by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Last week I provided a link to a piece in which a legal expert, Jonathan Turley, suggested the answer is, “No.” Today I’m providing a link to a peice in which another legal expert, Andrew Branca, suggests the answer is, “Yes.” You can find an excerpt from Branca’s piece below. Before you read it please note two things. First, these pieces illustrate how legal analysis ought to be done. Turley is a liberal who probably has little sympathy with any of the Trump supporters who stormed the Captial on January 6th. Branca is a conservative who probably does. Neither lets politics or emotion intefer with his objective, rational analysis of the facts and the law. Second, the fact that Turley and Branca come to opposite conclusions illustrates something else as well: while the law of self-defence is clear, applying it to a complicated set of fact can be difficult.
Here’s the conclusion to Branca’s piece. If you’re interested in this case, however, you should read the whole thing:
Recall that the fundamental questions in this case, as in any use-of-force case involving the justifications of self-defense or defense of others is:
Is it tenable, given the evidence, that that prosecution can disprove any one of the required elements of self-defense—either Innocence, Imminence, Proportionality, Avoidance or Reasonableness—beyond a reasonable doubt?
I would suggest that the answer to this question is, no.
When Ashli Babbitt at the head of a mob violently breached the barricaded doorway being guarded by Lt. Byrd, especially in the context of the other reports—whether accurate or not—of violent protestor conduct, Byrd almost certainly had a genuine, good faith subjective and objectively reasonable belief that he and those he had a duty to protect were facing an unlawful imminent threat of deadly force harm, justifying the use of deadly defensive force.
And the prospects of this belief being disproved beyond any reasonable doubt, I suggest, are vanishingly slight.
Therefore the conclusion of the legal analysis must be that to a reasonable degree of legal certainty the Capitol officer’s shooting of Ms. Babbitt was justified for legal purposes.
And again, this is the case regardless of Ms. Babbitt’s actual intent or motivations or character or goodness, all of which may have been as white as the driven snow. I expect that all of us, including Lt. Byrd who shot her, would much prefer that Ms. Babbitt was still with us today.
It’s also the case regardless of the arguably well-earned contempt in which the Biden administration is held by tens of millions of patriotic Americans.
Ms. Babbitt’s apparently high character and the valid political sentiments of patriotic Americans are both extremely important matters. They are also, however, matters entirely distinct from whether Lt. Byrd’s use of force upon Ms. Babbitt was legally justified under the circumstances presented to him.