United States v. McAbee

• Court: District Court, District of Columbia
• Decided: December 21, 2021
• Docket: Criminal No. 2021-0035
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Crim. Action No. 21-35-7 (EGS)

RONALD COLTON MCABEE,

Defendant.

MEMORANDUM OPINION

Defendant Ronald Colton McAbee (“Mr. McAbee”) has been

charged in a federal indictment with seven serious offenses

arising from his participation in the events at the U.S. Capitol

on January 6, 2021. See Redacted Third Superseding Indictment,

ECF No. 152. Following Mr. McAbee’s arrest and two detention

hearings, a magistrate judge in the Eastern District of

Tennessee released Mr. McAbee from custody pending trial. See

Rule 5(c)(3) Docs., ECF No. 128 at 24-30. 1 Pending before the

Court is the government’s Motion for Review and Appeal of the

Release Order, which requests that Mr. McAbee be detained

pending trial based on the danger he poses to the community. See

Gov’t’s Emergency Mot. to Stay and for Review and Appeal of

Release Order (“Gov’t’s Mot.”), ECF No. 108. Upon careful

consideration of the motion, opposition, and reply thereto, the

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document. arguments set forth at the September 22, 2021 hearing, the

applicable law, and the entire record herein, the government’s

motion is GRANTED.

I. Background

Mr. McAbee is alleged to have forcibly assaulted, resisted,

opposed, impeded, intimidated, or interfered with, and inflicted

bodily injury on, Metropolitan Police Department (“MPD”)

officers attempting to maintain the security of the U.S. Capitol

on January 6, 2021. See Redacted Third Superseding Indictment,

ECF No. 152 at 5-6. The Third Superseding Indictment charges Mr.

McAbee with the following offenses: (1) one count of Inflicting

Bodily Injury on Certain Officers or Employees and Aiding and

Abetting, in violation of 18 U.S.C. §§ 111(a)(1) and (b) and 2;

(2) one count of Assaulting, Resisting, or Impeding Certain

Officers or Employees, in violation of 18 U.S.C. § 111(a)(1);

(3) one count of Civil Disorder, in violation of 18 U.S.C. §

231(a)(3); (4) one count of Entering or Remaining in any

Restricted Building or Grounds with a Deadly or Dangerous

Weapon, in violation of 18 U.S.C. §§ 1752(a)(1) and (b)(1)(A);

(5) one count of Disorderly and Disruptive Conduct in any

Weapon, in violation of 18 U.S.C. §§ 1752(a)(2) and (b)(1)(A);

(6) Engaging in Physical Violence in any Restricted Building or

Grounds with a Deadly or Dangerous Weapon, in violation of 18

2 U.S.C. §§ 1752(a)(4) and (b)(1)(A); and (7) one count of Act of

Physical Violence in the Capitol Grounds or Buildings, in

violation of 5104(e)(2)(F). See id. at 5-12.

The Court sets out below the evidence proffered by the parties

in support of their briefing, 2 as well as an overview of the

procedural history of this case.

A. Factual Background

Mr. McAbee is a twenty-seven-year-old former law

enforcement officer who most recently resided in Tennessee. See

Gov’t’s Mot., ECF No. 108 at 13. He worked as a sheriff’s deputy

at the Cherokee County, Georgia Sheriff’s Office until November

2020 when he moved to the Williamson County, Tennessee Sheriff’s

Office, where he stayed until March 2021. See id. at 13-14.

In late December 2020, Mr. McAbee began exchanging text

messages with an associate (“Associate-1”) concerning plans to

travel to Washington D.C. on January 6, 2021, the date on which

Congress was scheduled to convene in a joint session to certify

the Electoral College vote count for the 2020 Presidential

Election. See id. at 11. Mr. McAbee initiated the text message

exchange on December 23, 2020:

Mr. McAbee: Hey buddy. You going to DC on the 6th?

2 At a detention hearing, both parties may present evidence by way of a proffer. See 18 U.S.C. § 3142(f); United States v. Smith, 79 F.3d 1208, 1209-10 (D.C. Cir. 1996).

3 Mr. McAbee: I want to go but only if you’re going. I’m not in shape to fight right now.

Associate-1: Yes sir I sure am!

Mr. McAbee: Let’s link up and go. I’ll slap a commie with this dead arm.

Mr. McAbee: Call me after work.

Gov’t’s Ex. B, ECF No. 125-1 at 1-2. 3 At that time, Mr. McAbee

was “excused from work” at the Williamson County Sheriff’s

Office due to a shoulder injury he had sustained from a recent

car accident. See Gov’t’s Mot., ECF No. 108 at 16. 4

Over the next few days, Mr. McAbee and Associate-1

continued to exchange text messages. In addition to coordinating

their travel logistics, they discussed the items they would

bring with them to Washington D.C. on January 6, 2021. In text

messages that were exchanged on December 31, 2020, Associate-1

sent Mr. McAbee a photo showing a firearm magazine, a knife, and

3 Because the text message evidence submitted by the government contains Personal Identifiable Information, the Court granted leave for those exhibits to be filed under seal and for redacted versions to be filed on the public docket. See Min. Order (Sept. 20, 2021). The Court will cite to the redacted exhibits throughout this Memorandum Opinion.

4 According to the government, a medical professional provided information to the Williamson County Sheriff’s Office indicating that Mr. McAbee underwent a medical examination on December 30, 2020, and “as a result of the exam,” he was “excused from work” from December 30, 2020 to January 14, 2021, which included the day he participated in the riot at the U.S. Capitol in Washington, D.C. Gov’t’s Mot., ECF No. 108 at 16. On January 14, 2021, Mr. McCabe was cleared to return to work with a limitation on the use of his right shoulder for four weeks. Id. 4 brass knuckles with the message, “That’s what I’ll carry in my

pocket.” Gov’t’s Ex. B, ECF No. 125-1 at 3. The conversation

continued:

Mr. McAbee: How can I get some knuckles

Associate-1: Amazon is quick

Mr. McAbee: So I’ve got a tire repair kit and the t handle tire puncture is a great tool

Associate-1: Lol this is true!

Id. at 4. Associate-1 then sent Mr. McAbee information about

“Steel Outdoor Reinforced Brass Knuckle Motorcycle Motorbike

Powersports Racing Textile Safety Gloves” that he had “just

ordered,” and he invited Mr. McAbee to order his own. Id. at 5-

6. Mr. McAbee responded, “Alright, I’ll shop around.” Id. at 6.

Later, Mr. McAbee informed Associate-1 that Amazon would not be

able to deliver the metal-knuckled gloves he had ordered in

time, and he asked Associate-1 if he could “buy those gloves in

a medium and I pay you back?” Id. at 17. Associate-1 replied, “I

got them.” Id. at 18.

On January 3, 2021, Associate-1 sent Mr. McAbee a text

message that said, “Ready to roll” and contained a photo showing

two knives, brass knuckles, and metal-knuckled gloves displayed

on a kitchen counter. Id. at 37. Mr. McAbee responded, “Damn. My

Arsenal doesn’t look that good.” Id. at 38. Associate-1

reassured Mr. McAbee that he would “have gloves for you

5 tomorrow,” id.; and he also told Mr. McAbee that he had “extra

knives,” id. at 39.

