UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA : : v. : Case No.: 21-cr-158 : KYLE FITZSIMONS, : Re Document No.: 34 : Defendant. :

MEMORANDUM OPINION

DENYING DEFENDANT’S MOTION TO REVOKE DETENTION ORDER AND FOR PRETRIAL RELEASE

I. INTRODUCTION

Defendant Kyle Fitzsimons was among the hundreds of people who stormed the Capitol

to stop Congress from certifying the results of the 2020 presidential election. Video footage

from that day shows him grabbing, pulling, and charging at a line of officers in the tunnel at the

Lower West Terrace. He was arrested at his home in Maine on February 4, 2021 and charged

with a 10-count indictment on February 26, 2021. Following a pretrial detention hearing before

Magistrate Judge G. Michael Harvey of the District Court for the District of Columbia,

Fitzsimons was ordered detained pending trial. Fitzsimons now asks the Court to revoke that

detention order and release him. Def.’s Mot. to Revoke Detention Order (“Def. Mot.”), ECF No.

34. For the reasons below, the Court will deny the motion.

II. BACKGROUND 1

Fitzsimons has a long history of strongly held political beliefs leading up to January 6,

2021. In years prior, he made inflammatory remarks at a local public hearing in 2017 and

1 This background is drawn from the government's charging instruments, the record before Magistrate Judge Harvey, the parties’ briefing, and the exhibits tendered to the Court in confronted a state representative in a grocery store parking lot in 2019. Gov’t Ex. 14; Gov’t Ex.

15. Over the course of 2020 he made multiple irate calls to his Congressional representative’s

office referencing civil war and election fraud, Gov’t Opp’n Def. Mot. to Revoke Detention

Order at 10 (“Gov’t Opp’n”), ECF No. 35. Although he attempted to reach out to other

individuals in his community, Fitzsimons traveled to Washington D.C. alone to attend the “Save

America” march on January 6. See Gov’t Ex. 12 (social media post offering to give rides or lead

a caravan); Gov’t Ex. 2, at 39:02–39:15 (audio of defendant recounting his efforts and travel).

After watching the speeches at the Ellipse, Fitzsimons returned to his car in a nearby

parking garage and put on a white butcher coat. Gov’t Ex. 2, at 40:21–41:03; see also Ex. 9

(photo of Fitzsimons in that outfit). As he approached the Capitol, a large crowd had already

gathered, and Fitzsimons could observe individuals scaling the walls of the Capitol. See Gov’t

Ex. 2, at 41:47–42:02 (audio of the defendant recounting to a local board of supervisors that he

could see people “climbing on top of the building” from “very far away”); Gov’t Ex. 10 (photo

of the crowd taken by Fitzsimons). He told local news that as he approached, an individual who

had been shot was being evacuated in the other direction. Gov’t Ex. 9, at 4. He nevertheless

worked his way to the tunnel entrance on the Lower West Terrace, where a line of law

enforcement officers in riot gear were trying to prevent rioters from entering the Capitol. See

generally Gov’t Exs. 7, 7A, 7B (video footage of Fitzsimons in the tunnel).

Once there, surveillance footage and body-worn camera footage show Fitzsimons

engaging in a series of violent actions. After reaching the front of the tunnel, the recordings

show Fitzsimons reaching out and attempting to grab at the officers, despite pepper spray being

support of each party’s motion. It does not represent the Court's findings of fact on the merits of the case.

2 deployed nearby. Gov’t Ex. 7A, at 00:10–00:14; Gov’t Ex. 7B, at 07:48–07:54. Instead of

retreating, the video shows Fitzsimons reaching down to grab an officer who had fallen. Gov’t

Ex. 7B, at 08:06–08:30; Gov’t Ex. 7, at 00:36–01:01. The officer, later identified as Sergeant

A.G., sustained a shoulder injury from the incident. Gov’t Opp’n at 7. The government proffers

that Fitzsimons attempted to drag Sergeant A.G. into the crowd and did not loosen his grip until

after being struck several times with a police baton. Id. Even after having been seriously

injured, Fitzsimons can again be seen charging into the tunnel and grabbing at the officers.

