Ashli Babbitt’s family filed a wrongful death lawsuit on Friday against the U.S. government, alleging a Capitol Police officer was negligent and did not have legal justification to shoot and kill her during the Jan. 6, 2021, attack on the Capitol.
The lawsuit asking for $30 million, brought by the conservative group Judicial Watch on behalf of Babbitt’s family, takes aim at the officer who shot Babbitt, Michael Byrd, along with the Capitol Police for negligent supervision and training.
The Justice Department declined to bring charges and the Capitol Police cleared Byrd, who has since been promoted to captain. The Capitol Police is not named as a defendant in the lawsuit, which was filed in U.S. District Court for the Southern District of California.
Babbit was a pro-Trump rioter and Air Force veteran who stormed the Capitol. Byrd fatally shot her as she tried to climb through a broken window into the Speaker’s Lobby, an area that abuts the House floor, as members were evacuating.
The suit claims Byrd breached several standards of care including the safe use of a firearm, the assessment of imminent threats, use of force levels, the use of warnings and obtaining timely, appropriate medical aid.
“Had Lt. Byrd adhered to these standards, he would not have fired, and Ashli would be alive today,” the suit states.
Byrd, the suit claims, used his firearm in a negligent manner because he unholstered his gun before he saw Ashli and before any “expected, prudent, and lawful discharge,” the suit says, quoting a Capitol Police directive. He also failed to keep his unholstered weapon at “low ready” rather than point his gun at more than three people on the other side of the Speaker’s Lobby doors, the lawsuit states.
He didn’t diligently assess the appropriateness of using deadly force against Babbitt and did not give proper warning that he was going to fire, the lawsuit states.
Other law enforcement officers on the scene were accused of acting negligently in the suit. Sgt. Timothy Lively, Officer Kyle Yetter, Officer Christopher Lanciano, and CERT officers Steven Robbs, Don Smith, Brandon Sikes, and Mike Brown “owed Ashli a duty to act as reasonably prudent officers to protect her from harm.” Jason Gandolph, a House Sergeant at Arms employee, also owed Babbitt that duty, the lawsuit states.
Byrd’s history of shortcomings on the department were brought up as reasons the department is responsible for negligent supervision, discipline and retention of Byrd. The suit makes note of when he left a loaded Glock 22 in a Capitol Visitors Center in 2019 and when he failed to meet his firearms qualifications, as well as an off-duty shooting incident that was not justified and a use of force matter that was originally sustained.
“The Capitol Police, Capitol Police Board, and ultimately Congress, as Lt. Byrd’s employer, breached their duty to Ashli to use reasonable care in the supervision, discipline, and retention of Lt. Byrd by retaining, promoting, and even allowing Lt. Byrd to serve as incident commander of the House chamber on January 6, 2021 despite multiple, serious warnings about his dangerous and/or otherwise incompetent behavior,” the lawsuit states.