A trio of appeals court judges slapped down a district court’s decision to keep a man dubbed the “zip tie guy” by the media and his mother behind bars pending a trial for their roles in the Jan. 6 Capitol riot.
The appeals court panel concluded that the Justice Department had not properly demonstrated that the two defendants posed a danger to the community. Eric Munchel and his mother Lisa Eisenhart were arrested in January after they both allegedly entered the U.S. Capitol and after photos of Munchel in tactical gear and carrying large white zip ties, which the video showed he had found after entering the building, went viral online.
The two were charged with unlawful entry, violent entry, civil disorder, and conspiracy.
Prosecutors wanted them kept behind bars pending a trial, but Tennessee Magistrate Judge Jeffery Frensley ruled in January that they should be released under home detention.
At the urging of the DOJ, District Court for the District of Columbia Chief Judge Beryl Howell stayed both release orders, and the case made its way to District Judge Royce Lamberth, who sided with the DOJ and ordered the two to be locked up, deeming them dangers to the community and threats to the republic.
An appeals court rejected this and told the lower court to reconsider in late March.
Judge Robert Wilkins, who was nominated to the appeals bench by former President Barack Obama in 2013, wrote the opinion and was joined by Judge Judith Rogers, whom former President Bill Clinton picked in 1993. Judge Gregory Katsas, selected by former President Donald Trump in 2017, joined in part and dissented in part, wanting the appeals court to reject the lower court even further.
“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,” Wilkins wrote. “But we have a grave constitutional obligation to ensure that the facts and circumstances of each case warrant this exceptional treatment.”
Prosecutors have said that an estimated 400 individuals have been charged, and law enforcement has said that 81 Capitol Police officers and 58 members of the Metropolitan Police Department were injured during the Capitol riot. There is no evidence that Munchel and Eisenhart committed such violence.
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,” Wilkins said.
“In our view, those who actually assaulted police officers and broke through windows, doors, 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,” the judge said.
Lamberth, who was nominated to the bench by former President Ronald Reagan in 1987, had argued in a February ruling that Munchel had been charged with “grave offenses,” saying the grand jury “alleged that Munchel used force to subvert a democratic election.”
“Such conduct threatens the republic itself,” he said, quoting George Washington’s 1796 Farewell Address about how obstruction of the law is “of fatal tendency.” The district court judge argued that “few offenses are more threatening to our way of life” and that Munchel’s conduct “indicates that he is willing to use force to promote his political ends.”
Munchel’s actions “carried great potential for violence,” Lamberth said.
Lamberth said Eisenhart’s “words and actions evince a serious threat to the community” and claimed that “by word and deed, Eisenhart has supported the violent overthrow of the United States government” and “as a self-avowed, would-be martyr, she poses a clear danger to our republic” and so “no conditions of release would protect the community.”
Munchel, 30, lived in Nashville, Tennessee, and was unemployed, formerly working at Kid Rock’s Big A– Honky Tonk and Rock ‘N’ Roll Steakhouse. He had two marijuana possession convictions but no violent criminal record.
Eisenhart, his 56-year-old mother, lived in Georgia and worked as a nurse for three decades. She had no prior criminal history.
“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,” Wilkins said.
Munchel and his mother were among the earliest of those involved in the Capitol riot to be arrested. Munchel recorded their storming of the Capitol, and a video showed that the pair stashed a knife in a bag outside before entering the building, prosecutors said. A search of Munchel’s Nashville home turned up some firearms, but there is no evidence he brought them to Washington.
“The evidence amassed so far subjects the defendant to felonies beyond that with which he has been charged so far, including obstructing Congress, interstate travel in furtherance of rioting activity, sedition, and other offenses,” prosecutors wrote in January, but no one has been charged with sedition.
Munchel is on video telling the Jan. 6 crowd that he was “f—— ready to f— s— up.”
Munchel and Eisenhart entered the Capitol through an open door and stayed inside for about 12 minutes.
Munchel told members of the mob that “we ain’t no goddamn antifa, m————” and if “you break s—, I break you.”
“Zip ties! I need to get me some of them m————,” Munchel shouted when he found them.
The zip ties were taken to keep them away from “bad actors,” Eisenhart has claimed. Munchel and Eisenhart went to the Senate gallery, where Eisenhart chanted, “Treason!” As he left the Capitol, Munchel told nearby police officers, “Sorry, guys, I still love you.” A Metropolitan Police Department officer seized Munchel’s Taser later that night. The two self-surrendered when they learned there were warrants for their arrests.
After leaving the Capitol, Munchel spoke with reporters, saying, “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.”
“This country was founded on revolution,” his mother told the media. “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?”
Katsas would have outright reversed the lower court, he said, arguing that “the district court clearly erred in finding that the government satisfied its burden to prove an unmitigable threat to public safety.”
The judge described the video of the mother and son inside the Capitol, saying: “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 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.”
“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,” Katsas said.
Former U.S. Attorney Michael Sherwin mentioned Munchel as “the zip tie guy” in an interview, saying, “The first people we went after, I’m gonna call the internet stars, right? The low-hanging fruit … we wanted to take out those individuals that essentially were thumbing their noses at the public for what they did.”
Capitol Police Officer Brian Sicknick died after responding to the Capitol riot, though his cause of death has not been made public. Two men were charged for a chemical spray attack on Sicknick, but no one has been charged with murder.
Ashli Babbitt, an Air Force veteran and Trump supporter, was also shot and killed by a Capitol Police officer while allegedly attempting to climb through a window into the Speaker’s Lobby. The person who planted pipe bombs outside the Republican National Committee and Democratic National Committee before the Capitol riot has not been caught.
The Justice Department collaborated with Munchel and Eisenhart for a joint report in March, noting that, in light of the appeals court decision, the DOJ had agreed to withdraw its motion to detain the defendants, agreeing to home detention and location monitoring instead. Lamberth agreed in a subsequent order.
