United States v. Eric Munchel

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided March 26, 2021

No. 21-3010

UNITED STATES OF AMERICA,
APPELLEE

v.

ERIC GAVELEK MUNCHEL,
APPELLANT

Consolidated with 21-3011

On Appeal of Pretrial Detention Orders
(No. 1:21-cr-00118-1)
(No. 1:21-cr-00118-2)

A. J. Kramer, Federal Public Defender, and Sandra G.
Roland, Assistant Federal Public Defender, were on appellant
Eric Munchel=s Memorandum of Law and Fact.

Gregory S. Smith, appointed by the court, was on appellant
Lisa Eisenhart=s Memorandum of Law and Fact.

Elizabeth Trosman and Elizabeth H. Danello, Assistant
U.S. Attorneys, were on appellee=s Memorandum of Law and
Fact.
 2

Before: ROGERS, WILKINS and KATSAS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

Opinion concurring in part and dissenting in part filed by
Circuit Judge KATSAS.

WILKINS, Circuit Judge: We consider an appeal of a
pretrial detention order issued after a Magistrate Judge had
previously ordered the two appellants released pursuant to a
lengthy set of stringent conditions. For the reasons stated
below, we remand for the District Court to consider anew the
government’s motion for detention.

I.

The facts, as found by the District Court, and as observed
in a 50-minute video of much of the incident at the heart of the
case, are as follows.

Eric Munchel and his mother, Lisa Eisenhart, participated
in the January 6, 2021 incident at the Capitol. Munchel is a
thirty-year-old resident of Nashville, Tennessee. He
previously worked as a waiter and has twice been convicted for
misdemeanor possession of marijuana in Georgia state courts.
See United States v. Munchel, No. 1:21-CR-118-RCL, 2021
WL 620236, at *1 (D.D.C. Feb. 17, 2021). Eisenhart is a fifty-
seven-year-old resident of Woodstock, Georgia. She has been
employed as a nurse for approximately thirty years and has no
prior criminal history. Id.; Eisenhart Mem. at 13.

On January 6, Eisenhart and Munchel attended President
Trump’s “Stop the Steal” rally to protest the election results.
Both wore tactical vests and Munchel had a taser, holstered on
 3
his hip. Munchel also wore his iPhone, mounted on his tactical
vest, and used it to take a video of some of the day’s events.
Following the rally, Eisenhart and Munchel marched towards
the Capitol. See Munchel, 2021 WL 620236, at *2–3. As they
approached the Capitol, they milled around outside and talked
with others. They met members of the Oath Keepers militia and
Munchel bumped fists with one of them. Id. at *2; Video at
11:56–12:05.

At some point while Munchel and Eisenhart were standing
around, someone yelled out “they broke the line up there” and
people began saying “let’s go in.” Eisenhart told Munchel they
should go in, but she added, “[w]e’re going straight to federal
prison if we go in there with weapons.” Video at 12:28–12:40.
Munchel responded that he would not go into the Capitol, and
Eisenhart suggested that they put “em” in their backpacks. Id.
Munchel and Eisenhart then moved across the crowd to an area
where a backpack was stowed and Munchel stashed a fanny
pack in the backpack. See Munchel, 2021 WL 620236, at *2;
Video at 16:00–16:25. Munchel contends that the only weapon
in the fanny pack was a pocketknife; the government suggests
that other weapons could have been inside, perhaps even a
firearm. See Tr. of Dist. Ct. Detention Hr’g at 10. Munchel
kept his taser holstered on his hip. See Munchel, 2021 WL
620236, at *2.

Subsequently, Eisenhart encouraged others to enter the
Capitol, stating the tear gas “isn’t bad” and repeatedly stating,
“let’s go in.” Video at 16:28–17:45. Munchel and Eisenhart
pushed their way through the crowd to continue towards the
Capitol. Munchel followed Eisenhart, often holding on to a
strap on her back. E.g., id. at 17:45–23:00. En route, Eisenhart
encouraged a man who claimed to have “punched two of them
in the face,” telling him, “while everyone else is on their couch,
you guys are training, and getting ready for it.” Id. at 23:56–
 4
24:12. Munchel told members of the crowd that “we’re not
playing f__ing nice no god damn more,” that he is “f__ing
ready to f__ sh__ up,” and “I guess they thought we were
playing.” Id. at 25:18, 26:58–27:01, 36:53–36:56; Munchel
Mem. at 11. Additionally, when Eisenhart heard that Congress
was “shut down” by tear gas she exclaimed that “they got tear-
gassed, motherf__ers” and proclaimed it her “best day to know
they got tear-gassed.” Video at 30:08–30:29. Directly in front
of the Capitol and near an entrance, Munchel stated, this is
“probably the last time I’ll be able to enter the building with
armor and . . . f__ing weapons.” Id. at 36:29–36:35.

Munchel and Eisenhart entered the Capitol through an
open door and stayed inside for approximately twelve minutes.
Id. at 38:30–38:50 (entry); Munchel Mem. at 11. Police
officers were standing to the right of the door, not blocking
their entry. Munchel Mem. at 11 (citing to Video). While
walking through the Capitol, Munchel told members of the
mob “don’t break sh_,” “no vandalizing sh__. We ain’t no god
damn Antifa, motherf__ers,” and “you break sh__, I break
you.” Video at 42:45, 43:20–43:43, 44:13–44:15.

