A Case of Manifest Injustice in United States v. Ronald 'Colt' McAbee, J6 Defendant

posted by Shipwreckedcrew at RedState 

In early October 2023 Ronald “Colt” McAbee was convicted by a District of Columbia jury on all counts that remained in the indictment filed against him for his actions on January 6.

I represented Colt for more than 18 months, but we had a falling out earlier in 2023. At trial he was represented by an Assistant Federal Public Defender from the Western District of Virginia the Court appointed to take over his defense.

Just before the start of the trial, Colt pled guilty to some of the charges in the indictment, including felony counts of interfering with law enforcement and participating in a “civil disorder.”

Colt went to trial on the remaining counts because of one specific problem — he wore a pair of motorcycle gloves that had reinforced hard plastic coverings on the knuckles. Those protect a rider’s hands from road debris while riding.

The Government alleged those gloves were deadly or dangerous weapons – calling them “brass knuckle gloves” early in the case -- and charged him with “aggravated assault” because of them. They did this even though there was no evidence of Colt employing the gloves as a “weapon” against any police officer.

Never have a pair of such gloves wreaked such havoc on the notion of “justice” for no reason.

The weaknesses in the Government evidence — as I detail below — were manifest and not difficult to present or explain. Having no criminal record, it was a given that Colt would take the stand in his own defense and explain his actions and thoughts every second of his encounter with the U.S. Capitol Police that were the basis for the charges.

Colt’s case came down to two issues — what EXACTLY did the videos show Colt to be doing in the sequence of events at issue, and what was in Colt’s mind when he took those acts?

Colt was a Deputy Sheriff from Tennessee.  He had emergency medical training as part of his job, and he was trained in the proper and effective use of various items of police equipment identical to the equipment being used by the Capitol Police on January 6.

Two important facts worked against Colt based on decisions he made before January 6 — he wore what was alleged to be a ballistic vest that had “Sheriff” in big letters on it even though it was not the official vest issued to him by his department. He also purchased and wore motorcycle gloves that had hard plastic knuckle guards.

Colt was at the front of the tunnel on the Lower West Terrace late in the afternoon. The physical encounter with the U.S. Capitol Police officers upon which the charges against him were based lasted approximately 30+ seconds from start to finish. There are at least 10 videos that capture the sequence of events from various angles — closed-circuit TV cameras, police body-worn cameras, and third party (crowd) cameras. Some of those include useful audio where voices — including Colt’s — can be heard.

The 30+ seconds involve three distinct episodes that are intertwined:

1. Colt moves from the side of the tunnel to the front-center of the tunnel entrance where Officer A.W. is lying on his back, with both feet dangling down the first two steps leading down into the crowd.  Colt reaches down and grabs A.W. with both hands and moves his body.  What he did and why he did it were crucial facts in the case.
2. After Colt stood back upright, Officer C.M. came out of the tunnel and used his baton to “cross-check” Colt across his ribs under his extended right arm while Colt is looking the opposite direction from Officer C.M.’s approach.  Colt was pointing to officers while yelling at them to stop striking protesters — including Roseanne Boyland — on their heads with batons. Responding to the baton blow, Colt pushed C.M. away with both hands — palms front and hands open. 
3. After C.M. retreats back into the tunnel without further assisting A.W., Colt’s feet come out from other underneath him, causing him to land on top of A.W. belly-to-belly and face-to-face.   The two then slid together several feet down the stairs and into the crowd where some members of the crowd assaulted A.W. This was charged as “assault,” but how it happened was another critical fact in the case.

Episode 1

Officer A.W. told investigators that the ground at that location was so slippery from the use of pepper spray and gel that he could not regain his footing in order to get back up. He was not injured; he had simply slipped and fallen because of the conditions. Physical clashes at that specific location had been going ongoing for an hour by the time of Colt’s involvement. Pepper spray in aerosol, liquid and gel forms had been used by both sides that entire time.

The entire episode is caught on multiple video cameras, including body-worn cameras worn by officers a few feet away inside the tunnel, and the camera worn by Officer A.W. There was a brief tug-of-war over A.W., with one officer pulling on his vest to bring him back into the tunnel, and protesters pulling on his legs in the direction of the crowd. Another officer in an elevated position along the wall inside the tunnel brought that to a halt with huge dose of pepper spray that soaked all the protesters at the front, causing them all to turn around to escape the blast, letting go of Officer A.W.’s legs.

Contrary to some commentators on social media, Colt was not involved in that tug-of-war.

It wasn’t until just after the blast of pepper spray that Colt McAbee stepped from the side of the tunnel into the front-center of the tunnel – all alone.  That is recorded on multiple cameras as happening at 4:27:38.

He wasn’t “joining the fight” — he came to assist Officer A.W. How do I know that to be true? First, he’s a law enforcement officer himself. Second, he testified that was the case. Third, the things he actually did after he moved to the center of the tunnel opening prove that to be true.

