The formal investigations into the fatal shooting of Ashli Babbitt by U.S. Capitol Police Lt. Michael Byrd on Jan. 6, 2021, have come to a close. The Department of Justice announced in April that it would not pursue criminal charges, and the Capitol Police have announced that Byrd’s actions were “lawful and within Department policy.” Babbitt’s family has filed a wrongful death lawsuit, and Byrd has now gone public, sitting for an interview with NBC Nightly News.
Public discussion, however, is ongoing, and in that sphere the shooting of Ashli Babbitt has become particularly polemical. The controversy itself is familiar—policing and police homicides have been under a renewed spotlight since the summer of 2014, and especially the summer of 2020—but the public response to this particular shooting has played out in a unique way. Many pundits and commentators on the right have bucked their general tendency toward police apologetics by celebrating Babbitt, who entered the Capitol wearing a Trump flag as a cape. For example, Fox News opinion host Tucker Carlson has framed the question of Babbitt’s death as whether “anonymous federal agents [are] now allowed to kill unarmed women who protest the regime,” even parroting Russian President Vladimir Putin’s criticism of the death as an “assassination.” On the left, reliable police critics have been largely silent, their statements essentially limited to the (accurate) observation that Babbitt was among a group of insurrectionists who illegally and violently breached the Capitol building and was shot while pushing through a barricaded door while lawmakers were being evacuated. As CNN summarized, “To [some] on the left, she’s a domestic terrorist who got what she deserved.” To a significant and obvious extent, the partisan divide in perceptions of Babbitt’s death reflects the current ideological division in the country.
But the shooting of Ashli Babbitt is more complicated than ideologically grounded conclusions suggest. We are scholars who have studied policing for a combined four decades and experts in police tactics and the use of force who have testified in state and federal courts, and we’ve noticed legal and factual complexities that have gone largely unacknowledged. Applying the typical legal framework, we have serious reservations about the propriety of the shooting. We also have some doubts about whether the typical legal framework is the right one to apply.
As we’ve explained previously, an officer’s use of force is regulated by multiple legal standards, agency policies and informal practices. In most cases, an officer’s actions must be reviewed to determine whether they were consistent with the Fourth Amendment; constituted a federal crime; violated state criminal law; were actionable under state tort law; were contrary to agency policy, procedure, or training; or failed to live up to community expectations. Some of those issues are irrelevant to the Babbitt shooting, and others are beyond the scope of our review here, which is limited to constitutionality and whether there was a federal crime. Even with these limited legal issues, though, and even looking only at Byrd’s decision to shoot rather than at all the factors that led up to and may have contributed to the shooting, complexities abound.
The first layer of complexity comes from a series of distinct but interrelated legal questions implicated in this case: whether Byrd’s use of force was constitutional, whether it violated federal law, and whether prosecutors could prove any violation beyond a reasonable doubt. The second arises from the observation that this shooting happened in a unique context: the physical invasion of the U.S. Capitol. We see some potential for that fact to shift the otherwise applicable legal rules.
Applying Settled Fourth Amendment Law
Police uses of force are regulated by the Fourth Amendment’s prohibition of unreasonable seizures. For constitutional purposes, a “seizure” occurs when an officer applies “physical force to the body of a person with the intent to restrain” the person’s freedom of movement. One of us has criticized this legal formulation, which gives rise to a number of unanswered questions—whether uses of force that affect someone other than the intended target constitute a seizure, for example—but this case, at least, is relatively straightforward: Shooting Babbitt to prevent her from making it through the door certainly constituted a “seizure” for constitutional purposes.
Determining that Byrd “seized” Babbitt is only the first step, though. In a highly influential Fourth Amendment case, Graham v. Connor, the Supreme Court held that, as a seizure, an officer’s use of force must be “objectively reasonable.” In another, Tennessee v. Garner, the Court held that the use of deadly force is reasonable when officers have probable cause to believe that someone poses an imminent threat of “death or serious physical injury.” (The court used the term “immediate”; we use “immediate” and “imminent” synonymously.)
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.