Gov’t Ex. 7B, at 09:07–09:14; Gov’t Ex. 7, at 01:34–01:42. Finally, the video shows Fitzsimons

visibly steeling himself and charging headlong into the tunnel, flailing his arms and striking

officers before eventually exiting back into the crowd. Gov’t Ex. 7B, at 09:14–09:23; Gov’t Ex.

7A, at 01:39–01:49; Gov’t Ex. 7, at 01:42–01:51. During that melee, Fitzsimons purportedly

pulled the mask off of an officer, Detective P.N., causing Detective P.N. to be pepper sprayed by

another rioter. Gov’t Opp’n at 7.

After leaving the Lower West Terrace, Fitzsimons sought and received medical treatment

for his injuries before returning home to Lebanon, Maine. Gov’t Ex. 9. Following his return, he

was vocal about his participation in the events of January 6th, including calling into a local town

hall meeting, see Gov’t Ex. 2, and giving a statement to a newspaper, see Gov’t Ex. 9.

Fitzsimons was arrested on February 4th, 2021. See Arrest Warrant Returned Executed on

2/4/2021 in Lebanon, Maine, ECF No. 8. The Government charged Fitzsimons with: 2 counts of

Obstruction of Law Enforcement During Civil Disorder (

(a)(3)), Obstruction of

an Official Proceeding and Aiding and Abetting, (

(c)(2), 2 Counts of Inflicting

Bodily Injury on Certain Officers (

(a)(1), and (b)), Entering or Remaining in a

Restricted Building or Grounds (

(a)(1)), Disorderly and Disruptive Conduct in

3 a Restricted Building or Grounds (

(a)(2), Engaging in Physical Violence in a

Restricted Building or Grounds (

(a)(4)), Disorderly Conduct in a Capitol

Building (

(e)(2)(D)), Act of Physical Violence in the Capitol Grounds or

Buildings (

(e)(2)(F)). See Indictment as to Kyle Fitzsimons, ECF No. 5.

Fitzsimons declined a pretrial detention hearing in Maine and was transported to the

District of Columbia pending trial. Tr. of Proceedings before Magistrate Judge G. Michael

Harvey held on 04/07/2021 (“4/7/21 Tr.”) at 10:13–25, ECF No. 20; Def. Mot. at 1–2. He

eventually appeared before Magistrate Judge Harvey on April 6 and 7, 2021 for a detention

hearing. See generally Tr. of Proceedings before Magistrate Judge G. Michael Harvey held on

04/06/2021 (“4/6/21 Tr.”), ECF No. 19; 4/7/21 Tr. In a thoughtful opinion, Magistrate Judge

Harvey denied Fitzsimons’s request for release and ordered him detained pending trial. 4/7/21

Tr. at 12:7–25:20; Order of Detention Pending Trial, ECF No. 36. After reviewing the evidence

and the parties’ briefing, the Court determines that Fitzsimons’s release poses a threat to public

safety and denies the motion to revoke that detention order.

III. LEGAL STANDARD

When a magistrate judge detains a person pending trial, “the person may file, with the

court having original jurisdiction over the offense, a motion for revocation or amendment of the

order.”

(b). The D.C. Circuit has “not squarely decided” what the standard of

review should be for such proceedings. See United States v. Munchel,

(D.C. Cir. 2021). But every circuit to address the issue has held that a district court’s review of a

magistrate’s detention order is de novo. See United States v. Chrestman, --- F. Supp. 3d ----,

, at *5 & n.5 (D.D.C. 2021) (collecting cases). Neither party argues otherwise.

Accordingly, the Court will review the detention order de novo.

4 IV. ANALYSIS

The Bail Reform Act permits the detention of a defendant awaiting trial only in “carefully

defined circumstances.” United States v. Simpkins,

(D.C. Cir. 1987). For a

defendant to qualify for pretrial detention, his case must “involve[]” an offense that falls into one

of five enumerated categories,

(f)(1), or pose a serious risk of flight or of trying

to obstruct justice 2 or threaten, injure, or intimidate a witness or juror,

§ 3142(f)(2)(A)–(B).

The court “shall order the detention” of a qualifying defendant 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.” Id. § 3142(e)(1). In other words, the court

must ask “whether the defendant is a ‘flight risk’ or a ‘danger to the community.’” United States

v. Vasquez-Benitez,

(D.C. Cir. 2019).

