Early today, a three-judge panel of the Court of Appeals for the District of Columbia reversed a detention order entered by a district court judge and remanded the case for a further detention hearing for Eric Munchel and Lisa Eisenhart.  Munchel has been identified as a member of the Oath Keepers, and Eisenhart is his mother and a vocal proponent of the January 6 protests.

The decision was 2-1, and the panel of appeals court judges included a Clinton appointee, an Obama appointee, and a Trump appointee.  The Trump appointee, Judge Katsas, dissented, but only on the basis that he would have remanded the case back to the district court judge with an order that the defendants be released on bond, whereas the two-judge majority was sending the case back for further proceedings consistent with the Appeals Court’s order.

So it was really a 3-0 loss by the government on the lower court decision to hold the defendants without bail pending trial — something the government has asked for in a number of Jan. 6 protest cases.

As recapped by the Court’s Opinion, Munchel and Eisenhart were vocal advocates at the Capitol on January 6, but they were not among the group of individuals who used force or violence to enter the Capitol.  They entered the Capitol along with a crowd of others — through an open door that Capitol Police were standing next to and allowing the crowd to come inside.  Munchel was “armed” with a taser he was wearing on his hip.  Inside they came across some plastic zip ties, which they picked up and carried with them — they did not bring zip ties with them to the Capitol.

Munchel recorded some of the events on his iPhone affixed to his vest, and the Court describes the recording as follows:

 Munchel told members of the mob “don’t break sh_,” “no vandalizing sh__. We ain’t no god damn Antifa, motherf__ers,” and “you break sh__, I break you.”

They remained inside for 12 minutes, and while they were recorded making inflammatory statements, neither committed any act of violence while inside the Capitol.  They mostly just watched others.

Both were interviewed by the media and made reference to the actions of Americans at the time of the Revolution in describing their views.

The FBI identified Munchel and Eisenhart, and four days after the protest they executed a search warrant at Munchel’s apartment where they found firearms and loaded magazines. Munchel was properly licensed to possess those items.  Munchel was not home at the time, and when he learned of the search he turned himself in to the local FBI office.  He arranged for his attorney to deliver his iPhone to the FBI.  Eisenhart also turned herself in when she learned there was a warrant for her arrest.

At their initial court appearance, the government sought an order of detention, seeking to hold both in custody until the time of their trial, in part on a claim that their release pending trial would create a danger to the community.  The Magistrate in Tennessee where they first appeared ordered that they be released on standard terms and conditions of release and ordered them to appear in Washington DC District Court on the date and time directed.

DC District Court Judge Beryl Howell stayed that Magistrate’s Release Order, and ordered that both be transported in the custody of the US Marshall to the DC Court for a review of the Release Order — an action taken at the request of the Government.

At that hearing, Judge Howell ordered that Munchel and Eisenhart be held pending trial as a flight risk and a danger to the community.

The District Court concluded that both Munchel and Eisenhart were eligible for detention because they were charged with felonies while carrying a dangerous weapon, explaining that the indictment alleges that Munchel carried a dangerous weapon (the taser) and that Eisenhart aided and abetted Munchel and therefore she was liable as if she were the principal.

The District Court concluded that appellants’ history and characteristics weighed against detention but that the nature and circumstances of the charged offenses, the weight of the evidence, and the potential danger appellants pose to the community weighed in favor of detention. The District Court further determined that neither appellant was likely to be deterred by release conditions.

That Order was reversed in the decision in today’s ruling.  The Appeals Court held:

In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.  The Bail Reform Act of 1984 authorizes one of those carefully limited exceptions by providing that the court “shall order” a defendant detained before trial if it “finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.”  In common parlance, the relevant inquiry is whether the defendant is a ‘flight risk’ or a ‘danger to the community.’”  Here, the District Court held that both Munchel and Eisenhart should be detained on the basis of dangerousness.

We review the District Court’s dangerousness determinations for clear error. A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

Those two quoted paragraphs do not appear back to back in the opinion but they go together for purposes of coherence. I have excised references to prior court decisions simply to make them easier to read. The principles stated are pretty much standard practice if you are experienced in this area of the law.  The Court’s comments break no new ground legally.  The Court noted that Munchel had a limited criminal history, and Eisenhart had none — she has been employed as a nurse for more than 30 years.

However, the District Court found that the nature and circumstances of the charged offenses, weight of the evidence, and danger to the community factors all weighed in favor of finding that no conditions of release would protect the community.

The crux of the District Court’s reasoning was that “the grand jury alleged that [the appellants] used force to subvert a democratic election and arrest the peaceful transfer of power. Such conduct threatens the republic itself. . . . Indeed, few offenses are more threatening to our way of life.” Furthermore, because in media interviews Munchel showed no remorse and indicated that he would “undertake such actions again,” while Eisenhart stated that she would rather “fight” and “die” than “live under oppression,” the District Court found that both appellants were a danger to the republic and unlikely to abide by conditions of release.

The Appeals Court then went over the authorized legal basis upon which a “danger to the community” finding is supposed to be made under the Bail Reform Act:

The crux of the constitutional justification for preventive detention under the Bail Reform Act is that “[w]hen the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community, . . . a court may disable the arrestee from executing that threat.”

What the Court said next is of utmost importance because the Court is recognizing how the government’s propagandizing against the views of the protesters, and the acceptance of the Judiciary about those propagandized views, has subverted the rights of defendants in Jan. 6 protest cases to have fair bail determinations made in their cases.

In making the [dangerousness] determination, however, the Court did not explain how it reached that conclusion notwithstanding the countervailing finding that “the record contains no evidence indicating that, while inside the Capitol, Munchel or Eisenhart vandalized any property or physically harmed any person,” and the absence of any record evidence that either Munchel or Eisenhart committed any violence on January 6. That Munchel and Eisenhart assaulted no one on January 6; that they did not enter the Capitol by force; and that they vandalized no property are all factors that weigh against a finding that either pose a threat of “using force to promote [their] political ends,” and that the District Court should consider on remand.

If, in light of the lack of evidence that Munchel or Eisenhart committed violence on January 6, the District Court finds that they do not in fact pose a threat of committing violence in the future, the District Court should consider this finding in making its dangerousness determination. In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.

The DOJ has gone to great effort over the past 60 days to brand anyone present in the Capitol on January 6 as an “insurrectionist.”  The effort began with the overly dramatic and extra-legal descriptions of the macro-events of January 6 when those events had nothing to do with the factual charges on which people were being arrested. The DOJ approach would deprive thousands who were present of their right to “peaceably to assemble and to petition the Government for a redress of grievances” as guaranteed by the First Amendment.  The fact that thousands happened to do so on the date Congress was meeting to receive the vote of the Electoral College doesn’t eliminate those First Amendment rights.

But that is what the Biden DOJ, some district court judges, and the media are trying to set as the narrative of the event — that Jan. 6 was not a “protest” of “petitioning” of Congress to redress grievances, it was an effort to “overthrow” the government by some undefined means.

Today’s opinion from three Appeals Court judges forces the District Court and the prosecutors to reset their focus.  Their attention should not be on the protest as a whole but on the specific facts related to the individuals being charged with crimes.  Participating in a protest is not illegal — even one calling for Congress to choose a different course of action, and doing so loudly and with vehemence.  Those who committed violence should be held to account for their violence — but only their violence and not violence that took place around them in which they did not participate.

I’ll have a longer and more detailed version of the legal issues involved in this story posted on my Substack page in few hours.