2 men accused of using chemical on officer Brian Sicknick at the Capitol riot to stay in jail, judge rules

(CNN) — Two men accused of spraying police with chemical spray, including on Capitol Police Officer Brian Sicknick, during the Capitol riot will stay in jail as they await trial, a federal judge ruled on Tuesday.

The long-awaited ruling from Judge Thomas Hogan of the DC District Court comes in one of the most closely watched cases related to Trump supporters’ violence against police during the insurrection.

The two Trump supporters spraying toxic chemicals at police during the riot “wasn’t just out of the blue,” Hogan said on Tuesday. George Tanios and Julian Khater “had a plan to use those devices as weapons at the Capitol,” Hogan added.

Tanios and Khater have pleaded not guilty to 10 counts of assaulting police and other charges.

The case — the only one addressing the attack of Sicknick, who later died — has taken on new meaning in recent weeks after the prosecutors characterized it as a key moment where protesters coordinated to overcome police in a way that allowed the Capitol to fall.

Tanios is accused of buying pepper and bear spray in West Virginia to bring to the election protests, then carrying it in his backpack in the crowd on January 6. Khater is alleged to have pulled out the chemical spray during the riot and fired it in the faces of three officers, including Sicknick, injuring them as the police line around the Capitol building began to fall.

Police body camera, Capitol surveillance and crowd-sourced videos show moment-by-moment how police attempted to quell a section of rioters near the Inaugural scaffolding at the west front of the Capitol using their own pepper spray gun. Khater then reacts, grabbing his own container, moving to the front of the crowd toward a barrier guarded by police, and stretching his arm out to fire the spray at the police officers from a few feet away. Tanios had hung back in the crowd, but prosecutors have accused him of aiding and abetting the attack.

“Mr. Khater did the spraying. Mr. Tanios did not, but he obviously” worked with his friend, Hogan said.

There was “some intention to use the product, there was some conversation earlier that this was what they were going to do,” the judge added, summarizing what prosecutors’ evidence so far showed, including a phone call between the two.

Tanios’ and Khaters’ defense attorneys argued in court that they hadn’t planned an assault on police in advance, and that Khater was acting in response to breathing in pepper spray the police were using. Tanios, a sandwich shop owner near West Virginia University and the father of young children, is an upstanding member of his community, his defense team argued, and may have been discouraging Khater from using the spray. In his own bid to get out of jail, Khater proposed securing his bail with $1.5 million in family property.

The hearing marked the third time at least one of the Sicknick assault defendants had gone before a judge to argue over whether they should stay in jail. The Justice Department has struggled to keep many Capitol riot defendants in jail as they await trial, because of high legal standards in place, and judges have taken their decisions case by case, often looking to one another’s rulings.

Overall, the federal courts in Washington, DC, have considered the Capitol rioters’ assaults of police to be the most egregious among any of the charges related to the insurrection, confirming that individuals who are accused of violence could be considered under the law to be dangerous if released.

Hogan said Khater and Tanios case was the most set of serious charges he’s seen so far in his court related to the insurrection.

“That video speaks for itself. When that happened, the line broke and the Capitol was rushed,” Hogan said.

Sicknick died the day after the riot from strokes, and the chemical spray attack has not been linked to his death.

“It did affect him … he is injured,” Hogan noted of Sicknick, who is on surveillance video minutes after the attack wiping his face, pacing and kneeling.

This story has been updated with additional details from the hearing.