Barton Shively, a former Marine from central Pennsylvania, had been living at home awaiting trial in the nearly year and a half since he was charged with assaulting police at the US Capitol on Jan. 6. That changed Monday, when a judge ordered him jailed after probation officers reported that he’d reached for a loaded shotgun — which he wasn’t allowed to have — during an unannounced home inspection.
Besides the 12-gauge shotgun, the probation officers saw “in plain view” hundreds of rounds of ammunition, a sword, knives, and body armor as they walked around Shively’s home, according to an order from US District Judge Colleen Kollar-Kotelly. Shively’s motion toward the shotgun prompted one of the probation officers to draw his own weapon, the order stated. Shively “displayed an alarming lack of candor” with the court officers monitoring his compliance with his release conditions, the judge wrote.
Shively isn’t the first person charged in connection with the Jan. 6 attack to get in trouble for having guns when they’re not supposed to. In cases where judges found that defendants charged with storming the Capitol violated pretrial release conditions, unauthorized access to firearms has been a common issue.
Most of the nearly 800 people charged in connection with Jan. 6 have been allowed to go home after making their first appearances in court. They’re required to follow rules set by the judge while they wait for a trial or try to negotiate a plea deal; a prohibition on firearms and other weapons is often a standard condition. Under federal law, the bar is supposed to be high for a judge to put a person in jail before they’re convicted of a crime, even if they’re charged with violence or other serious felony offenses.
Thomas Robertson, a former police officer from Virginia charged with interfering with law enforcement at the Capitol, was ordered to report to jail last summer after prosecutors alerted the judge that Robertson had been trying to order firearms online and had a loaded assault rifle in his home; he hasn’t faced any additional charges in connection with that. A jury last month found Robertson guilty of obstructing Congress, interfering with police, and other crimes in connection with the Jan. 6 attack; he’ll remain in jail until he’s sentenced.
Not all gun-related violations automatically mean jail. In another Jan. 6 case, a judge accepted a deal that defendant Patrick Montgomery reached with prosecutors for home confinement after he used a handgun to kill a mountain lion. But cases like Shively’s illustrate the potentially high stakes of breaking the rules.
Mindful of the consequences of violating court orders, a few Jan. 6 defendants have argued this year to have judges officially reinstate their ability to access firearms. Defense lawyers have invoked the US Supreme Court’s expansive interpretation of gun rights under the Second Amendment, as well as arguments specific to their clients.
Tina Logsdon and Loruhamah Yazdani-Isfehani, each facing misdemeanors for being in restricted areas at the Capitol, raised similar concerns about wanting to be able to protect themselves and the children in their homes when they moved to have their firearms restrictions lifted; their cases aren’t related but they share a lawyer. Both women are licensed to have guns. Prosecutors didn’t oppose the requests as long as they were limited to a personal firearm for protection and a general weapons ban otherwise remained in place. Judges signed off.
Another defendant, Stephen Horn, successfully argued to get his firearms access back over an objection from the prosecutor. Horn is also charged with misdemeanors in connection with Jan. 6 and has a gun license, and his lawyer argued that a pretrial ban was “punishment without due process of law.” The prosecutor broadly defended judges’ authority to impose pretrial limits on firearms access and argued that Horn was already under the least restrictive release conditions. US District Judge Timothy Kelly sided with Horn in March, with the condition that he report whatever kind of gun he planned to have to the court officer overseeing his pretrial compliance.
Last month, US District Judge Trevor McFadden agreed to lift a firearms restriction for Jenny Cudd while she spends the next two years on probation after pleading guilty to illegally entering the Capitol. Cudd’s lawyer argued that she needed protection because she’d been threatened and harassed — Cudd is one of the most high-profile defendants — and that the judge should have to make a specific finding that a ban was necessary and related to the nonviolent crime she admitted committing. The prosecutor opposed the request.
Not all requests have been successful. US District Judge Royce Lamberth last month denied Glenn Brooks’ motion to remove a firearms ban from his pretrial release conditions. Brooks had argued that he wasn’t charged with violence at the Capitol, but Lamberth noted there was evidence that Brooks sent texts in the days after Jan. 6 that referenced “civil war” and being “the 2nd Amendment side with guns and tactics,” suggesting an “indicia of violence.” Brooks argued that he needed a gun for protection in his job as a general contractor and for when he made judge-approved trips to Haiti to do humanitarian work.
Lamberth wasn’t persuaded that Brooks needed a gun as a general contractor, and wrote that if Brooks believed he needed a gun to visit Haiti, “he is welcome to simply not visit Haiti.”
Meanwhile, Shively — the man who probation officers say reached for a loaded shotgun last week — will stay in custody while his case goes forward. He doesn’t have a trial date. As of February, he was open to plea talks with prosecutors, according to his docket. His attorney, Edward Ungvarsky, declined to comment.
Shively contacted the FBI to self-surrender just over a week after the Jan. 6 attack after learning his photograph had been on the news, according to his charging papers. He’s accused of pushing, punching, and kicking at police officers on Capitol grounds and faces multiple felony charges. In a voluntary interview with the FBI before he was officially charged, he admitted having physical confrontations with police, explaining, “I got caught up in the moment.” He was granted pretrial release but had to follow the rules of home detention, which meant he could only leave home for work, medical appointments, religious services, meetings with his lawyer, and a handful of other approved reasons.
Late last month, with the support of his probation officer and the prosecutor, Shively asked Kollar-Kotelly to approve having his ankle monitor removed. Ungvarsky wrote at the time that Shively had been diagnosed with cancer and the monitor would interfere with his treatment. The judge granted the request.