Most significant, however, was what he did in the four seconds just prior to coming to help Officer A.W.

As an experienced law enforcement officer, Colt was trained in the use of a police baton both as an offensive and defensive weapon. At 4:27:32, still images taken from video show him bending down to pick up something off the ground. His left hand is holding the top rail of a bike rack barrier to his left, but his right hand cannot be seen as he bends down.

However, at 4:27:34 he is standing back up again, now holding a black police baton with his right hand, with the left hand still resting on top of the bike rack barrier.

But as he begins to move into the middle of the tunnel entrance – after the pepper spray blast had ended the tug-of-war over Officer A.W. and dispersed the crowd -- a still image from the video shows that Colt’s hands are again empty. What appears to be the black police baton is now on the ground in the bottom-middle of the image where he is standing at 4:27:38 – four seconds after bent over to pick up the baton.

For the jury to believe that Colt moved from the side of the tunnel into the middle of the entrance with the intent to fight the police officers there, they needed to account for the fact that prior to doing so he tossed aside a weapon he was trained to use, and he was going to do battle with police holding batons and shields with just his hands.

At this point on one video Colt can be heard shouting at the officers back inside the tunnel, “You have a man down out here!!!”

What happened next is difficult to discern from the video evidence. Colt reached down and grabbed Officer A.W., and the Officer’s body then moved. The body-worn camera of Officer A.W. – pointing up to the sky above – showed that Colt had not made any effort to drag Officer A.W. into the crowd. By moving from still image to still image on a second-by-second basis, it was obvious that Officer A.W.’s body was rotated slightly, but that was all.

The archway above the tunnel entrance was a fixed reference point.  The initial image just prior to Colt coming into the tunnel showed the Officer’s body at an angle to the archway above him.   Images over the next three seconds showed his body was turned slightly in a clockwise direction – while he remained directly under the archway still at 4:27:42. The video shows what happened between the two images at :39 and :42.

While standing to Officer A.W.’s left-side, Colt bent down and grabbed Officer A.W. by the pant leg with his right hand, and the bottom of A.W’s vest with his left hand, and turned A.W.’s body in a clockwise direction. That brought A.W.’s right side closer to Colt so he could reach across and grab him under the vest on both sides to pull Officer A.W. up off the ground and help him regain his footing.  He did this IMMEDIATELY after none of the officers inside the tunnel responded to his shout that they had a “man down.”

The video showed there was no one behind Colt when he did this, with the crowd at the opening having been scattered seconds earlier by a blast of pepper spray. Only two individuals were still in the opening behind Colt, both unconscious. One was Roseanne Boyland.

With this video breakdown it was clear that the video did NOT show Colt attempting to drag Officer A.W. down the stairs and into the crowd.  But that is the claim the Government made repeatedly in pretrial matters. The Government charged this first contact by Colt with Officer A.W. as “aggravated assault” with a dangerous weapon — the reinforced gloves.

Episode 2

At 4:27:46, a still image from Officer A.W.’s body-worn camera -- 4 seconds after bending over and repositioning Officer A.W. -- Colt stood up again. The video shows his attention was to his left with his right arm is outstretched, pointing a finger at something/someone in that direction. Other video shows that what he was pointing to were other Officers again hitting protesters on the head with batons – including metal “asp” batons.

Based on his training, Colt knew that was use of deadly force because blows to the head with a baton can cause death. One of the victims hit on the head was the unconscious Roseanne Boyland, who was laying on the ground only a few feet away. When Colt stood back upright and was pointing, he can be heard on audio yelling for the police to stop hitting protesters on the head who weren’t fighting the police.

Again, some of the best video evidence of Episode 2 comes from the camera worn by Officer A.W. laying on the ground at Colt’s feet. The camera is pointed up and captures the episode involving Colt and Officer C.M.

At 4:27:49 Officer C.M. moves out from the line of police and towards Colt who was less than five feet away. Officer C.M. held his baton at both ends and prepared to use it in a “cross-check” fashion from Colt’s right side while Colt’s attention was focused to his left.

At 4:27:50 Officer C.M. steps into Colt and uses his baton to “cross-check” Colt in the ribs under his outstretched right arm.

Not having seen Officer C.M. coming, and to avoid being hit a second time, Colt reacts by pushing Officer C.M. away from him with his hands open and palms facing forward.  This is captured in a still image at 4:27:52. That push was charged as an “assault” by Colt on Officer C.M.

Another protester to Colt’s right then pushes Officer C.M. and the Officer retreated back into the police line.

Up to this point -- both Episodes 1 and 2 -- Colt had been in the middle of the entrance to the tunnel for a total of 15 seconds. He tossed away a weapon before moving to the middle, and he had not struck an offensive blow of any kind against any officer. Yet the Government indicted him for two counts of assault – one being “aggravated assault” because of the gloves he wore.