Additionally, while inside, Munchel and Eisenhart spotted
plastic handcuffs, known as “zip ties.” Munchel, 2021 WL
620236, at *2; Video at 43:43. Upon seeing the zip ties,
Munchel shouted “Zip ties! I need to get me some of them
motherf__ers.” Video at 43:43–43:48. Munchel took several
zip ties and Eisenhart took one. See Munchel Mem. at 12.
Munchel and Eisenhart eventually made their way to the Senate
gallery, both still carrying the zip ties, and Munchel still
carrying his taser. Munchel, 2021 WL 620236, at *2; Gov’t
Mem. at 12 (pictures of Munchel in Senate gallery with zip
ties). Inside the gallery, Eisenhart chanted “Treason!
Treason!” and Munchel looked down at the dais and said, “I
want that f__ing gavel,” referring to the Senate’s artifact.
 5
Video at 45:14–45:17, 47:21–47:23. Munchel made no effort
to steal the gavel. Id. at 47:21–47:23; Munchel, 2021 WL
620236, at *2.

After leaving the gallery, Eisenhart told Munchel not to
carry the zip ties, stating that they “need[ed] to get them out of
[their] hands.” Video at 48:43–48:48. Later, Munchel took
some home with him to Tennessee. See Munchel, 2021 WL
620236, at *2. Eisenhart has claimed that she took the zip ties
to keep them away from “bad actors.” Id.; Eisenhart Mem. at
3.

Eventually, Munchel and Eisenhart left the Capitol. As
they were exiting, Munchel said to nearby police officers,
“Sorry, guys, I still love you.” Video at 49:27–49:29; Munchel
Mem. at 13.

On the evening of January 6, a Metropolitan Police
Department officer stopped Munchel and seized his taser. See
Munchel, 2021 WL 620236, at *3.1 The next day, as they
packed their car to go home, both Eisenhart and Munchel spoke
to the media. Eisenhart stated:

This country was founded on revolution. If
they’re going to take every legitimate means
from us, and we can’t even express ourselves on
the internet, we won’t even be able to speak
freely, what is America for? . . . I’d rather die
as a 57-year-old woman than live under

1 On January 5, a police officer had observed Munchel’s taser and
allowed him to keep it, ostensibly because it was legal to possess on
the street in the District of Columbia. Munchel, 2021 WL 620236,
at *1.
 6
oppression. I’d rather die and would rather
fight.

Laura Pullman, Trump’s Militias Say They Are Armed and
Ready to Defend Their Freedoms, THE TIMES (of London) (Jan.
10, 2021), https://www.thetimes.co.uk/article/trumps-militias-
say-they-are-armed-and-ready-to-defend-their-freedoms-
8ht5m0j70https://www.thetimes.co.uk/article/trumps-militias-
say-they-are-armed-and-ready-to-defend-their-freedoms-
8ht5m0j70 (attached to the Gov’t Suppl. Mem. at 26).
Munchel told the newspaper:

We wanted to show that we’re willing to rise up,
band together and fight if necessary. Same as
our forefathers, who established this country in
1776. . . . It was a kind of flexing of muscles. . . .
The intentions of going in were not to fight the
police. The point of getting inside the building
is to show them that we can, and we will.

Id.

Later, Munchel and Eisenhart returned to Tennessee, and
Eisenhart continued on to her home in Georgia. The FBI
posted bulletins on the internet and in the media with photos of
Munchel and Eisenhart from January 6, asking for the public’s
help in identifying them. On the morning of January 10, FBI
agents executed a search warrant at Munchel’s apartment. The
agents found the tactical vest Munchel wore at the Capitol, zip
ties, firearms, and a large quantity of loaded magazines.
Munchel was licensed to possess those weapons. See Munchel,
2021 WL 620236, at *3. Soon after learning about the search,
Munchel turned himself in. Id. at *4; Munchel Mem. at 15.
Munchel also made arrangements for his attorney to give his
iPhone to the FBI. Munchel Mem. at 15. Once Eisenhart
 7
learned she was the target of a federal investigation, she spoke
to a local FBI agent every day to determine whether there was
a warrant for her arrest, and when the warrant issued, she self-
surrendered. See Munchel, 2021 WL 620236, at *4, *7;
Eisenhart Mem. at 3.

Munchel and Eisenhart were charged in a complaint with
unlawful entry, violent entry, civil disorder, and conspiracy.
See Complaint, United States v. Munchel, No. 1:21-CR-118-
RCL, 2021 WL 620236, ECF No. 1 (D.D.C. Feb. 17, 2021).
Munchel and Eisenhart had pretrial detention hearings before
Magistrate Judge Jeffrey Frensley in the Middle District of
Tennessee. Magistrate Judge Frensley concluded that neither
Munchel nor Eisenhart were flight risks nor posed a danger to
the community and issued release orders for both appellants
with various conditions, including home detention, GPS
monitoring, refraining from possessing firearms or dangerous
weapons, and supervision by Pretrial Services. See Jan. 22,
2021 Transcript (“Munchel Tr.”) at 181, 186–89 (included in
Munchel Suppl.); Jan. 25, 2021 Transcript (“Eisenhart Tr.”) at
163, 164–66 (attached to Eisenhart Mem.).

Magistrate Judge Frensley briefly stayed both of his
release orders, id. at 171; Munchel Tr. at 198–99, and the
government promptly appealed both orders to the United States
District Court for the District of Columbia. Chief Judge Beryl
A. Howell stayed both release orders pending appeal, see Stay
Orders, ECF Nos. 4, 7, and ordered both appellants to be
transported to D.C., see Transport Orders, ECF Nos. 5, 9.
COVID-19-related complications slowed the appellants’
transport to D.C. See Status Report, ECF No. 18. While their
transports were pending, Eisenhart moved to rescind the stay
or to conduct an immediate review of her detention, which
Munchel joined. See ECF Nos. 14, 15, 27. Additionally, the
government filed motions seeking review of Judge Frensley’s
 8
release orders. See ECF Nos. 3, 6. In the meantime, Munchel
and Eisenhart were detained.2

