US Capitol rioters charged in Sicknick case were armed with bear spray but only used pepper spray, prosecutors say

The Justice Department on Tuesday abandoned the idea that pro-Trump rioters had used bear spray against US Capitol Police Officer Brian Sicknick during the January 6 riot, a major change after implying for weeks that bear spray, not pepper spray, had been deployed.

Prosecutors addressed the seemingly small but significant difference at a detention hearing for the two men charged in connection with the chemical attack. All sides now acknowledge that the defendants, Julian Khater and George Tanios, brought bear repellant to the Capitol and that Khater asked for it just moments before the attack but ended up using pepper spray instead.

The clarification came a week after Washington’s chief medical examiner ruled that Sicknick had suffered strokes and died of natural causes a day after the attack. The finding undercut theories that an allergic reaction to the chemical spray may have led to his death.

Taken together, these developments clarify key facts about the day before Sicknick’s death, which has emerged as one of the most well-known incidents from the insurrection.

The narrative was already muddled by prosecutors repeatedly citing the bear spray, unsanctioned speculation from the former US attorney who led the probe, exaggerated statements from law enforcement and inaccurate early press reports about a fire extinguisher hitting Sicknick.

Khater and Tanios have pleaded not guilty and maintain that they’re not a danger to the public. They’re seeking to be released from jail and will be before a federal judge again next week.

Chemical breakdown

Past testimony from Khater and the manager of a gun shop had already established that Tanios bought canisters of bear spray and pepper spray shortly before January 6. Prosecutor Gilead Light said Tuesday that it was the pepper spray that Khater allegedly used on Capitol grounds.

A “smaller can of a different chemical spray” was used, but “the bear spray is relevant because it goes to the planning,” Light said, arguing that the defendants had geared up for violence and were ready to use the repellant. “It’s an uncontested fact that there are no bears in downtown DC.”

CNN and other outlets had reported in February that a leading theory for investigators was that a chemical irritant, possibly bear spray, may have triggered a fatal reaction and killed Sicknick.

Prosecutors also emphasized the bear spray angle. The Justice Department news release announcing the charges in March said the officers had been hit with an “unknown chemical substance,” but also quoted a video of Khater asking Tanios to “give me that bear s–t” shortly before the assault.

At Tanios’ detention hearing in West Virginia, the phrase “bear spray” was brought up 20 times, according to a transcript. An FBI agent who testified at that hearing danced around the question of whether it had been deployed, saying the investigation was “ongoing” and that the canisters hadn’t been submitted for forensic analysis. But prosecutors did say the cans “appeared to be intact.”

Khater’s attorney Joseph Tacopina needled prosecutors at Tuesday’s hearing by saying the bear spray “turned out not to be bear spray,” and argued that it was a “defensive” pepper spray.

Will they be released?

The muddled narrative has played out while Khater and Tanios fight for their release from jail.

Most of the nearly 400 alleged rioters facing charges have been released before trial — even some who are accused of assaulting police officers. The Justice Department has struggled at times to convince federal judges that some of the defendants should stay behind bars, and several high-profile Capitol riot defendants have successfully overturned their detention orders.

Federal judges previously ruled that they’re too dangerous to let out, but they’re challenging those decisions. Holding a defendant in jail before trial is not meant to be a punishment, and defendants are presumed innocent of the charges. But pretrial detention is used when someone is deemed to be a potential danger to the public or might not show up for future court hearings.

Attorneys for Khater propose that he be released under a $15 million bond and put under house arrest because he has no history of violence, no engagement with extremist groups and didn’t go inside the Capitol. (He was still charged with entering restricted grounds because he was in an area that had been blocked off ahead of time and wasn’t open to the public on January 6.)

Tanios’ lawyer brought in two witnesses who testified Tuesday in favor of his release. A 20-year veteran of the West Virginia National Guard called Tanios “a big teddy bear,” and one of Tanios’ cousins said he would “never see (Tanios) as a threat to leave his country” and flee before trial.

“He’s looking forward to going to court and proving his innocence,” the cousin said.

Prosecutors say the man planned for violence, helped the Capitol fall to the mob and still poses a threat. Judge Thomas Hogan will hear more arguments next week and issue a ruling.

Murder probe fizzles

Khater and Tanios’ case may be the only charges ever brought involving the Sicknick incident.

Despite the Justice Department opening a murder investigation into Sicknick’s death, there have been several hints that prosecutors may never bring a murder case. The probe appeared to stall not long after it started due to a lack of evidence of any fatal injury. And the medical examiner initially kept the case “pending” even after releasing findings on others who died that day.

The medical examiner’s recent ruling about the manner of death makes it a virtual certainty that prosecutors won’t able to go much farther than the existing assault case, legal experts said.

“This, in fact, all but assures prosecutors won’t charge anyone with homicide related to Officer Sicknick’s death,” former US Attorney Preet Bharara told CNN. “The report appears conclusive that he died of natural causes, and it could look like overcharging if prosecutors went that route.”

Medical examiner Dr. Francisco Diaz didn’t note any evidence that Sicknick had an allergic reaction to the chemical spray, and didn’t list any internal or external injuries. Yet in an interview with The Washington Post about his findings, Diaz left some uncertainty about how the Capitol attack had influenced Sicknick’s health, saying, “All that transpired played a role in his condition.”

The US Capitol Police initially said on January 7 that Sicknick died “due to injuries sustained while on-duty” and “succumbed to his injuries” from the Capitol riot, a sentiment that was echoed by congressional leaders, White House officials and then-acting Attorney General Jeffrey Rosen.

When the autopsy results were released last week, indicating that Sicknick had died of natural causes, the Capitol Police said it “accepts” the findings but that he “died in the Line of Duty.”

In court filings and arguments, prosecutors have never connected the chemical spray assault to Sicknick’s death. Khater and Tanios are charged in a 10-count indictment with conspiring to injure an officer, assaulting an officer with a dangerous weapon, civil disorder and other crimes.

Former federal prosecutor Elie Honig, a CNN legal analyst, said there are still options for prosecutors to hold people responsible for Sicknick’s death, though it’s unlikely to happen.

“Under federal law, there is a felony murder law,” Honig said. “It means you’re liable for any death that occurs in the course of certain felonies, though it’s tough to find one that matches this set of circumstances. The only one that comes close — but is still a stretch — is burglary.”