Fitzsimons is eligible for pretrial detention. One kind of offense that qualifies a

defendant for pretrial detention is a crime of violence.

(f)(1)(A). A crime of

violence includes “an offense that has as an element of the offense the use, attempted use, or

threatened use of physical force against the person or property of another.”

§ 3156(a)(4)(A).

Among other offenses, Fitzsimons is charged with assaulting, resisting, or impeding federal

officers resulting in bodily injury in violation of

(b). See Indictment as to Kyle

Fitzsimons at 3 (Counts 4 and 5). Because that offense is “categorically a crime of violence,”

Fitzsimons is eligible for pretrial detention. See United States v. Quaglin,

2 Fitzsimons’s motion argues that he should not be considered eligible for detention based on

(f)(2)(B), relating to obstruction of justice, merely because he is charged with obstruction of an official proceeding. Def.’s Mot. at 6. Section 3142(f)(2)(B) was not relied on in Magistrate Judge Harvey’s detention order, and the Government does not ask the Court to consider it now. Order of Detention at 1.

5 (D.C. Cir. 2021); see also United States v. Klein, --- F. Supp. 3d ----,

, at *5–7

(D.D.C. 2021).

The more difficult question is whether the Bail Reform Act demands Fitzsimons’s

detention due to his risk of flight or dangerousness. See

(e)(1) (requiring

detention where “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”).

The Government argues both that Fitzsimons is a flight risk and a danger to the community.

Gov’t Opp’n at 11, 17. A finding of flight risk must be supported by a preponderance of

evidence, but a finding of dangerousness must be supported by clear and convincing evidence.

Simpkins,

. Although danger to the community alone can justify pretrial detention,

a defendant should only be detained on this basis if his “history, characteristics, and alleged

criminal conduct make clear that he . . . poses a concrete, prospective threat to public safety” and

the court is satisfied that “no condition or combination of conditions will reasonably assure the

safety of any other person and the community.” Munchel,

(quoting

(f)).

Assessing whether the Government has made either showing requires consideration of

four factors: (1) “the nature and circumstances of the offense charged,” (2) “the weight of the

evidence against the person,” (3) “the history and characteristics of the person,” and (4) “the

nature and seriousness of the danger to any person or the community that would be posed by the

person’s release.”

(g)(1). The Court will address each in turn.

A. Nature and Circumstances of Fitzsimons’s Charged Offenses

While not all the rioters who stormed the Capitol on January 6 should be or have been

detained pending trial, “those who actually assaulted police officers . . . are in a different

6 category of dangerousness than those who cheered on the violence or entered the Capitol after

others cleared the way.” Munchel,

. Fitzsimons, who is charged with

attempting to violently break through police lines and causing actual injury to two federal

officers, see Indictment at 2–3, is in the former category.

Chief Judge Howell’s six considerations for assessing the relative severity of a Capitol

rioter’s conduct provide a helpful framework for the Court’s analysis. See Chrestman,

, at *7–9. Those considerations include whether a defendant: (1) “has been charged with

felony or misdemeanor offenses,” (2) “engaged in prior planning before arriving at the Capitol,”

(3) carried or used a dangerous weapon during the riot, (4) “coordinat[ed] with other participants

before, during, or after the riot,” or (5) “assumed either a formal or a de facto leadership role in

the assault by encouraging other rioters’ misconduct,” and (6) the nature of the “defendant's

words and movements during the riot,” including whether he “threatened or confronted federal

officials or law enforcement.”

at *7–8. Balancing those considerations, the Court concludes

that the seriousness of Fitzsimons’s offenses favors detention.

First, Fitzsimons is charged with multiple felonies. See generally Indictment. Felonies

“are by definition more serious than misdemeanor[s],” so “the nature of a felony offense is . . .

substantially more likely to weigh in favor of pretrial detention than the nature of a misdemeanor

offense.” Chrestman,

, at *7. In particular, Counts 3, 4, and 5 each carry a

maximum sentence of 20 years in prison. See Indictment at 2–3;

(c)(2);

(a)(1) and (b). And Counts 4 and 5—assaulting, resisting, or impeding federal

officers resulting in bodily injury—are crimes of violence, which the Bail Reform Act

specifically instructs courts to account for when evaluating the nature of an offense. See 18

(g)(1). The gravity of Fitzsimons’s charged felonies thus weighs in favor of

pretrial detention.

