Non-Violent Capitol Hill Trespasser Timothy Hale-Cusanelli’s Racist Views Do Not Justify Continued Detention Without Bail
Appeals Court upholds detention without bail. The fervor to take down those individuals who participated in the protest and riot on Jan. 6 has let loose a wrecking ball that is pulverizing core constitutional rights.
Last week, a federal appellate court affirmed the continued imprisonment without bond of Timothy Hale-Cusanelli, one of more than 500 people who entered the Capitol on Jan. 6.
Hale-Cusanelli has now been jailed in a maximum security federal lockup for almost six months. He is kept in 23-hour-a-day isolation – conditions similar to those imposed on terrorists detained at in Guantanamo Bay, Cuba.
(Ironically, this fact that doesn’t seem to bother most liberals who, for anyone else, decry solitary confinement as inhumane.)
What awful actions did Hale-Cusanelli engage in to warrant such a draconian penalty? Was he violent? Did he attack the Capitol Police? Did he put his feet on Nancy Pelosi’s desk or wear a furry hat with horns? Did he eat someone’s liver with some fava beans and a nice chianti?
None of these.
On Jan. 6, Hale -Cusanelli simply entered the Capitol through doors that had already been kicked open and waited in line with others to use the restroom facilities. When he heard that there had been a shooting inside the building, he left. He did not assault anyone, damage any property, or organize any of the events of that day.
What he did do – prior to Jan. 6 – was express to others odious opinions about blacks, women and Jews.
And however the court tries to dress it up, it’s because of those repugnant – yet constitutionally protected – views that he sits in jail today.
In this sense, the greatest threat to our Republic from Jan. 6 comes not from the events of that day, but from how our government has responded to them.
On Jan. 6, Hale-Cusanelli was a 31 year-old sergeant in the United States Army Reserves who was employed as a private security officer at the Naval Weapons Station Earle in Colts Neck, New Jersey.
That day, he drove by himself from New Jersey to Washington, D.C. for the Stop the Steal rally. He arrived around noon at the end of President Trump’s speech, and heard Trump encourage people to walk to the Capitol.
Hale-Cusanelli wore a suit and tie to the event – a fact that indicated, as the court correctly observed, that he did not come armed for battle. He made his way to the Capitol, and entered through doors that were already open. He thereafter left the building after hearing that someone had been shot.
He Speaks to a Colleague
After returning from Washington, D.C., Hale-Cusanelli told a friend of his that he was at the Capitol on Jan. 6 and showed him some videos he had taken on his cell phone. That friend then confidentially reported Hale-Cusanelli to the Naval Criminal Investigative Services (NCIS).
NCIS placed a wire on the friend to surreptitiously record a conversation with Hale-Cusanelli about his participation at the Capitol.
During the conversation, Hale-Cusanelli admitted to entering the Capitol and using hand signals to beckon others to “advance.” He described feeling an “adrenaline rush” and a sense of “purpose” that day.
He also told the friend that he believed that civil war was the “most likely” and “simplest” outcome of the political divide in the county but expressed that he did “not … actually want that,” and said that the simplest solutions are not always the best ones.
Hale-Cusanelli then recited Thomas Jefferson’s famous quote that “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”
Hale-Cusanelli thereafter was arrested and indicted on seven counts involving trespass and disorderly conduct in connection with the events of Jan. 6.
The Bail Reform Act
In 1984 (the irony of this year is not lost), Congress passed the Bail Reform Act – a law that made it legal for the government to deny bail in federal criminal cases if certain special circumstances applied. The law was intended to be used against the most dangerous criminals in the most serious cases.
In fact, in United States v. Salerno, the Supreme Court held that “[i]n our society, liberty is the norm, and detention prior to trial … is the carefully limited exception.”
Thus, in order to secure a detention order (the name of the court order denying a criminal defendant the right to bail), the statute requires that the government prove by clear and convincing evidence that nothing short of detention “will reasonably assure … the safety of … the community.”
In making this determination, courts must consider four factors:
- The nature and circumstances of the offense charged
- The weight of the evidence against the person
- The history and characteristics of the person, and
- The nature and seriousness of the danger to any person
The district court weighed the four factors and ruled that Hale-Cusanelli was so dangerous that bail was inappropriate.
Taking the four factors in turn, the court found that because Hale-Cusanelli “was not charged with any offenses involving violence or destruction of property,” the first prong tilted toward release. In fact, the district court judge conceded that “if I was just looking at what the defendant did on January 6th, he would be a free man right now.”
In contrast, the district court found that the second factor, the weight of the evidence, favored detention because the evidence demonstrated that “defendant did what the government says he did on January 6th.”