Subsequently, on February 12, a grand jury sitting in the
District of Columbia returned an indictment charging Munchel
and Eisenhart with obstruction of an official proceeding;
Munchel with unlawful entry while armed with a dangerous
weapon, and violent entry while armed with a dangerous
weapon; and Eisenhart with aiding and abetting unlawful entry
while armed with a dangerous weapon, and aiding and abetting
violent entry while armed with a dangerous weapon. See
Indictment, ECF No. 21; Munchel, 2021 WL 620236, at *7.
On February 17, the District Court arraigned Munchel and
Eisenhart on the indictment and the government made an oral
motion for pretrial detention. See id. at *4. During the
detention hearing in the District Court, the government
proceeded by proffer rather than calling live witnesses. In
addition to what had been presented to Magistrate Judge
Frensley, the government introduced the 50-minute videotape
into evidence and proffered that after January 6, Munchel was
in contact with a suspected member of the Proud Boys and was

2 Even though Magistrate Judge Frensley had found that the
government had not met its burden of proving dangerousness by
clear and convincing evidence, the government sought and obtained
an ex parte stay of that release order that resulted in the appellants
being detained for three weeks without any court finding of
dangerousness, notwithstanding the statute’s mandate that review
occur “promptly,” 18 U.S.C. § 3145(a), and the statutory and
constitutional requirement of a dangerousness finding, see infra.
While COVID-19 issues caused a delay in the appellants’ transport
to the District of Columbia, the record does not indicate why a D.C.
District Judge could not have heard this matter prior to February 17,
even if the appellants were in another location. Ultimately, this
issue, while troubling, is not presented as a ground for reversal in this
appeal.
 9
told that he was too “hot” after he expressed interest in joining
the group. Id. at *6; Tr. of Dist. Ct. Detention Hr’g at 51.

Following the detention hearing, the District Court ordered
both Munchel and Eisenhart to be detained pending trial,
denied as moot Munchel and Eisenhart’s motions seeking to
rescind the stay of Judge Frensley’s orders, and denied as moot
the government’s motion seeking review of Judge Frensley’s
orders. See Detention Orders, ECF Nos. 25, 26; see also ECF
No. 27. The District Court concluded that both Munchel and
Eisenhart were eligible for detention because they were
charged with felonies while carrying a dangerous weapon,
explaining that the indictment alleges that Munchel carried a
dangerous weapon (the taser) and that Eisenhart aided and
abetted Munchel and therefore she was liable as if she were the
principal. See Munchel, 2021 WL 620236, at *5, *7.

Applying de novo review, the District Court determined
that appellants were not flight risks but that detention was
appropriate on the basis of dangerousness. Id. at *5–8. The
District Court concluded that appellants’ history and
characteristics weighed against detention but that the nature
and circumstances of the charged offenses, the weight of the
evidence, and the potential danger appellants pose to the
community weighed in favor of detention. Id. The District
Court further determined that neither appellant was likely to be
deterred by release conditions. Id. at *7, *8.

Munchel and Eisenhart timely appealed. They contend
that the District Court erred in not deferring to Magistrate
Judge Frensley’s factual findings as to their dangerousness.
They also contend that the District Court inappropriately relied
on a finding that they were unlikely to abide by release
conditions to detain them, because that factor is applicable only
to revocation of pretrial release. They also argue that the
 10
charged offenses do not authorize detention, claiming that
felonies involving possession of a weapon, rather than use, do
not qualify for detention and, relatedly, that Munchel’s taser is
not a “dangerous weapon” within the meaning of the statute.
Munchel and Eisenhart also object that several other
defendants who participated in the insurrection have been
released before trial, arguing that the conduct of those
defendants is indistinguishable (or even worse) than their
conduct on January 6. Finally, they contend that the District
Court’s determinations in support of detention were clearly
erroneous.

II.

“In our society liberty is the norm, and detention prior to
trial or without trial is the carefully limited exception.” United
States v. Salerno, 481 U.S. 739, 755 (1987).

The Bail Reform Act of 1984 authorizes one of those
carefully limited exceptions by providing that the court “shall
order” a defendant detained before trial if it “finds that no
condition or combination of conditions will reasonably assure
the appearance of the person as required and the safety of any
other person and the community.” 18 U.S.C. § 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. Vasquez-Benitez, 919 F.3d 546, 550 (D.C. Cir.
2019). Here, the District Court held that both Munchel and
Eisenhart should be detained on the basis of dangerousness.

In assessing whether pretrial detention is warranted for
dangerousness, the district court considers four statutory
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
 11
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)(1)–(4). To justify detention on the basis of
dangerousness, the government must prove by “clear and
convincing evidence” that “no condition or combination of
conditions will reasonably assure the safety of any other person
and the community.” Id. § 3142(f). Thus, a defendant’s
detention based on dangerousness accords with due process
only insofar as the district court determines that the defendant’s
history, characteristics, and alleged criminal conduct make
clear that he or she poses a concrete, prospective threat to
public safety.

In Salerno, the Supreme Court rejected a challenge to this
preventive detention scheme as repugnant to due process and
the presumption of innocence, holding that “[w]hen the
Government proves by clear and convincing evidence that an
arrestee presents an identified and articulable threat to an
individual or the community, we believe that, consistent with
the Due Process Clause, a court may disable the arrestee from
executing that threat.” 481 U.S. at 751 (emphasis added).

III.

We can readily dispatch with some of the appellants’
arguments.

