A man who was charged with assisting in the chemical spraying of Capitol Police officer Brian Sicknick on Jan. 6 has been ordered to be released from jail ahead of his pending trial, with a trio of appeals court judges concluding the district court “clearly erred” in its decision to keep him behind bars.
George Tanios, who is from West Virginia, was charged with crimes stemming from the Capitol riot and is accused of coordinating with Julian Khater of Pennsylvania, who sprayed three officers, including Sicknick, with a chemical spray as rioters attempted to break through the bike rack barrier on Capitol grounds. The men have not been charged with killing Sicknick, and no one has been charged in connection with his death. Tanios, who ran a local Sandwich U franchise, did not spray any officers and has not been accused of doing so.
Tanios had been behind bars since March after a magistrate judge and a district court judge concluded he should be locked up before his trial, but judges for the U.S. Court of Appeals for the District of Columbia Circuit disagreed.
“We conclude that the district court clearly erred in determining that no condition or combination of conditions of release would reasonably assure the safety of the community,” the appeals judges wrote, adding that although Tanios “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 appeals court noted 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.”
The appeals court panel was comprised of George H.W. Bush appointee Judge Karen Henderson, Bill Clinton appointee Judge Judith Rogers, and Donald Trump appointee Justin Walker, and the trio said that it was “ordered” that the district court’s May detention order should be “reversed” and the case should be sent back to the lower court to release Tanios “to appropriate conditions, including home detention and electronic monitoring.” The Justice Department was given a week to request that the full appeals court take up the case.
Capitol Police announced Sicknick, 42, who joined the agency in 2008, died on Jan. 7, one day after the riot.
The chief medical examiner’s office told the Washington Examiner in April that Sicknick’s “cause of death” was “acute brainstem and cerebellar infarcts due to acute basilar artery thrombosis," a stroke, and the “manner of death” was “natural.” The medical examiner said Sicknick was sprayed with a chemical substance at about 2:20 p.m. on Jan. 6, collapsed at the Capitol at about 10 p.m., and was transported by emergency services to a local hospital. He died at about 9:30 p.m. on Jan. 7. Francisco Diaz, the chief medical examiner, told the Washington Post that Sicknick died after suffering two strokes, did not suffer an allergic reaction to chemical irritants, and bore no evidence of either external or internal injuries, but he contended that “all that transpired played a role in his condition.“
Tanios’s defense lawyer, L. Richard Walker, had argued in July that his client "did not enter the Capitol building. Tanios did not damage property, and he did not assault anyone. … Tanios is not guilty, having no knowledge of an assault, no intent to commit an assault, and no agreement to harm anyone. The District Court erred in detaining Tanios. The Government failed to prove that Tanios is a danger to the community by clear and convincing evidence.”
But the Justice Department took a different view, with Channing Philips, the acting U.S. Attorney for the District of Columbia, arguing last month that Tanios “aided and abetted co-defendant Julian Khater’s assault on the Capitol’s police defenders” when Khater “sprayed an unknown chemical substance directly into the faces of three unprotected officers who were guarding security barriers.” Phillips defended the district court’s decision to keep Tanios locked up, contending that the judge “did not legally err in ordering detention” but rather “conducted a fact-bound, individualized analysis."
Tanios’s lawyer retorted that his client “rejected the request by Khater to tender any bear spray” and pointed to a recorded conversation between Tanios and Khater, in which Khater said to “give me that bear s***” with Tanios responding, “Don’t do it, don’t do it, Julian. … Hold on, hold on, not yet, it’s still early.” The defense lawyer wrote, “Clearly, based on the totality of the recorded conversation, there is no agreement between Tanios and Khater. Tanios did not join in Khater’s plan to use spray against others on Capitol grounds. Tanios disagreed with Khater.”
Khater can be seen spraying Sicknick and two other officers, identified as Capitol Police officer Caroline Edwards and Metropolitan Police Department officer Damion Chapman, which forces the trio to retreat from the barricade line for 20 minutes, with video showing Sicknick washing his eyes and Edwards bent over in distress, with the latter reporting injuries and scabbing under her eyes that remained for weeks.
U.S. District Judge Thomas Hogan of the District of Columbia had ordered both Tanios and Khater to remain detained back in May. In a now-reversed decision, the judge had concluded that their actions “played a role in the ultimate breach in the attack of the Capitol” and that they must therefore remain locked up.
“These two gentlemen are law-abiding, respected individuals in the community, and it makes it very difficult for the court to make this conclusion, but they still committed this attack on uniformed police officers. I don’t find a way around that,” Hogan said in May. “That assault helped lead to the violent breach of the Capitol. And that indicates a finding of dangerousness.”
Magistrate Judge Michael Aloi of the Northern District of West Virginia had initially ruled Tanios should be held in jail in March, stating, “My obligation is to the safety of our community, and I don’t think I’ve ever seen anything play out in a way that was more dangerous to our community. And I have no question that, in your own way, Mr. Tanios, you chose to be part of that.”
A different trio of appeals court judges upheld Khater's detention last month.
Prominent Democrats, including President Joe Biden, have suggested that Sicknick died as a result of the violence at the Capitol despite the medical examiner’s office concluding that his death was natural.
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Original Author: Jerry Dunleavy