Lakeland man seeks dismissal of charges in Jan. 6 Capitol riot, including civil disorder

A Lakeland man accused of four crimes in relation to the 2021 U.S. Capitol riot has asked a federal judge to dismiss all the charges.

Brian Boele’s lawyer filed a motion last week to dismiss all four counts, which include civil disorder, a felony, and three misdemeanors.

Boele, 60, was indicted in May 2022 along with four other defendants facing a total of 16 counts. In addition to civil disorder, Boele is charged with entering and remaining in a restricted building or grounds, disorderly conduct and disorderly and disruptive conduct in a restricted building or grounds.

Boele’s lawyer, Carolyn Stewart of Plant City, submitted a 28-page motion on July 25 to U.S. District Judge Richard J. Leon of the District of Columbia. In questioning the basis for the charges against Boele, Stewart mixed in criticisms of the police guarding the U.S. Capitol, then-House Speaker Nancy Pelosi and District of Columbia Mayor Muriel Bowser.

The filing describes Boele as a retired firefighter with no criminal history.

Stewart wrote that Boele was present outside the U.S. Capitol to exercise his First Amendment rights on Jan. 6, the day that members of Congress met to certify the results of the 2020 presidential election. Former President Donald Trump held a rally at the Ellipse, urging then-Vice President Mike Pence to block the election of Joe Biden (though Pence had no such powers) and encouraging his supporters to march to the Capitol and protest.

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Some Trump supporters broke into the Capitol building, forcing members of Congress to halt their proceedings and causing at least $2.7 million in damages, according to the Department of Justice.

Stewart argued that the government failed to establish that the area on the Capitol’s west side was restricted and that Boele thought he had a right to be there.

“Upon his arrival, there were no signs, barriers, or cordons to indicate the west area was closed by the United States Capitol Police (USCP) for any reason,” Stewart wrote.

The lawyer wrote that construction workers and journalists were allowed into the area without any security screening. She argued that the Capitol Police leadership approved at least six rallies on or near the Capitol grounds for Jan. 6, and none of the permits were revoked.

“The entire west side was visibly designated ‘closed’ with little wooden pickets, string, and signs that read, ‘area closed’ prior to 12:53 p.m. on January 6, 2021. Signs and pickets were torn down by unknown persons, shortly after the (Capitol breach),” Stewart wrote.

Authorities did not issue a dispersal order to the crowd gathered on the west side of the Capitol, Stewart wrote, and no effective public-address announcement was made before 6 p.m.

Stewart claimed that Capitol Police on the Upper West Terrace “began randomly and illegitimately shooting rubber bullets at the heads and upper bodies of peaceful crowd members not near the police line” and “shot flash grenades at peaceful protestors nowhere near the police line, where two men subsequently died of heart attacks or strokes after being targeted.”

A medical examiner ruled that two protesters died naturally from coronary heart disease and hypertensive heart disease.

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Stewart also claimed that by about 1:30 p.m. “crowd members at multiple locations not near the police line had been set afire or suffered penetration wounds from the excessive force use of non-lethal munitions, that were applied outside any legitimate standards.”

More than 1,000 people have been indicted on charges related to Jan. 6, and some are charged with assaulting police officers, including three from Polk County. The Department of Justice has released photos and videos showing many demonstrators fighting with officers.

In the filing, Stewart wrote that government officials have previously cited the presence of tear gas as notice to disperse.

“There is no such law,” Stewart wrote. “Without any dispersal order nobody knew they could not be present. Nobody knew what caused police to start shooting at peaceful protestors.”

Stewart wrote that law-enforcement agencies never issued an alert for “civil disorder" on Jan. 6. The Metropolitan Police Department declared a riot, but Stewart asserted that a riot and a civil disorder “are two distinct crimes under federal law.” The filing says the Department of Justice declared a civil disorder after the fact.

“The DOJ has created a new law where any de minimus act (shouting, being in a crowd, taking video of police excessive force, praying in a large group, etc.) can be called interference because the protestors are on alleged restricted grounds,” Stewart wrote.

In addition to her claims that the police acted irresponsibly, Stewart attributed the attack on the Capitol to “the now infamous Ray Epps crew.” Conservative groups and media figures, including former Fox News host Tucker Carlson, have claimed that Epps, an Arizona man, was an undercover government agent who instigated the Capitol riot to embarrass Trump and his supporters.

The U.S. House committee investigating the attack, a panel headed by Democrats, found no evidence to support the theory that Epps led a “false flag” operation. Epps has sued Fox News over the claims.

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In her conclusion, Stewart wrote, “Because the charges lack facts, acts, locations, and any specificity, no offense has been stated outside of the accusation that each of the above counts were violated.”

The motion identifies one of the other defendants, Alan Fischer III of Tampa, as Boele’s son. Though Fischer was reportedly a member of the Proud Boys, a neo-fascist organization, Stewart wrote in the motion that Boele “was not a Proud Boy during the events.”

Stewart did not respond Monday to a request for comment.

Stewart drew publicity in 2021 for her defense of another client charged with crimes related to Jan. 6. She claimed that Paul Hodgkins’ signature on a plea agreement had been forged.

No trial date has been set for Boele. One of his co-defendants, Zachary Johnson, has signed a plea deal.

Boele is one of six current and former Polk County residents indicted in relation to the Capitol attack. Three of them — siblings Jonathan and Olivia Pollock and a friend, Joseph Hutchinson III — are now fugitives. The Pollocks’ cousin, Joshua Doolin of Polk City, was convicted in March on charges that include civil disorder and theft of government property. He is due to be sentenced in August.

Corinne Montoni of Lakeland signed an agreement in June, pleading guilty to civil disorder in exchange for having other felony charges dismissed. She has not yet been sentenced.

Gary White can be reached at gary.white@theledger.com or 863-802-7518. Follow on Twitter @garywhite13.

This article originally appeared on The Ledger: Lakeland man asks judge to dismiss all charges related to Jan. 6 riot