A man held without bond for allegedly assaulting police officers outside the U.S. Capitol on Jan. 6 was ordered released on Monday by an appeals court.
Hogan claimed that there was no way to ensure the safety of the community if either man was released.
But an appeals court panel in the new decision said Hogan “clearly erred” in blocking the release of Tanios.
An attorney for the defendant and a spokesman for the U.S. Attorney’s Office for the District of Columbia declined to comment.
The order of release will not take effect until seven days after resolution of any petition for rehearing.
U.S. Circuit Judges Karen Henderson, a George H.W. Bush appointee; Judge Judith Rogers, a Clinton appointee; and Judge Justin Walker, a Trump appointee, were on the panel that made the new ruling.
The ruling is the first of its kind relating to the Jan. 6 breach.
A different panel on the same court in March said that the pretrial detention of two defendants, Lisa Eisenhart and Eric Munchel, was wrong, but did not order their release. However, after the decision, prosecutors dropped their bid to keep the mother and son detained.
Prosecutors say Tanios, a 39-year-old sandwich shop owner in West Virginia, was carrying a can of bear spray on Jan. 6. Khater allegedly grabbed it from the pack and sprayed it in the direction of a group of officers, including U.S. Capitol Police officer Brian Sicknick.
Prosecutors argued in April that neither man should be released. They claimed that the severity of the alleged crimes and the weight of the evidence should compel the judge to block the motions.
“The charged offenses involve unprovoked, assaultive conduct on three uniformed police officers who were trying to hold back a violent mob of thousands of people and protect the Capitol. The defendants timed the attack on the officers to accompany the nearby breach of the bike racks, so as to catch the officers when they were in the midst of a stressful event and were unsuspecting. The defendants failed to respect law enforcement officers in full uniform doing their job,” they wrote in a court filing.
“Thus, the government believes that if the defendants would disregard the authority of law enforcement, they will not abide by this Court’s release conditions.”
In their request to the appeals court to review Hogan’s order, attorneys for Tanios asserted that he is presumed innocent and that he denies each charge.
“Release is warranted in this case. First, the Government failed to meet its burden, even by a preponderance of the evidence, to show that Mr. Tanios is a risk of flight. Second, the Government failed to meet its burden to show clear and convincing evidence that Mr. Tanios is a danger to any other person or the community. Third, in the event that this Court somehow finds the Government—through its proffer and a sprinkling of short video clips—has met its burden, the analysis mandated by the Bail Reform Act does not end,” they wrote.
“The Government still bears the burden of proving to this Court that there are no conditions, or combinations of conditions, which will reasonably assure the appearance of Mr. Tanios and the safety of any other person or the community. At each step, the Government fails to meet its burden.”