First, we conclude that we need not reach appellants’
contention that the District Court erred in not deferring to
Magistrate Judge Frensley’s factual findings as to their
dangerousness. The statute concerning review of a Magistrate
Judge’s release order says nothing about the standard of the
district court’s review, see 18 U.S.C. § 3145(a), and we have
 12
not squarely decided the issue.3 We need not break new ground
in this case, because as the appellants maintain in their briefing,
Munchel Reply Mem. 8, n.3, the government submitted
substantial additional evidence to the district judge that had not
been presented to the Magistrate Judge, including the 50-
minute iPhone video, a partial transcript of the video, and
several videos from Capitol CCTV. 4 As a result, this was not
an instance where the District Court made its dangerousness
finding based on the same record as was before the Magistrate
Judge. Here, the situation was more akin to a new hearing, and
as such, the issue before the District Court was not really
whether to defer (or not) to a finding made by the Magistrate
Judge on the same evidentiary record. Thus, we conclude that
the issue complained of by appellants is not squarely before us
in this appeal and we see no need to reach it.

Second, we reject the argument that the District Court
inappropriately relied on a finding that appellants were unlikely
to abide by release conditions to detain them, because that
factor is applicable only to revocation of pretrial release. The

3 This court stated long ago, in dictum, in a case arising under the
predecessor Bail Reform Act that district courts review such prior
determinations with “broad discretion.” Wood v. United States, 391
F.2d 981, 984 (D.C. Cir. 1968) (“Evaluating the competing
considerations is a task for the commissioner or judge in the first
instance, and then the judges of the District Court (where they have
original jurisdiction over the offense) have a broad discretion to
amend the conditions imposed, or to grant release outright, if they
feel that the balance has been improperly struck.”).
4 Below, the government contended that the 50-minute iPhone video

was presented to the Magistrate Judge in Eisenhart’s detention
hearing. ECF No. 41 at 2 & n.2. However, it does not dispute the
appellants’ claim that the partial transcript of the video and the
videos from Capitol CCTV were not presented to the Magistrate
Judge.
 13
District Court’s finding as to appellants’ potential compliance
is relevant to the ultimate determination of “whether there are
conditions of release that will reasonably assure . . . the safety
of any other person and the community.” 18 U.S.C. § 3142(f)
and (g). Indeed, other courts have found a defendant’s
potential for compliance with release conditions relevant to the
detention inquiry. See, e.g., United States v. Hir, 517 F.3d
1081, 1092–93 (9th Cir. 2008) (explaining that release
conditions require “good faith compliance” and that the
circumstances of the charged offenses indicate “that there is an
unacceptably high risk that [the defendant] would not comply.
. . with the proposed conditions”); United States v. Tortora, 922
F.2d 880, 886–90 (1st Cir. 1990). While failure to abide by
release conditions is an explicit ground for revocation of
release in 18 U.S.C. § 3148(b), it defies logic to suggest that a
court cannot consider whether it believes the defendant will
actually abide by its conditions when making the release
determination in the first instance pursuant to 18 U.S.C. § 3142.

Third, we reject Munchel and Eisenhart’s arguments that
the charged offenses do not authorize detention. Under 18
U.S.C. § 3142(f)(1)(E), detention is permitted if the case
involves “any felony . . . that involves the possession or use of
a . . . dangerous weapon.” (emphasis added). Two of the
charges in the indictment meet this description: Count Two—
entering a restricted building “with intent to impede and disrupt
the orderly conduct of Government business . . . while armed
with a dangerous weapon,” in violation of 18 U.S.C.
§ 1752(a)(1) and (a)(2) and 18 U.S.C. § 2 (aiding and abetting
charge for Eisenhart); and Count Three—violent entry or
disorderly conduct, again “while armed with a dangerous
weapon,” in violation of 40 U.S.C. § 5104(e)(1) and (e)(2) and
18 U.S.C. § 2. Indictment, ECF No. 21 at 2. The Bail Reform
Act thus explicitly authorizes detention when a defendant is
 14
charged with committing certain felonies while possessing a
dangerous weapon, as is alleged in this indictment. 5

IV.

That leaves us with Munchel and Eisenhart’s final two
arguments: (1) that the District Court’s determinations in
support of detention were clearly erroneous; and (2) that
several other defendants who participated in the insurrection
have been released before trial, even though the conduct of
those defendants is indistinguishable (or even worse) than their
conduct on January 6. The first challenges the District Court’s
finding that no condition or combination of conditions of
release could reasonably assure the safety of the community
while these appellants await trial. Appellants did not raise the

5 Eisenhart’s argument that a taser is not a dangerous weapon—
which Eisenhart raises for the first time in reply, and which Munchel
seeks to adopt in his reply—is without merit. The relevant statute,
40 U.S.C. § 5104(a)(2)(B), defines the term “dangerous weapon” to
include “a device designed to expel or hurl a projectile capable of
causing injury to individuals or property. . . .” While the record
contains no evidence or proffer as to how Munchel’s taser operates,
a taser is commonly understood as a device designed to expel a
projectile capable of causing injury to individuals. See Cantu v. City
of Dothan, 974 F.3d 1217, 1224–25 (11th Cir. 2020); Mattos v.
Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (“[A] taser uses
compressed nitrogen to propel a pair of ‘probes’—aluminum darts
tipped with stainless steel barbs connected to the taser by insulated
wires—toward the target at a rate of over 160 feet per second. Upon
striking a person, the taser delivers a 1200 volt, low ampere electrical
charge. The electrical impulse instantly overrides the victim’s
central nervous system, paralyzing the muscles throughout the body,
rendering the target limp and helpless.” (internal alterations and
quotation marks omitted)). Thus, at this stage, the evidence
sufficiently demonstrates that Munchel’s taser is a dangerous
weapon under the statute.
 15
latter argument below, so we decline to pass on it in the first
instance and without the benefit of full briefing.

A.