Episode 3

The third and final sequence of events involves Colt and Officer A.W. again, immediately following Officer C.M.’s retreat back into the tunnel.

The body-worn cameras are mostly obscured during Episode 3, but third-party video from outside the tunnel shows that Colt’s attention retuned to Officer A.W. only seconds after Officer C.M. retreated. At almost the very same moment Colt began to bend over to reach for Officer A.W.’s vest, Officer A.W. was yanked down the stairs several feet and into the crowd. Video clearly showed other protesters grabbing each of Officer A.W.’s two feet and pulling him down the stairs.

The movement of Officer A.W.’s body down the stairs caused Colt to be swept off his feet, with the result being that he landed on top of A.W. Officer A.W.’s camera captures this as it's happening at 4:28:00.

This is now only 21 seconds since Colt first moved to the center of the entrance and stood over Officer A.W.

It took much analysis of the video on a frame-by-frame basis – going back to his first entrance into the middle of the tunnel -- to explain why that happened. Still images showed was that just prior to falling down Colt’s right foot was next to Officer A.W.’s left-side rib cage, and Colt’s left foot was between the Officer’s legs. This was the same position Colt’s feet were in when he was first captured turning Officer A.W.’s torso slightly clockwise in Episode 1.

Colt never moved his feet. Throughout the entire encounter his feet were in the same spot while standing over Officer A.W. on the ground. That means he never moved towards the police line inside the tunnel at any point in time.

When Officer A.W. was pulled by protesters behind him, Colt’s feet were caught under Officer A.W.’s left armpit, and between Officer A.W.’s legs. The sudden movement of Officer A.W.’s body caused Colt’s legs to be swept out from under him, with Colt landing belly-to-belly on top of Officer A.W., and both went together down the stairs and into the crowd.

The Government charged Colt with “assault” for Episode 3.

The total time period covering Episodes 1, 2 and 3 is from 4:27:39 to 4:28:01 – a period of 22 seconds. 

Colt remained in that position on top of Officer A.W. for approximately 25 seconds. He can be heard on Officer A.W.’s body-worn camera audio telling him words to the effect of, “I’m going to stay on top of you until you are ready to get up, and we’ll get up together.” During that time Colt can also be heard yelling at protesters to stop hitting Officer A.W.

Others in the crowd moved in to help Officer A.W. get to his feet, and he was shielded from those in the crowd that might have still wanted to do him harm.  He was escorted back to the top of the stairs and into the police line.

While that was happening, Colt crawled on his hands and knees a few feet to Rosanne Boyland. He assessed her condition and then started with various first-aid measures, including CPR. Moments later body-worn camera images show him and three other protesters carrying her lifeless body to the front of the police line inside the tunnel entrance and begging for her to be taken inside the Capitol to get medical assistance.

After she is taken away Colt leaned against the wall next to the police line and one of the officers who had witnessed the entire episode told Colt “Thank You” for the help he had given to Officer A.W. That exchange was also captured on audio and video.

The defense opted for a jury trial. In my view, this evidence would have received a much more reasoned consideration from a judge who is more sensitive the competing versions of events as reflected in videos and the explanations offered by each side.

I continue to go back to what I think is the key moment in deciphering Colt’s motives and intentions – picking up the police baton he was trained to use and then tossing it aside just before moving into the entrance of the tunnel alone.

When the Officers are slow to react to Officer A.W.’s defenseless state, Colt moves to the middle in order to help him get to his feet.

While he is standing over Officer A.W., who is completely defenseless laying face up on his back, Colt strikes no blow with his “dangerous weapon” gloves.

When Officer C.M. cross-checks him across the ribs from Colt’s blind side, his only response was to push him away with both hands – open and palms facing forward.

When Colt turned his attention back to Officer A.W., others are clearly responsible for dragging Officer A.W. down the stairs.  It was an involuntary act when Colt fell on top of him.

Yet that sequence of events produced three counts of “assault” on law enforcement officers, including one count of “aggravated assault.”

Where is the intent to injure or do bodily harm? There is no EVIDENCE supporting such a conclusion, and it is my understanding that the Government changed its argument in closing in order to get past this manifest weakness in its case.  I’m anxious to read that transcript.

Colt McAbee has been in custody, held without bail pending trial, since late August 2021 – almost 30 months. Based on other cases, I expect that the Government will ask for a sentence of 10 years or more. 

No officers were injured by Colt, and if there were no motorcycle gloves or ballistic vest, Colt would likely face a sentence of around three years.

But now he’s facing a decade or more in federal prison when all the video evidence is entirely consistent with the view that Colt went into the middle of the tunnel entrance to help a law enforcement officer in distress and vulnerable to a hostile crowd, and there is no evidence of him striking an offensive blow against anyone.

A manifest injustice.