Attorney for Man Made Infamous by Jan. 6 Photo Accuses Feds of Multiple Constitutional Violations

By Mark Tapscott
Mark Tapscott
Mark Tapscott
Congressional Correspondent
HillFaith Founding Editor, Congressional Correspondent for The Epoch Times, FOIA Hall of Fame, Reaganaut, Okie/Texan.
June 29, 2021 Updated: June 30, 2021

Richard Barnett, the retired Arkansas firefighter seen round the world in a Jan. 6 news photo with his foot on Speaker of the House Nancy Pelosi’s desk, could not have known a few days later when he surrendered to federal authorities that it would be nearly four long months before he would again see the outside world.

Given federal pre-trial detention law and precedent, as well as his explanation of his involvement in that day when hundreds of demonstrators angry about the outcome of the November 2020 presidential election entered the U.S. Capitol, Barnett could reasonably have expected, at worst, to be restricted to his home while awaiting trial.

And that was initially what Barnett received from federal Magistrate Judge Erin Weidemann of the U.S. District Court for the Western District of Arkansas following his voluntary surrender on Jan. 8 to FBI agents.

But in an unusual move, U.S. attorneys successfully petitioned Chief U.S. District Judge Beryl Howell to reverse Weidemann and jail Barnett in the District of Columbia, pending trial on seven charges that if convicted could result in fines against him of nearly $400,000 and put him in prison for more than a decade.

As a result, Barnett was kept locked up in a District of Columbia jail until late April. He is one of the more than 500 individuals arrested by federal authorities in connection with Jan. 6, many of whom remain in detention.

Barnett’s attorney, Joseph McBride, a former public defender from New York, finally succeeded in gaining his client’s release back to his Arkansas home in April. Barnett’s trial has not yet been scheduled to begin.

Detention Unwarranted

Among McBride’s multiple arguments in a 46-page April 5 motion for releasing Barnett back to his home, three stand out. First, even given the government’s charges, characterized by McBride as fallacious, Barnett’s case failed to satisfy the 1984 Bail Reform Act’s rigorous conditions under which a federal defendant could be kept in jail pending trial.

“The law is clear: Only in a very limited set of circumstances is pretrial detention acceptable. The courts, therefore, must act swiftly and decisively to overturn pretrial detention orders granted in circumstances, such as here, where the government has objectively failed to overcome the Bail Reform Act’s presumption against pretrial detention as a matter of law,” McBride told the court.

At first glance, Barnett is charged with what sound like serious felonies. The government describes him as a “Tier One domestic terrorist” and “a ticking time bomb.”

But on closer examination, McBride points out that the charges don’t match what Barnett actually did. The “dangerous weapon” he is accused of bringing into the U.S. Capitol, for example, was an inoperative stun gun/walking stick.

The federal property he is accused of stealing was a single, unopened envelope he took from Pelosi’s desk. It’s not clear if it was his blood or that of somebody else on the envelope, but he left a quarter on Pelosi desk for reimbursement and turned the unopened envelope over to the FBI.

He is charged with illegally entering the Capitol and Pelosi’s office, but Barnett claims he was swept into the building by the crowd and only entered the Speaker’s quarters in search of a bathroom. He says he was enticed into posing for the desk photo by a news photographer.

Other Cases

McBride’s second argument is that the government’s severe treatment of Barnett makes no sense when compared with other individuals charged with far more serious crimes such as Elizabeth Duke, one of the participants in the 1983 bombing of a reception room adjoining the U.S. Senate by a radical communist terrorist outfit linked to at least 20 violent actions in the decade prior.

Fortunately, owing to the late hour, the 1983 explosion killed no one, but damage was extensive. Had the bomb been detonated just two hours earlier, dozens attending a reception would have been injured or killed.

“Despite being charged with multiple crimes related to domestic terrorism, including the possession of stolen explosives, possession of instruments of forgery, and falsified identification documents – Elizabeth Duke was released on bail,” McBride pointed out in the April motion.

The lenient terms of her bail, however, did not stop Duke from disappearing and she remains a fugitive from the law to this day. Curiously, then-Attorney General Eric Holder asked a federal magistrate in 2009 to quash Duke’s outstanding arrest warrant.

Rights Violated

McBride’s third argument focuses on what he claims were numerous violations of his client’s constitutional rights.

By maintaining that Barnett’s turning off his cell phone’s location service while returning to Arkansas from Washington, D.C. indicated his intent to evade detection, for example, McBride argues that the government violated the Fourth Amendment’s bar against warrantless searches and thereby set a dangerous precedent.

“The Fourth Amendment of the United States Constitution, amongst other things, secures the people’s right to be secure in their persons, houses, papers, and effects, against warrantless searches and seizures,” McBride tells the court.

“In the context of the Internet Age, the Fourth Amendment’s ambit, without question, encompasses a reasonable expectation of privacy against warrantless tracking by the government or its agents. A person’s reasonable expectation of privacy is normally at its highest point when they are inside their home with the doors locked …

“A private cellular phone is analogous to the threshold of a home with a locked front door and the locked trunk of a car, in that the Fourth Amendment provides a reasonable expectation against warrantless searches of the phone itself and the movement of the person carrying it.”

With its damaging interpretation of Barnett’s action, McBride argues, “in essence, the government has created a rule where a negative inference can be inferred from a private citizen’s refusal to be tracked by the government or its agents.

“This rule is unconstitutional as it shifts the government’s burden of needing to obtain a search warrant supported by probable cause, on to the citizen who must successfully rebut a negative inference or face pretrial detention.

“This is a dangerous leap on to a slope so slippery that if action is not taken, here now, our Fourth Amendment will be irreparably damaged to the extent where it is no longer recognizable.”

Government’s Response

The Department of Justice did not respond to The Epoch Times’ request for comment on these issues. In its response to McBride’s April motion for Barnett’s release back to his home, the government insists a motion filed with the court that he remains a dangerous threat to the community who should be kept locked up.

“The overwhelming weight of the evidence against the defendant likewise favors detention. The defendant is featured in high-quality photographs, surveillance footage, and body-worn camera footage in and around the Capitol, expressing his intent to obstruct the constitutional proceedings occurring there and his glee that he ‘took’ Nancy Pelosi’s office.

“The stun gun device is visible in multiple photos and videos spanning the defendant’s time in and around the U.S. Capitol, as well as in the surveillance video where he discharged it at his hotel bar the night before.

“Indeed, the fact that he purchased the device on December 31, 2020, indicates that he bought it precisely for his criminal activity in the District on January 6, 2021.”

Contact Congressional correspondent Mark Tapscott at

Mark Tapscott
Mark Tapscott
Congressional Correspondent
HillFaith Founding Editor, Congressional Correspondent for The Epoch Times, FOIA Hall of Fame, Reaganaut, Okie/Texan.