Mr. McAbee and Associate-1 discussed the potential threat

of violence in Washington, D.C. on January 6, 2021, throughout

the course of their text message conversations. During their

exchange on December 31, 2020, Mr. McAbee explained to

Associate-1 that he did not want certain individuals to travel

with them to Washington, D.C. because he did not think they

“should be subject to violence,” and violence “w[ould] be

there.” Id. at 9. Other messages further demonstrate that Mr.

McAbee anticipated engaging in violence on January 6, 2021:

Associate-1: I had to explain to [my child] last night why I was going to DC and what could happen. This is my fight so he doesn’t have to fight.

Mr. McAbee: I will rise or fall along side you. This is for future generations.

Id. at 14-15.

Mr. McAbee and Associate-1 traveled together to Washington

D.C. as planned. Evidence proffered by the government shows that

Mr. McAbee was at the U.S. Capitol on January 6, 2021, wearing

black gloves with hard, metal knuckles and a black tactical vest

with one patch that read “SHERIFF” and another with insignia

associated with the “Three Percenters.” 5 See Gov’t’s Mot., ECF

5 The government describes the Three Percenters as a loosely organized collection of individuals and militia group members who consider themselves analogous to the American colonists who 6 No. 108 at 12; see also Gov’t’s Ex. 4.2, ECF No. 108 at 11. He

also wore a red “Make America Great Again” baseball hat, a red

face scarf, white sunglasses, and a black shirt with white

lettering that read “DIFFERENT GENERATION.” Id.

Shortly before 4:30 p.m. that afternoon, Mr. McAbee was

present among a mob of hundreds of rioters who had gathered near

the archway and stairs leading to the U.S. Capitol building’s

Lower Western Terrace. Id. More than two hours earlier, at

around 2:00 p.m., protesters who had gathered in a crowd outside

of the U.S. Capitol forced entry into the building. Id. at 3.

Soon after, members of Congress, including the President of the

Senate, Vice President Mike Pence, were evacuated, and the

Congressional certification of the vote count of the Electoral

College of the 2020 Presidential Election was effectively

suspended. Id. at 4. The rioting continued for the next few

hours, with more individuals entering the U.S. Capitol and

others engaging in confrontations with law enforcement officers

on the grounds outside. Id.

Starting at approximately 4:27 p.m., video footage shows

rioters who were gathered near the archway leading to the Lower

took up arms during the American Revolution. See Gov’t’s Mot., ECF No. 108 at 12. They believe that only three percent of American colonists took up arms against the British, and just as a small group of colonists could overthrow the British, so too can the Three Percenters overthrow the U.S. government. Id. 7 Western Terrace, including Mr. McAbee and his codefendants,

engaged in “brutal[] assault[s]” on at least three MPD Officers—

Officers A.W., B.M., and C.M. See id. at 4-11; see generally

Gov’t’s Video Exs. 1-4. The video footage depicts members of the

mob throwing and swinging various objects at the MPD officers

while other rioters overran the officers, struck them with

various weapons, knocked some of them to the ground, and dragged

them down the stairs and further into the mob. Id.

Mr. McAbee was an active participant in the assault. After

other rioters—including codefendants Jeffrey Sabol and Jack Wade

Whitton—knocked Officer A.W. to the ground, kicked and hit him,

and took his police baton, Mr. McAbee—wearing metal-knuckled

gloves and carrying a black baton—entered the archway, grabbed

Officer A.W. by his left leg and torso as codefendant Clayton

Ray Mullins grabbed the officer’s right leg, and pulled him

further toward the stairs and the large crowd of rioters

gathered there. See Gov’t’s Mot., ECF No. 108 at 5-6, 10; see

also Gov’t’s Video Ex. 1 at 00:40-00:54; Gov’t’s Video Ex. 2 at

00:29-00:39. By that time, Mr. Sabol and Mr. Whitton had already

succeeded in pulling another officer, Officer B.M., out of the

archway, down the stairs, and into the crowd of rioters where

codefendant Peter Stager had begun hitting Officer B.M. with a

flagpole and other rioters kicked and hit him. See Gov’t’s Mot.,

ECF No. 108 at 5.

8 After Mr. McAbee first grabbed Officer A.W. and pulled him

toward the stairs, he remained positioned over Officer A.W. and

screamed at other officers under the archway who were trying to

assist the officers and rioters who had been knocked to the

ground. Id. at 6; see also Gov’t’s Video Ex. 1 at 00:48-00:54;

Gov’t’s Video Ex. 2 at 00:29-00:39. Officer C.M. then moved

forward toward Mr. McAbee and pushed and hit him with a police

baton. Gov’t’s Mot., ECF No. 108 at 7; see also Gov’t’s Video

Ex. 1 at 00:54-01:00. Mr. McAbee then stood upright and swung

his arms at Officer C.M. while screaming profanities. See

Gov’t’s Mot., ECF No. 108 at 7; see also Gov’t’s Video Ex. 1 at

01:00-01:06; Gov’t’s Video Ex. 2 at 00:39-00:50; Gov’t’s Video

Ex. 4 at 00:30-00:58.

When codefendant Michael Lopatic stepped in and charged at

and began repeatedly punching Officer C.M., Mr. McAbee turned

his attention back to Officer A.W. who was still lying on the

ground. See Gov’t’s Mot., ECF No. 108 at 8. Mr. McAbee stood

directly over Officer A.W., bent over, and grabbed him by his

torso. See Gov’t’s Video Ex. 4 at 00:58-01:04. He then dragged

Officer A.W. out of the archway, and the two tumbled together

down the stairs and into the mob. See id.; see also Gov’t’s

Video Ex. 3 at 00:42-00:45. For the next twenty-five seconds,

Mr. McAbee was positioned over Officer A.W. as the officer was

lying on his back at the bottom of the stairs. See Gov’t’s Video

9 Ex. 4 at 01:04-01:20; see also Gov’t’s Video Ex. 3 at 00:42-

01:10. Once Officer A.W. was no longer pinned down, he

eventually made his way out of the crowd, but while he was in

the mob, he was “kicked, struck with poles, and stomped on by

several individuals,” his helmet was ripped off, he was stripped

of his baton and his MPD-issued cell phone, and he was maced

while his helmet was off. Gov’t’s Mot., ECF No. 108 at 10. He

was later taken to the hospital and treated for a laceration on

his head which required two staples to close. Id.

A few minutes after these incidents took place, the

government proffers that Mr. McAbee “was part of a group of

rioters who attempted to render aid to another rioter who was in

medical distress and helped to carry/drag that rioter to the

entrance of the Archway.” Id. at 16; see also Gov’t’s Video Ex.

6b. Once under the archway, Mr. McAbee bent down over the

individual in medical distress and joined another rioter trying

to provide medical assistance. Id. Shortly thereafter, the crowd

of rioters behind Mr. McAbee surged back into the archway,

pushing him forward toward the officers and into the side of the

archway, aggravating his preexisting shoulder injury. Id. at 16-

17. As Mr. McAbee tried to get away from the surging crowd and

through the police line, he pointed to the lettering on his vest

that said “SHERIFF” as he asked to be let through. Id.