Importantly, the Graham court held that the reasonableness of force requires looking at the facts not as they actually were, but as they would have appeared to “a reasonable officer on the scene.” As courts have made clear, this standard allows for mistaken perceptions and conclusions so long as all such errors were reasonable. For example, if an individual is stabbing at officers with a shiny, rigid object that a reasonable officer would believe is a knife, then the courts will assess the reasonableness of the officer’s actions as if the object were a knife even if it later turns out to have been a harmless rubber toy.
In assessing what a reasonable officer would have been aware of, it’s important to keep in mind that use-of-force situations can be chaotic. As the Supreme Court described it, “[O]fficers are often forced to make split-second judgments [] in circumstances that are tense, uncertain, and rapidly evolving.” This description isn’t always accurate—indeed, as one of us has written elsewhere, this description is “simply wrong almost all the time”—but it seems generally apt in this case.
One additional point bears mentioning. Most police uses of force, including the discharge of a firearm, are individualized; they are justified only if a specific target presents the appropriate level of threat. Officers absolutely cannot shoot indiscriminately into a mob, for example, even if some members of a mob absolutely present an imminent threat of death or great bodily harm.
Putting that framework together and applying it to this case, the constitutional question is whether a reasonable officer in Byrd’s position could have believed, in light of the cognitive and perceptual challenges that existed at the time, that Babbitt had the ability, opportunity, and apparent intention to cause death or great bodily harm. The government has not yet released sufficient information to definitively answer that question, but there are reasons to doubt that the answer is an obvious yes.
Ability
Officers must base their conclusions and actions on specific and articulable facts. It is not enough to say that someone might have had a gun, for example. Officers must be able to explain the specific reasons they believed that someone had a gun at the particular time in question. We have very limited information about the specific and articulable facts that would have been available to a reasonable officer in Byrd’s position, however, because no comprehensive report has yet been issued.
We now know that there were eight separate breaches in the Capitol, and that some of those breaches involved insurrectionists armed with firearms, bats, and chemical sprays, and using flagpoles, fire extinguishers, and skateboards as weapons of opportunity. We know that officers were violently assaulted with weapons including with some of those weapons (e.g., chemical spray, a fire extinguisher and a TASER). We know that officers, by their own descriptions, were “grabbed, beaten,” “crushed ... between doors and bashed ... in the head.” And we know, from Byrd’s description, that he was at least generally aware of the violent and chaotic situation. In his interview with NBC News, he described “hearing about the breaches of different barricaded areas, officers being overrun, officers being down,” as well as “reports of shots fired through the House main door onto the floor of the Chamber” (the reports of shots being fired later turned out to be false, but nevertheless it was information a reasonable officer would have considered at the time).
Regarding the mob that gathered in front of the Speaker’s Lobby, we know that some of them used a wooden flagpole, a helmet, and their own hands and feet in an attempt to break through the barricaded door. We know that several officers were positioned in front of the door to the Speaker’s Lobby and that the crowd yelled at them but did not physically attack them. We know that the uniformed officers moved out of the way of the door when other officers, equipped with tactical gear, were arriving behind the group of rioters. But we don’t know what Byrd was aware of—or, more precisely, what the reasonable officer in his position could have been aware of—regarding the specific situation at the door to the Speaker’s Lobby. Byrd stated in his NBC News interview that it was “impossible for [him] to see what was on the other side” of the door. We do not yet have sufficient information to determine whether the “reasonable officer” would have known that there had been officers stationed outside the door and, if so, whether they had been evacuated or overwhelmed.
No specific information has yet been released that would support the conclusion that Babbitt, individually, had the physical ability to kill or seriously injure someone. The only available information—Byrd’s statement in the NBC News interview—is that he “could not fully see [Babbitt’s] hands or what was in the backpack.” That’s important. Officers cannot rely on generalized assumptions. They must base their conclusions on specific and individualized facts. And while it is not unheard of for an unarmed person to pose a threat of serious injury or death, no specific facts have yet been released indicating that Babbitt had the ability to do so.
Without additional information indicating that a person is likely armed, officers cannot conclude that someone has a weapon just because they cannot see definitively that the person does not have a weapon. For example, had Byrd stated that all the rioters he had seen up until that point were armed, the fact that Babbitt was among the rioters could provide some support for believing that she, too, was armed. The same might be true if Babbitt made specific statements or movements indicating that she was armed. But that is not the case.
