A West Virginia restaurateur who allegedly sprayed late U.S. Capitol Police officer Brian Sicknick with bear spray on Jan. 6 was ordered to be released on Monday by a federal appeals court.
In a brief, two-page order without a formal opinion, the U.S. Court of Appeals for the D.C. Circuit simply reasoned that a lower court “clearly erred in determining that no condition or combination of conditions of release would reasonably assure the safety of the community.”
In so ruling, accused pro-Trump conspirator George Tanios, 39, is not immediately out on bail but his case will be remanded to the same court that denied his release in early May “subject to appropriate conditions, including home detention and electronic monitoring.”
Here’s how that release, months in the making, came to be.
“Although appellant has not shown that the district court applied a presumption of detention in contravention of the Bail Reform Act and precedent, the district court clearly erred in its individualized assessment of appellant’s dangerousness,” the three-judge panel determined in a per curiam order filed by the court’s clerk. “The record reflects that Tanios has no past felony convictions, no ties to any extremist organizations, and no post-January 6 criminal behavior that would otherwise show him to pose a danger to the community within the meaning of the Bail Reform Act.”
Tanios and his accused co-conspirator Julian Elie Khater, 32, are both charged with numerous federal crimes over their alleged participation in the abortive, far-right effort to stop the U.S. House of Representatives from counting the 2020 Electoral College votes.
“Mr. Tanios has been charged with three crimes of violence,” Assistant U.S. Attorney Sarah Wagner argued in late March as the defendant made his first bid for pretrial release before a West Virginia district court. That bid, of course, did not yield the result Tanios wanted.
“It is hard for me to look at this as anything other than an assault on this nation’s heart,” Magistrate Judge Michael John Aloi intoned as he explained it was a “solemn” decision to deny a defendant their liberty.
After the case was removed to the D.C. district court, the defendants tried again–filing two separate pre-trial release motions that generally denied the government’s allegations that the duo conspired to assault federal law enforcement on that cold and fateful January day.
“Mr. Tanios denies conspiring to injure officers,” defense attorney Elizabeth Gross, from the Federal Public Defender’s office in West Virginia, wrote in the late April bond motion. “Mr. Tanios denies aiding and abetting any other person in any crimes. Mr. Tanios denies assaulting any officer with a dangerous weapon.”
But that effort didn’t fare so well either.
“I have released most individuals, even one who was in the Capitol,” U.S. District Judge Thomas F. Hogan said as a wind-up for the double denial. “I am going to deny the requests in both cases for bond.”
Undeterred, attorneys for Tanios filed a notice of appeal in late May.
“Mr. Tanios wishes to highlight for the Court that this is not a case where — even as it is alleged — Mr. Tanios took the lead or personally caused harm to any individual or destroyed property,” his formal appeal noted. “Mr. Tanios is not a member of an extremist organization, militia or hate group. Mr. Tanios did not coordinate or plan a violent attack. In fact, as stated, Mr. Tanios has no history of violence whatsoever. Mr. Tanios is a family-oriented business owner who traveled to Washington, D.C., to attend what he believed would be an extremely important political rally. It seemed exciting, different, interesting, and an opportunity to express his support for his political party in a meaningful way. Mr. Tanios listened closely to all the speakers. After attending the rally, Mr. Tanios walked to the United States Capitol with the large crowd of people going there.”
That filing went on:
Upon arrival, Mr. Tanios had no idea that such an incredibly wild riot would develop and, despite being there, he never condoned the violent and chaotic behavior he witnessed. Naturally, as one may imagine, he regrets going down to the U.S. Capitol in the first place. Still, Mr. Tanios never entered the U.S. Capitol Building. Mr. Tanios did not tear down barriers. Mr. Tanios did not punch, kick or hit anyone. Mr. Tanios did not conspire to or assist with an assault on law enforcement officers. Most certainly, Mr. Tanios did not spray any officer with O.C. spray, “bear spray” or any other chemicals. Likewise, Mr. Tanios did not observe Mr. Khater do this either — if he even did — as the Government has alleged.
While pleading his innocence on the alleged facts of the matter, truly instrumental in the appellate court’s decision to overturn the lower court’s bail denial was how the court applied the relevant precedent in a case of another alleged Capitol rioter — one Eric Munchel, the man widely-known as the “Zip Tie Guy.”
After the result of that bail decision, the standard for pre-trial release is that district courts must adequately consider whether a defendant poses a genuine threat to the community when there is no evidence that shows such a defendant actually committed violence or were involved in planning or coordinating the events of January 6th.
“First, the District Court clearly errored in concluding, as a matter of law, that a presumption of dangerousness applies and, therefore, a presumption of detention exists for defendants, like Mr. Tanios, accused of violent crimes at the U.S. Capitol on January 6, 2021,” Tanios recently argued in an early June legal memo. “Second, the District Court clearly errored in finding that Mr. Tanios aided an assault on law enforcement officers and, therefore, should be placed in the erroneous ‘elevated category of dangerous defendants’ undeserving of release under this Court’s opinion in United States v. Munchel. Third, the District Court clearly errored because it failed to find that Mr. Tanios posed an articulable threat to an individual or the community in view of his conduct on January 6 and the particular circumstances of that day.”
Here, the appeals court panel made up of George H.W. Bush-, Bill Clinton-, and Donald Trump-appointed judges unanimously sided with the defense’s reading of case law.
Adam Klasfeld contributed to this report.
[image via U.S. Department of Justice]
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