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Watchdog suit forces DOJ to release memo declining criminal prosecution of Ashli Babbitt's shooter

Babbitt, an unarmed 14-year veteran of the Air Force, was fatally shot by USCP Lt. Michael Byrd on Jan 6, 2021

Published: June 9, 2022 9:47am

Updated: June 9, 2022 5:27pm

Legal watchdog group Judicial Watch says it has received 102 pages of new Justice Department records related to the fatal shooting of Jan. 6 protester Ashli Babbitt.

Included in the documents is a memo recommending that the United States Attorney’s Office for the District of Columbia "decline for criminal prosecution" the fatal shooting of Babbitt.

The documents also state U.S. Capitol Police Lt. Michael Byrd, the shooter, "did not create a police report or documents" related to the incident.

Babbitt, an unarmed 14-year veteran of the Air Force, was fatally shot and she attempted to climb through a broken window and into the lobby of the House chamber during the Jan. 6 Capitol riot.

Congress and the Justice Department did not reveal the identity of the shooter until about eight months after the riot – until Byrd was ready to go public himself and defend his actions.

Judicial Watch filed its lawsuit in the U.S. District Court for the District of Columbia after the Executive Office for United States Attorneys, the Civil Rights Division and the Federal Bureau of Investigation would not provide the requested records following two Freedom of Information Act requests from the organization.

The memo recommending not to prosecute Byrd justifies that decision, "based on a review of law enforcement and civilian eyewitness accounts, physical evidence, recorded radio communications, cell phone footage, [Metropolitan Police Department] reports, forensic reports, and the autopsy report" for Babbitt.

The memo also states that "after a thorough review of the facts and circumstances in this case, there is insufficient evidence to prove beyond a reasonable doubt that Lieutenant Byrd violated [Babbitts'] civil rights by willfully using more force than was reasonably necessary, or was not acting in self-defense or the defense of others."

The report also sets out the federal government's timeline of events: "Once the demonstrators broke the glass, Lieutenant Byrd took up a tactical position to the immediate right of the barricaded entry doors, [Capitol Police Officer Reggie Tyson] took up a tactical position behind Lieutenant Byrd on the right side behind the third pillar and Sergeant McKenna took up a tactical position behind Officer Tyson and behind the fourth pillar on the right side of the Speakers Lobby."

The memo also states that officers repeatedly instructed the "mob" to stand back, a request protesters ignored while continuing to break the glass on the doors to the lobby. 

Judicial Watch President Tom Fitton says that the department memo suggests that Byrd was given "special treatment by the Biden DOJ and that there was a miscarriage of justice in the half-baked shooting death investigation of Ashli Babbitt."

He also said "Lt. Byrd, who works for Congress, shot an unarmed woman for no good reason. I suspect that this unjustified shooting isn’t of much interest to the Pelosi rump January 6 committee."

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