Guest Article By Chris Caltagirone
In the months following the January 6th protests in Washington, many were quick to offer forceful opinions on the “deplorable” actions of the protesters. The small snippet of time covering the heated back-and-forth between civilians and police in the west tunnel very late in the day was played on infinite loop by most networks. The “dark day” and “insurrection” narratives were therefore well engrained in most people after the first year. Despite this overwhelming national groupthink, something seemed off. Some of us wondered what really happened on J6 that made so many law-abiding people, many from families with military or law enforcement backgrounds, want to challenge police officers that day.
For any objective person who has reviewed the timeline of the J6 protests and aligned it with the video evidence available thus far, one thing is clear. Many police officers on scene appeared to use excessive force, well beyond what might be “reasonable” in the legal sense. Instead of keeping the peace, some officers appeared to go out of their way to provoke confrontations, or worse. As just one example, Officer Daniel Thau’s body camera footage is available on the internet and offers an unbiased view of what led up to the well publicized west tunnel “riot.” His camera footage shows the events in the terrace area, well before things got out of hand later in the day. Officers in riot gear are seen firing “less lethal” munitions into an unarmed and peaceful crowd, from elevated positions no less. This included tear gas, rubber bullets and stun grenades (“flash bangs”). During this time, Officer Thau is shown frantically running around, with almost child-like panic in his voice, screaming at nobody in particular: “We need more f—king munitions!”, “It’s like shooting f—king zombies!” “Just f—king shoot!”
As a fellow law enforcement officer, I had trouble seeing Thau act this way, especially when his body camera footage shows the unarmed crowd was mostly just milling around, waving flags and yelling patriotic slogans. They appeared to present no threat to other civilians or law enforcement officers on scene. Keep in mind many officers were already wearing full riot gear and positioned on a balcony approximately 20 feet above the protesters, far from any “danger”.
Despite all this, Thau and other officers began indiscriminately launching less lethal munitions into the crowd, sometimes at point blank range. They were fired without any verbal warnings, without any orders to disperse, and often from elevated positions, at a peaceful crowd containing thousands of children, women and elderly citizens.
Sworn law enforcement officers are well aware less lethal munitions are typically reserved for violent, combative individuals who pose an imminent threat to the safety of those around them or police officers. Yet officers are seen indiscriminately firing these munitions into the milling crowd at nobody in particular, without any verbal warnings or orders to disperse. Dozens of civilians sustained horrible injuries when they were hit by these munitions, including one adult male who is shown on video getting medical attention after the left side of his face was blown open by a rubber bullet he (and those around him) didn’t see coming. An adult female and her husband both suffered permanent burns requiring hospitalization when they were hit by a flash bang that was thrown blindly from an elevated position. Just two examples of many.
So from a legal standpoint, what does it mean to say a particular use of force is “reasonable”? In almost all law enforcement agencies, sworn officers are subject to an internal use of force review any time force is used to either effect an arrest or control a subject. This includes anything from “going hands-on” all the way up to discharging a firearm. At minimum, the officer’s actions are reviewed by an internal panel of superiors and peers, to determine if the use of force was reasonable. Appropriate action is then taken if the officer’s use of force was determined to be inconsistent with agency policy, as well as established case law.
Federal case law has provided an “objective reasonableness” test since 1989, via Graham vs. Connor(490 US 386), which replaced the previous “malicious intent” standard. In Graham vs. Connor, the US Supreme Court moved away from a subjective 8th Amendment test and replaced it with a more objective standard for evaluating whether an officer’s use of force was excessive, all within the context of a 4th Amendment seizure. The PDF of the Court’s opinion is easily searchable on the internet. It’s an informative read that generates lengthy debates to this day.
In this decision, the Court determined whether or not a particular use of force is “reasonable” should be applied through the lens of a reasonable officer on scene, based on the “totality of the circumstances.” This analysis needs to take three factors into account: • What was the severity of the crime at issue? Even if you believe the protesters had no right to be physically present on the Capitol grounds, they were at most “guilty” of Disorderly Conduct and/or Failure to Disperse, both (barely) misdemeanors.
Did any of the subjects pose an immediate threat to the safety of the officers? As explained above, it would be hard for a reasonable officer to come to that conclusion.
Did any of the subjects actively resist arrest or attempt to evade arrest? Prior to the deployment of these munitions, citizens exercising their 1st Amendment rights were never told they were under arrest, nor even made aware they had committed a “crime.”
From a legal standpoint, the deployment of less lethal munitions at a peaceful crowd on J6 was therefore likely unreasonable and an excessive use of force. It unnecessarily escalated tensions and provoked some citizens to fight back as best they could. Just to cite two examples as the day progressed, Lt. Michael Byrd effectively executed Ashli Babbitt (an unarmed female veteran) at point blank range with a single pistol shot from a concealed position and no verbal warning. Officer Lila Morris is seen on multiple videos clubbing Roseanne Boyland (an unconscious adult female) multiple times with her ASP baton, at one point swinging so hard it flew out of her hands. Byrd and Morris were both “cleared” by internal investigations that were not made available to the public, and then later promoted with great fanfare. Other camera footage from J6 shows officers winding up and clubbing defenseless citizens with baton strikes to the head as they do nothing more than walk through an already open door. True cowardice on full display.
Despite the hundreds of documented significant injuries to J6 protestors, not one law enforcement officer sustained anything close to serious bodily injury. Officer Brian Sicknick’s death was determined to have occurred days after J6 and was due to health issues, not being hit over the head with a fire extinguisher, which was proven to be completely false. In fact, almost all J6 law enforcement injury reports indicated tear gas exposure, mostly self-deployed. Oddly enough, despite the largest public assembly of 2nd amendment supporters in our history, and despite hundreds of undercover Federal officers in the crowd egging people on, not one firearm was brandished by any Trump supporter that day. Not one.
Law enforcement officers are regularly trained on the use of less lethal munitions and the hurdle to justify their usage is very high due to the significant probability of serious injury. Based on my training and experience, that high hurdle was clearly not met on J6. The officers shown indiscriminately deploying these munitions on unarmed civilians without warning should turn in their badges and apologize to the nation for breaking their sworn oath to protect and serve.
Disclaimer: This article represents the viewpoint of the author in his personal capacity and is not intended to speak for or represent the views of the Ravalli County Sheriff’s Office in any way.
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