Law enforcement’s use of force against Jan. 6 conspiracy suspects draws heat — and credit

By | October 13, 2021

FBI agents had just found a cache of firearms during a search at the Nashville home of Eric Munchel — the body-armor-clad Capitol rioter famously photographed carrying zip ties in the Senate chamber on Jan. 6 — when the bureau issued a consequential warning.

The FBI warned that police departments seeking to detain Jan. 6 suspects should “exercise caution and consider use of SWAT when affecting the arrest of individuals who displayed body armor or other armament during criminal activity conducted at the US Capitol.”

The bulletin went out to the FBI’s law enforcement partners around the country on Jan. 10, the day of Munchel’s arrest, according to previously undisclosed materials POLITICO reviewed. It featured a picture of more than a dozen weapons spread across a table. Property of the People, a transparency nonprofit, obtained the bulletin through an open records request.

And many officers arresting Jan. 6 suspects appear to have taken the FBI’s recommendation seriously. In case after case against those seen wearing tactical gear during the insurrection, law enforcement has taken a heavily militarized approach to raids and arrests. Prosecutors say such tactics are necessary when arresting many of the Trump backers who participated in the assault on the Capitol — about five of whom, so far, are facing firearms-related charges.

Defense attorneys for some of those charged have criticized the use of militarized arrest tactics toward Jan. 6 defendants. But most condemnation of the FBI’s approach has come from defendants and their family members outside of the courtroom, often in friendly publications that have done little to challenge claims that alleged insurrectionists were unfairly targeted by overly aggressive law enforcement.

And Trump supporters’ challenge when talking about the use of SWAT against rioters is reminiscent of what House Republicans faced this summer when 21 of them voted against giving a Congressional Gold Medal to Jan. 6 law enforcement: They’re trying to rhetorically “Back the Blue” while decrying its treatment of their ideological allies.

Meanwhile, critics of excessive SWAT raids in general told POLITICO that it’s reasonable for law enforcement to use them in Jan. 6 cases. Current and former law enforcement officials say the raids are essential when arresting people connected to attacks on police.

Frank Figliuzzi, the FBI’s former assistant director for counterintelligence, said in an interview that many Jan. 6 arrests have been “tactical” — conducted by specially trained officers wearing body armor and prepared to face armed resistance.

“My contacts tell me many of these are being treated as tactical arrests because they feel the groups and individuals involved, combined with the evidence already discovered, merits a high level of risk for these arrests,” he said.

Suspects’ potential membership in extremist groups also shapes the FBI’s decisions on how to arrest them, Figliuzzi added.

An FBI spokesperson declined to comment on the ongoing investigations. Defendants in nearly every one of the most serious Jan. 6 cases have pleaded not guilty, although prosecutors are engaged in discussions with many of them about possible plea deals. Several defendants in the Oath Keepers conspiracy case, for example, have pleaded guilty and entered into cooperation deals with the government.

The latest such raid emerged over the weekend, when an attorney for Zachary Rehl — a leader of the far right Proud Boys charged with conspiracy related to Jan. 6 — revealed that a group of militarized law enforcement officers raided the home of one of his close friends.

The attorney estimated that about 20 agents in riot gear arrived at the home of Rehl’s friend, Aaron Whallon-Wolkind, before dawn on Friday morning with an armored personnel carrier and a fifteen-foot battering ram. They handcuffed his girlfriend and seized his personal devices, the attorney added in a court filing that said the raid must be connected to Rehl because Whallon-Wolkind, also affiliated with the Proud Boys, has not been charged with any crimes.

Rehl was hardly the first Jan. 6 defendant to face a militarized arrest. Guy Reffitt, who boasted of donning “full battle rattle” at the Capitol, was reportedly raided by a SWAT team on Jan. 16. Thomas Caldwell, accused by DOJ of conspiring with members of the extremist Oath Keepers militia to plan the riot, has described his arrest by a full SWAT team with armored vehicles and a battering ram outside his door.

An attorney for Ethan Nordean, another Proud Boys leader charged in connection with Jan. 6, has alleged that his wife was swept up in excessive police use of force: “On February 3, Nordean was arrested in his home state of Washington on a criminal complaint charging him with one or two felonies … his wife was awoken by flash bangs thrown into Nordean’s home by a large FBI SWAT team,” Nordean’s attorney Nick Smith wrote in a court filing seeking his release from custody earlier this year.

“They pointed assault rifles at her Handcuffed, she was detained for approximately five hours and questioned without being Mirandized,” the attorney continued. “Nordean, 30, has no criminal history.”

In an interview with the pro-Trump outlet American Greatness, Caldwell also decried police tactics during his arrests, saying agents forced him and his wife out of their house partially dressed and aimed guns at them.

“People who looked like stormtroopers were pointing M4 weapons at me, covering me with red [laser] dots,” he said.

But experts said militarized tactics are sometimes necessary. David Sklansky, the co-director of Stanford Law School’s Criminal Justice Center and a critic of excessive SWAT use, said in an interview that the Jan. 6 attack is unique.

The FBI’s Jan. 10 recommendation to weigh SWAT teams for the arrest of people who used tactical gear during the insurrection “doesn’t strike me as particularly troubling,” Sklansky said. “That strikes me as an instance when it would make sense for police to be worried about their safety and think that they might need to use special equipment or tactics in executing the arrest safely.”

The most notorious militarized police raid in recent memory came on March 13, 2020, when police in Louisville, Ky. entered Breonna Taylor’s home using a battering ram, then shot and killed her. Police conducted that raid even though Taylor had no history of violence, and the Louisville Courier-Journal has reported that police didn’t believe she had a gun. Her killing generated a massive outpouring of calls to close the gaping racial disparities in America’s criminal justice system.

No police officer was charged with her killing, though one was charged with wanton endangerment for allegedly firing his gun blindly during the raid.

Paul Butler, a professor at Georgetown University Law Center, noted that Taylor’s death also bolstered the case for reforming how law enforcement officers execute search warrants.

“Ironically — although I doubt that many of the insurrectionists are activists for police reform — some of the reforms that have been proposed would have made a difference in their cases if they were implemented,” he said. “What reforming the police recognizes is that more oversight reduces the violence and trauma that aggressive police tactics cause.”

But Butler also added that SWAT teams exist in part to arrest heavily armed people who could endanger police — and that many of the Jan. 6 attackers precisely fit that description.

“The reality is that some suspects pose a great risk of violence and it makes sense for officers to want to protect themselves,” he continued.

The Justice Department estimates that 1,000 assaults were committed that day, and there’s increasing evidence that some of the rioters carried guns with them into Washington or stashed them nearby for a potential escalation of violence. Prosecutors say more than a dozen members of the Oath Keepers extremist militia stashed guns in a hotel in Arlington, Va., that they intended to deploy if the riot spiraled even further.

Many of those arrested have been released on the condition that they remove any firearms from their homes.

Ryan Shapiro, head of Property of the People, said conservative criticism of Jan. 6 arrests smacks of hypocrisy.

“The right cheered” the use of aggressive tactics against liberal protesters, Shapiro said in an interview. “Yet now conservatives cry ‘brutality’ when the state gives the kid-glove treatment to participants of a literal attempted fascist coup. Born of cynicism, entitlement, and delusion, the right-wing persecution complex would be laughable if it wasn’t a key instrument for the dismantling of democracy.”