10 After January 6, 2021, Mr. McAbee communicated with

associates via text message, and the government has acquired

those communications. On January 7, 2021, Mr. McAbee sent a text

message to Associate-1 that contained a picture of himself

smiling and holding a newspaper that displayed the large and

bolded headline, “INSURRECTION.” Gov’t’s Ex. B, ECF No. 125-1 at

71. He sent the same picture to another individual, whom the

government has named Associate-2. See Gov’t’s Reply, ECF No. 116

at 5-6 (citing Gov’t’s Ex. E, ECF No. 125-4 at 1; Gov’t’s Ex. F,

ECF No. 125-5). On January 8, 2021 Mr. McAbee sent Associate-2

three additional photographs, which showed a bloodied baseball

hat and a head injury. See Gov’t’s Reply, ECF No. 116 at 6;

Gov’t’s Ex. E, ECF No. 125-4 at 3. Accompanying those

photographs was a text message from Mr. McAbee that read:

I’ve shed blood for my country. By the hands of the swamp. I will shed more in the days to come. But I will not forget the Oath I swore years ago to protect the America I once knew.

Gov’t’s Ex. E, ECF No. 125-4 at 3. Then on January 10, 2021, Mr.

McAbee sent a message to Associate-1 that said, “I call for

secession!” in response to Associate-1’s comment that “Trump

will be the one inaugurated.” Gov’t’s Ex. B, ECF No. 125-1.

Subsequently, law enforcement officers identified Mr.

McAbee as a participant in the January 6, 2021 events at the

U.S. Capitol. See Gov’t’s Mot., ECF No. 108 at 12-16.

11 B. Procedural History

On August 17, 2021, Mr. McAbee was arrested in Nashville,

Tennessee pursuant to a warrant issued on August 5, 2021, by a

magistrate judge in this District. See Arrest Warrant Returned

Executed, ECF No. 99. On the day of his arrest, Mr. McAbee had

an initial appearance in the United States District Court for

the Eastern District of Tennessee, at which time the government

moved for Mr. McAbee to be detained pretrial. See Gov’t’s Mot.,

ECF No. 108 at 2. Magistrate Judge Jeffrey S. Frensley then held

detention hearings on August 26, 2021, and September 8, 2021.

Id. at 18. Magistrate Judge Frensley ordered Mr. McAbee released

to home detention, which restricted him to his residence at all

times except for employment; education; religious services;

medical, substance abuse, or mental health treatment; attorney

visits; court appearances; court-ordered obligations; or other

activities approved in advance by the pretrial services office.

See Release Order, ECF No. 116-1 at 2. The Release Order also

required the following of Mr. McAbee, among other standard

conditions: (1) not to travel to the District except for case-

related obligations; (2) not to travel outside of Tennessee

without approval from pretrial services; (3) not to contact

anyone who may be a victim or witness in this case; (4) not to

possess a firearm; and (5) to refrain from social media or

websites regarding insurrection activity. Id.

12 The government orally moved in magistrate court for a stay

of Mr. McAbee’s release pending an appeal of the Release Order,

and Magistrate Judge Frensley granted a two-day stay. See

Gov’t’s Mot., ECF NO. 108 at 18-19. The government then filed an

emergency motion in this Court for review of the Release Order

and for a stay of the Release Order through the resolution of

the government’s appeal. Id. The Court granted the stay, set a

briefing schedule, and scheduled a motion hearing, which was

held on September 22, 2021. See Min. Order (Sept. 8, 2021).

II. Legal Standard

The Bail Reform Act, 18 U.S.C. § 3141 et seq., provides

that a hearing shall be held to determine whether a defendant

should be detained pretrial upon a motion by the government if

the defendant is charged with an offense falling in one of five

enumerated categories. 18 U.S.C. § 3142(f)(1)(A)-(E). 6 If a

detention hearing is held pursuant to Section 3142(f), a

judicial officer may detain a defendant pending trial if the

judicial officer determines 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

6 As relevant here, a detention hearing shall be held pursuant to Section 3142(f)(1)(A) if a defendant is charged with a “crime of violence,” or pursuant to Section 3142(f)(1)(E) if a defendant is charged with any felony that is not otherwise a crime of violence that involves the possession or use of any dangerous weapon. 18 U.S.C. § 3142(f). 13 community.” Id. § 3142(e). “In common parlance, the relevant

inquiry is whether the defendant is a ‘flight risk’ or a ‘danger

to the community.’” United States v. Munchel, 991 F.3d 1273,

1279 (D.C. Cir. 2021) (quoting United States v. Vasquez-Benitez,

919 F.3d 546, 550 (D.C. Cir. 2019)). Certain conditions and

charged offenses trigger a rebuttable presumption that no

condition or combination of conditions will reasonably assure

the safety of any person and the community. 18 U.S.C. §

3142(e)(2)-(3). 7 Where there is no rebuttable presumption of

detention, the Court considers the following factors to

determine whether detention is required to ensure the appearance

of the person and the safety of any other person and the

community:

1. The nature and circumstances of the offense charged, including whether the offense is a crime of violence; 2. The weight of the evidence;

7 Offenses triggering a rebuttable presumption under subsection (e)(3) include the following: “(A) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act . . . the Controlled Substances Import and Export Act . . ., or chapter 705 of title 46; (B) an offense under section 924(c), 956(a), or 2332b of this title; (C) an offense listed in section 2332b(g)(5)(B) of title 18, United States Code, for which a maximum term of imprisonment of 10 years or more is prescribed; (D) an offense under chapter 77 of this title for which a maximum term of imprisonment of 20 years or more is prescribed; or (E) an offense involving a minor victim under section 1201, 1591, 2241, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(1), 2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2), 2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422, 2423, or 2425 of this title.” 18 U.S.C. § 3142(e)(3)(A)-(E). 14 3. The history and characteristics of the person, including A. The person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and B. Whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release; and 4. The nature and seriousness of the danger to any person or the community that would be posed by the person’s release.

18 U.S.C. § 3142(g); see also Munchel, 991 F.3d at 1279-80.

Where, as here, the Government argues that the basis for

pretrial detention is the defendant’s danger to the community,

the government is required to demonstrate the appropriateness of

detention pursuant to subsection (e), in consideration of the

subsection (g) factors, by clear and convincing evidence. See 18

U.S.C. § 3142(f).

When a magistrate judge holds a detention hearing and

orders a defendant released pending trial, the government “may

file, with the court having original jurisdiction over the

offense, a motion for revocation of the order or amendment of

the conditions of release.” 18 U.S.C. § 3145(a)(1). Although the

District of Columbia Circuit (the “D.C. Circuit”) has not

squarely decided the issue of what standard of review a district

court should apply to review of a magistrate’s detention or

15 release order, see Munchel, 991 F.3d at 1280; courts in this

district have routinely held that such detention decisions are

reviewed de novo. See United States v. Hunt, 240 F. Supp. 3d

128, 132-33 (D.D.C. 2017); United States v. Chrestman, 525 F.