We review the District Court’s dangerousness
determinations for clear error. United States v. Smith, 79 F.3d
1208, 1209 (D.C. Cir. 1996); United States v. Simpkins, 826
F.2d 94, 96 (D.C. Cir. 1987). “A finding is ‘clearly erroneous’
when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States
v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also United
States v. Celis, 608 F.3d 818, 843 (D.C. Cir. 2010). If, upon
reviewing the record, it does not appear that the District Court
considered substantial countervailing evidence that supported
release when analyzing the detention factors, we sometimes
remand for reconsideration rather than reverse. See United
States v. Nwokoro, 651 F.3d 108, 110 (D.C. Cir. 2011)
(remanding where the “district court [did not] demonstrate that
it considered many of the facts apparent from the record before
it”).

In this case, the District Court found that because Munchel
has limited criminal history and Eisenhart has none, their
history and characteristics weighed against a finding that no
conditions of release would protect the community. Munchel,
2021 WL 620236, at *6, *8. However, the District Court found
that the nature and circumstances of the charged offenses,
weight of the evidence, and danger to the community factors
all weighed in favor of finding that no conditions of release
would protect the community. Id. at *5–7 (Munchel) 6, *7–8

6Although the government presented evidence that Munchel was in
contact with a member of the Proud Boys after January 6 and was
 16
(Eisenhart). The crux of the District Court’s reasoning was that
“the grand jury alleged that [the appellants] used force to
subvert a democratic election and arrest the peaceful transfer
of power. Such conduct threatens the republic itself. . . .
Indeed, few offenses are more threatening to our way of life.”
Id. at *5. Furthermore, because in media interviews Munchel
showed no remorse and indicated that he would “undertake
such actions again,” while Eisenhart stated that she would
rather “fight” and “die” than “live under oppression,” the
District Court found that both appellants were a danger to the
republic and unlikely to abide by conditions of release. Id. at
*6, *8 (quoting Pullman, supra). Nevertheless, we conclude
that the District Court did not demonstrate that it adequately
considered, in light of all the record evidence, whether
Munchel and Eisenhart present an identified and articulable
threat to the community. Accordingly, we remand for further
factfinding. Cf. Nwokoro, 651 F.3d at 111–12.

B.

The crux of the constitutional justification for preventive
detention under the Bail Reform Act is that “[w]hen the
Government proves by clear and convincing evidence that an
arrestee presents an identified and articulable threat to an
individual or the community, . . . a court may disable the
arrestee from executing that threat.” Salerno, 481 U.S. at 751.
Therefore, to order a defendant preventatively detained, a court

interested in joining the group, id. at *6, the District Court made no
finding as to whether this evidence indicated that Munchel posed a
danger to the community. It did, however, consider the evidence of
Munchel’s contact with the Proud Boys in its analysis of Munchel’s
history and characteristics, and determined that despite the evidence,
Munchel’s history and characteristics weighed against detention. Id.
 17
must identify an articulable threat posed by the defendant to an
individual or the community. The threat need not be of
physical violence, and may extend to “non-physical harms such
as corrupting a union.” United States v. King, 849 F.2d 485,
487 n.2 (11th Cir. 1988) (quoting S. REP. NO. 98–225, at 3
(1984), as reprinted in 1984 U.S.C.C.A.N. 3182, 3195–96).
But it must be clearly identified. See Salerno, 481 U.S. at 750
(noting that the Act applies in “narrow circumstances” where
“the Government musters convincing proof that the arrestee,
already indicted or held to answer for a serious crime, presents
a demonstrable danger to the community”); cf. Tortora, 922
F.2d at 894 (Breyer, C.J., concurring) (reversing an order of
release where the district court failed to “carefully analyze[] the
danger [the defendant] posed”). Detention cannot be based on
a finding that the defendant is unlikely to comply with
conditions of release absent the requisite finding of
dangerousness or risk of flight; otherwise the scope of
detention would extend beyond the limits set by Congress. As
we observed of the Bail Reform Act of 1966, “[t]he law
requires reasonable assurance[,] but does not demand absolute
certainty” that a defendant will comply with release conditions
because a stricter regime “would be only a disguised way of
compelling commitment in advance of judgment.” United
States v. Alston, 420 F.2d 176, 178 (D.C. Cir. 1969).

The threat must also be considered in context. See
Tortora, 922 F.2d at 888 (“Detention determinations must be
made individually and, in the final analysis, must be based on
the evidence which is before the court regarding the particular
defendant. The inquiry is factbound.” (internal citations
omitted)). It follows that whether a defendant poses a
particular threat depends on the nature of the threat identified
and the resources and capabilities of the defendant. Cf.
Nwokoro, 651 F.3d at 110–11 (noting that evidence “favoring
appellant’s pretrial release” included the fact that appellant had
 18
no assets under his control, no ability to flee the country, and
“no prior criminal record”). Whether the defendant poses a
threat of dealing drugs, for instance, may depend on the
defendant’s past experience dealing, see, e.g., United States v.
Briggs, 697 F.3d 98, 102 (2d Cir. 2012), and her means of
continuing to do so in the future, see, e.g., United States v.
Henry, 172 F.3d 921 (D.C. Cir. 1999) (unpublished).