The second Chrestman factor, prior planning, weighs in favor of Fitzsimons’s release.

See Chrestman,

, at *8. Although Fitzsimons put out a call on social media for

“able bodies” to attend the rally, he ultimately traveled alone and maintains that he planned only

to engage in a peaceful demonstration, as is certainly his right. Def. Mot. at 10–11; Gov’t Ex. 9

(describing his peaceful intentions to the press). The Government does not proffer that he

brought any weapons or special tactical gear, and he carried only an unstrung bow that was

purportedly symbolic in nature and does not appear to have been used as a weapon. Gov’t Ex. 2,

at 40:32–41:32 (describing his “costume” consisting of an “unstrung bow” that he was using as a

“staff”). These facts indicate that Fitzsimons may have been “caught up in the frenzy of the

crowd” rather than having planned in advance to engage in violence. Chrestman,

, at *8. Closely related, Fitzsimons does not appear to have used a weapon in attempting

to breach the line of officers at the capital as described under Chrestman’s third factor.

Even

the unstrung bow that he purportedly carried to the Capitol is not evident in the video footage.

See, e.g., Gov’t Ex. 7B, at 07:35–09:26.

The fourth and fifth Chrestman factors address whether the defendant coordinated “with

other participants before, during, or after the riot” and whether they “assumed either a formal or

a de facto leadership role in the assault by encouraging other rioters’ misconduct.” Chrestman,

, at *8. As discussed above, it does not appear that Fitzsimons engaged in any

meaningful coordination in advance of the riot. At oral argument, the Government urged the

Court to consider Fitzsimons’s actions in the tunnel both as coordination with other rioters and as

evidence of a de facto leadership role, essentially arguing that Fitzsimons led by example.

8 There is some evidence of coordination in the video footage where Fitzsimons engages in

the same actions as other rioters, such as grabbing and attempting to pull officers into the crowd

and rushing into the line of officers while flailing his arms. Gov’t Ex. 7B, at 07:35–09:26. He is

also charged with pulling off Detective P.N.’s mask and allowing another rioter to pepper spray

Detective P.N. Indictment at 3 (Count 5); Gov’t Opp’n at 7. But such “ad hoc, spur-of-the-

moment collaboration—while troubling—does not generate nearly the same kind of coordination

concerns as other cases.” See Klein,

, at *8 (citing contrasting cases in which

defendants “arrang[ed] concealed means of communicating by radio” or led “co-conspirators in

deliberate efforts to prevent Capitol Police from closing . . . barriers” (citations omitted)).

The issue of whether his actions amounted to a de facto leadership role that

“encourage[ed] other rioters’ misconduct” is close. Chrestman,

, at *8. On one

hand, Fitzsimons was only engaged in the violent actions for a matter of minutes. See Klein,

, at *8 (finding that the defendant had not assumed a leadership role despite

being present in the tunnel for around thirty minutes). But Fitzsimons’s actions during those few

minutes were arguably more concerning than the actions at issue in Klein, in which the defendant

did not demonstrate any intent to injure officers.

Here, Fitzsimons did in fact “attempt[] to

battle or fight the officers with his bare hands,” see

(internal quotations removed). The video

footage shows Fitzsimons, even after having been beaten with a police baton, pause and gather

his force before charging at the officers. Gov’t Ex. 7, at 01:40–01:50; Gov’t Ex. 7B, at 09:14–

09:23. This kind of intentional action could have set an example for his fellow rioters—but any

such example was also likely a drop in the bucket in the context of that afternoon. The Court is

ultimately unpersuaded that it rises to the level of de facto leadership.

9 Sixth and finally, Fitzsimons’s “words and movements during the riot reflect the

egregiousness of his conduct.” Chrestman,

, at *8. The Government does not

proffer any particular statement that Fitzsimons made during the riot, but his movements that are

captured on video are deeply concerning. He was one of the rioters “who injured, attempted to

injure, or threatened to injure others,” not one who “merely wandered” the Capitol grounds. See

. He worked his way to the front lines of the conflict with law enforcement officers and

used his body to forcefully attack and attempt to injure officers. See Quaglin, 851 F. App’x at

219 (finding it significant that the defendant was “on the front line of a group of individuals

attempting to violently force their way inside the Capitol by physically overcoming a defensive

line of police officers”); United States v. Ballard, 21-cr-00553 at *8, ECF. No. 15 (D.D.C. Aug.

