Jailing of 2 in officer’s assault highlights legal debate over detaining Capitol breach defendants
By Spencer S. Hsu,
A federal judge ordered two men charged in the Jan. 6 assault of officer Brian D. Sicknick to remain jailed pending trial, saying they engaged in a chemical-spray attack that contributed to the breach of the U.S. Capitol.
The ruling Tuesday highlighted the legal debate judges have struggled with in deciding when to detain riot defendants who may not have criminal histories but who are accused of participating in the chaos and mayhem at the Capitol while prepared for violence.
U.S. District Judge Thomas F. Hogan of Washington ruled that government videos of the assault on Sicknick and two other officers showed a degree of premeditation between childhood friends Julian Elie Khater, 32, of Pennsylvania and George Pierre Tanios, 39, of Morgantown, W.Va., demonstrating their future dangerousness to the public.
“These two gentlemen are law-abiding, respected individuals in the community, and it makes it very difficult for the court to make this conclusion,” Hogan said, “but they still committed this attack on uniformed police officers. I don’t find a way around that.”
Hogan said he could “not turn a blind eye” to an unprovoked attack against two groups of officers at a thin point in police lines, including Sicknick, 42, who was injured while attempting to hold back a violent crowd on the west terrace of the Capitol around 2:20 p.m.
Sicknick, a U.S. Capitol Police officer, collapsed hours later and died the next day of natural causes, officials said. Neither of the jailed men is alleged to have caused Sicknick’s death.
Khater and Tanios, who ran smoothie and sandwich shops in their respective college towns, were arrested March 15 on nine counts, including in the assaults on Sicknick, a fellow Capitol Police officer and a D.C. officer.
[View the view U.S. prosecutors released of rioters spraying Off. Brian D. Sicknick]
The ruling in one of the most publicized attacks in the Jan. 6 riot comes as federal judges have detained at least 50 of more than 380 defendants charged with federal offenses. Still, courts have struggled to inject some clarity into deciding which of the people charged should be held pending trial, despite the usual presumption of innocence.
Those detained account for about 15 percent of the total charged so far, and more than one-quarter of those who face felony charges in the riot, which authorities have said led to five deaths, assaults on nearly 130 police officers and delayed Congress’s certification of Joe Biden’s presidential election win.
The percentage of Jan. 6 defendants jailed pretrial is lower than the nearly 75 percent of federal defendants nationwide, a figure fueled partly by federal charges involving crimes of violence and gun, drug or immigration-related offenses that commonly raise concerns about community or flight risks during detention hearings.
By contrast, many riot defendants are not accused of violence, have no criminal history and have stable family and community ties and seemingly pose less risk of flight or danger to the public, the criteria judges use for requiring detention.
[Two arrested in assault on police officer Brian D. Sicknick, who died after Jan. 6 Capitol riot]
Judges have also been less willing to detain defendants pretrial because the coronavirus pandemic has delayed jury trials and the massive scale of the Jan. 6 investigation is requiring more time to decide individual cases, raising concerns that defendants could wait longer for trial in jail than any sentence they might face if convicted.
For those and other reasons, prosecutors initially did not push to hold some individuals charged with violent offenses. However, that inconsistency has rippled through other cases, pointed out by defense attorneys, even for defendants accused of assaulting police with metal bats, wooden planks, fire extinguishers and other weapons.
In a rare move, the U.S. Court of Appeals for the D.C. Circuit has already issued two detention rulings in Capitol breach-related cases, underscoring the uncertainty surrounding detention questions.
The first opinion from the appeals court led to the release of Lisa Eisenhart and Eric Munchel, a mother and son from Tennessee who allegedly entered the Senate chamber with a Taser and plastic handcuffs. An appeals panel ruled on March 26 that a lower court failed to clearly define the future dangerousness either posed outside the circumstances of Jan. 6 and the presence of a mob that day.
After some judges called that standard too lax, an appeals panel on May 5 in an unpublished opinion pointed out another passage in the earlier ruling stating that those who actually assaulted police, broke through barricades, doors or windows, or planned or coordinated such actions “are in a different category of dangerousness” than those who cheered on the violence. That decision upheld the pretrial detention of Christopher Worrell, a Florida man who allegedly directed pepper-spray gel at officers.
Hogan drew heavily on that “categorical” divide, saying it was hard to find consistency in jailing decisions “except perhaps where there is violent conduct against police officers.”
“If any crime establishes danger to the community and a disregard for the rule of law, assaulting a riot-gear-clad police officer does,” Hogan said.
The judge quoted an April decision by colleague Royce C. Lamberth, who ordered the detention of Scott Fairlamb, a New Jersey gym owner who allegedly pushed and punched an officer.
Hogan said that it could not be denied that the violent attack on the Capitol posed “a grave danger to our democracy,” and that it appeared to him that Khater and Tanios “prepared and executed a violent assault against officers during the riot to interfere with Congress carrying out its constitutional mandate.”
The government played video of the attack during hearings for Khater and Tanios, which prosecutors say shows premeditation.
“Give me that bear sh–,” Khater said to Tanios on video recorded at 2:14 p.m. at the Lower West Terrace of the Capitol, where Sicknick and other officers were standing guard behind metal bicycle racks, arrest papers say
“Hold on, hold on, not yet, not yet . . . it’s still early,” Tanios allegedly replied, which Assistant U.S. Attorney Gilead Light argued showed planning and intent to incapacitate officers at a decisive moment.
Nine minutes later, Khater allegedly sprayed a canister that Tanios had purchased and carried to the Capitol in his backpack, deploying it at close range — injuring Sicknick, temporarily blinding and scarring another U.S. Capitol Police officer identified as C. Edwards and removing a D.C. police officer identified as B. Chapman from the police line.
Khater allegedly moved to spray a second group before he was repelled by a police lieutenant spraying a chemical irritant from a “Super Soaker”-type device, Hogan said.
“Only then does he stop,” Hogan said. “It was not in the heat of passion. He had nine minutes to cool down.”
Tanios attorney Elizabeth Gross argued for home confinement, saying he was 30 feet away from Khater when he sprayed the officers and did not aid or abet any crime.
“His only plans were to attend this rally,” said Gross, an assistant federal defender from Clarksburg, W.Va. “The intent wasn’t to go to a riot. The intent was to go to a rally to support their president.”
Khater attorney Joseph Tacopina said that 16 family members pledged to secure his home confinement on a $1.5 million bond, and that he never coordinated or planned to attack police and never entered the Capitol.
“It wasn’t a plan. It was a reaction” to being sprayed by police, Tacopina said. “He did not use bear spray, he used a defensive spray.”
Still, Hogan said, the officers were disabled — Sicknick walked off for 10 to 15 minutes in a “sort of daze” while trying to recover — and the crowd in short order broke down the barrier and surged through the thinned police line.
“It is clear Mr. Khater deliberately sprayed the officers trying to hold the line,” Hogan said. “I don’t think they are the direct proximate cause of the breach of the line up and down, but they certainly contributed to the rioters’ ability to breach police lines at that point.”
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