Here, the District Court did not adequately demonstrate
that it considered whether Munchel and Eisenhart posed an
articulable threat to the community in view of their conduct on
January 6, and the particular circumstances of January 6. The
District Court based its dangerousness determination on a
finding that “Munchel’s alleged conduct indicates that he is
willing to use force to promote his political ends,” and that
“[s]uch conduct poses a clear risk to the community.”
Munchel, 2021 WL 620236, at *6. In making this
determination, however, the Court did not explain how it
reached that conclusion notwithstanding the countervailing
finding that “the record contains no evidence indicating that,
while inside the Capitol, Munchel or Eisenhart vandalized any
property or physically harmed any person,” id. at *3, and the
absence of any record evidence that either Munchel or
Eisenhart committed any violence on January 6. That Munchel
and Eisenhart assaulted no one on January 6; that they did not
enter the Capitol by force; and that they vandalized no property
are all factors that weigh against a finding that either pose a
threat of “using force to promote [their] political ends,” and
that the District Court should consider on remand. If, in light
of the lack of evidence that Munchel or Eisenhart committed
violence on January 6, the District Court finds that they do not
in fact pose a threat of committing violence in the future, the
District Court should consider this finding in making its
dangerousness determination. In our view, those who actually
assaulted police officers and broke through windows, doors,
 19
and barricades, and those who aided, conspired with, planned,
or coordinated such actions, are in a different category of
dangerousness than those who cheered on the violence or
entered the Capitol after others cleared the way. See Simpkins,
826 F.2d at 96 (“[W]here the future misconduct that is
anticipated concerns violent criminal activity, no issue arises
concerning the outer limits of the meaning of ‘danger to the
community,’ an issue that would otherwise require a legal
interpretation of the applicable standard.” (internal quotation
and alteration omitted)). And while the District Court stated
that it was not satisfied that either appellant would comply with
release conditions, that finding, as noted above, does not
obviate a proper dangerousness determination to justify
detention.

The District Court also failed to demonstrate that it
considered the specific circumstances that made it possible, on
January 6, for Munchel and Eisenhart to threaten the peaceful
transfer of power. The appellants had a unique opportunity to
obstruct democracy on January 6 because of the electoral
college vote tally taking place that day, and the concurrently
scheduled rallies and protests. Thus, Munchel and Eisenhart
were able to attempt to obstruct the electoral college vote by
entering the Capitol together with a large group of people who
had gathered at the Capitol in protest that day. Because
Munchel and Eisenhart did not vandalize any property or
commit violence, the presence of the group was critical to their
ability to obstruct the vote and to cause danger to the
community. Without it, Munchel and Eisenhart—two
individuals who did not engage in any violence and who were
not involved in planning or coordinating the activities—
seemingly would have posed little threat. The District Court
found that appellants were a danger to “act against Congress”
in the future, but there was no explanation of how the
appellants would be capable of doing so now that the specific
 20
circumstances of January 6 have passed. This, too, is a factor
that the District Court should consider on remand.

C.

Finally, Munchel and Eisenhart argue that the
government’s proffer of dangerousness should be weighed
against the fact that the government did not seek detention of
defendants who admitted they pushed through the police
barricades and defendants charged with punching officers,
breaking windows, discharging tasers at officers, and with
planning and fundraising for the riot. See Munchel Reply
Mem. at 9–12. Appellants did not raise this claim before the
District Court and the government did not substantively
respond to it on appeal because Appellants raised it for the first
time in Munchel’s reply. Whatever potential persuasiveness
the government’s failure to seek detention in another case
carries in the abstract, every such decision by the government
is highly dependent on the specific facts and circumstances of
each case, which are not fully before us. In addition, those facts
and circumstances are best evaluated by the District Court in
the first instance, and it should do so should appellants raise the
issue upon remand.

****

It cannot be gainsaid that the violent breach of the 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. Cf. Salerno, 481 U.S. at 748 (“[I]n
times of war or insurrection, when society’s interest is at its
peak, the Government may detain individuals whom the
government believes to be dangerous.” (citations omitted)).
But we have a grave constitutional obligation to ensure that the
facts and circumstances of each case warrant this exceptional
 21
treatment. Accordingly, we conclude that the appropriate
resolution of this case is to remand the detention orders for
reconsideration forthwith of the government’s oral motion for
pretrial detention.

So ordered.
 KATSAS, Circuit Judge, concurring in part and dissenting
in part: These appeals present the question whether Eric
Munchel and his mother, Lisa Eisenhart, may be detained
pending trial for their participation in the riot at the United
States Capitol on January 6, 2021. The answer to that question
does not turn on any generalized, backward-looking
assessment of the rioters or the riot, as the district court
erroneously suggested. Instead, it turns on a specific, forward-
looking assessment of whether Munchel and Eisenhart as
individuals currently pose an unmitigable threat to public
safety. My colleagues and I agree on this critical point about
the governing legal standard in these appeals. We also agree
that the district court failed to justify the detention of Munchel
and Eisenhart on the record before it. But whereas my
colleagues remand for a do-over, I would reverse outright. 1

The Bail Reform Act permits pretrial detention in only
“carefully defined circumstances.” United States v. Simpkins,
826 F.2d 94, 95–96 (D.C. Cir. 1987). To support detention, a
court must find 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.” 18
U.S.C. § 3142(e)(1). In assessing public safety and flight risk,
courts must consider 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.” Id. § 3142(g). For the

1
I join parts I to III of the Court’s opinion. I also agree with
much of the legal analysis in part IV, including the proposition that
those who assaulted police officers or forcibly breached Capitol
security on January 6 “are in a different category of dangerousness”
than those who, like Munchel and Eisenhart, only “cheered on” the
disruption and “entered the Capitol after others cleared the way.”
Ante at 18–19.
 2
public-safety determination, the government must prove all
relevant facts “by clear and convincing evidence,” id.
§ 3142(f)(2), and we review all relevant findings for clear error,
United States v. Smith, 79 F.3d 1208, 1209 (D.C. Cir. 1996).

