Babbitt”, with the following words:

I am haunted by the murder of Ashli Babbitt, an unarmed Air Force veteran who was almost certainly one of the very few citizens in America history to be executed for trespassing- even in the “hallowed” halls of our National Capitol, already soiled and profaned by the corruption which sluices through its spaces like the sewage it is.

In the intervening months, there have been a number of developments which have been even more haunting and, to say the very least, troubling, not least of which the shooter finally came out from under the protective shroud which had been placed over him by the “leadership” in Congress, i.e., Her Royal Highness Speaker Pelosi, and the Capitol Police, to appear on national television in an attempt, abortive in my humble opinion, to defend his action in fatally shooting at point blank range a small, 110 pound, unarmed, 14 year female veteran of the United States Air Force.

After Lt. Michael Byrd made his appearance, which to me as a former trial lawyer seemed to be a lawyer’s nightmare in view of some of the critical admissions he made, a variety of opinions were expressed as to whether his use of excessive force – the most excessive force imaginable, one must also observe – was or could be justified. Based on my prior writing, to which I refer by reference, as I thought then, and feel even more strongly now, that there were no justifications whatsoever for this police officer to kill a person who was, at most, a trespasser.

However, what prompts me to record these additional observations was an appearance on the October 19, 2021 show, Tucker Carlson Tonight, by Congressman Troy Nehls of Texas. This gentleman was present in the House Chamber at the time Ashli Babbitt was shot and was a County Sheriff in Texas for 8 years and in law enforcement in various capacities for 30 years. As he noted in the interview, he has had extensive experience with use of force issues— he said he had Deputy Sheriffs who had shot and killed people and Deputies who had been shot themselves. Importantly, from the standpoint of the January 6 “First Amendment protest” (not his words nor mine, but those used by the DC Medical Examiner in his report finding that Ashli Babbitt died as a result of “homicide”) he was one of the five Republican designees appointed by Leader McCarthy to be on the purely objective, non-partisan, “only the facts, Ma’am” Jan 6 Committee which was scotched by Speaker Pelosi when it started showing signs of actually being those things. He said after that appointment, pursuant to the role he expected to play on the committee, he spent untold hours going through documents pertaining to the Jan 6 protest. He said one of his first impressions was that it should have never happened, in the first place, as the Capitol Police had all the intelligence it needed to know that extra security forces would be needed for what clearly should have been expected. Then, he said he had talked to law enforcement officers all over the country and every single one of them thought there was no justification whatsoever for the excessive use of force used by Lt. Byrd in shooting Ashli Babbitt. He then followed with this forceful and emphatic statement:

“It was murder.”

As a cautionary note, in view of the strong opinions held by those on all sides of this issue, I have made a good-faith effort to quote Rep. Nehls as closely as possible but have been unable to locate an actual transcript of his remarks on the show. However, for those who wish to check it out, the entire interview is accessible on foxnation.com, a subscription service, under the “Primetime” tab.

For another viewpoint it is helpful to consult the observations of Prof. Jonathan Turley of George Washington University in an article entitled “Justified Shooting or Fair Game?”, which can be accessed here. In doing so, it should be noted that Prof. Turley, while fairly consistently a neutral and very learned commentator, is certainly no member of the right or supporter of President Trump, which makes his comments all the more valuable on this issue. Critically reviewing the actions of the shooter, he said:

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.

Then, he examines the logical implications which could —should— follow from the mindset which excused Lt. Byrd from any criminal charge whatsoever, implications, as Prof. Turley, observes, have been steadfastly avoided in most “enlightened” circles:

Legal experts and the media have avoided the obvious implications of the two reviewsin 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. In all of those protests, a small number of activists from both political extremes showed up prepared for violence and pushed others to riot. 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.

In his conclusion, Prof. Turley illustrates the fairness of his examination of this killing by noting his revulsion of the January 6 protest but also his dismay at this bizarre outcome in refusing to charge Lt. Byrd:

In the Babbitt shooting, the different treatment seems driven more by the identity of the person shot than the shooter. Babbitt is considered by many to be fair game because she was labeled an “insurrectionist.” To describe her shooting as unjustified would be to invite accusations of supporting sedition or insurrection. Thus, it is not enough to condemn her actions (as most of us have done); you must not question her killing.

Like many, I condemned the Jan. 6 riot (along with those who fueled the unhinged anger that led to the violence) as the desecration of our Capitol and our constitutional process. But that doesn’t mean rioting should be treated as a license for the use oflethal force, particularly against unarmed suspects. The “job” of officers, to which Byrd referred, often demands a courage and restraint that few of us could muster. As shown by every other officer that day, it is a job that is often defined by abstinence from rather than application of lethal force. It was the rest of the force who refrained from using lethal force, despite being attacked, that were the extraordinary embodiments of the principles governing their profession.

In an attempt to be “fair and balanced” I did a search for analyses defending Lt. Byrd’s action in killing Ashli Babbitt and one of the most extensively researched articles I found appeared at lawfareblog.com under the title “Evaluating the Police Shooting of Ashli Babbitt”; it can be accessed here.