It cannot be denied that the situation generally was chaotic and violent. As yet, though, the limited information that has been made public does not offer much, if any, support for the conclusion that a reasonable officer would have believed that Babbitt, individually, had the physical ability to cause serious injury or death at the time she was shot.
Opportunity
Officers should use tactics and communications to reduce the likelihood that they will use force, but the constitutional rules do not require officers to wait until a threat has fully manifested before using force. In other words, officers are empowered to use force against an imminent threat of harm, not just the actual infliction of harm. For example, if officers wait until that person with the knife gets within arm’s reach and starts stabbing, it might be too late to prevent the person from killing or seriously injuring someone. In assessing whether anyone was in a vulnerable position, the question is not just whether Babbitt had the opportunity to seriously injure or kill anyone as she was climbing through the door but, rather, whether officers would have been able to stop her from doing so if she had gotten to the other side. In short, would she have had an uninterrupted opportunity had she not been shot?
In this case, we know that lawmakers and other officials were evacuated through the Speaker’s Lobby, on the other side of that barricaded door, mere minutes before the shooting. We do not know, however, who else was in the immediate area or, most importantly, who Byrd might reasonably have believed was in the immediate area. In an interview with the media, Rep. Markwayne Mullin said that “there were members [of the House] still in the balcony” at the time of the shooting and that he, personally, was in the area immediately afterward. It is worth pointing out, however, that no comprehensive accounting has been released concerning who else, if anyone, was in the House chamber or was accessible from the Speaker’s Lobby at and shortly before the time of the shooting.
Again, we need more information. If lawmakers and others were still in the immediate area—in the House chamber, say, or being evacuated through the Speaker’s Lobby—it is highly likely that a reasonable officer in Byrd’s position could have concluded that they were vulnerable to attack should Babbitt breach the doors. But if he were not aware of lawmakers or other potential targets in the area, then there is reason to doubt that Babbitt had the opportunity to kill or seriously injure anyone.
In the same vein, we lack information about whether there were reasonable alternatives to the use of deadly force. If, for example, officers could have physically prevented Babbitt from making it through the door or taken Babbitt into custody as she came through the door while still maintaining the barricade to allow for the safe evacuation of anyone else in the area, it would suggest that Babbitt did not have the opportunity to inflict serious injury or death. If, by contrast, the “reasonable officer on the scene” would have believed that they could not stop Babbitt from getting to the evacuees if she came through the door, the argument that she had the opportunity to kill or seriously injure becomes much stronger.
Intention
In most cases, this is the most difficult aspect of assessing whether someone presents an imminent threat. Officers, after all, cannot peer into the depths of someone’s mind to gauge the person’s intentions; they must rely on behavioral indicators. In this case, however, the analysis is rather more straightforward: Babbitt was part of a mob that had breached the Capitol and was trying to break through the barricaded door to the Speaker’s Lobby. Babbitt herself was attempting to climb through a barricaded door that had been broken by members of her mob. Although Byrd said in his NBC News interview that he did not know “what the intentions were,” it seems highly likely that a reasonable officer in Byrd’s position, knowing the generalsituation as he described it and observing her actions, could have concluded that Babbitt had the intention to kill or seriously injure lawmakers or others.
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.”
Even assuming, for the sake of argument, that Byrd violated the Fourth Amendment’s prohibition on unreasonable searches and seizures, determining whether criminal prosecution was warranted requires navigating an additional layer of complexity. The most applicable statute, 18 U.S.C. § 242, makes it a crime to “willfully subject any person ... to the deprivation of any rights ... secured or protected by the Constitution.”
To be convicted under this statute, Byrd not only would have had to violate Babbitt’s Fourth Amendment rights but he also would have had to do so “willfully.” Federal courts have interpreted this as a “specific intent” requirement. As Stanford Law professor David Sklansky pointed out seven years ago:
That’s a high bar. Even if the shooting were unconstitutional, it was not criminal if Byrd shot Babbitt because he made a good-faith (if unreasonable) mistake or if he simply overreacted. As the Department of Justice correctly summarized in a press release, “[E]vidence that an officer acted out of fear, mistake, panic, misperception, negligence, or even poor judgment cannot establish the high level of intent required.” Byrd would have had to know that he was in the wrong, a point he vigorously denied in his interview.