20, 2021) (determining that a defendant’s conduct was egregious “by virtue of having physically

assaulted police officers in attempting to overwhelm a police line and gain entry to the Capitol

building”). In fact, two officers did sustain injuries as a result of those actions, as reflected in the

charges against Fitzsimons. See Indictment at 2–3 (Counts 4 and 5).

In sum, Fitzsimons’s behavior during the riot “reflect[s] a contempt for the rule of law

and law enforcement, a disturbing disregard for the safety of others, and a willingness to engage

in violence.” See United States v. Gieswein, 21-cr-24,

, at *11 (D.D.C. July

27, 2021); see also Klein,

, at *9. The seriousness of his conduct weighs in

favor of detaining him pending trial.

B. The Weight of the Evidence Against Fitzsimons

The weight of the evidence against Fitzsimons also strongly favors detention. Multiple

videos and photographs from security cameras, body-worn cameras, and news footage,

corroborate the Government’s account of events that day. See, e.g., Gov’t Ex. 7, at 01:35–01:51

10 (security camera footage showing Fitzsimons charging at officers in the tunnel of the Lower

West Terrace); Gov’t Ex. 7A, at 01:35–01:44 (body-worn camera video depicting the same);

Gov’t Ex. 7B, at 07:35–9:26 (same).

There is little disputing that Fitzsimons is the person depicted in the videos and photos.

He self-reported to have been wearing the distinctive white butcher’s coat that can be seen on the

video footage, which was even embroidered with his name. Gov’t Ex. 5; Gov’t Ex. 9; cf.

Gieswein,

, at *12 (noting that a rioter’s “distinctive outfit” helped to identify

him in video and photographic evidence). And in the days following the Capitol riot, Fitzsimons

himself publicly shared his account of that day, which despite characterizing events differently

than the Government, still places him both at the Capitol and at the front lines of the attack. See

Gov’t Ex. 2, at 44:51–45:14 (describing how he twice “cycled through” being “pushed to the

front” to “receive a beating”); Gov’t Ex. 9 at 4 (quoting Fitzsimons in a local paper as saying “I

was pressed into the front two times”). He was identified by three separate tips from concerned

citizens who had interacted with him on multiple occasions. Crim. Compl. at 7–9, ECF No. 1.

The evidence against Fitzsimons is overwhelming and thus weighs in favor of detention.

Nevertheless, it “is the least important” detention factor. See Klein,

, at *10

(quoting United States v. Gebro,

, 1121–22 (9th Cir. 1991)).

C. Fitzsimons’s Personal History and Characteristics

When evaluating a defendant’s personal history and characteristics, a court should take

into account the defendant’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.”

(g)(3)(A). Some of these factors clearly weigh in favor of

11 release. Fitzsimons has no purported history of substance abuse and has only a minor criminal

record involving “one misdemeanor conviction for driving under the influence,” Def. Mot. at 13,

and a conviction for “operating an unregistered motor vehicle,” Gov’t Opp’n at 15. Those

relatively minor offenses from several years ago have little relationship or relevance to the

conduct here. See Munchel,

(noting that two misdemeanor marijuana

possession convictions were “limited criminal history” that favored release).

The Government’s contention that Fitzsimons presents a flight risk is premised primarily 3

on this factor, specifically, his limited familial support network and lack of employment. Gov’t

Opp’n at 15. Prior to his detention, Fitzsimons lived in Maine with his wife of three years and

young daughter but appears to have lost the support of that nuclear family in no small part due to

his political radicalization. Id.; see also 4/7/21 Tr., at 24: 11–14 (noting that Fitzsimons’s

potential “lack of community ties” with his wife “is yet another example of where your beliefs

have led and the damage they have done”). While he does have the strong support of his mother,

who has agreed to take him into her home in Florida, Def. Mot. at 12, he does not appear to have

any support system in Florida other than his mother. Although his mother has offered to help

Fitzsimons find employment, Def. Mot. at 12, he does not have any guaranteed employment in

Florida and appears to have had at least unsteady employment prior to his arrest, Gov’t Opp’n at

15 (proffering the mention of his “unemployment” in the Pretrial Services report).