The decision thus came down to the last two factors: Hale-Cusanelli’s history and the future danger he presented to others.
History and Danger
The district court described Hale-Cusanelli’s history as “the most difficult prong in this case.” After all, he had a solid employment history, was a military veteran with a security clearance, and had no criminal record.
However, NCIS had interviewed 44 of Hale-Cusanelli’s coworkers, and 34 of them had described him “as having extremist or radical views pertaining to the Jewish people, minorities, and women” and stated that he had made abhorrent statements about them such as that “babies born with disabilities should be shot,” that “Hitler should have finished the job,” and that “Jews, women, and blacks were on the bottom of the totem pole.”
NCIS also discovered that, prior to Jan. 6, Hale-Cusanelli had uploaded a series of videos to a YouTube channel in which he expressed racist and anti-Semitic sentiments. Memes conveying similar views were recovered from his phone, as well.
Despite Hale-Cusanelli’s use of such repellent language, however, not one of the 44 people interviewed accused him of ever engaging in violent or threatening behavior.
Because, said the district court, “we don’t typically penalize people for what they say or think,” it turned its focus on a singular youthful indiscretion in which Hale-Cusanelli was involved a decade earlier.
In 2010, when Hale-Cusanelli was just 20 years old, he was a rear passenger in a car with three other occupants when one of those passengers used a PVC “potato gun” – a piece of plastic tubing that uses pneumatic pressure to launch objects into the air – to fire frozen pieces of corn at the home of another adolescent.
The car in which Hale-Cusanelli was a passenger was pulled over by the police, and the driver consented to a search. The police discovered the potato gun and bag of frozen corn cobs in the trunk.
The words “White is Right” was written on the side of the PVC piping, along with a drawing of a confederate flag.
Despite that, the police report of that incident stated that the investigating officer concluded that there wasn’t “any bias related intent involved with this particular offense.” The officer found that no one residing in the targeted house was of African American descent, and the occupant who launched the corn at the house said he did so because he was angry at the homeowner’s son due to a prior dispute over stolen bicycles.
Not only did the car not belong to Hale-Cusanelli, but there was no evidence that the potato gun was his, that he had any role in using it, or that he even knew the person whose house was targeted.
The matter was resolved with a plea to disorderly conduct.
Nevertheless, in 2021, the district court glommed onto this episode, which it concluded was “some evidence of [Hale-Cusanelli] actually acting out” on “neo-Nazi beliefs.”
The judge concluded that the potato gun incident demonstrated that Hale-Cusanelli had acted in the past on his “animus against groups of people in this country,” and therefore that he might do so again.
The district court therefore held that the only way to assure the safety of the community pending trial was for Hale-Cusanelli to remain detained without bail.
Hale-Cusanelli appealed the detention order to the Court of Appeals for the D.C. Circuit.
In a unanimous decision, the three-judge panel affirmed the district court. The panel consisted of two Democrat-appointed judges (Tatel and Williams) and one Republican appointee (Rao).
Here are the pleadings on appeal that set forth the details of the allegations and legal arguments:
That the two Democrats would cave to political pressure was hardly unexpected. But Rao’s acquiescence was surprising. She has been a solid conservative – notably in her dissent in the case allowing the congressional subpoena for President Trump’s tax returns from Mazars and in her authorship of the decision upholding the Department of Justice’s dismissal of the prosecution against Gen. Michael Flynn. Here, however, she simply went along to get along.
With a hopeful eye on an eventual elevation to the U.S. Supreme Court in a future Republican administration, and having encountered resistance in her confirmation to the D.C. Circuit because of some of her writings prior to becoming a judge, Rao likely was unwilling to invite the inevitable controversy that would attend a dissent in this case.
Shamefully, the D.C. Circuit minimized the significance of the fact that Hale-Cusanelli did not fire the potato gun in 2010 or that the person who had fired it chose the house because of a prior dispute having nothing to do with racial animus. The Circuit stated that although “the victim was not African American,” the shooter could have been motivated by anti-Semitism, but “the officer apparently made no effort to determine whether the victims were Jewish.”
The Circuit also held that although the responding officer credited the shooter’s explanation that he targeted the victim due to a dispute with his son related to stolen bicycles, “the district court was not required to agree.”
But if one’s liberty can be taken away based on nothing more than “what ifs,” we would all be in jeopardy. A system where speculation and hypothesis alone can justify imprisonment is one that is ripe for governmental abuse.
