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The Ashli Babbitt Standard

BY JONATHAN TOBI
For those who have followed news coverage of police shootings of unarmed civilians in the last few years, Capitol Hill Police lieutenant Michael Byrd’s interview with NBC News had a familiar ring. The veteran officer voiced his fears about the situation he faced on Jan. 6, 2021, when rioters broke into the Capitol building. He had no real idea whether the intruders were armed or if they posed an actual, physical threat to the legislators and aides he was protecting.
In the chaos of the moment, Byrd said he thought lives would be at risk if he didn’t act. And when rioters didn’t follow instructions to stand down, he fired his weapon. The result was tragic, but the officer has no apologies to make to the family and friends of Ashli Babbitt, the 35-year-old Iraq War veteran whom he shot in the neck.
Byrd’s reasons are not unlike those of other cops who sought to explain why they killed someone while on duty. But although it may be difficult to compare Byrd’s account of his actions on Jan. 6 to other situations in which police officers killed unarmed civilians — including those resisting arrest, breaking the law or engaging in confrontations with law enforcement — we still need to view it in light of other police shootings.
The ironies of Babbitt’s death abound — and not just because in this case the cop with the quick trigger finger was black and his victim was a white woman. Both those who are supporting Byrd and those who consider the pass he got from his superiors an injustice have probably been on the opposite side of similar controversies in the past year. Some of those who think Babbitt was the victim of a police murder have defended officers accused of killing unarmed black persons. And many who are lauding Byrd as a defender of democracy were outraged by the same killings.
Since the 2014 shooting of Michael Brown in Ferguson, Mo., the notion that there is an epidemic of unjustified police shootings of blacks has become an article of faith among liberal Americans, even though it has been statistically debunked. In the case of Brown and other much-publicized incidents such as those involving the deaths of Breonna Taylor, Daunte Wright and Jacob Blake, the narrative of racist cops murdering or inflicting horrible injuries on innocents, who were only guilty of being black in America, doesn’t stand up to scrutiny.
Almost all of these incidents involved officers having to make life-or-death decisions in a split second while fearing for their lives. But because some cases fit into a narrative about prejudice, others became causes célèbres. For example, even though Louisville, Ky., police officers were being shot at when, acting in self-defense, they fired the bullets that killed Taylor, she became a martyr for a cause whose adherents invoked her name as a reproof to the nation’s racist past and present.
But few are demanding that we say the name of Ashli Babbitt.
Babbitt was no martyr. She was a believer in QAnon conspiracy theories and had no right to break into the Capitol on Jan. 6. In doing so, she broke the law and, had she survived, would be charged with criminal trespass and disorderly conduct.
Many of the Capitol Hill protesters engaged in fisticuffs with cops, but reports of them murdering a police officer turned out to be false, as did others about rioters arriving with equipment for taking hostages. Like those who got into fights with police, committed acts of destruction, invaded police stations and private businesses or otherwise engaged in public misconduct during the hundreds of Black Lives Matter riots the previous summer, the Capitol Hill rioters deserve punishment.
But merely being someplace where one had no right to be does not justify a fatal police shooting. As legal scholar Jonathan Turley has pointed out, quoting the Supreme Court, “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.’” He further states, “police officers should not shoot unarmed suspects or rioters without a clear threat to themselves or fellow officers. That even applies to armed suspects who fail to obey orders.”
While the situation facing Lt. Byrd was chaotic and frightening, video of the incident shows that Babbitt was merely breaking and entering. She was not presenting an imminent threat to anyone at the moment she was shot. Moreover, in his interview, Byrd admitted that, “I could not fully see her hands or what was in the backpack or what the intentions are.”
That gives the lie to Byrd’s claim that he was convinced Babbitt posed a lethal threat. Babbitt was the only person who died as a result of the violence on Jan. 6 — two other demonstrators died of natural causes and a policeman (who was erroneously reported to have been fatally beaten during the riot) died of natural causes the next day. Though other Capitol police had actually been attacked by the mob, none fired their weapons even in self-defense.
We may understand Byrd’s fears and not know exactly what was in his mind at the moment he fired. But if police had applied to the 2020 Black Lives Matter riots the same standard that was applied to Byrd’s shooting of Babbitt, then hundreds — if not thousands — of rioters around the country, including those who broke into government buildings, could have been legally gunned down, even if they were unarmed. Does anyone think that such shootings would have been justified by those who now laud Byrd, or that the cops involved would not have been dismissed and put on trial?
The point here isn’t so much the hypocrisy of those applauding Babbitt’s death. It’s that, by deeming the shooting justified despite the facts of the case and the law, the federal government sets a standard that appears to rest on the victim’s politics and race rather than an objective judgment about a legal question. Treating rioters, even those who break the law, as undeserving of civil rights and legal protection is unsupportable no matter their cause. Such treatment is a greater threat to democracy and communal peace than even the actions of the Capitol rioters.
(Jonathan S. Tobin is editor in chief of JNS org., a senior contributor to The Federalist and a columnist for the New York Post.)