Andrew Branca Is Wrong, The Ashli Babbit Shooting Was Not Legally Justified

When I started my Federal law enforcement career back in the good old days when U.S. Marines, the California National Guard, Border Patrol Agents (BPA) and a variety of Federal, State, and local law enforcement officers were shooting looters and rioters. Some of you will recall those days, the notorious Rodney King riots where blacks went on a multiple day rampage which did not subside until law enforcement started shooting. Such was also the story of the riots in Detroit, Oakland, Baltimore, Los Angeles, or anywhere else during the various riots of the 60s.

Andrew F. Branca, Crusading Attorney

Sadly, I was not allowed to participate in the ruthless coercion that stopped the Rodney King riots, as I was at the Federal Law Enforcement Training Center (FLETC), Glynco, GA, at the time. Other than the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA), or the Postal Inspection Service (PIS), FLETC is where most Federal, as well as many State, local, and international law enforcement officers (LEO), are trained, including the U.S. Capitol Police (USCP). Back then it presented itself as the “Center of Excellence” though, frankly, I thought the training was not current. Hell, everyone was still being trained on revolvers in 1992. But importantly, it trained LEOs to not only Constitutional standards, but the standards imposed by the Attorney General on all Federal LEOs whether they be BPAs, Bureau of Prisons guards, Immigration officers, Customs officers, Secret Service Special Agents, Forest Rangers, or the Central Intelligence Agency Police. Yes, the CIA does have a police force, but it is not what you think, it is their security guards, much like the security guards at the U.S. Capitol are a “police” agency. All door shakers that are at the bottom of the prestige pile of law enforcement. Of note, at that time FLETC was a Department of the Treasury component. But it was the Attorney General and the Department of Justice (DOJ) that determined how laws were enforced at the Federal level, especially in the area of the use of deadly force by Federal LEOs in the execution of their duties.

I mention that I was in training at the time of the open season on rioters and looters is because during breaks in classroom instruction, students and instructors would congregate in the miniature cafeteria cum breakroom where there was a contractor selling snacks and beverages, as well as a television. Of course, the television was tuned to the riots, and we, the students, were all cheering on the Roof Top Koreans shooting at looters and rioters. However, on the instructors, not a firearms or use-of-force instructors, but a driving instructor, boldly stated that the shooting of looters, by Koreans or cops, was not legally justified. That is pretty much all he said, but it stuck with me, not as a matter of legal minutia, but as a matter of the very existence of the state and society. No government or society can survive anarchy, rioting in the streets, and looting on a grand scale.

See the source image
Bullets And Bayonets, How To End Riots Detroit 1967

The usual reaction up until 1992 and during 1992 was that at a certain point the gloves come off, and everyone in the streets is a legitimate target. Which was what occurred during the Detroit riots when the National Guard went in and shot the rioters down, just as what happened in the City of Angels in 1992. In fact the situation was so bad that President Bush (the better one) invoked the Insurrection Act to send in the Marines. Well, lots of looting and rioting blacks and illegal aliens were shot and the riots ended with a whimper. None of the shootings by LEOs, the National Guard, or the Marines was investigated. And few rioters were prosecuted. Some illegals were deported, but for all the violence there were few prosecutions and no investigations of the cops who shot. The riots lasted over several days and the rioters were armed and shooting back. But, basically after the riots, it was olly, olly, oxen free, except for Damian “Football” Williams, for both sides.

This is quite unlike what happened on January 6th, 2021 when a mostly peaceful group of protestors entered the Capitol Building to protest the fraudulent election of Joe Biden. Most protestors were allowed into the building and behaved with decorum. However, since then the protest was likened to an insurrection, though no one has been charged with that, most of those arrested have been charged with minor misdemeanors, with many pleading guilty and receiving little or no time, as any first offense of most Federal crimes carry little or no time in prison. However, there was some minor violence and some broken windows.

However, as the left likes to say, there is no death sentence for trespassing. One must recall though that there has been only one death of a rioter, looter, or protestor at the hands of police resisting riots since the George Floyd riots kicked off, that was Babbitt. And note that even when terrorists from Antifa were using firebombs, rocks, spears, pepper spray, and other deadly weapons against Federal, State, and local law enforcement, notably in Portland, Washington, DC, Seattle, Oakland, and other cities, not one has been shot. Why, because current riot control policy used throughout the nation does not allow for shooting looters and rioters, including policy from the DOJ!

