And I didn't even get the idea from that comedian Wooz, I actually made the observation all by myself. The cause of death for Ms. Babbitt was given as "Gunshot wound to the left anterior shoulder". Now, that's just me doing internet research , so really, only the information that Google will allow me to see, still, they haven't labeled it misinformation so , I'm guessing that is the official line. Did a little more research (typed can you die from a gunshot wound to the anterior shoulder) and found several thoughtful articles , none from a strictly medical perspective but one that had actual data it was providing information for novelists who might be interested in using a gunshot wound to the shoulder as a non-fatal option for a gunshot wound-- of the 79 reported gunshot wounds to the shoulder (any part) in 2011, 3 of the victims died. Quick math, that's like 3.7% chance of dying. So that's kind of odd don't you think, that she would die from a gunshot wound to her shoulder? Must have had some contributing factors but nobody seems eager to go into any detail. But that's the Medical Examiner's statement. So Ms Babbit is shot by Mr. Byrd in the left shoulder, she falls back and holds both arms in an oddly paralyzed manner, doesn't grab the wounded shoulder with the other arm or point to the wound with the right arm or anything. so maybe the round ricocheted off a bone in the shoulder and clipped a sninal nerve somehow? Or she's in shock? Then she starts bleeding, kind of, from the mouth and nose -- after a gunshot wound to the anterior shoulder> How does that work? any doctors? hmmmmm. And then nobody trying to help her removes ANY clothing to try to get to the wound IN HER LEFT ANTERIOR SHOULDER. LE types don't have any training on first responder? don't want to see where the bullet entered to find out what is going on, maybe stop the bleeding? And why couldn't she stand? hmmmmm.... Mark A

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    2. My interest is mostly in the legal issues.

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