Jon Schaffer case: D.C. opposes dismissal motion

The legal team representing the District of Columbia has asked a federal judge to reject a motion to dismiss a lawsuit against a former Columbus resident who pleaded guilty to storming the U.S. Capitol on Jan. 6, 2021.

The attorneys filed a response in U.S. District Court in Washington, D.C. on Friday, challenging a motion filed earlier this month by former Columbus resident Jon Schaffer that seeks to dismiss the lawsuit.

U.S. District Judge Amit P. Mehta, who is presiding over the case, had not ruled on the merits of Schaffer’s request as of Tuesday morning.

The lawsuit, filed Dec. 14, 2021, alleges that Schaffer and dozens of other defendants “played a leading role in unleashing a larger mob” and are liable for the damages and costs incurred by the District of Columbia during the Capitol attack, according to a copy of an amended complaint.

D.C. police, also known as the Metropolitan Police Department, dispatched more than 1,000 officers to the U.S. Capitol and the surrounding area to help defend the U.S. Capitol from a violent mob of pro-Trump rioters who sought to prevent the certification of the 2020 presidential election results, court filings state.

Schaffer, who formerly was a musician in the heavy metal band Iced Earth and member of the Oath Keepers, pleaded guilty in April 2021 to, among other things, breaching the U.S. Capitol on Jan. 6, 2021, armed with bear repellent and obstructing an official proceeding.

Schaffer was one of the first six insurrectionists to push through the damaged doors of the Capitol and was photographed inside wearing a hat that said, “Oath Keepers Lifetime Member,” with bear spray in his hand, according to the lawsuit.

As part of his guilty plea in his criminal case, Schaffer acknowledged that he is “a founding, lifetime member of the Oath Keepers” and believes that “the federal government has been ‘co-opted’ by a cabal of elites actively trying to strip American citizens of their rights.”

The Oath Keepers is a militia group that recruits current and former military, police and first responders.

On March 10, Schaffer asked to join a series of motions to dismiss the lawsuit and some responses from other defendants, stating that the arguments made in those filings “similarly apply” to him.

The motions make an assortment of arguments with a common thread that the District of Columbia lacks standing to proceed with the lawsuit.

One motion, filed by Oath Keeper Brian Ulrich, argues that the statutes cited by the District of Columbia’s lawsuit “provide standing for individuals to bring suits in their own names, but do not provide standing for the District as a governmental entity to bring suit on the individuals’ behalf.”

Another common argument in the motions is that the District of Columbia would have suffered the same damages and costs even if the defendants didn’t participate in the attack. “Thousands of people descended on the Capitol, overwhelmed the police and entered the Capitol. The District would have incurred most or all of these costs regardless of defendant’s conduct,” reads Ulrich’s motion.

Ulrich pleaded guilty last year to seditious conspiracy and other charges related to the Jan. 6 attack.

Another motion to dismiss filed by Oath Keeper and former North Carolina police officer Laura Steel takes a slightly different tack, arguing that the lawsuit should be dismissed as “a physical impossibility.” The motion argues that District of Columbia could not have suffered any injury due to battery, assault or intentional infliction of emotional distress because “the District, as an entity without a body, has no way to be physically harmed or receive harmful or offensive bodily contact” and “is incapable of experiencing emotion.”

Steele was convicted by jury last week of several charges related to the Jan. 6 attack, including conspiracy to obstruct an official proceeding, obstruction of an official proceeding, conspiracy to prevent members of Congress from discharging their duties, destruction of government property, among others.

In response to Schaffer’s motion, the District of Columbia referred to its “omnibus opposition” to the various motions to dismiss the lawsuit. The omnibus opposition was filed this past July.

“The arguments in the motions defendant Schaffer joins are without merit and should be dismissed,” the attorneys said in court filings on Friday.

In its opposition to the motions, the District of Columbia argues that it has “clearly made a showing” that sufficiently establishes that “the economic, physical and emotional injuries suffered by the District and its MPD officers were concrete, particularized and actual — not hypothetical or speculative.”

Then, in the 77-page filing, the District of Columbia’s attorneys state their legal arguments and detail what they described as an “unprecedented deployment of MPD officers to the Capitol” on Jan. 6, 2021, that resulted in “significant fiscal costs.”

The MPD deployed about 850 officers to the U.S. Capitol during the attack and about 250 additional officers to surrounding area, where “they were forced to fight for their lives,” including many officers who had to “engage in battle for hours” with the violent mob and others who were “forced into hand-to-hand combat to protect the Capitol,” according to court filings.

At least 65 MPD officers reported sustaining injuries as a direct result of the attack, court records state. And months after the attack, some officers remained on leave as a result of the trauma they suffered.

One MPD officer was beaten by the mob with sticks and crutches, including by one person wielding an American flag, the filing states. That MPD officer later recalled in testimony before the House Select Committee that his attackers lunged at him and tried to grab his gun while chanting “kill him with his own gun.”

One of the defendants in the lawsuit ripped an officer’s riot shield as the officer was physically engaged with others, court filings state. Other defendants joined a mob pushing against a line of riot police officers guarding the hallway connecting the Rotunda to the Senate. Another defendant commanded the mob to “push, push, push,” and to “get in there, get in there,” while insisting, “they can’t hold us.”

Members of the crowd also sprayed MPD officers with bear mace, which causes temporary loss of sight, nasal congestion and potentially difficulty breathing. Others dragged, kicked, trampled and punched officers. Some rioters pushed police officers down stairs and ran over them in a stampede.

“One officer, hit by a metal pole and beaten in the face with his own baton, suffered a concussion and permanent head injuries and died by suicide after struggling with severe depression and brain trauma,” the filing states. “Another officer was electrocuted and beaten unconscious. Officers also suffered bruises, swelling, lacerations, eye and lung irritation, cracked ribs, shattered spinal discs, wounds from being hit with a metal fence stake and head injuries from blows from various objects. Officers’ psychological injuries were also extensive.”

The District of Columbia’s preliminary estimates suggest that the MPD incurred millions of dollars in costs during the week of Jan. 6, 2021, alone. And as of this past July — roughly 1.5 years after the attack — medical care and treatment for many officers continues.

Schaffer, who also is facing criminal charges over his role in the Jan. 6 attack, continues to remain compliant with the terms of his pre-trial release, according to new court filings in a separate criminal case.

An attorney representing Schaffer said in a joint status update filed Friday in U.S. District Court in Washington, D.C., that Schaffer remains compliant with his plea agreement and is still on release under the supervision of the District of Columbia Pre-Trial Services Department.

The attorney, Andrew C. Marcantel of Attorneys for Freedom Law Firm, stated in the filing that an attorney representing the U.S. government in the criminal case against Schaffer “is in agreement” that the Oath Keeper remains in compliance and continues to cooperate with authorities.