Opinion
21-mj-475 (GMH)
06-15-2021
UNITED STATES OF AMERICA v. MATTHEW THOMAS PURSE, Defendant.
MEMORANDUM OPINION AND ORDER
G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE
On June 14, 2021, the government submitted an application for a criminal complaint and arrest warrant against the putative Defendant, Matthew Thomas Purse, in connection with his alleged conduct at the U.S. Capitol on January 6, 2021. On June 15, 2021, the undersigned had a telephone conference with the Assistant U.S. Attorney presenting the application and explained why the application as currently formulated is deficient, after which the government asserted that it would amend the application. This Opinion memorializes the reasons that the application would not be granted absent amendment.
It is the practice in this district to docket criminal complaints, their supporting affidavits, and any arrest warrants only after they have been approved and signed by a judge. Because the application at issue here has not been so approved, the application package is attached to this Memorandum Opinion and Order.
The statement of facts supporting the application asserts that an individual whom law enforcement has probable cause to believe is Purse was captured in photographs and on video on January 6, 2021, inside the Capitol “wearing a black tactical vest with the words ‘PRESS' on his chest and back[ ] and a black helmet with the words ‘PRESS' on either side, ” and carrying “a long black pole, with what appears to be a recording device at the end of the pole.” Statement of Facts at 2. The suspect entered the Capitol at approximately 2:59 p.m.-about one hour after individuals first forced their way into the building-and, once in the Rotunda, “[stood] off to the side, observing the crowd's interactions with [ ] law enforcement officers.” Id. at 2, 4. Four minutes later, the government avers that, “as the crowd became more volatile, ” Purse “crossed the room and exited the Rotunda.” Id. at 4. He left the Capitol building at approximately 3:12 p.m., thirteen minutes after he entered. Id. The statement of facts includes no statements of Purse-whether before, during or after January 6-or any other actions by him on January 6 (other than those articulated above), from which his intent while in the Capitol can be derived. In a footnote, the affiant asserts that he “could not identify [Purse] as being associated with the press or having possessed press-credentials related to the U.S. Capitol.” Id. at 2 n.1. Those facts do not provide a sufficient basis to issue the complaint and arrest warrant, as presently drafted.
The government provides no indication in its application of how it defines “the press” or “being associated with the press, ” the legal basis for those definitions, or of how the facts with respect to Purse fail to meet those definitions.
First, the government seeks to charge the suspect with four misdemeanor counts: knowingly entering or remaining in any restricted building without lawful authority to do so, in violation of 18 U.S.C. § 1752(a)(1); knowingly and with intent to impede or disrupt the orderly conduct of government business or official functions, engaging in disorderly or disruptive conduct in a restricted building and, in fact, impeding or disrupting the orderly conduct of government business or official functions, in violation of 18 U.S.C. § 1752(a)(2); willfully and knowingly uttering loud, threatening, or abusive language, or engaging in disorderly or disruptive conduct in any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of congressional business, in violation of 40 U.S.C. § 5104(e)(2)(D); and parading, demonstrating, or picketing in any of the Capitol Buildings, in violation of 40 U.S.C. § 5104(e)(2)(G). However, the statement of facts in support of the application does not provide an adequate factual basis to find probable cause to believe that Purse had the requisite intent for some, if not all, of those crimes, especially given his markings as a member of the press (whether he meets the government's definition of “being associated with the press” or not) and the lack of any statements or actions by him that he was anything other than an observer of the events at the Capitol on January 6th.
Second, the Supreme Court has noted that, when it comes to criminal process, the freedoms guaranteed by the First Amendment should be guarded with “scrupulous exactitude.” Zurcher v. Stanford Daily, 436 U.S. 547, 564 (1978) (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)). The Department of Justice's own regulations recognize that objective: “Because the freedom of the press can be no broader than the freedom of members of the news media to investigate and report the news, the Department's policy is intended to provide protection to members of the news media from certain law enforcement tools . . . that might unreasonably impair newsgathering activities.” 28 C.F.R. § 50.10(a)(1). Indeed, those regulations state:
No member of the Department [of Justice] shall seek a warrant for an arrest . . . of a member of the news media for any offense that he or she is suspected of having committed in the course of, or arising out of, newsgathering activities without first providing notice to the Director of the Office of Public Affairs and obtaining the express authorization of the Attorney General.28 C.F.R. § 5010(f)(2). Here, there is little to indicate that the government has considered that policy or the values protected by it. The statement of facts includes a single footnote asserting that, “as part of this investigation, ” the affiant “could not identify [Purse] as being associated with the press or having possessed press-credentials related to the U.S. Capitol.” Statement of Facts at 2 n.1. There is no supporting detail about what investigation was performed in connection with determining if the suspect is a member of the news media or how any such determination was made. Moreover, the Assistant U.S. Attorney could not represent to the undersigned that the Attorney General has given his “express authorization” for Purse's arrest as otherwise would be required by 28 C.F.R. § 50.10(f)(2).
For these reasons, the undersigned would not issue a criminal complaint and arrest warrant based on the application as submitted on June 14, 2021.
Accordingly, it is hereby
ORDERED that, if the government chooses to submit an amended application seeking Purse's arrest, that the amended application be submitted to the undersigned. Alternatively, if the government wishes to stand on its original application, it may, by this Order, deem that application denied and appeal its denial to Chief Judge Howell.