Supp. 3d 14, 23 (D.D.C. 2021) (collecting cases).

III. Analysis

A. Mr. McAbee is Eligible for Pretrial Detention Pursuant to 18 U.S.C. § 3142(f)(1)

Under the Bail Reform Act, unless a defendant poses a

serious risk of flight or of attempting to obstruct justice—

which the government does not argue in this case—the defendant

is only eligible for pretrial detention if he is charged with an

offense listed in one of the five enumerated categories of

Section 3142(f)(1)—i.e., “the most serious” crimes. See 18

U.S.C. § 3142(f)(1)(A)-(B), (f)(2); United States v. Singleton,

182 F.3d 7, 13 (D.C. Cir. 1999) (“Congress limited pretrial

detention of persons who are presumed innocent to a subset of

defendants charged with crimes that are ‘the most serious’

compared to other federal offenses.” (quoting United States v.

Salerno, 481 U.S. 739, 747 (1987)).

Here, Mr. McAbee does not dispute the government’s argument

that he is eligible for pretrial detention pursuant to 18 U.S.C.

§§ 3142(f)(1)(A) (for having been charged with a “crime of

violence”) and (E) (for having been charged with a felony that

16 involves the possession or use of any dangerous weapon). See

Gov’t’s Mot., ECF No. 108 at 20; see generally Def.’s Opp’n, ECF

No. 113. Mr. McAbee’s charged offenses include, among others,

Inflicting Bodily Injury on Certain Officers or Employees and

Aiding and Abetting in violation of 18 U.S.C. §§ 111(a)(1) and

(b), and 2. See Redacted Third Superseding Indictment, ECF No.

152 at 3. For the reasons the Court set out in its Memorandum

Opinion regarding codefendant Jeffrey Sabol’s request for

pretrial release, United States v. Sabol, 534 F. Supp. 3d 58,

67-69 (D.D.C. 2021); a defendant charged under 18 U.S.C. §

111(a)(1) and (b) is charged with a crime of violence, see

United States v. Kendall, 876 F.3d 1264, 1270 (10th Cir. 2017);

United States v. Taylor, 848 F.3d 476, 492-493 (1st Cir. 2017);

United States v. Juvenile Female, 566 F.3d 943, 948 (9th Cir.

2009); making him eligible for pretrial detention, see 18 U.S.C.

§ 3142(f)(1)(A).

B. No Condition or Combination of Conditions Will Reasonably Assure the Safety of Any Other Person and the Community

Having found that Mr. McAbee is eligible for pretrial

detention pursuant to 18 U.S.C. §§ 3142(f)(1), the Court must

determine whether he poses a risk of flight or a danger to the

community that cannot be mitigated by any combination of

pretrial release conditions. See 18 U.S.C. § 3142(e)(1). If the

Court finds that “no condition or combination of conditions will

17 reasonably assure the appearance of [Mr. McAbee] as required and

the safety of any other person and the community,” the Court

“shall order” the detention of Mr. McAbee pending trial. Id.

The government does not argue that Mr. McAbee is a flight

risk, so the Court will focus its inquiry on whether Mr. McAbee

must be detained pretrial based on his potential dangerousness.

For this inquiry, the Court “must identify an articulable threat

posed by the defendant to an individual or the community,”

though “[t]he threat need not be of physical violence, and may

extend to ‘non-physical harms such as corrupting a union.’”

Munchel, 991 F.3d at 1283 (quoting United States v. King, 849

F.2d 485, 487 n.2 (11th Cir. 1988)). “The threat must also be

considered in context,” and “[t]he inquiry is factbound.” Id.

(citing United States v. Tortora, 922 F.2d 880, 888 (1st Cir.

1990)). The Court considers the 18 U.S.C. § 3142(g) factors: (1)

“the nature and circumstances of the offense charged”; (2) “the

weight of the evidence”; (3) “the history and characteristics”

of the defendant; and (4) “the nature and seriousness of the

danger to any person or the community that would be posed by the

[defendant’s] release.” 18 U.S.C. § 3142(g).

In consideration of these requisite factors, as set forth

below, the Court concludes that clear and convincing evidence

supports a finding that no condition or combination of

conditions will reasonably assure the safety of the community.

18 Accordingly, the Court revokes the magistrate’s Release Order

and orders Mr. McAbee detained pending trial.

1. Nature and Circumstances of the Offense

The first factor the Court must consider is the nature and

circumstances of the offense charged, “including whether the

offense is a crime of violence.” 18 U.S.C. § 3142(g)(1). Despite

the serious and unsettling nature of the events that transpired

at the U.S. Capitol on January 6, 2021, the D.C. Circuit has

made clear that detention is not appropriate in all cases

involving defendants who participated in the events. See

Munchel, 991 F.3d at 1283-84. The Court therefore considers the

nature and circumstances of the specific offenses and underlying

conduct with which Mr. McAbee is charged. Chrestman, 525 F.

Supp. 3d at 25-26. The Court must “adequately demonstrate that

it considered whether [Mr. McAbee] pose[s] an articulable threat

to the community in view of [his] conduct on January 6, and the

particular circumstances of January 6.” Munchel, 991 F.3d at

1283.

To aid in this consideration, the Court analyzes Mr.

McAbee’s conduct using the following six-factor framework Chief

Judge Howell set out in Chrestman: (1) whether the defendant has

been charged with felony or misdemeanor offenses; (2) the extent

of the defendant’s prior planning; (3) whether the defendant

used or carried a dangerous weapon; (4) evidence of coordination

19 with other protestors before, during, or after the riot; (5)

whether the defendant assumed a formal or de facto leadership

role in the events of January 6, 2021, for example “by

encouraging other rioters’ misconduct” “to confront law

enforcement”; and (6) the defendant’s “words and movements

during the riot”—e.g., whether the defendant “remained only on

the grounds surrounding the Capitol” or stormed into the Capitol

interior, or whether the defendant “injured, attempted to

injure, or threatened to injure others.” Chrestman, 525 F. Supp.

3d at 26-27. These factors, “[t]aken together, as applied to a

given defendant, . . . are probative of ‘the nature and

circumstances of the offense charged,’ 18 U.S.C. § 3142(g)(1),

and, in turn, of the danger posed by the defendant,” as relevant

to the fourth Section 3142(g) factor. See id. at 27. These

factors “offer a useful framework through which to contextualize

the nature and circumstances of offenses committed at the U.S.

Capitol on January 6, 2021,” and “the comparative severity of

defendant’s alleged conduct is assessed against this backdrop.”

Id.

At least four of the Chrestman factors support a finding

that Mr. McAbee’s comparative culpability in relation to fellow

Capitol Riot defendants is high.

First, a federal grand jury concluded that the government

has sufficient evidence to charge Mr. McAbee with serious felony

20 offenses. See Redacted Third Superseding Indictment, ECF No.

152. “Felony charges are by definition more serious than

misdemeanor charges; the nature of a felony offense is therefore

substantially more likely to weigh in favor of pretrial

detention than the nature of a misdemeanor offense.” Chrestman,

525 F. Supp. 3d at 26. Moreover, Section 3142(g)(1) specifically

directs the Court to consider whether a defendant has been

charged with crimes of violence, 18 U.S.C. § 3142(g)(1); and Mr.

