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'There are no bears in downtown DC' | Prosecutors push to keep Capitol riot suspects in jail

Federal prosecutors did not refute claims by attorney for Julian Khater that the chemical irritant he is seen using is not bear spray as previously alleged

WASHINGTON — Federal prosecutors admitted Tuesday the man accused of spraying chemical irritants into the eyes of fallen U.S. Capitol Police Officer Brian Sicknick used pepper spray or Mace – not bear spray, as previously implied in charging documents and press releases from the Department of Justice.

During a bond hearing Tuesday, defense attorney Joseph Tacopina told U.S. District Court Judge Thomas Hogan that his client, 32-year-old Julian Khater of State College, Pennsylvania, can be seen on video and still images during the Capitol riot appearing to use a can of pepper spray or mace on three police officers, including Sicknick, not bear spray as has been widely reported.

Tacopina argued the distinction is important because it demonstrates Khater was acting in self-defense after he was sprayed with chemical irritants, rather than executing a pre-planned attack on Sicknick and his fellow officers.

“He was reacting to getting sprayed seconds before,” Tacopina told Hogan, saying Khater used the pepper spray or mace on officers roughly 5 seconds after being sprayed himself.

“This shows it was not a premediated planned attack, it was reactionary,” Tacopina said.

In court documents, federal prosecutors had not specifically identified bear spray as the chemical irritant used by Khater but did note that receipts showed Khater’s co-defendant, George Tanios, purchased two cans of bear spray from an gun shop in West Virginia on January 5 – one day before the siege on the Capitol.

In a federal criminal complaint and a press release from the Department of Justice on March 15, the day after the suspects were arrested, prosecutors said Khater seemed to call for the bear spray shortly before the alleged assault.

Investigators found video that appears to show Khater asking Tanios to “give me that bear s*it,” according to the DOJ press release.

RELATED: Capitol rioter accused of bear spraying police willing to pay $15M bond to get out of jail

RELATED: MPD closes investigation into death of fallen Capitol Police Officer Brian Sicknick

According to the DOJ, “Tanios replied, 'Hold on, hold on, not yet, not yet… it’s still early.'” The Justice Department said Khater then retrieved a canister from Tanios’ backpack and walked through the crowd to within a few steps of the police perimeter. A video obtained by the FBI shows Khater with his right arm up high in the air, appearing to be holding a canister in his right hand and aiming it at the officers’ direction while moving his right arm from side to side. The affidavit states that Officers Sicknick, Edwards, and Chapman, who were all standing within a few feet of Khater, each reacted to being sprayed in the face. The officers retreated, bringing their hands to their faces and rushing to find water to wash out their eyes.”

The D.C. chief medical examiner ruled earlier this month that Sicknick died of natural causes after suffering two strokes while defending the Capitol – not of exposure to any chemical irritant. 

Assistant U.S. Attorney for the District of Columbia Anthony Scarpelli admitted, after reviewing the video, it appeared Khater did in fact use a can of pepper spray or Mace against the officers – not bear spray. Scarpelli told the judge a used can of pepper spray or Mace was recovered from each of the defendant’s homes, along with unused cans of bear spray.

Scarpelli argued the distinction that the two men purchased bear spray and brought it to the Capitol – but ended up only using the pepper spray or Mace – should not make a difference in the eyes of the law.

“Why are they buying bear spray to go to a city? There are no bears in downtown D.C.,” Scarpelli told Hogan.

“There is only one explanation why defendants are gearing up like this,” Scarpelli said. “They are lying in wait. They know an attack on the police line is going to happen. It's premediated violence, point blank, with a dangerous weapon on unprotected, distracted officers.”

Khater and his co-defendant, Tanios, a sandwich shop owner in Morgantown, West Virginia, are facing nine criminal charges, including three counts of assault on a federal officer with a dangerous weapon.

Both men are seeking pre-trial release on bond. Khater’s legal team has offered to put up $1.5 million in family property to secure his return for trial, along with agreeing to home detention with GPS monitoring. Tanios is proposing home detention with GPS monitoring.

The hearing ended Tuesday without a ruling for either side. Both sides will reconvene on May 6 at 9 a.m. to resume arguments.

 We're tracking all of the arrests, charges and investigations into the January 6 assault on the Capitol. Sign up for our Capitol Breach Newsletter here so that you never miss an update.