Affirming the pre-trial detention of a white supremacist Army Reservist, the D.C. Circuit on Wednesday unanimously upheld a standard for keeping those charged with the breach of the U.S. Capitol locked up before trial.
Those defendants do not need to be charged with a crime of violence to be considered a danger to the community, the court ruled.
A Navy contractor at a weapons facility in New Jersey, Timothy Louis Hale-Cusanelli espoused a hateful ideology and violent fantasies, which are detailed at length in court papers. Prosecutors embedded photographs showing him posing with an Adolf Hitler mustache and sharing racist memes about Black people and Jews. When authorities searched his apartment, investigators found copies of Adolf Hitler’s Mein Kampf and neo-Nazi writer William Luther Pierce’s The Turner Diaries, the same tome that inspired Oklahoma City bomber Timothy McVeigh.
In 2010, Hale-Cusanelli was arrested with three other people after one used a homemade PVC launcher—also known as a potato gun—to fire frozen corn cobs at a home in New Jersey. He pleaded guilty to disorderly conduct. The gun was marked with the words “WIDOWMAKER” and “WHITE IS RIGHT” as well as with a drawing of the Confederate flag.
Despite the alarming rhetoric and symbols, U.S. Magistrate Judge Tonianne J. Bongiovanni, from the District of New Jersey, ordered Hale-Cusanelli’s conditional release on bail on Jan. 19.
The District of D.C.’s Chief Judge Beryl Howell quickly stayed that ruling pending review by U.S. District Judge Trevor N. McFadden, who reversed the release order on March 23.
Days later, the D.C. Circuit issued a ruling that led to the pre-trial release of so-called “zip-tie guy” Eric Munchel, who was seen roaming around the Capitol with his mother carrying plastic handcuffs. The decision was a boon to those accused of breaching the Capitol more broadly by emphasizing a principle for pre-trial detention: “In our society, liberty is the norm, and detention before trial is an exception.”
Hale-Cusanelli appealed his detention order in light of the Munchel decision, arguing that his alleged non-violent offenses mandated his pre-trial release.
Writing for a three-judge panel, U.S. Circuit Judge Robert Wilkins found otherwise.
“We did not hold in Munchel that only those persons who participated in violence on January 6 could properly be considered as posing a future danger to the community justifying pretrial detention,” Wilkins, a Barack Obama appointee, wrote in a 13-page opinion, emphasizing that ruling’s limited holding.
“To the contrary, we explained in Munchel that a person could be deemed a danger to the community sufficient to justify detention even without posing a threat of committing violence in the future,” the opinion states.
Later, Wilkins added: “The point of Munchel was that everyone who entered the Capitol on January 6 did not necessarily pose the same risk of danger and the preventive detention statute should apply to the January 6 defendants the same as it applies to everyone else, not that the January 6 defendants should get the special treatment of an automatic exemption from detention if they did not commit violence on that particular day.”
Joined by U.S. Circuit Judges David Tatel (a Clinton appointee) and Neomi Rao (appointed by Trump), Wilkins found that the lower court could — and properly did — consider Hale-Cusanelli’s extreme views on “civil war.”
“Thomas Jefferson said the tree of liberty should be refreshed with the blood of patriots and tyrants,” Hale-Cusanelli is quoted saying in the ruling.
Statements like that were a proper basis of the lower court judge’s consideration, the D.C. Circuit found.
“It is not obviously wrong to conclude that these statements, taken as a whole, demonstrate a potential danger to the community,” the ruling states. “This is particularly so when viewed with other statements Appellant made just prior to January 6, such as proclaiming a ‘final countdown’ and an intention to leave his employment in a ‘blaze of glory.'”
Hale-Cusanelli’s lawyer Jonathan W. Crisp did not immediately respond to an email requesting comment.
Read the ruling below:
[Photo of Hale-Cusanelli via the Justice Department]
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