D.C. Circuit Rebukes Lower Court On Indefinite Detention Without Bail Of Jan. 6 Protester George Tanios

D.C. Circuit Rebukes Lower Court On Indefinite Detention Without Bail Of Jan. 6 Protester George Tanios

In the Roman pantheon, the goddess of justice is often depicted wearing a blindfold – an allegory representing the ideal that law should be applied impartially, without regard to a person’s status, position or wealth.

We like to pretend that our judges can administer such blind justice, but the truth is that courts are neither impervious to narratives spun by the media nor immune to political favoritism.

The detention without bail of George Tanios – a 39 year-old restaurateur and father of three from West Virginia – in connection with the events at the Capitol on Jan. 6 is a case study in how leftwing media propaganda influences the courts and subverts the rule of law.

The Relevant Facts (from Tanios’ appellate brief)

In early January 2021, George Tanios – who planned on attending the Stop the Steal rally in Washington D.C. on Jan. 6 – purchased two canisters of “bear spray” (a chemical irritant) and two small keychain bottles of mace for self-defense because he had heard about Trump supporters being violently attacked in connection with similar political events by members anti-Trump groups.

On January 6, 2021, Tanios – along with a friend named Julian Khater – attended the rally. Afterwards, the two men proceeded to the Capitol where they witnessed “chaos unfolding.”

At some point, the two friends separated.  But at approximately 2:14 p.m., Khater reunited with Tanios and claimed that someone – Khater did not say who – had sprayed him with a chemical.  Khater “appeared upset and wanted to retrieve [the] ‘bear spray’ from Tanios’ backpack.”

During this interaction, Khater grabbed one of the containers of “bear spray” from Tanios’ backpack.  Tanios, however, argued with him and refused to relinquish the spray to Khater.

The can was returned to the backpack, but Khater managed to get his hands on a smaller bottle of mace from the backpack.  He then proceeded to the line of officers protecting the Capitol, and sprayed three of them – one of whom was U.S. Capitol Police Officer Brian Sicknick.

There is no evidence that Tanios knew that Khater accessed the smaller bottle of spray or that Tanios knew that Khater sprayed people.

Officer Sicknick  

Officer Sicknick died the following day. Immediately, officials declared that he had succumbed to injuries he sustained during the Capitol melee.

The Justice Department opened a federal murder investigation into his death, and Democrats and their media allies promoted this propaganda for over three months.

The New York Times falsely reported that Sicknick had died as a result of being bludgeoned in the head by a fire extinguisher by a  pro-Trump rioter – a claim that was echoed multiple times by the leftwing media.

On April 19, however, D.C.’s chief medical examiner issued a report stating that Sicknick did not die from injuries sustained on Jan. 6, but from natural causes – he suffered two strokes.   In an interview with The Washington Post, the medical examiner explained that the strokes were not brought about by any allergic reaction to the chemical irritants dispensed by rioters. He further stated that Sicknick had no internal or external injuries from the riot.

This fact was given minimal attention by the same media outfits that had pushed the canard that Sicknick had been murdered by Jan. 6 rioters.

Charges and Arrest

After reviewing body-worn camera footage from a Washington police officer who was standing next to Sicknick, investigators accused Tanios and Khater of working together to spray officers in their faces in order to assist rioters in their effort to push past bicycle rack barriers preventing access to the Capitol.

On March 6, 2021, a criminal complaint charged Tanios and Khater with offenses stemming from their alleged conduct on the Capitol grounds on January 6, 2021. Tanios was arrested at his home on March 14, 2021.

Three days later, on March 17, 2021, a grand jury indicted Tanios and Khater on multiple charges, the most serious being conspiracy to injure an officer and assaults on federal officers with a dangerous weapon.  At no time were either Tanios or Khater ever charged with causing the death of Sicknick.

First Bail Hearing

A few days after his arrest, Tanios appeared before Magistrate Judge Michael Aloi for a hearing to determine whether bail should be set.

In our society, said the Supreme Court, “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 law requires that the government prove by clear and convincing evidence that the defendant presents such a danger that pretrial detention is the only means by which the safety of the community can reasonably be assured.  And to make this showing, the evidence must demonstrate that the defendant poses a real danger, not a theoretical one.

At the Tanios’ bail hearing, the prosecution called no witnesses and relied only on an affidavit from an FBI agent named Riley Palmertree who investigated the case, some photographs and video recordings from surveillance cameras outside the Capitol and footage from police-worn body cameras.

Based on this evidence, the government’s sole basis for believing that Tanios presented a danger was that Khater was observed on video spraying law enforcement officers with what appeared to be a chemical irritant, and  that at other points during the afternoon, Tainos was seen with Khater on Capitol grounds.

None of this evidence established – let alone in a clear and convincing way – that there was any agreement between Tanios and Khater to assault law enforcement officers by spraying them with chemical agents.

In contrast, Tanios called nine witnesses to establish that he posed no danger whatsoever.  Those witnesses demonstrated that Tanios had a clean record, a stable job and family, and no affiliations with any militias or extremist groups.

Still, the law and the facts took a backseat to the political winds of the day.

Judge Aloi acknowledged that the government’s case against Tanios was “challengeable,” but he nevertheless concluded that Tanios was a danger to the community and ordered him detained without bail pending trial.

While Judge Aloi never stated explicitly that he was denying bail because he believed that Tanios was responsible for Sicknick’s death, it is hard to imagine that the media lies about Sicknick’s cause of death did not influence him.  In fact, Aloi mentioned that it was “compelling” for him to watch video footage of “the officer who is now no longer with us … rubbing his eyes on the Capitol steps” after getting sprayed with mace.