The authors, who represent themselves to have extensive law enforcement experience in use of force issues, lay out a very thorough analysis of the main test which is to be used in determining the propriety of use of lethal force as laid out in the leading Supreme Court cases of Graham v. Connor and Tennessee v. Garner:

Drawing from common law, the policing community has defined a threat as “imminent” when someone has the ability, opportunity and intention to cause the specific harm at issue (here, death or serious physical injury). “Ability” refers to the person’s capacity to cause the identified harm and requires asking whether the person is physically capable, at the time, of inflicting the harm. For example, a person holding a knife can use it as a weapon, so the individual has the ability to cause serious injuries or death. “Opportunity” refers to the subject’s proximity to a potential target and requires asking whether anyone is vulnerable, at the time, to the specific harm. For example, a person with a knife who is standing immediately next to an officer has both the ability and the opportunity to attack the officer with it, while an individual with a knife who is 50 feet away has the ability, but not the opportunity, to do so. “Intent” refers to the person’s apparent desire to cause the identified harm and requires asking whether the person wants, at the time, to cause the harm. For example, a person who is physically close to an officer while cutting cucumbers with a knife in the kitchen might have the ability and opportunity, but not the intention, to cause death or serious physical injury.

They then conclude:

So, considering these three factors, could a reasonable officer in Byrd’s position have believed that Babbitt had the ability, opportunity, and intention to kill or seriously injure someone? Based on the limited information currently available, we have serious reservations about whether that question can be answered in the affirmative, especially with regard to “ability” and “opportunity.”

That conclusion fits like a glove (shades of OJ) with the view of many who have devoted time and work to trying to make sense of the action of the Department of [In]Justice deciding to let the killer skate. However, the authors then proceed to a quite creative argument claiming that, in this particular instance, the Courts should not follow settled law but apply some kind of ready-made exception designed for this case and this case only. For the complete treatment of this “new” law, I refer you to the full article, but here is their conclusion:

The invasion of the U.S. Capitol by a mob of insurrectionists—hundreds of whom have been criminally charged—shocked the nation and the world. Although we must wait for the results of a comprehensive investigation before coming to any definitive conclusions, the Capitol Police may have been handicapped by failures in intelligence-gathering, in risk assessment, in planning, and in implementation. There is no doubt that many—too many—Capitol officers went “to hell and back,” as Officer Michael Farone described in his testimony.

The politics of the situation have, unfortunately, colored the public response. And they have done so in an unusual way. With some notable exceptions, Republicans have downplayed the severity of the threat, and Democrats have defended the police actions. That is particularly true with regard to the shooting of Ashli Babbitt.

In this post, we attempted to bring a balanced perspective to the shooting, applying the now-familiar constitutional standard that regulates the use of deadly force. The limited public information that exists raises serious questions about the propriety of Byrd’s decision to shoot, especially with regard to the assessment that Babbitt was an imminent threat. To belabor the obvious, though, we cannot definitively analyze a situation without the relevant facts, and there is a frustrating shortage of facts. But there are enough facts to conclude that even if Byrd violated Babbitt’s Fourth Amendment rights, it is highly unlikely that he could be ethically charged with, let alone convicted of, a crime.

Those conclusions, tentative as they are, assume that courts will apply the legal rules that usually apply to police shootings. Given the unique context present here, though, we would not be surprised if that turned out not to be the case.

As alluded to in the title of this post, Tucker Carlson announced yesterday his series on Fox Nation will commence a three-part series Monday, November 1, 2021, “Patriot Purge”, which will attempt a detailed dissection of what actually happened on January 6, as opposed to the official narrative – which, as many of us know, simply cannot be questioned under any circumstances— and the mere announcement of its airing in the future has caused many on the left, in the media and perhaps more than others, in the weird world of the Never Trumpers like Liz Cheney, to have the vapors. Julie Kelly, investigative reporter with American Greatness.com, who has become the most effective and knowledgeable reporter on the January 6 protest and its aftermath, just published a piece illustrating this hysteria in “The Freak-Out Over Tucker’s January 6 Documentary Begins”, here. Her article contains some truly hilarious examples of prominent people going ballistic over a series they cannot possibly have any conceivable notion of what is in it and, while I commend the entire piece to your review, here is just one of them:

Philip Bump, a national correspondent for the Washington Post, immediately banged out a 1,200-word diatribe about a film he has never watched. Carlson made the movie, Bump concluded, to “prove he’s not a white nationalist,” whatever that’s supposed to mean.

Bump ironically condemns the unseen documentary as an “angry muddle” while making his own angry muddle against Carlson, Fox News, January 6 protesters and a few people highlighted in the trailer, including Revolver’s Darren Beattie, the man who blew the lid off possible FBI involvement in the chaos.

“Carlson wants to elevate the idea—the surreal idea, the deranged idea—that the riot at the Capitol on Jan. 6 was fomented in whole or in part by the government so that it could crack down on the political right,” Bump sneered.

I can only note that in my humble opinion, sneering is what the members of the far-left, of which the Washington Post is the official press outlet, do the best and which seems to be their answer to most issues confronting the Nation today.

Wrapping up, I have just viewed a one hour video interview of Julie Kelly by D’Nesh D’Souza covering many of the issues raised by the January 6 protest, the shooting of Ashli Babbitt and the abhorrent way the government is treating the defendants, some of whom did not even physically enter the building that day. It can be accessed here, and I cannot recommend it too highly for those who really want the full story-at least until Monday!

God Bless America!