Apr. 7-A federal judge in the District of Columbia has ordered a Lebanon man held in jail there while he awaits trial for charges stemming from the deadly riot at the U.S. Capitol.
"What I see is someone who has very passionately held beliefs, perhaps abnormally so, and it appears they can get the best of you, that you can lose control and you can become violent," U.S. Magistrate Judge G. Michael Harvey said to Kyle Fitzsimons during a virtual hearing in Washington Wednesday. "You are like a bomb waiting to go off. ... The bomb did go off on Jan. 6."
Fitzsimons is the only Mainer so far to face prosecution for allegedly joining the insurrection of white supremacists, far right extremists and supporters of former President Donald Trump.
Harvey said Wednesday that Fitzsimons should remain in custody because he is accused of violent behavior against law enforcement officers and could be a danger to the community. He cited videos from the insurrection and menacing phone calls Fitzsimons is alleged to have made to elected officials in the weeks prior.
Five people died as a result of the violence, including Capitol Police Officer Brian Sicknick. Federal prosecutors have charged more than 400 people in connection with the riot. A spokesperson for the U.S. Attorney's Office for the District of Columbia did not answer a question about how many people had been released from custody while their cases proceed.
Fitzsimons, 37, was arrested in February in Maine. A federal grand jury indicted him that month on 10 charges, including two counts of inflicting bodily injury on certain officers. He waived the right to argue bail until he was transferred to the District. That move has taken place, and he is now held in jail there. The U.S. Attorney's Office filed a motion for pretrial detention, and a defense attorney for Fitzsimons responded in opposition.
The prosecutors argued Fitzsimons would be a threat to others if he were to be released. Assistant U.S. Attorney Puja Bhatia wrote in the motion that Fitzsimons made threatening phone calls to U.S. Rep. Chellie Pingree's office before the riot, and she cited his alleged violence against two officers that day. Her motion said Fitzsimons tried to pull one sergeant into the crowd and later removed a detective's gas mask before another person covered the detective in a chemical spray.
"Here, the defendant attempted to breach the police lines, but due to the heroic efforts of law enforcement to consistently push him back, thankfully failed," Bhatia wrote. "For those reasons, the nature and circumstances of the charged offenses strongly support a finding that no conditions of release would protect the community. Additionally, someone who demonstrates such contempt from the rule of law cannot reasonably assure future court appearances."
Defense attorney Greg Hunter said in his own motion that Fitzsimons should be allowed to remain out of jail while he waits for his trial because the allegations against him are less serious than some others who are charged. He said Fitzsimons did not have a weapon and did not lead others at the riot, and he does not have a criminal record outside of two prior convictions for operating under the influence and driving an unregistered motor vehicle.
Hunter also argued Wednesday that the videos were ambiguous, and it was not clear whether Fitzsimons was trying to steady himself in the crowd or acting aggressively toward law enforcement.
"Mr. Fitzsimons is not alleged to have engaged in prior planning before arriving at the Capitol or being an associate of any group that did, and he is not charged with possessing or using a dangerous weapon during the riot," Hunter wrote. "There is no allegation that he coordinated with other rioters before, during or afterwards. He is not alleged to have had or assumed a leadership role, he did not enter the Capitol Building, and he did nothing to destroy or conceal evidence."
The judge said during the hearing he did not give any weight to those two convictions from years ago, and he did not believe Fitzsimons would be a flight risk if released. He also agreed there is no evidence Fitzsimons is a member of a radical group, or that he planned violence like other participants who came with tactical equipment. But he said Fitzsimons differed from other defendants who had been released because they are not accused of assaults or because they seem to have diminished mental capacity.
And he said he found the video evidence to be clear.
"I saw violence, assaultive conduct on your behalf against various law enforcement officers in that police line," Harvey said.
But the judge also asked the prosecutors if they had made a plea offer to Fitzsimons yet and encouraged them to move quickly on the case because the man is in custody.
"I want to know where his plea offer is," Harvey said.
"There is no plea offer at this time," Bhatia said. "We have not been authorized at this time to make plea offers, but I have been told they will be forthcoming."
The spokesperson for the U.S. Attorney's Office said the office declined to comment on the case. The defense attorney said in a voicemail that he also did not believe he could comment, and he did not return a follow-up call Wednesday afternoon.
An affidavit filed in February included screenshots from surveillance and police body cameras that allegedly show Fitzsimons at the front of the group of rioters on the lower west terrace of the Capitol. It said he was observed "pushing and grabbing against officers" and charging the police line. It also cited a social media post from December in which Fitzsimons repeated the baseless view that Trump lost the 2020 election because of voter fraud and offered to lead a caravan to Washington to challenge the results.
"If a call went out for able bodies, would there be an answer?" read the Facebook post signed with the name "Kyle Fitzsimons."
The prosecutor's motion included the more detailed allegations about violence against specific officers. That document was also the first mention of three alleged threatening phone calls to Pingree's office, including one on Dec. 17, just weeks before the events at the Capitol.
"He was reported to be very aggressive, shouting and yelling," the motion said about that alleged call. "Fitzsimons said that he was going to 'give it to her hard' and that 'we're coming for her' (referring to the Congressperson)."
Fitzsimons declined an interview request when he was arrested in February, and additional efforts to seek an interview have been unsuccessful. However, he spoke to the Rochester Voice newspaper in New Hampshire and called into a Lebanon Board of Selectmen meeting before his arrest to describe his experience at the riot. Those comments are also cited in the documents filed by the federal government. He told both that he expected the event to be a peaceful one. He described wearing a "costume" - his white butcher jacket - and he told the newspaper that he carried an unstrung bow as a sign of peace. He also told them he was injured by a blow to the head by a police officer's baton and needed six stitches at a nearby hospital.
"The march was, in my belief, to demonstrate that Trump, a lion, was leading an army of lambs to change the corrupt fraud that had been perpetuated," he said during the Lebanon meeting.