3 The government also proffers the Pretrial Services report from February recommending against release in part because Fitzsimons had refused to be interviewed by Pretrial Services. Gov’t Opp’n at 15. As the transcript from Magistrate Judge Harvey’s decision demonstrates, Fitzsimons refused to be interviewed in part on the advice of counsel to allow some time to pass and to seek his detention hearing here in D.C. 4/7/21 Tr. at 10:22–11:22; see also Def. Mot. at 1–2. The Court agrees with Magistrate Judge Harvey’s view that the refusal to speak with Pretrial Services, especially on the advice of counsel, is not probative of flight risk.

12:19– 22.

12 However, there is also no indication whatsoever that Fitzsimons tried to evade arrest or

destroy relevant evidence. See United States v. Sabol, --- F. Supp. 3d ----,

, at

*53–54 (D.D.C. 2021) (finding an “unquestionabl[e]” risk of flight where the defendant

attempted to destroy electronics and took concrete steps to try and flee the country). Quite to the

contrary, Fitzsimons’s public sharing of his story and photos from that day made him

comparatively easy to find. See generally, Crim. Compl. And he did not attempt to flee or even

relocate following January 6th, rather, he was arrested at his home in Maine. See Arrest Warrant

Returned Executed on 2/4/2021 in Lebanon, Maine. In total, this Court disagrees with the

Government that Fitzsimons presents a flight risk or would be unlikely to appear in court.

But danger to the community is an additional justification for pretrial detention, and other

considerations under this third factor are pertinent to that inquiry as well. The Court finds

particularly concerning some of Fitzsimons’s past conduct. It is undisputed that Fitzsimons has

strongly held political beliefs and has been civically active over several years, which is of course

protected First Amendment activity. But when viewed together and in light of Fitzsimons’s

eventual actions described above, his past conduct demonstrates a severe lack of judgment as to

identifying the line between political expression and threats.

For example, the first incident that the government proffers, in which Fitzsimons made

xenophobic comments at a public hearing in May 2017, was indeed offensive and

inflammatory—but did not escalate to threats or violence. See Gov’t Ex. 14 (news article

describing that hearing and noting that the law enforcement officer stationed in the hearing felt

“exposed” and “not terribly safe”). But in 2019, Fitzsimons reportedly followed a state

representative into a parking lot, parked his truck behind her car, and positioned himself by the

door of her car.

He angrily confronted her over a gun safety bill that she was co-sponsoring

13 at the time and “speculated America was headed to civil war over gun rights.”

Again, the

incident did not escalate into violence but was described by the representative as “unsettling and

intimidating.” Gov’t Ex. 15. Over the course of 2020, Fitzsimons made multiple calls to his

Congressional representative’s office, saying among other things: “This is Kyle Fitzsimons, the

man who wants to start a war,” “we're coming for [the Congressperson],” and “Biden is a corrupt

skeleton and [] this is going to be Civil War.” Gov’t Opp’n at 10. His references in those calls

to the 2020 election show a clear connection between his threats of violence and his actions on

January 6th. Taken together, they demonstrate an escalating pattern of conduct that culminated in

Fitzsimons’s participation in the Capitol riot.

Also relevant here is Fitzsimons’s lack of remorse or even acknowledgment of

wrongdoing. “[A]lthough contrition is not a defense, it has some bearing on the character of the

defendant.” United States v. Cua, No. CR 21-107,

, at *4 (D.D.C. Mar. 10,

2021). After returning to Maine, Fitzsimons’s statements at the local government meeting and to

news sources attempt to cast his role as having been a victim, a characterization drastically at

odds with the video footage from that day and overtly conspiratorial in tone. See, e.g., Gov’t Ex.

