Regarding the shooting of Ashli Babbitt

Jonathan Turley, a liberal law professor and criminal defense lawyer, became a hero to some conservatives by virtue of his well-argued articles opposing both impeachments of Donald Trump. In Turley’s latest piece, he comes down hard on Michael Byrd, the police officer who shot and killed Ashli Babbitt on January 6.

I don’t think Turley makes much of a case that Byrd’s actions were unjustified. He starts off on the wrong foot when he writes:

[Babbitt] clearly engaged in criminal conduct that day by entering Capitol and disobeying police commands. The question, however, has been why this unarmed trespasser deserved to die.

(Emphasis added)

That may be the question you present to a jury if you’re representing Babbitt’s estate in a wrongful death suit. But it certainly is not the question if you’re trying to present a fair-minded analysis of Byrd’s actions.

The real question, as Turley has noted elsewhere, is whether the officer had reason to believe his action was objectively reasonable to protect himself or others from the imminent threat of death or serious physical harm.

Turley’s arguments either avoid this question or address it only superficially. For example, Turley notes 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. This has nothing to do with the merits of the Babbitt shooting.

He points to a report that Byrd said his rank would protect him in the investigation of the shooting. Even if Byrd actually said this, it’s hardly an admission of guilt. Cops being investigated for shootings these days can use protection against being railroaded.

Turley emphasizes that Babbitt was unarmed. Byrd says he didn’t know whether she was armed or not. Turley treats this admission as a game changer.

Whether Babbitt was armed is relevant to an inquiry into the shooting, as is Byrd’s belief in this regard. But these facts are hardly dispositive.

As the left likes to point out, American police officers shoot dozens of unarmed criminals and suspects every year. In many of these cases, the shooting is deemed justified because the officer had reason to believe the use of such force was objectively reasonable for protection from death or serious injury.

In Byrd’s case, it appears he had reason to believe that shooting Babbitt, whom he had ordered to halt, was required to stop a mob she was leading. That mob was headed towards him and those he was charged with protecting with the likely intent of inflicting physical harm.

Even if Babbitt was unarmed, as turned out to be the case, the mob she was leading was capable of inflicting such harm. In fact, other unarmed rioters had already battered people during the rioting, as Turley acknowledges.

Turley barely addresses Byrd’s specific claim about the need to use lethal force. He does note in passing that other officers were in the vicinity. But Byrd wasn’t required to wait for others to act.

If Turley is saying Byrd should have waited to see what others would do, this amounts to the kind of coulda-woulda-shoulda argument the left routinely makes when an officer kills a Black. As Turley explained in an article about the “difficult realities of useful force,” in such cases “there often seems to be endless opportunities for de-escalation or alternatives to lethal force.” Officers, though, “work in a violent, unpredictable environment that few of us ever experience [and] these scenes are adrenaline-driven, chaotic moments that often allow few seconds for critical decisions.”

Perhaps realizing the limits of second-guessing in these cases, Turley compares Byrd’s action to those of other officers who were on hand at the Capitol during the rioting. He writes:

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.

But those who were attacked by rioters armed with clubs or other objects would likely have been justified in using lethal force. And Byrd’s situation was special because, in his account, he was standing between rioters, who were ignoring his commands and breaking into the Speaker’s lobby, and members of Congress whom Byrd was obligated to protect.

Turley claims that under the standard by which Byrd was cleared, “hundreds of rioters could have been gunned down on Jan. 6.” But Turley doesn’t even try to show that hundreds of rioters posed an imminent threat to officers, members of Congress, and staffers, as Babbitt did.

Consider the portion of the mob that was with Babbitt as she climbed through the window of the door to the Speaker’s lobby. It halted when Byrd shot Babbitt, exactly the effect Byrd intended to achieve. If Byrd had then shot other members of that mob, he would have done so without justification. The same would be true if Babbitt had complied with Byrd’s command and he had shot her anyway.

Byrd didn’t shoot any rioter other than Babbitt. Thus, Turley’s suggestion that the officer treated the rioting as “a license for the use of lethal force, particularly against unarmed suspects” seems unfair. So does the notion that by clearing Byrd, the authorities have given officers the green light to shoot rioters indiscriminately.

Byrd shot the one lawbreaker whom he reasonably believed had to be stopped to prevent physical harm to others, but who had refused to stop after being repeatedly ordered to.

In writing this post, I’m using the facts as Byrd describes them. If the facts are different, my conclusion might be different. But Turley doesn’t dispute Byrd’s facts.

To me, the most striking thing about the debate over police shootings is the degree to which views are driven by the political affiliation, race, or other irrelevant attribute of the victim. I think Billy Binion at Reason, whose views on policing probably differ significantly from mine, is onto something when he writes:

Most topics in the U.S. receive media coverage polarized along partisan lines, although police and police abuse tend to push that trend to the limit. To many on the left, it seems the police are always the villains; to the right, they are almost always heroes—until January 6, when everyone switched places.

I’m not saying that Turley has “switched places,” but I believe a lot of people have.

Notice: All comments are subject to moderation. Our comments are intended to be a forum for civil discourse bearing on the subject under discussion. Commenters who stray beyond the bounds of civility or employ what we deem gratuitous vulgarity in a comment — including, but not limited to, “s***,” “f***,” “a*******,” or one of their many variants — will be banned without further notice in the sole discretion of the site moderator.