Padilla Did What The Democrat DOJ Called “Insurrection” – If That Video Jailed Patriots, It Should Indict Him Too

Hundreds of ordinary Americans had their lives destroyed by the Biden Justice Department’s policy choices in how it prosecuted January 6 defendants.

Title 18 of the United States Code, Sec. 111 provides as follows:

 
Hundreds of persons charged and convicted of this crime in connection with the events of January 6 at the United States Capitol. I represented more than 25 of those defendants. I spent hundreds of hours watching video evidence of not just my own clients, but dozens/hundreds of other January 6 defendants for the purpose of making comparisons. I knew the District of Columbia judges had also watched video of dozens of other January 6 defendants in other cases, and internalized a spectrum of “bad conduct.” There was no way for the Judges to forget what they had seen other defendants in the video evidence they had watched previously. So my approach always took into consideration what other defendants before a particular judge had done when trying to distinguish or analogize my client’s conduct — whichever was in my client’s interest — as reflected on the video.

The spectrum of offense conduct that the Biden Justice Department enveloped under the umbrella of the extremely broad statutory language of Sec. 111(a) is hard to describe with any precision. But the most important lesson to be learned from that language is that “assault” is only one of six verbs describing conduct that Congress criminalized with this statute.

This point was driven home to me in my first trial of a January 6 case when I was arguing for an acquittal of my client during closing argument in a bench trial. When I focused on the work “assault” the judge pointed out the broad reach of the statute to conduct not involving “assaultive behavior,” and then asking me — paraphrasing the judge:

Wouldn’t your argument be more appropriately addressed to me at sentencing — that your client’s conduct fell short of assaultive behavior and as a result the sentence imposed should reflect that? But his conduct nevertheless violated the statute with respect to the non-assaultive behavior that was also criminalized by Congress? Resisting, impeding, etc. Can’s conduct short of assaultive-behavior still violate those other provisions of the statute?

The judge convicted my client, but made a specific finding that my client had not “assaulted” any officer while still violating the statute nonetheless, and imposed a very modest sentence as compared to quite harsh sentences given to co-defendants who the judge found had actually assaulted officers in the same sequence of events.

That is just one example of conduct directed at federal law enforcement officers that is relatively benign as an objective matter, still meets the statutory definitions of a felony under Section 111(a). The penalty provision states that “physical contact” with the victim — the officer — makes the offense a felony and not a misdemeanor. The Biden DOJ made use of this penalty provision to charge hundreds of January 6 defendants with felony “assault” — the description it put in charging documents and press releases — in nearly every case where the January 6 defendant placed his hands on a Capitol Police or Metropolitan Police officer.

It is also meaningful to understand that actions in response — even self-defense — to the action of the officer can be the basis of a criminal charge. It is not a defense to a Sec. 111(a) charge that the defendant was only reacting to what the officer was doing and thereby trying to defend himself. If the officer’s conduct is a lawful use of the force as given to him by law as a sworn peace officer, then you have no right to resist him even if you think it is “self-defense” to do so.

I’m not going to re-vicitimize my clients by identifying them or posting video from their cases. Instead, I’m going to do to Padilla what DOJ prosecutors did to my clients at trial and during sentencing hearings. Below are screen shots dissecting Padilla’s conduct on a moment-by-moment basis and pointing out each instance where his conduct — non-assaultive or otherwise — would have been a basis for a felony charge at the Capitol on January 6.

When I started looking at the video, the first thing I learned is that the press conference had been underway for 6 minutes when Padilla entered the room. He entered while Sec. Noem was still reading her prepared remarks. There are several people at the front of the room flanking Sec. Noem on both sides. There are several rows of chairs in front of the podium she was standing behind, and many camera crews behind and around the sides of those chairs.

Padilla moved down the side of the room to Sec. Noem’s left and reached a position no more than 10 feet away from her and started speaking above her — she was still in the middle of her prepared remarks — and was immediately confronted by law enforcement and they began to push him back along the wall to her left towards the door he had entered. At first they were successful and he had his back to the officers as they pushed. THEN HE TURNED TO FACE THEM AND PUSHED BACK trying to continue making his statement. It is only at that point that he identified himself as Senator Padilla.

Here is a screen shot from a video when law enforcement first move to encounter him.

 
Here is another angle.

 
The next sequence of screen shots take place over about 4 seconds, and they appear below in the sequence they appear in the video. Track Padilla’s physical location, and his change of direction, based on the people around him. Note that he initially is moved farther away from Sec. Noem by a distance of about 12-15 feet, and then he pushes his way closer to Sec. Noem by about 5 feet before a second agent joins in and two then push him not only backward but up against the wall.

 
The next one has text at the bottom which is what is heard on the audio — “I’m Senator Alex Padilla.” That is the first time he identifies himself. Here is a link to this video, at :07 on the counter at the bottom you clearly hear him say “I’m Senator Alex Padilla.” Up to this point there is no audio of him identifying himself at an earlier point in this confrontation. This confrontation begins and continues for 7 seconds before he announces who he is.

 
This sequence is noteworthy because this is where Padilla moves forward into the officers who have been up to that point pushing him to the rear. This is “opposing” and/or “resisting” them while they are engaged in their official duty, even if it is not “assaultive-behavior.”

In the next screen shot he is shown now leaning into the officer directly in front of him in order to move in the direction of Sec. Noem again. Note the individual holding a cell phone in the right side of the frame above. That individual has moved to the left side — almost out of the frame — in the screen shot below. This happened because the person filming this video was tracking Padilla from left to right as he moved back towards Sec. Noem, attempting to push through the officer blocking his path. In the frame above you can see that Padilla has turned his left shoulder towards Sec. Noem to re-orient his torso relative to the officer, and in the frame below you can see the officer has adjusted his position to get back between Padilla and Sec. Noem

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