McAbee’s offenses include crimes of violence: he has been

charged with assaulting and inflicting bodily injury on a MPD

officer who was tasked with protecting the U.S. Capitol, and he

has also been charged with engaging in physical violence with a

deadly or dangerous weapon on restricted grounds, see Redacted

Third Superseding Indictment, ECF No. 152 at 5, 9. The

government has proffered evidence of Mr. McAbee observing and

then joining his codefendants and other rioters in violent

assaults against MPD officers positioned at the entrance of the

archway on the Lower Western Terrace of the U.S. Capitol on

January 6, 2021. See Gov’t’s Reply, ECF No. 116 at 3. The

alleged conduct underlying the serious felony offenses with

which Mr. McAbee is charged—including forcibly dragging a MPD

officer into a violent mob of rioters who ultimately punched,

kicked, and hit him, causing a head laceration and other

injuries—is chilling. “The gravity of [Mr. McAbee’s] charged

21 felonies thus ‘weighs heavily in favor’ of pretrial detention.”

United States v. Brown, CR No. 21-mj-565 (ZMF)(RC), 2021 WL

4033079, at *4 (D.D.C. Sept. 3, 2021) (quoting United States v.

Caldwell, CR No. 21-181 (CKK), 2021 WL 2036667, at *7 (D.D.C.

May 21, 2021)).

The second Chrestman factor—the extent of the defendant’s

prior planning, “for example, by obtaining weapons or tactical

gear,” Chrestman, 525 F. Supp. 3d at 26—also weighs in favor of

continued pretrial detention. The government argues that Mr.

McAbee’s “words in the days leading up to January 6 and his

attire on that day demonstrate that he engaged in prior planning

before arriving at the Capitol.” Gov’t’s Reply, ECF No. 116 at

4. The government’s evidence shows that Mr. McAbee coordinated

his trip to Washington D.C. with Associate-1; he discussed

various weapons he and/or his associate might bring to the U.S.

Capitol, including a “t-handle tire puncture,” knives, brass

knuckles, and a magazine; and he procured metal-knuckled gloves

that he then wore on January 6, 2021, during the riot. See

Gov’t’s Reply, ECF No. 116 at 4 (citing Gov’t’s Ex. B, ECF No.

125-1 at 4-6, 10-11, 17, 38-39). Mr. McAbee has not disputed

these facts. See generally Def.’s Opp’n, ECF No. 113. This

amount of prior planning and intentionality “suggests that he

was not just caught up in the frenzy of the crowd, but instead

came to Washington, D.C. with the intention of causing mayhem

22 and disrupting the democratic process.” Chrestman, 525 F. Supp.

3d at 26; see also Sabol, 534 F. Supp. 3d at 73 (rejecting

defendant’s “argument that he did not plan to commit violence”

when he “brought tactical gear, including a helmet, steel-toe

boots, zip ties, a radio and an ear piece” to the rally); United

States v. DeGrave, 2021 WL 1940536, at *10 (D.D.C. May 14, 2021)

(finding that the defendant’s decision to wear “bullet proof

clothing,” as he described it when planning for January 6, 2021,

“made clear that he was dressed in anticipation of confronting

and engaging in violence”).

The third Chrestman factor—whether the defendant carried or

used a dangerous weapon—also weighs in favor of pretrial

detention. The government’s evidence establishes that Mr. McAbee

wore metal-knuckled gloves on both hands and that he held a

black baton for at least a short time when he entered the

ongoing, violent confrontation between rioters and MPD officers

under the Lower Western Terrace archway. See, e.g., Gov’t’s

Video Ex. 1 at 00:40-00:54; Gov’t’s Video Ex. 2 at 00:29-00:39.

But Mr. McAbee has asked the Court to consider the magistrate’s

finding that he “chose not to use” the baton. Def.’s Opp’n, ECF

No. 113 at 4 (citing Hr’g Tr., Def.’s Opp’n Ex. 1, ECF No. 113-1

at 2). Counsel for Mr. McAbee further argued at the September

22, 2021 hearing that the government has not provided any

23 evidence that Mr. McAbee used either the baton or the metal-

knuckled gloves. 8

The Court agrees that the government’s evidence does not

support a finding that Mr. McAbee used any weapon during the

riot, but the Court remains troubled by Mr. McAbee having armed

himself at all. As Chief Judge Howell observed, “a defendant’s

carrying or use during the riot of a dangerous weapon . . .

indicates at least some degree of preparation for the attack and

an expectation that the need to engage in violence against law

enforcement or, indeed, the Legislative branch, might arise.”

Chrestman, 525 F. Supp. 3d at 26 (emphasis added). The text

messages that Mr. McAbee exchanged with Associate-1 before

January 6, 2021 reinforce that he anticipated encountering and

participating in violence. See Gov’t’s Ex. B, 125-1 at 9, 14-15

(stating that violence “would be there” on January 6, 2021, and

he would “rise or fall alongside” Associate-1 in the “fight”).

With the understanding that violent confrontations would take

place at the U.S. Capitol on January 6, 2021—where Congress

would be convened to certify the Electoral College vote count

for the 2020 Presidential Election and supporters of former-

President Donald J. Trump would converge to protest the results

of the election—Mr. McAbee went to the U.S. Capitol with metal-

8 A transcript of the hearing has not yet been made available on the public docket. 24 knuckled gloves and a ballistic vest. See Gov’t’s Mot., ECF No.

108 at 20-21. Then, once Mr. McAbee was at the U.S. Capitol and

after rioters had breached the building and engaged in multiple

hours of violent confrontations with law enforcement officers,

he kept the gloves on, joined an ongoing attack on MPD officers

in the Lower Western Terrace archway, and picked up another

weapon, the black police baton. Id. Even if Mr. McAbee did not

use the gloves or the baton while assaulting officers, his

decision to carry those weapons knowing he would be involved in

a violent riot demonstrates his willingness to engage in violent

conduct to advance his political views and, thus, his

dangerousness to the community. See Sabol, 534 F. Supp. 3d at 74

(finding that, though defendant did not use a police baton he

took from an officer on January 6, 2021, “the fact that he took

the weapon from a vulnerable MPD officer and subsequently

wielded it while helping drag another officer into the violent

mob” was sufficient to find that the third Chrestman factor

weighed in favor of detention).

The fourth Chrestman factor—evidence of coordination with

other protestors before, during, or after the riot—is not

strongly implicated in this case. The government concedes that

Mr. McAbee does not appear to have known his codefendants before

January 6, 2021. See Gov’t’s Reply, ECF No. 116 at 4. And

although the government presents some evidence that suggests Mr.