Perhaps realizing as much, the court stated that “even were we to conclude that the district court erred by finding that the potato gun incident was motivated by racial animus,” Hale-Cusanelli’s remarks to a colleague about an impending civil war and reference to Thomas Jefferson’s “Tree of Liberty” quote made it reasonable to conclude that he posed a risk of engaging in hate-motivated violence in the future.
But such speech, however benighted, is constitutionally protected, and therefore cannot by itself be the basis for indefinite pretrial detention.
Indeed, in Terminiello v. Chicago, the Supreme Court declared that one of the purposes of free speech is to invite dispute even where it stirs people to anger, and that the right to speak freely and to promote diversity of ideas is “one of the chief distinctions that sets us apart from totalitarian regimes.”
Jan. 6 as Pretext
Unquestionably, Hale-Cusanelli’s bigoted beliefs make him unsympathetic. It’s very easy to shrug our shoulders at his situation and say “serves him right.”
But, as Justice Felix Frankfurter once said, “the safeguards of liberty have frequently been forged in controversies involving not very nice people.”
And the bigger takeaway from this case is that the hyperbolic phrase “January 6th Insurrection” has become a shibboleth to progressives – a contemporary version of “Remember the Alamo!” – that is invoked to justify transforming our national law enforcement apparatus into a Bolshevik Cheka committed to crushing those who don’t subscribe to leftist orthodoxy.
Hale-Cusanelli’s case is a perfect example of how, using January 6 as cover, our national law enforcement apparatus – investigative agencies, prosecutors and courts – have become a Thinkpol that sniffs out and banishes to the gulag those whose opinions they dislike.
Recently, former FBI Assistant Director Frank Figliuzzi stated on MSNBC that “people sitting in Congress right now” and “people in and around the former president” are the “command and control element of a terrorist group” that needs to be “attacked and dismantled.”
And earlier this year, Secretary of Defense Lloyd Austin vowed to weed out “extremism” from the ranks of the military.
Today, I met with senior leaders to discuss extremism in the military. As a first step, I'm ordering a stand down to occur over the next 60 days so each service, each command and each unit can have a deeper conversation about this issue. It comes down to leadership. Everyone’s. pic.twitter.com/wbC21hdHaV
— Secretary of Defense Lloyd J. Austin III (@SecDef) February 4, 2021
The Justice Department has implemented a new system to “methodically track” domestic terrorism cases nationwide within the FBI, and, as reported by The Herald, the National Security Council has released a plan “to identify government employees who may pose a domestic terrorism threat, with a number of federal agencies working on new policies and programs to root out potential domestic extremists in law enforcement and in the military.”
Indeed, like Hale-Cusanelli, many non-violent individuals who were present at the Jan. 6 melee have been tagged as domestic terrorists, denied due process and held in isolation without bail.
Author and filmmaker Dinesh D’Souza has pointed out, “While many politicians bewail the plight of political prisoners abroad, like Navalny in Russia, they ignore the startling reality that America now has its own political prisoners, indefinitely held on trumped-up charges.”
While many politicians bewail the plight of political prisoners abroad, like Navalny in Russia, they ignore the startling reality that America now has its own political prisoners, indefinitely held on trumped-up charges. @theamgreatness @julie_kelly2 pic.twitter.com/7Y9x7x8Hsb
— Dinesh D'Souza (@DineshDSouza) February 9, 2021
The fervor to take down those individuals who participated in the protest and riot on Jan. 6 has let loose a wrecking ball that is pulverizing core constitutional rights. The left views this as acceptable collateral damage, but it’s not.
The Supreme Court has been clear that “[i]n our society, liberty is the norm, and detention prior to trial … is the carefully limited exception.” By allowing a person’s thoughts and constitutionally-protected expression, however loathsome, to justify jailing him, the D.C. Circuit, bowing to political correctness, has permitted the exception to swallow the rule.
Here, Hale-Cusanelli was not preventively detained because his release presented an unmanageable risk of danger. He was detained because he espoused reprehensible views.
No doubt the judges here thought they were honoring America’s deeply held tenets of tolerance by keeping Mr. Hale-Cusanelli imprisoned. But over two centuries ago, a more famous Hale remarked, “I greatly fear some of America’s greatest and most dangerous enemies are such as think themselves her best friends.”
To be clear, judges are not enemies in the typical sense. But when they ignore the law to suit the political pieties of the day, they lay down their shield and pick up a sword.
And that weapon, unlike a potato gun, does real damage.
Ameer Benno is an appellate and constitutional law attorney. He was the Republican candidate for the U.S. House of Representatives in 2018 in New York’s Fourth Congressional District, and he frequently appears on national television and radio to give legal and political commentary. Follow him on Twitter at @AmeerBenno.DONATE
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