The formal investigations into Ashli Babbitt’s death by U.S. Capitol Police on Jan. 6, 2021 have concluded. In April, the Department of Justice stated that it would not pursue criminal prosecutions and the Capitol Police shooting announced that Byrd had acted within Department policy. Babbitt’s family filed a wrongful-death lawsuit. Byrd is now open to public interview with NBC Nightly News.
However, public discussion is ongoing and the Ashli Babbitt shooting gambling has been particularly controversial in this sphere. Although the controversy is well-known, police and Police shooting homicides are in the spotlight again since 2014 and 2020 respectively. However, the public reaction to this shooting has been unique. While many right-leaning commentators and pundits have been criticized for their tendency to condemn Police shooting apologetics, they celebrated Babbitt’s entry into the Capitol wearing a Trump flag cape. Tucker Carlson, Fox News’ opinion host, has used Babbitt’s death to ask whether “anonymous federal agents” are now allowed to murder unarmed women protesting the regime. He also parodied Russian President Vladimir Putin’s criticisms of Babbitt’s death. CNN summarised that Babbitt’s death was perceived by partisans as a sign of the nation’s current ideological divide.
The shooting of Ashley Babbitt is more complex than the ideologically based conclusions would suggest. As scholars with combined experience in policing over four decades, as well as experts in Police shooting tactics (and the use of force), we have seen legal and factual complexities that went largely unacknowledged. We have serious reservations about whether the shooting the perfect is legal if we apply the usual legal framework. We are also unsure if the legal framework we have been given is correct.
We have already explained that an officer’s use force is controlled by multiple laws, agency policies, and informal practices. An officer’s actions in most cases must be reviewed to determine if they are consistent with the Fourth Amendment, violated state criminal laws, were actionable under state law, were inconsistent with agency policy, procedure or training, and if they meet community expectations. Some of these issues are not relevant to the Babbitt killing, while others are beyond our scope. Our review is restricted to constitutionality and whether there were federal crimes. Even with these minor legal issues, however, and even if we only look at Byrd shooting images rather than all factors that may have contributed, there are many complexities.
The first layer of complexity is a set of interrelated but distinct legal questions that are involved in this case. These include whether Byrd used force constitutionally, whether it violated federal laws, and whether prosecutors could prove any violations beyond a reasonable doubt. The second layer comes from the observation of this shooting videos taking place in an unusual context: the physical invasion at the U.S. Capitol. This fact could have some impact on the otherwise applicable legal rules.
The Fourth Amendment prohibits unreasonable seizures and police use of force. A “seizure” is when an officer uses “physical force” to a person’s body with the intention to restrict their freedom of movement. One of us has criticised this legal formulation. It raises a lot of questions, such as whether force used to harm someone other than the target is a seizure. But this case is fairly straightforward. Babbitt was shot to stop her getting through the door.
However, the first step is to determine that Babbitt was “seized” by Byrd. The Supreme Court’s landmark Fourth Amendment case, Graham v. Connor held that a seizure is only the first step.