Aloi otherwise gave no explanation for his bail decision, and never even considered whether Tanios actually presented an identifiable or articulable future threat to the community or any other person.

Instead, Judge Aloi took a political swipe at Tanios, denouncing him for “supporting the president who would not accept that he was defeated in an election.”  Aloi also accused those who were present at the Capitol on Jan. 6 as being “radicalized by hate,” he scoffed at their “refusal to really accept the result of a democratic process,” and he ascribed to them a collective “desire to show up and attack our country.”

On that basis, Judge Aloi ordered Tanios detained, and separated him from his employment, his fiancée and his three young children.

Second Bail Hearing

Tanios challenged Aloi’s detention order, and another hearing was held over two days on April 27 and May 11, 2021 – this time before district judge Thomas Hogan.  By this point, the D.C. medical examiner had released his report attributing Sicknick’s death to natural causes.

Despite these medical findings, Judge Hogan made remarks at the hearing that suggested that he still believed that Sicknick had died as a result of the events of Jan. 6.  Judge Hogan said that the fact that “one [officer] died” after the riot was “evidence” in the hearing, and he referred to Sicknick as “the officer that died the next day.”  Sicknick’s death should not even have been mentioned at the hearing, as it was not germane to any of the issues under consideration.

Moreover, while the D.C. medical examiner’s report had definitively pronounced that Sicknick’s death was unrelated to the events of Jan. 6, Hogan could only bring himself to state that there were “no allegations in the pleadings” that Tanios had caused Sicknick’s death.

The truth is there were no facts at all – irrespective of the pleadings – from which Tanios could be found to have brought about Sicknick’s demise.  Hogan’s refusal to state as much suggests that he harbored a view that Tanios shouldered responsibility for Sicknick’s passing.

At the conclusion of the hearing, Judge Hogan stated that the law required him to sort the Jan. 6 rioters into “two buckets” – those who were accused of committing violence that day and those who were not – and that the violent defendants should be “presumed to pose a concrete and prospective threat” warranting pretrial detention.

Because of the nature of the accusations brought against Tanios, Judge Hogan concluded that Tanios fell into the “violent” category and therefore he was presumed to be so dangerous that pretrial detention was the only means by which the safety of the community could reasonably be assured. Judge Hogan therefore upheld the detention order commanding that Tanios to be held without bail until his trial.

Appeal to D.C. Circuit

Tanios appealed this decision to the Court of Appeals for the D.C. Circuit.  He argued that the government must identify an articulable threat posed by the defendant to an individual or the community in order to preventatively detain him.  The district court’s “presumption” approach allowed the government to skirt that requirement entirely.

Further, in our system of criminal justice, the government bears the burden of proof.  But by allowing a presumption of detention to flow from a mere accusation that a defendant participated in acts of violence, the court improperly shifted the burden onto the defendant to disprove that presumption.

Such a regimen also presented a substantial risk that members of the public would be chilled from engaging in First Amendment-protected associational activity out of fear that they could be wrongfully accused of violence and indefinitely imprisoned. Giving this much power to prosecutors creates an outsize potential for abuse.

For these reasons, the lower court’s approach not only violated the express statutory language of the Bail Reform Act, but transgressed fundamental constitutional norms.

D.C. Circuit Decision

Last week, the D.C. Circuit overturned the detention order and directed Tanios’ release.

In a pithy, unsigned decision, the D.C. Circuit found that “presumptions of detention” such as the one recognized by Judge Hogan are unlawful and “contraven[e] … the Bail Reform Act and precedent.”

This makes sense, of course, since the Supreme Court long ago made clear that “[i]n our society, liberty is the norm, and detention prior to trial … is the carefully limited exception.”  To allow a presumption of detention would allow the exception to swallow the rule.

The D.C. Circuit further stated that without such a presumption, there was no basis for the lower court to have ordered Tanios’ detention without bail.  The  D.C. Circuit stated, “The record reflects that Tanios has no past felony convictions, no ties to any extremist organization, and no post-January 6 criminal behavior that would otherwise show him to pose a danger to the community.”

Five months after his arrest, Tanios was finally released.

Conclusion

Journalist Glenn Greenwald has aptly noted that the media “portrayed the events of Jan. 6 as a “murderous orgy carried out by savages so primitive and inhuman that they were willing to fatally bash in the skull of a helpless person or spray them with deadly gases until they choked to death on their own lung fluids. None of it was true, but that did not matter.”

The aim of the left, according to Greenwald, was to “exploit[ ] the tragic death of [Officer Sicknick] to achieve their tawdry goals.”

And it seems plain that one of those goals was to pull the blindfold off the eyes of Lady Justice.

By repeating the falsehood that Brian Sicknick died at the hands Jan. 6 insurrectionists, the left strove to eliminate impartiality by the courts – it endeavored to promote a falsehood that would seep into the public consciousness, color judges’ perceptions of the Capitol riot cases, and permanently stain their ability to apply the law evenhandedly in these matters.  Perhaps even to prod judges to create new, flagrantly unconstitutional rules to justify prolonged incarceration of those who were present at the Capitol on that fateful day.

And in the case of George Tanios, it appears that the left accomplished all of these objectives.  Until last week, that is.

Whether the D.C. Circuit’s decision in Tanios’ case marks an inflection point in how the courts will approach Jan. 6 cases going forward remains to be seen.  But at a minimum, the decision tightened the blindfold, even if just a bit.  And for that we should be grateful.

Donations tax deductible
to the full extent allowed by law.