In this case, a magistrate judge concluded that neither
Munchel nor Eisenhart is a flight risk and that neither would
pose a safety risk if subjected to conditions including home
detention, GPS monitoring, a ban on possessing firearms, a ban
on travel to Washington, D.C, and supervision by the U.S.
Pretrial and Probation Services System. Munchel Mag. Tr. at
177, 181, 185–89; Eisenhart Mag. Tr. at 152, 163, 164–66. The
district court agreed that Munchel and Eisenhart do not present
a flight risk, but found that no combination of release
conditions would reasonably ensure public safety. United
States v. Munchel, No. 1:21-CR-118-RCL, 2021 WL 620236,
at *1, *5, *7 (D.D.C. Feb. 17, 2021). The court found that all
but one of the subsidiary statutory factors weigh in favor of
detention. Id. at *5–8.

In my view, the district court clearly erred in finding that
the government satisfied its burden to prove an unmitigable
threat to public safety by clear and convincing evidence. The
court’s errors infected both its assessment of the individual
factors and its ultimate determination that Munchel and
Eisenhart must be detained.

The first factor looks to both the “nature” and
“circumstances” of the “charged” offense: “the former refers to
the generic offense while the latter encompasses the manner in
which the defendant committed it.” United States v. Singleton,
182 F.3d 7, 12 (D.C. Cir. 1999). Munchel and Eisenhart have
been charged with obstructing an official proceeding, see 18
U.S.C. § 1512(c)(2); entering a restricted building unlawfully
or with the intent to impede government business, see id.
 3
§ 1752(a)(1)–(2), (b); carrying a dangerous weapon on the
Capitol grounds, see 40 U.S.C. § 5104(e)(1); and entering the
Capitol with the intent to disrupt official business, see id.
§ 5104(e)(2). The district court described the charged offenses
as “grave,” asserted that “few offenses are more threatening to
our way of life,” and quoted at length from George
Washington’s Farewell Address. Munchel, 2021 WL 620236,
at *5–7. But none of the charged offenses is a Class A or Class
B felony, see 18 U.S.C. § 3559(a), none carries a mandatory
minimum sentence, and none gives rise to a rebuttable
presumption of detention.

The district court was primarily concerned with how
Munchel and Eisenhart committed their offenses. In addition
to the descriptions noted above, the court asserted that their
conduct showed “a flagrant disregard for the rule of law”—and
indeed “threatens the republic itself.” Munchel, 2021 WL
620236, at *5–6. The court described Munchel as “willing to
use force to promote his political ends” and as “[s]torming the
Capitol to disrupt the counting of electoral votes.” Id. at *6.
Further, it found that Munchel’s entering the Capitol “carried
great potential for violence” because he was “armed with a
taser,” “carried plastic handcuffs,” and “threatened to ‘break’
anyone who vandalized the Capitol.” Id. But as the court itself
acknowledged, “[t]he record contains no evidence indicating
that, while inside the Capitol, Munchel or Eisenhart vandalized
any property or physically harmed any person.” Id. at *3.

A video recorded by Munchel—documenting what he and
his mother did on January 6—confirms the more benign
assessment. The video shows the following: Munchel and
Eisenhart did not organize the election protest or the ensuing
march to the Capitol, hatched no advance plan to enter the
Capitol, and acted in concert with no other protestors. Nor did
they assault any police officers or remove any barricades in
 4
order to breach Capitol security. They decided to enter the
Capitol only after others had already done so forcibly. By the
time they made their way to the building, police were making
no attempt to stop or even discourage protestors from entering.
To go inside, Munchel and Eisenhart walked through an open
door. While there, they attempted neither violence nor
vandalism. They searched for no Members of Congress, and
they harassed no police officers. They found plastic handcuffs
by chance, but never threatened to use them. Munchel’s threat
to “break” anyone who vandalized the Capitol was intended to
prevent destruction and was addressed to no one in particular.
See Munchel iPhone Video at 43:41. For ten to twelve minutes,
Munchel and Eisenhart wandered the halls of the Capitol, with
Eisenhart leading the way and Munchel asking his mother what
her plan was. At one point, they entered the Senate gallery. At
another, as they entered what appears to be a hallway of offices,
Munchel told his mother that “[w]e don’t want to get stuck in
here, this is not a place for us,” which caused her to turn around.
Id. at 42:11–14. Munchel and Eisenhart voluntarily left the
building—while many other protestors remained and before
the police began to restore order. Their misconduct was
serious, but it hardly threatened to topple the Republic. Nor,
for that matter, did it reveal an unmitigable propensity for
future violence.

Turning to the second factor, the district court found that
the “weight of the evidence” supported pretrial detention.
Munchel, 2021 WL 620236, at *6, *8. The video in this case
documents exactly what Munchel and Eisenhart did inside the
Capitol. It forecloses any contention that pretrial detention is
inappropriate because of uncertainty about whether the alleged
conduct occurred. But as explained above, the conduct does
not show that Munchel and Eisenhart pose an unmitigable
future threat to public safety. The second factor thus moves the
needle neither one way nor the other.
 5
The district court next found that the defendants’ “history
and characteristics” do not support detention. See Munchel,
2021 WL 620236, at *6, *8. The government fails to challenge
that finding—and for good reason. Munchel maintained
employment until his arrest, has no history of violence, has no
prior felony convictions, and is not a member of any anti-
government or militia group. He has two prior misdemeanor
convictions for possession of marijuana, which are both more
than five years old, and there was no proof that he has ever
failed to comply with any probation conditions imposed as a
result. Munchel Mag. Tr. at 174–75. Eisenhart is 57 years old,
has been a nurse for three decades, and has no criminal history.
Both appellants voluntarily surrendered to the FBI. Munchel
took affirmative steps to preserve the evidence in his cellphone
and arranged to provide it to the government. Id. at 176.
Before her arrest warrant had even issued, Eisenhart
established daily contact with the FBI so that she could turn
herself in as soon as it did. Eisenhart Mag. Tr. at 152. The
third factor thus cuts strongly in favor of release.