But the discerning reader will say, but what about Roof Top Koreans and the LA riots? Well, that was then, this is now. For the record, I will agree that rioters certainly meet the criterion for the use of deadly force, especially as we saw in Detroit in the 60s and LA in the 90s. It meets the constitutional standard as I have described before and will address later. Shooting looters is perhaps more problematic, as looters are just trying to get a big screen TV or diapers, but at a certain point a group of looters is indistinguishable from a group of rioters, and, in fact, they are one and the same for all practical purposes. Sometimes the state or an individual just has to kill someone to preserve order. In the case of riots that is true. Not protests, but when protests become a threat to the life of an individual or a threat to property, they get the bullet or the bayonet, if tear gas, batons, and rubber bullets don’t work, or obviously cannot work.

That is no longer the rule. Recent events have ended that response option, even for individuals attacked by armed rioters. Just ask the man attacked by a mob at home in Milwaukee, Mark and Patricia McCloskey, and Daniel Perry. All were attacked by armed BLM and Antifa terrorist rioters, but arrested for acting in self-defense. There is no longer any legal authority to shoot a rioter, even one armed with an AK-47.

Now, Ashli Babbitt and her murder. The standard for law enforcement use of deadly force is that the object of that use of force must be exercising a threat of death or serious physical injury to the officer or others as determined by the Supreme Court in Tennessee v. Garner. There are exceptions, such as those attempting to enter certain government property that contains weapons, including nuclear weapons, but this exception does not apply to the Capitol. The DOJ has furthermore codified Garner in regulation which is binding on all Federal employees. In determining if a Federal LEO has violated the civil rights of a person he or she has used deadly force against, the standard is simple: was the use of force reasonable in the situation to resist a threat of death or great physical injury. The objective facts of the situation are used, not hindsight, but what the officer knew, and were his actions in compliance with agency training and policy. An agency may restrict the use of force to standards stronger than the Constitutional standard. Most follow DOJ policy, with some components authorized different standards to protect information that if lost would result in damage to the national security, threat of loss or damage to weapons, or military readiness. Simple rule here is don’t try and get in a nuclear weapons storage area or a nuclear powered vessel. As an aside, I was a contract security guard for the Navy on a nuclear vessel while attending graduate school and we were specifically instructed to shoot anyone who attempted to breach the entrances to the vessel without authorization. But, again, this is not policy on the Capitol Building. There is no “red line” that one can cross and get shot. That is not to say that there are not other theoretical red lines when LEOs can decide upon when in a deadly force situation. For instance, there is an unofficial but widely used 21 foot rule for LEOs when facing an attacker with a knife; 21 feet then becomes a red line, the point at which a knife becomes an existential threat as an attacker can cover 21 feet before one can draw a pistol and accurately shoot it at a moving attacker. Attackers can even cover that distance if the officer is aimed in some cases. Now that would not apply if you are Ron Horiuchi, but it would if a person with a knife is within 21 feet of you. But, as we will see, there is no red line for an unarmed and physically unimposing person like Ashli Babbitt. In fact, a LEOs height, stature, build, self-defense skill set, less-than-lethal alternatives (baton, pepper spray, Taser) and strength, as well as that of that of the person he uses deadly force against are taken into account. For the record, Michael Byrd was taller, bigger, and stronger than Ashli Babbitt, and most likely he was carrying less-than-lethal weapons, such as baton, pepper spray, or Taser. All three are issued to USCP officers and supervisors.

Let’s go now to the DOJ policy on deadly force:

I. Permissible Uses. Law enforcement officers and correctional officers of the Department of Justice may use deadly force only when necessary, that is, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.

A. Fleeing felons. Deadly force may be used to prevent the escape of a fleeing subject if there is probable cause to believe: (1) the subject has committed a felony involving the infliction or threatened infliction of serious physical injury or death, and (2) the escape of the subject would pose an imminent danger of death or serious physical injury to the officer or to another person…

C. Prison Unrest. Deadly force may be used to maintain or restore control of a prison or correctional institution when the officer reasonably believes that the intended subject of the deadly force is participating in a disturbance in a manner that threatens the safety of other inmates, prison staff, or other persons. The use of deadly force would be unreasonable and thus not permitted to quell a disturbance when force other than deadly force reasonably appears sufficient.

II. Non-Deadly Force. If other force than deadly force reasonably appears to be sufficient to accomplish an arrest or otherwise accomplish the law enforcement purpose, deadly force is not necessary.