Of course, prosecutors bring charges every day against defendants who vigorously deny wrongdoing. In most of those cases, though, there is plausible evidence of guilt notwithstanding the defendant’s denials. Prosecutors have an ethical obligation to “seek or file criminal charges only if the prosecutor reasonably believes ... that admissible evidence will be sufficient to support conviction beyond a reasonable doubt.” They cannot just bring charges based on their personal belief that there was a criminal intent. They have to be able to prove it.
Given the backdrop against which Byrd acted and the limited information available, we do not see how prosecutors could reasonably believe they could establish a criminal violation in this case even if Byrd’s actions ran afoul of the Fourth Amendment.
A slightly stronger argument can be made for a criminal prosecution under the Code of the District of Columbia, which has homicide offenses that mirror those of many states and have a different and less demanding standard than § 242. But the Justice Department press release addressed this point as well, stating that there was no evidence that Byrd “did not reasonably believe that it was necessary to do so in self-defense or in defense of the Members of Congress and others evacuating the House Chamber.” In other words, the prosecutors did not believe that they could overcome a self-defense or defense-of-others claim. We cannot fully assess the strength of this conclusion without access to facts that, thus far, have not been publicly released.
Is Settled Law the Correct Law?
One of the complex issues in this case is that it didn’t happen in the context of a normal police encounter. That’s potentially very important. As the Supreme Court articulated, the Fourth Amendment requires “a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” As University of Virginia law professor Rachel Harmon has identified, in use of force cases, the government’s interest is generally limited to law enforcement, order maintenance and public safety, and officer safety.
The Supreme Court has identified some contexts in which the Fourth Amendment just applies differently than normal. The Fourth Amendment rules that generally require reasonable suspicion, probable cause, or a warrant do not apply in the same way, for example, when government agents are searching someone at a border. Or in public schools. And they do not apply at all in prisons. In each of these cases, there are governmental interests beyond the normal interests in law enforcement, order maintenance and public safety, and officer safety.
We do not mean to suggest that the breach of a government building will fundamentally change the constitutional analysis. Such actions are unusual but not unknown, as demonstrated by the armed anti-public health protesters who forced their way into the Oregon state capitol in December 2020. Indeed, creating a special “government building” rule would seem deeply problematic in light of the long history of both left-wing and right-wing protests against government institutions, from the anti-war and civil rights sit-ins of the 1960s and 1970s to the 2016 standoff at the Malheur National Wildlife Refuge and protesters taking control of police precinct buildings in Seattle and Minneapolis in 2020. Although that backdrop is certainly relevant to the determination of whether an officer acted reasonably, we think it unlikely to introduce new or different interests beyond the normal scope of Fourth Amendment protection.
But this case is unique. This was not a typical arrest situation or even the type of protest with which police agencies are familiar. This was not even the physical invasion of a random government building that created a threat of violence to building occupants.
This was an invasion of the Capitol by a throng of people openly attempting to prevent the Electoral College from engaging in its lawful functions so that their preferred candidate would be declared the winner of a presidential election. That fits neatly within almost any dictionary’s definition of “insurrection.” Members of the insurrectionist mob had erected a gallows across from the Capitol building; chanted, “Hang [Vice President] Mike Pence”; and were equipped with flex-cuffs.
Moreover, the elected officials inside the building at the time included the vice president of the United States and federal lawmakers who sit in oversight of the U.S. military and intelligence communities. The courts could well conclude that the ordinary government interest in preventing violent criminal activity, such as kidnapping, is supplemented by a national security interest that simply is not implicated in other contexts. Historical review shows that national security interests affect the manner in which the Fourth Amendment applies.
Under the circumstances of this case it is at least plausible that courts will not simply apply the familiar legal framework that we discussed in the preceding section. The unprecedented nature of the invasion of the Capitol may well require a different analytic framework, leading courts to either relax the standard Fourth Amendment definition of “reasonableness” or put a heavier thumb on the scales when the governmental interests are balanced against the nature of officer actions.
Summing Up
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.