25 McAbee supported anti-government groups, see Gov’t’s Mot., ECF

No. 108 at 17-18 (noting patches and clothing Mr. McAbee wore or

owned that had insignias associated with the Three Percenters);

the Court agrees with the magistrate’s finding that the record

contains “nothing to support the idea that he’s continually

affiliated with the Proud Boys or any other antigovernment

organization,” Def.’s Opp’n, ECF No. 113 at 4. The Court also

concludes that the record contains no evidence that Mr. McAbee

coordinated with such groups in any way that would show he

“acted deliberately to amplify and assure the success of the

breach of the Capitol.” Chrestman, 525 F. Supp. 3d at 26-27.

Therefore, the fourth Chrestman factor does not weigh in favor

of pretrial detention for Mr. McAbee.

The fifth Chrestman factor—whether the defendant assumed a

formal or de facto leadership role in the events of January 6,

2021—is also not implicated in this case, as the government has

not alleged that Mr. McAbee led other rioters during the

assaults on law enforcement or at any other time on January 6th.

Finally, the sixth Chrestman factor—defendant’s words and

movements during the riot—strongly supports continued detention.

The Court first considers the parties’ differing descriptions of

Mr. McAbee’s conduct on January 6, 2021: the government

describes Mr. McAbee’s “eager entry into and participation in

the violent assault of several police officers,” Gov’t’s Reply,

26 ECF No. 116 at 4; while Mr. McAbee insists that he “did not

engage in any actual assault,” Def.’s Opp’n, ECF No. 113 at 5.

In the government’s view:

the evidence is clear that, at approximately 4:27 p.m., while the defendant had a clear view of his co-defendants and others assaulting uniformed police officers at the entrance to an archway on the Lower Western Terrace of the Capitol building (“Archway”), [he] moved towards the Archway and joined the attack. Officer A.W. had already been pushed to the ground and co-defendant Clayton Ray Mullins had grabbed A.W.’s leg, pulling him away from the Archway and towards a set of steps into the crowd of rioters. The defendant did not attempt to stop Mullins. Instead, he grabbed at A.W.’s leg then his torso, and pushed away and then swung his arms at police officers who tried to come to A.W.’s aid, including C.M.

Gov’t’s Reply, ECF No. 116 at 3-4 (citing Gov’t’s Reply, Exs. 1,

2, 3, and 6a). After Mr. McAbee “attacked” the officer who had

come to aid Officer, A.W., the government proffers that Mr.

McAbee “returned to [Officer] A.W., dragging him into the mob,

pinning him down, and contributing to the significant injuries

that [Officer] A.W. sustained and for which A.W. had to seek

medical treatment.” Gov’t’s Mot., ECF No. 108 at 20-21.

According to Mr. McAbee, on the other hand, the government’s

version of events includes “‘facts’ [that] are not actually

true” and “overstatement of [Mr.] McAbee’s conduct.” Def.’s

Reply, ECF No. 113 at 3.

Magistrate Judge Frensley’s findings favor Mr. McAbee’s

version of events. The magistrate concluded that while the

nature and circumstances of the offenses charged “are serious

27 and would generally warrant detention in a case like this,” none

of the government’s evidence showed Mr. McAbee took “offensive

action,” and other evidence suggests that he may have been in

the area during the assaults on the MPD officers to “provide aid

and assistance to individuals he saw who were in peril.” Hr’g

Tr., Def.’s Opp’n Ex. 1, ECF No. 113-1 at 11. Judge Frensley

observed that Mr. McAbee did not choose to use his metal-

knuckled gloves or the baton, he only swung at Officer C.M. in

“respon[se] to being pushed” by the officer, and the there was

“conflicting information about what happened” when Mr. McAbee

was positioned over Officer A.W. at the bottom or the stairs.

After close and careful review of the record evidence, the

Court disagrees with Judge Frensley’s finding and Mr. McAbee’s

argument that he did not take any “offensive action” at the U.S.

Capitol on January 6, 2021. To the contrary, Mr. McAbee appears

to have acted deliberately when he fought against MPD officers

who were attempting to protect the U.S. Capitol and when he used

physical force to pull an officer into the violent and angry

mob. The government’s video evidence captures multiple angles of

the horrifying scene that unfolded that day. See generally

Gov’t’s Video Exs. 1-6b. Hundreds if not thousands of rioters

had gathered outside of the U.S. Capitol building around the

Lower Western Terrace. See, e.g., Gov’t’s Video Ex. 3. A handful

28 of law enforcement officers had been pushed back toward the

Capitol building, and they attempted to maintain their position

at the top of the stairs under the archways. Id. Rioters were

screaming as they pushed toward the officers, and they wielded

items like hockey sticks, crutches, and American flag poles,

some of which they hurled toward the officers. Id. Some rioters

advanced on the officers, engaging in hand-to-hand assaults,

utilizing weapons to beat officers and knock them to the ground.

Id. Rioters succeeded in knocking officers to the ground,

allowing them to more easily kick, punch, and hit the officers.

Id.; see also Gov’t’s Video Exs. 1, 2, 4. Watching the video

footage of these events unfold continues to elicit horror and

sadness—this was, without a doubt, a crime that is unparalleled

in our nation’s history.

Mr. McAbee was a willing participant, front and center in

these violent, angry, and aggressive assaults on law enforcement

officers who were attempting to protect the U.S. Capitol from

rioters. After one MPD officer had already been knocked down,

beaten, and dragged into the massive mob of rioters, Mr. McAbee

made his way to the center of the fight. See Gov’t’s Video Ex. 1

at 00:00-00:48. The evidence is clear that Mr. McAbee placed his

hands on Officer A.W.’s legs and torso as the officer was lying

on the ground under the archway attempting to fend off the

attacking rioters. Id. Mr. McAbee pulled the officer toward the

29 mob. See id. at 00:40-00:54; Gov’t’s Video Ex. 2 at 00:29-00:39.

In the Court’s view, this is an offensive action. In addition,

the evidence shows that Officer C.M pushed Mr. McAbee with his

police baton, and the Court reasonably interprets this action as

the officer attempting to prevent Mr. McAbee from continuing to

physically assault Officer A.W. See Gov’t’s Video Ex. 1 at

00:54-01:00. The evidence next shows that Mr. McAbee stands to

confront Officer C.M. and begins swinging his arms and hitting

the officer. Gov’t’s Video Ex. 1 at 01:00-01:06; Gov’t’s Video

Ex. 2 at 00:39-00:50; Gov’t’s Video Ex. 4 at 00:30-00:58. The

Court disagrees with Judge Frensley that Mr. McAbee was only

acting in self-defense, in view of the larger context of Mr.

McAbee assaulting, offensively and aggressively, Officer A.W. at

that time. Moreover, Mr. McAbee then returned to Officer A.W.,

stood over him, grabbed him by the chest, and pulled him toward

the stairs, causing them to tumble together into the mob. See

Gov’t’s Video Ex. 4 at 00:58-01:04; see also Gov’t’s Video Ex. 3

at 00:42-00:45. This, too, was “offensive action.” While the

Court agrees with Mr. McAbee that the video footage showing the

period after Mr. McAbee and Officer A.W. tumbled down the stairs

does not make clear whether Mr. McAbee was pinning the officer

to the ground in an aggressive way or in a way meant to shield

the officer from other rioters, the Court nonetheless finds that

Mr. McAbee had engaged in a number of aggressive, offensive, and

30 violent actions up until that point, and those actions were not

aimed at helping any of the law enforcement officers who were

being beaten. Thus, even if Mr. McAbee had a change of heart in

these few seconds between pulling the Officer A.W. into the

crowd and landing on the ground at the bottom of the stairs, Mr.