III. Verbal Warning. If feasible and if to do so would not increase the danger to the officer or others, a verbal warning to submit to the authority of the officer shall be given prior to the use of deadly force.

Policy Statement Use Of Deadly Force, Office of the Attorney General, Department of Justice, October 17, 1995

And this is that standard that Lieutenant Michael Byrd was trained to at FLETC and is in the Chapter 10 Code of Federal Regulations (CFR) Section 1047.7. The CFR give us the fun exceptions, like shooting intruders to nuclear weapons depots. In such uses of deadly force, the LEO must comply with Garner, the Attorney General’s policy, and agency policy. The USCP do not have a “red line” policy of once a physical line has been crossed, then deadly force is authorized. Not at all like nuclear weapons depots. USCP policy is that as above. There must be an individualized threat of death or great physical injury to an officer or another for deadly force to be used. That is the legal standard. No other.

Now to Andrew Branca. Branca is well known for his legal work supporting other criminal defense attorneys defending persons accused of using deadly force in self-defense. Note that he does not assist criminals in general murder cases, but only cases of self-defense. I read his blog and listen to his podcasts. He is an excellent defense attorney for such cases, and he did a fantastic job exposing the malicious prosecution of Derek Chauvin. He went off the rails on Ashli Babbitt. His skill set is defending civilian use of force in self-defense, rather than prosecuting Federal LEOs using deadly force in an official capacity, as in the case of Michael Byrd.

I have been the case agent on a number of cases involving the use of deadly force by Federal LEOs, and have had cases prosecuted for criminal misuse of deadly and other force and cleared others of misconduct in the use of deadly force. Branca makes the mistake of assuming that a criminal defense of a civilian acting in self-defense is the same as that of a Federal LEO using deadly force in compliance or not with Garner, policy, and training. Tellingly, Branca does not even mention Garner in his defense of Byrd.

OK, so now we know the key question to be answered in determining whether Byrd’s shooting of Babbitt was legally justified: Is there even a mere reasonable doubt that Lt. Byrd had a genuine and reasonable belief that he was facing an unavoidable, unlawful and imminent threat of death or serious bodily injury to either himself or those he has a duty to protect.

As you might expect, each of the italicized terms in that key question are critical factors in arriving at an answer. Fortunately, there’s a more succinct way of understanding that question so we don’t get too wrapped up in clunky verbiage.

In effect, those italicized critical factors represent the essential five elements of any justified use of force in defense of self or others: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.

Sad but True: Jan. 6 Shooting of Ashli Babbitt was Legally Justified, By Attorney Andrew Branca, Law of Self-Defense Blog, September 1, 2021

And there is the fundamental problem with his analysis, none of those five elements are used in the prosecution of law enforcement officers for unlawful use of deadly force. In prosecution of such cases there are only three things the government must prove; the use of deadly force did not comply with Garner, the officer was trained to Garner standards, and the officer knowingly failed to comply with Garner. Of the above, only imminence and reasonableness are considered, but only in compliance with Garner. The level of force must be in reaction to a reasonable officer’s knowledge of the facts and circumstances at the time of the use of deadly force. In my cases that were prosecuted, the first witnesses we put on the stand were the instructors who taught Garner and the use of deadly force to the involved officer. The next witness, either the previous instructor or an agency representative who testifies that the shooting was out of policy, training, or Garner. None of his above mumbo jumbo about percentages and five elements. The only elements are those of the crime, usually Title 18 United States Code Section 242, Deprivation of Rights Under Color Of Authority.

Branca also makes a notable error in his analysis, that Byrd was alone in defending the glass paned door that Babbitt broke the glass of and was climbing through. It is important to note that all Federal agencies I know train officers on the use of deadly force every quarter of the year, usually that happens concurrently with quarterly firearms qualification. Besides investigating use of force, I was also a firearms instructor, which included training on my agency’s policy on the use of deadly force, DOJ policy, and Garner. I can’t find the USCP policy on the use of deadly force, but I have never heard of an agency that is outside of either 10 CFR or the DOJ policy. If the USCP has a red line policy of authorizing deadly force, it is not in the public realm, and likely does not exist. In fact, there has been chatter in the press about a lack of clear standards for USCP officers on use of deadly force, but no actual facts are quoted from official documents or a USCP statement indicating there is a “red line” at the Capitol. Of course, for all officer, the default is that there must be a credible threat of death or serious bodily injury to oneself or others to use deadly force.