2, at 44:43–45:12 (“If you got close enough… you would get sucked in. . . and you would get

pushed to the front . . . . I cycled through that wave of humanity twice before I was bloodied

enough to get off the steps . . . .”);

at 46:03–46:14 (“I can tell you right now, as an American,

and as a thinking man, that it was a set up.”); Gov’t Ex. 9 at 2 (“Fitzsimons . . . almost died when

a police officer clubbed him over the head with a baton after a scrum of young men behind him

pushed him unwillingly forward into a police line.”);

(“I'm not the one who is rebelling,

it’s the leadership of this country.”). And jail calls proffered by the government similarly

suggest that Fitzsimons’s conviction has not dampened since then. See Jail Call #1, at 06:14–

14 06:20 (“I know this sounds pretty crazy, but it’s exactly what was asked of me.”). Such

statements suggest a troubling lack of remorse—or even awareness—about the severity of his

actions.

Fitzsimons’s personal history and characteristics suggest that while he is not a flight risk.

However, this factor weighs in favor of a finding that he is a danger to the community, and

therefore in favor of detention.

D. The Nature and Seriousness of the Danger Fitzsimons’s Release Poses

The final factor in assessing dangerousness also supports detention. Assessing the

“‘nature and seriousness of the danger . . . posed by the defendant’s release’ . . . ‘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. 21-cr-107,

, at *5 (D.D.C. Mar. 10, 2021) (first quoting

(g)(4); and then

quoting United States v. Taylor,

(D.D.C. 2018)). “Because this factor

substantially overlaps with the ultimate question whether any conditions of release ‘will

reasonably assure . . . the safety of any other person and the community,’ it bears heavily on the

Court’s analysis.”

(quoting

(e)). The conduct involved in Fitzsimons’s

offense and his personal history demonstrate that his release would threaten the community.

Fitzsimons’s actions at the Capitol show that he is willing to use violence—even against

law enforcement—to achieve his political aims. He sought out conflict with law enforcement by

making his way to the front lines. Quaglin, 851 F. App’x at 219; United States v. Caldwell, No.

21-cr-181,

, at *10 (D.D.C. May 21, 2021). And the Government has

provided robust evidence that his actions were intended to injure law enforcement officers and

did in fact injure two law enforcement officers that day. Such egregious conduct “reflect[s] the

15 depth of [his] disregard for the safety of others, for our democratic institutions, and for the rule

of law.” See Chrestman,

, at *15.

And Fitzsimons’s prior conduct suggests that his actions that day were not an anomaly.

While his history of civic engagement is in some respects laudable, his actions leading up to and

at the Capitol riot suggest that his strong beliefs can and do get the better of him. Cf. Sabol,

, at *17 (noting that the rioter “did not simply hold . . . misguided beliefs”

about “a tyrannical government that ‘stole’ a presidential election”; “he acted on them”). The

previous instances of threatening behavior toward government officials follow a clear pattern

increasing in severity over several years. Given his lack of remorse—and even pride—in his

actions that day, the Court lacks confidence that Fitzsimons has somehow broken this pattern,

and fears that the escalation of his behavior will continue and result in a graver act of violence

given that the trigger for his violent acts—the election of President Biden—will be present for, at

least, three more years. See Gov’t Ex. 11, at 00:34–00:43 (asking his Congressional

representative to object to the election results and saying “I certainly have the courage to object

to my entire life going forward if this is done to me”).

As Magistrate Judge Harvey aptly explained when reaching the initial detention decision

in this case:

[W]hat I see looking at the totality of the circumstances here is someone who is -- has very passionately held beliefs, perhaps abnormally so. And what I mean by that is it appears they can get the best of you. If you lose control, you can be violent. You're to me like a bomb waiting to go off. It’s always difficult for a magistrate judge making that sort of prediction, someone who might engage in violence if I were to release him. It's made somewhat easier for me here because the bomb did go off . . . on January 6th . . . . That's what that video shows; someone who’s willing to engage in violence to promote his political beliefs. The First Amendment doesn’t protect that, sir.

4/7/21Tr. at 23:8–20. Even on de novo review, this Court agrees. When considering both

Fitzsimons’s history of confrontational and threatening conduct in furtherance of his political

16 views and his actions on January 6th, he has demonstrated a disregard for the safety of others and

the rule of law. Accordingly, no combination of pretrial release conditions could reasonably

guarantee the safety of the community.

V. CONCLUSION

For the foregoing reasons, the Defendant’s Motion to Revoke the Detention Order (ECF

No. 34) is DENIED. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: September 24, 2021 RUDOLPH CONTRERAS United States District Judge

17