McAbee is not absolved from his prior alarming conduct that is

depicted in the evidence proffered by the government. The same

is true of Mr. McAbee’s attempts to assist a fellow rioter who

was in medical distress and in need of life support after these

events transpired. See Gov’t’s Video Ex. 6b.

In short, the Court concludes that the record evidence

shows Mr. McAbee did in fact engage in “offensive action”

directed toward law enforcement officers at the U.S. Capitol on

January 6, 2021; his actions were deliberate and dangerous; and

any attempts to render aid to another rioter or the officer whom

he had placed in harm’s way do not negate the dangerousness he

poses to the community in view of the conduct he displayed on

that day. Indeed, “[g]rave concerns” are implicated where, as

here, “a defendant actively threatened or confronted federal

officials or law enforcement” because such conduct demonstrates

“disregard for the institutions of government and the rule of

law[.]”. Chrestman, 525 F. Supp. 3d at 27. And as the D.C.

Circuit has said, “those [rioters] who actually assaulted police

officers and . . . those who aided, conspired with, planned, or

31 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.” Munchel, 991 F.3d at

1284. Mr. McAbee’s actions on January 6, 2021, demonstrate a

clear contempt for the rule of law and law enforcement and a

willingness to engage in violence. These are qualities that bear

on the seriousness of the offensive conduct and the ultimate

inquiry of whether Mr. McAbee will comply with conditions of

release meant to ensure the safety of the community. See

Chrestman, 525 F. Supp. 3d at 27.

For these reasons, the first 18 U.S.C. § 3142(g) factor

weighs heavily in favor of detention on the basis that no

condition or combination of conditions will reasonably assure

the safety of the community. 18 U.S.C. § 3142(e)(1), (g)(1).

2. Weight of the Evidence Against the Defendant

The second factor the Court must consider is the weight of

the evidence against Mr. McAbee. 18 U.S.C. § 3142(g)(2).

The Court finds that the weight of the evidence against Mr.

McAbee tips in favor of continued detention. Mr. McAbee was

indisputably present at the U.S. Capitol on January 6, 2021, and

video footage and photographs from the day show Mr. McAbee, in

his distinctive outfit—a black shirt with the word “SHERIFF”

over a vest, black gloves with metal studs, a red baseball cap,

white sunglasses, and a red bandana over his face. See Gov’t’s

32 Mot., ECF No. 108 at 12; see also Gov’t’s Ex. 4.2, ECF No. 108

at 11. Evidence further places Mr. McAbee amid a group of

rioters assaulting law enforcement officers under an archway of

the Lower Western Terrace. See generally Gov’t’s Video Ex. 3.

Mr. McAbee is captured on video approaching the fight,

physically engaging with two MPD officers, and tumbling down a

staircase into the large crowd with one of the officers. See

generally Gov’t’s Video Exs. 1-4. Furthermore, former co-workers

identified Mr. McAbee as the person captured in the video and

photographic evidence; law enforcement recovered items shown in

the video and photographic evidence from Mr. McAbee’s home; and

Mr. McAbee’s text messages corroborate that he was present at

the U.S. Capitol on January 6, 2021, and participated in events

depicted in the video and photographic evidence. See Gov’t’s

Mot., ECF No. 108 at 10-16.

To be sure, Mr. McAbee will have the opportunity to refute

the government’s evidence and present additional evidence in his

defense at trial, and, as discussed above, Mr. McAbee has

already presented alternative interpretations of the events

depicted in the video footage and photographs submitted by the

government. But for purposes of the Court’s decision on

detention, the government’s evidence in support of the charged

offenses is strong. In consideration of the strength of the

government’s evidence against Mr. McAbee, the Court finds that

33 the second 18 U.S.C. § 3142(g) factor weighs in favor of his

continued pretrial detention, although it “is the least

important” factor. United States v. Padilla, No. CR 21-214

(JDB), 2021 WL 1751054, at *7 (D.D.C. May 4, 2021) (quoting

United States v. Gebro, 948 F.2d 1118, 1121-22 (9th Cir. 1991)).

3. History and Characteristics of the Defendant

Under the third factor, the Court must consider Mr.

McAbee’s history and characteristics. 18 U.S.C. § 3142(g)(3).

The Court considers Mr. McAbee’s “character, physical and mental

condition, family ties, employment, financial resources, length

of residence in the community, community ties, past conduct,

history relating to drug or alcohol abuse, criminal history, and

record concerning appearance at court proceedings,” id. §

3142(g)(3)(A); and “whether, at the time of the current offense

or arrest, [Mr. McAbee] was on probation, on parole, or on other

release,” id. § 3142(g)(3)(B).

Here, there are some factors in Mr. McAbee’s favor. He is

twenty-seven years old and has no criminal history. See Gov’t’s

Reply, ECF No. 116 at 6. As Mr. McAbee points out and Judge

Frensley found, there is no “evidence of prior dangerousness or

violence from his past or history.” Def.’s Opp’n, ECF No. 113 at

4-5. Mr. McAbee has also received support from friends and

family who have sent in letters on his behalf, and Judge

Frensley concluded that he has “strong ties to the community.”

34 See Def.’s Opp’n, ECF No. 113 at 5 (citing Hr’g Tr., Def.’s

Opp’n Ex. 1, ECF No. at 12, 13, 18).

However, the Court is troubled by another aspect of Mr.

McAbee’s history and characteristics, which is that he himself

has been employed by law enforcement agencies and was a

sheriff’s deputy on January 6, 2021, when he participated in the

riot at the U.S. Capitol and physically assaulted MPD officers

attempting to protect the building and members of Congress. See

Gov’t’s Mot., ECF No. 108 at 13. As the government notes, “[t]he

defendant’s occupation invested him with the responsibility to

uphold and enforce the law. It also required an understanding of

what constitutes a violation of that law. Yet, neither prevented

the defendant from engaging in the assaultive, criminal conduct”

addressed here. See Gov’t’s Reply, ECF No. 116 at 7. Mr.

McAbee’s decisions on January 6, 2021, “show that he is willing

to allow his own personal beliefs to override the rule of law,

which reflects poorly on his character.” United States v. Klein,

No. CR 21-236 (JDB), 2021 WL 1377128, at *10 (D.D.C. Apr. 12,

2021) (quotation omitted); see also Sabol, 534 F. Supp. 3d at 80

(“That [the defendant] acted violently against law enforcement

protecting the peaceful transition of power based on a belief

that the 2020 Presidential Election was stolen is also very

alarming [and] indeed raises concerns about [his] character and

the danger [he] may present to the community if he were

35 released.”). Worse, he was willing to allow those beliefs to

override his sworn duty to uphold the rule of law as a law

enforcement officer and even fight against officers with whom

one would expect he held a mutual respect or kinship.

Thus, while the Court appreciates that Mr. McAbee has no

criminal record or history of violent behavior in his past, Mr.