In evaluating the “nature and seriousness” of any danger,
the district court highlighted statements that Munchel and
Eisenhart made to the media on January 7. Munchel said that
“[t]he point of getting inside the building is to show them that
we can, and we will,” Munchel, 2021 WL 620236, at *6, while
Eisenhart, invoking the American Revolution, said that she
would “rather die and would rather fight” than “live under
oppression,” id. at *8. To the district court, these statements
indicated that the defendants pose “a clear danger to our
republic” and that Eisenhart is a “would-be martyr.” Id. at *6,
*8. But the defendants’ actual conduct belied their rhetorical
bravado. During the chaos of the Capitol riot, Munchel and
Eisenhart had ample opportunity to fight, yet neither of them
did. Munchel lawfully possessed several firearms in his home,
but he took none into the Capitol. Munchel Mag. Tr. at 179,
 6
182. Indeed, before entering the Capitol, Munchel and
Eisenhart stashed a knife inside a backpack that they left
outside, precisely for fear of ending up in “federal prison.” See
Munchel, 2021 WL 620236, at *2.

Moreover, even if their comments indicate some
willingness to engage in future protests or disruption, the Bail
Reform Act permits detention only to prevent an “identified
and articulable threat to an individual or the community.”
United States v. Salerno, 481 U.S. 739, 751 (1987). Here, the
district court identified one such threat—that Munchel and
Eisenhart would attempt “to stop or delay the peaceful transfer
of power.” Munchel, 2021 WL 620236, at *6, *8. But the
transition has come and gone, and that threat has long passed.
In the district court, the government warned of an upcoming
protest scheduled for March 4. But that protest never
materialized, and the government produced no evidence that
Munchel and Eisenhart had been involved in its planning
before their arrest. The government’s gesturing towards the
possibility of their joining future protests falls well short of any
“identified and articulable threat.” Salerno, 481 U.S. at 751.

After evaluating the four statutory factors, the district court
turned to the ultimate question in the case—whether no release
conditions would reasonably ensure public safety. The court
worried that a “determined defendant” could “cut off an ankle
monitor, ignore travel restrictions, elude a third-party
custodian, unlawfully rearm, and endanger his community.”
Munchel, 2021 WL 620236, at *7. The court found that
Munchel was such a defendant given his “brazen actions in
front of hundreds of law enforcement officers” and his media
comments. Id. It found that Eisenhart also qualified, because
of her supposed “willingness to die for her cause.” Id. at *8.
 7
Yet the record shows otherwise. As explained above,
Munchel and Eisenhart chose to trespass—not to engage in
violence, much less fight to the death. Afterwards, both
voluntarily surrendered to the FBI, as the district court
recognized in concluding that neither posed a flight risk. See
Munchel, 2021 WL 620236, at *5, *7. Munchel preserved and
voluntarily turned over his cellphone video. Munchel Mag. Tr.
at 176. Likewise, even after he was identified as a suspect,
Munchel made no attempt to hide or remove the firearms that
he lawfully possessed at his home. Id. at 181–82. As for the
defendants’ attitudes towards law enforcement, the video
shows that police did not seek to discourage their entry into the
Capitol through an open door, Munchel iPhone Video at 38:48;
Munchel and Eisenhart made no attempt to harass officers
while inside the Capitol; and, as they were preparing to exit,
Munchel encountered an officer and said “Sorry, guys, I still
love you,” id. at 49:26. Finally, contrary to the district court’s
characterization of Eisenhart as a “would-be martyr,” she
specifically declined to bring a knife into the Capitol because
of her expressed concerns with “federal prison.” See Munchel,
2021 WL 620236, at *2. The defendants’ other personal
characteristics—which the district court acknowledged to
weigh in favor of release—further indicate that they are likely
to comply with release conditions.

In this case, the magistrate judge imposed strict release
conditions. For Munchel, he required confinement at the home
of a third-party custodian, GPS location monitoring,
supervision by Pretrial Services, no possession of firearms, no
travel to D.C., no excessive use of alcohol, no possession or
use of any controlled substance, and drug testing if ordered by
Pretrial Services. Munchel Mag. Tr. at 185–89. For Eisenhart
he required home confinement, location monitoring,
supervision by a third-party custodian, no possession of
firearms, no travel to D.C., and submission to psychiatric
 8
treatment if ordered by Pretrial Services. Eisenhart Mag. Tr. at
164–66. The district court gave no plausible explanation for
why these stringent conditions would not reasonably ensure
public safety.

Of course, we review dangerousness findings only for
clear error, Smith, 79 F.3d at 1209, which requires affirmance
if a district court’s “account of the evidence is plausible in light
of the record viewed in its entirety,” Anderson v. City of
Bessemer City, 470 U.S. 564, 573–74 (1985). But while the
standard of review here is favorable to the government, both
substantive law and the standard of proof favor the defendants.
The Bail Reform Act requires a showing that “no condition or
combination of conditions” would even “reasonably assure”
the safety of individuals or the community. 18 U.S.C.
§ 3142(e)(1). And it requires this showing to be made by “clear
and convincing evidence,” id. § 3142(f)(2)—a heightened
standard of proof under which the fact finder must “give the
benefit of the doubt to the defendant,” United States v.
Montague, 40 F.3d 1251, 1255 (D.C. Cir. 1994); see Addington
v. Texas, 441 U.S. 418, 424 (1979). Putting it all together,
because the record strongly suggests that Munchel and
Eisenhart would present no safety risk if subjected to strict
release conditions, the district court clearly erred in finding that
the government had proved its case by clear and convincing
evidence.

“In our society liberty is the norm, and detention prior to
trial or without trial is the carefully limited exception.”
Salerno, 481 U.S. at 755. Because the district court clearly
erred here, I would reverse its detention order and remand for
the setting of appropriate release conditions.