Now, let us look at the actual shooting. Byrd and other officers were behind a locked and barricaded door due to protestors in the building. Officers were on the other side of the door as well. Byrd claims he did not know about those officers, but that is not credible. He was in continuous radio contact with officers throughout the Capitol grounds and claimed he heard about other officers under attack and the officers are clearly visible in video.

Babbitt or another broke one of the windows on the double doors or to the side of the door, and was climbing through. She was in the window of the door at the time she was shot. With one leg through a broken window and most of her body on the other side, she represented no threat of death or great bodily injury to Byrd or others. She was exceptionally vulnerable while in the window, especially to Byrd, who outweighed her, was taller than her, and stronger. Byrd is a big guy, chubby, but big. He and other officers with him could have easily used a lower level of force to make Babbitt comply with orders to stop; empty handed or closed fist strikes, baton strikes, pepper spray, Taser, baton rounds, bean bag rounds, or even grabbing her leg and dragging her through the window, then handcuffing her. The window was the only opening and the doors remained closed. Others in the crowd would have the same problem of climbing through a narrow window to assist her, so there was no real threat from the crowd. This analysis is referred to the totality of the circumstances. There was no threat of death or great bodily injury to anyone.

Branca even makes the error that Byrd was alone.

From Byrd’s perspective, that “threat” would be in the form of the protestors violently breaching the barricaded doors he was guarding. Once the mob of protestors had breached the doors there was no practical means by which a single officer with a handgun could prevent the protestors from flooding further into the building, and presenting a threat to the (presumably mostly unarmed) other people in the building whom the officer had a duty to protect…

In this context, even if the protestors were each and every one entirely unarmed, the sheer disparity of numbers alone would be sufficient to present a threat to the single officer of death or serious bodily injury. No single person can defend themselves successfully against a swarm of a dozen or even half-dozen protestors, even when the defender is armed with a handgun, and even if the protestors themselves are unarmed.

Byrd even admitted that he had no knowledge that Babbitt was armed. Generally, you cannot shoot unarmed assailants, except under unusual circumstances, such as when an officer has been hit in the head with a rock or the assailant has knocked you to the ground and is beating your head on a concrete slab.

So, there we have it, there was no individualized threat of death to Byrd or others. Babbitt when shot was in a uniquely vulnerable position and could have easily been subdued with a lower level of force. Byrd claimed he had a “red line” that he was not going to allow anyone to cross, presuming that anyone who entered, even if unarmed, was a deadly threat to himself or others. That is not, as we say, fact based. Babbitt faced off not only against Byrd, but other officers, and there were not specific, articulable facts that connected her to a deadly threat. The only deadly threat was in Byrd’s imagination. Byrd postulated that anyone could in theory hurt himself or others if they got through the door even if unarmed. However the standard is a reasonable belief based on articulable facts that a person is a deadly threat. Michael Brown was a deadly threat, he was taller, stronger, and heavier than Darren Wilson, Trayvon Martin was a deadly threat to George Zimmerman as he bashed Zimmerman’s head on a concrete slab. Ashli Babbitt was climbing through a window.

Now back to Ashli Babbit; Branca makes much that Babbitt was breaking through a window and states that any reasonable person at home would have shot Babbitt. But in almost all States, that is a lawful use of force, either by statute or de facto, for civilians defending themselves in their home or business.

The analogy here would be to any normal citizen defending against protestors outside their home. As long as the protestors remain outside the home, being patient is probably prudent. Once the protestors have forcibly and unlawfully breached the home, however. the threat against the occupants is clearly imminent.

In the home analogy the four walls of the “castle” are the “red line” which when crossed justifies the use of defensive force. In the instance of the Capitol shooting, the barricaded doors Byrd was defending constitute that red line.

In Texas, you can shoot someone breaking into your car or into your neighbor’s home, but Garner does not apply to that or any other non-LEOs. The DOJ can’t come after you for shooting a burglar breaking into your house, though in some States you have a duty to retreat before using deadly force.

But you cannot be shot for breaking into a Federal building. If you could, there would be a lot of dead Antifa in Portland. But there aren’t, it is now against Federal policy to shoot rioters, even those throwing Molotov cocktails at officers at Federal buildings.

Here we see Branca’s ultimate failure, he separates the law from politics. As Aristotle said, politics is what separates man from animals. Everything humans do is political in some way, especially when the law is concerned.