McAbee’s employment as a law enforcement officer worries the

Court when considering whether he would abide by conditions of

release to assure the safety of the community in view of his

willingness to abdicate his responsibility to uphold the law in

the past. For this reason, the Court finds that this factor

weighs slightly in favor of pretrial detention.

4. Nature and Seriousness of the Danger Posed by the Defendant’s Release

The final factor the Court must consider is the “nature and

seriousness of the danger to any person or the community that

would be posed by the person’s release.” 18 U.S.C. § 3142(g)(4).

For many of the reasons already addressed above, the Court

finds that this factor also weighs against Mr. McAbee and in

favor of his continued pretrial detention. “Consideration of

this factor encompasses much of the analysis set forth above,

but it is broader in scope,” requiring an “open-ended assessment

of the ‘seriousness’ of the risk to public safety.” United

States v. Cua, No. CR 21-107 (RDM), 2021 WL 918255, at *5

36 (D.D.C. Mar. 10, 2021) (quoting United States v. Taylor, 289 F.

Supp. 3d 55, 70 (D.D.C. 2018)). “Because this factor

substantially overlaps with the ultimate question whether any

conditions of release ‘will reasonably assure [the appearance of

the person as required] and the safety of any other person and

the community,’ 18 U.S.C. § 3142(e), it bears heavily on the

Court’s analysis.” Id.

As discussed above, the nature and circumstances of Mr.

McAbee’s offenses evince a clear disregard for the safety of

others. See supra Section III, Part B.1; see also Chrestman, 525

F. Supp. 3d at 28. The government has shown that Mr. McAbee

deliberately joined an ongoing attack on MPD officers protecting

the U.S. Capitol on January 6, 2021. He used physical force to

pull an officer into the larger mob of angry and violent

rioters. When another officer tried to stop Mr. McAbee from

doing so by hitting and pushing him with a baton, Mr. McAbee

stepped up to fight the officer, swinging his arms while wearing

metal-studded gloves on his hands. Contrary to the magistrate’s

finding and Mr. McAbee’s argument, the government’s evidence

shows that Mr. McAbee took intentional and “offensive action” on

January 6, 2021 that was violent and aggressive. Altogether, the

evidence “suggests that [Mr. McAbe] was not a passive observer,

but an active aggressor.” Caldwell, 2021 WL 2036667, at *10.

This weighs strongly against Mr. McAbee’s pretrial release.

37 And although Mr. McAbee points to evidence suggesting that

he later attempted to help a rioter who had been injured during

the chaotic scene that was unfolding around the Lower Western

Terrace, the Court is not persuaded that this action negates the

clear disregard he showed for the safety of others and the lives

of the MPD officers he assaulted. See United States v. Fairlamb,

535 F. Supp. 3d 30, 43 (D.D.C. 2021) (“[T]he defendant’s

willingness to assault a police officer on January 6—in the full

view of other officers, scores of bystanders, and many cameras—

confirms that, when enraged, he poses a danger to the

community.”). It is especially concerning that Mr. McAbee so

willingly engaged in this confrontation with law enforcement

officers when he himself was employed as a sheriff’s deputy,

sworn to uphold the law.

The Court is also deeply troubled by the text messages Mr.

McAbee sent in the days after January 6, 2021, which reveal the

pride he felt in his actions and his willingness to engage in

more violent acts in the future. Mr. McAbee proudly displayed a

newspaper article about the horrifying events that transpired

that day, with a headline that read “INSURRECTION.” See Gov’t’s

Reply, ECF No. 116 at 5-6 (citing Gov’t’s Ex. E, ECF No. 125-4

at 1; Gov’t’s Ex. F, ECF No. 125-5). He told an associate that

he had “shed blood for [his] country,” and he “will shed much

more in the days to come.” Gov’t’s Ex. E, ECF No. 125-4 at 3. He

38 proclaimed “necisque libertas,” liberty or death. Id. And he

exclaimed, “I call for secession!” Gov’t’s Ex. B, ECF No. 125-1

at 88. The magistrate was perhaps not troubled by these messages

because they were written only days after the events at the U.S.

Capitol, and the government has proffered no evidence showing

Mr. McAbee held similar views any time after January 10, 2021.

But the messages reveal that Mr. McAbee was not just caught up

in the “frenzy” of the riot on January 6, 2021. Multiple days

had passed, Mr. McAbee was far from Washington, D.C., and the

nationwide reaction to the events of the day was largely shock

and horror; nonetheless, he expressed pride in what he had done

that day. Further demonstrating that he planned and intended to

engage in violence on January 6, 2021, are text messages he sent

to an associate in the days prior. Mr. McAbee’s statements both

before and after January 6, 2021, demonstrate a willingness to

“take matters into his own hands to defend the country against

perceived corruption in democratic institutions.” DeGrave 2021

WL 1940536, at *17. This underscores the danger Mr. McAbee

presents to the community if released.

Indeed, “[w]hile the circumstances of January 6, 2021 were

unique, and the day has passed, it cannot be said that every

Capitol Riot defendant is no longer a danger because those exact

circumstances are unlikely to arise again.” Sabol, 524 F. Supp.

3d at 84. And as this Court stated in Whitton, “even if the

39 exact circumstances of the January 6 attacks are not ‘continuing

in nature’ or ‘likely to be repeated in the future,’ the violent

offenses [the defendant] committed that day are serious enough

on their own to militate against pretrial release.” Whitton, 534

F. Supp. 3d at 43. Mr. McAbee is “distinguishable from other

Capitol Riot defendants who displayed a dangerous distain for

democracy and the rule of law on January 6, 2021, but who did

not engage in violence, see, e.g., Munchel, 991 F.3d at 1283-84,

or who did not direct their ‘forceful conduct’ toward inflicting

injury, see United States v. Klein, No. CR 21-236 (JDB), ECF No.

29 at 24, (D.D.C. Apr. 12, 2021).” Whitton, 534 F. Supp. 3d at

47-48.

In consideration of these factors and noting the D.C.

Circuit’s observation that “[i]t cannot be gainsaid that the

violent breach of the [U.S.] Capitol on January 6 was a grave

danger to our democracy, and that those who participated could

rightly be subject to detention to safeguard the community,”

Munchel, 991 F.3d at 1284-85; the Court is persuaded that Mr.

McAbee poses a danger to his community and the broader community

of American citizens if he were to be released pending trial,

and he “cannot be trusted to abide by any conditions of release

that might be imposed instead of pretrial detention.” Chrestman,

525 F. Supp. 3d at 36.

IV. Conclusion

40 After considering the factors set forth in 18 U.S.C. §

3142(g), the Court finds, by clear and convincing evidence, that

no condition or combination of conditions will reasonably assure

the safety of any other person and the community were Mr. McAbee

to be released pending trial. 18 U.S.C. § 3142(e)(1).

Accordingly, the government’s motion is GRANTED. Mr. McAbee

shall be detained pending trial. An appropriate Order

accompanies this Memorandum Opinion.

SO ORDERED.

Signed: ______/s/ Emmet G. Sullivan United States District Judge December 21, 2021