Before we dive into this, I’m obliged to caution all of you in the Law of Self Defense community: a proper legal analysis must be limited to the actual relevant evidence and the actual law and must exclude every other factor, because every other factor is by definition irrelevant to the legal analysis.

That includes excluding factors such political opinions and biases, and it includes excluding such sentiments as “but if the other guys had done it!!!!”

Political beliefs and sentiments are perfectly legitimate in any society, and many of us hold our beliefs strongly. That’s as true of me as anyone else. But if we blend politics into our legal analysis, we end up with a very poor, and likely wrong, legal analysis.

This is Branca’s quaint, but fatal error, that something like the shooting of Ashli Babbitt and the decision not to prosecute was anything other than a political decision. Well, who runs the Department of Justice? A highly political Attorney General who’s decisions are uniquely political; radical leftist Merrick Garland. Who runs the Civil Rights Division of the DOJ? Well, a highly political and anti-White racist, Kristen Clarke. Branca imagines the law to be something out of A Man For All Seasons with himself as Sir Thomas More. That’s fine in theory, but absurd in real life.

Branca should check to see when was the last time that a black LEO was prosecuted for unlawfully killing a White. That is almost as rare as hen’s teeth. More common is that CRD only prosecutes White officers. With Mohammed Noor back in the news, will the CRD be prosecuting him for killing Justine Damond? Of course not, and because Noor is black. That is the same reason that Byrd was not prosecuted. Even famous liberal attorney Jonathan Turley said that the shooting was bad and the CRD decision defenseless.

Here is the another video of the shooting. Byrd is clearly looking to shoot Babbitt (start at 0:17) and even takes a step towards her. (Video also on Branca’s blog.) That is not something Federal LEOs are trained to do. When I went though initial training in combat marksmanship, LEOs were instructed to take a Field Interrogation Stance, which for shooters is similar to the Isosceles Stance, but with the strong side foot slightly to rear, knees slightly bent. This was a solid foundation for successful rounds on target. Further along my career and as an instructor, we instructed on movement as well, but either to one side or to the rear. Forward movement was almost never advised except in a tactical advance on a downed subject or in a search for a subject, and that was the heel-toe movement, not lurching forward. It is clear Byrd wants a kill and decided that Babbitt would die. He later claim in his published interview that he was not going to let her cross a red line, which was really his decision to get a notch for his gun. Nothing else explains shooting an woman who represented no threat of death or serious physical injury.

One should also observe that no other officers fired at Babbitt or other protesters in that particular incident. There were half a dozen officers on the other side of the door just before Byrd shot Babbitt. Byrd claims he did not see them, but those were in plain view, only ten feet or less away from Byrd’s position to the left of the doorway. There were other officers on the side of the door with Byrd, but they did not shoot either. Very telling for an experienced investigator.

Now, just because only one officer in a group shoots and others don’t, that does not make the shooting bad; other officers may not have a clear shot, might not have seen what one officer saw who shot, or had innocents beyond the target. Those are reasons not to shoot, but another reason not to shoot is that there was no threat. The other officers in the video did not even draw their weapons, on either side of the doorway. They judged that there was no deadly force threat.

While that may not be conclusive in the case of Byrd, it is what we in law enforcement call a clue. Mohammed Noor shot an unarmed White woman, even shooting across his partner in squad car’s face to shoot her. The other officer did not even draw his weapon and because there was no threat to him or Noor. That means an investigator should look not only at the facts of the incident, but to Byrd’s motivation. Was Byrd a rabid anti-White racist? Did the CRD subpoena his internet and cell phone records to see what websites he was visiting? Were Byrd’s texts examined for racism? Were friends, associates, neighbors, and colleagues interviewed to see if he hated Whites? Likely not, but if the races had been reversed every utterance and website visited of a White officer would have been examined. That is what CRD did to Darren Wilson and to George Zimmerman, among others. CRD was looking for the Great White Defendant, but studiously avoiding prosecuting black official crime. Branca does not seem to understand that politics is locked into any public policy, especially any policy related to race and law enforcement.

This is all the more strange, as Branca openly acknowledged the political nature of the prosecution of Derek Chauvin. Perhaps it is that he is a defense lawyer practicing for non-LEOs, perhaps he wanted to maintain his political relevance, trying to be the big brained moderate, but in this case he falls short. I would have him as a defense attorney, but not as a political or legal analysis in this case. Pity that. He could do better.

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