SACRAMENTO, Calif. — A week after rejecting a plea agreement from federal prosecutors, accused Jan. 6 rioter Sean Michael McHugh is asking a judge to release him from custody pending trial because his mental health is deteriorating and he is facing abuse inside a Washington, D.C., jail.
McHugh’s lawyer also is seeking dismissal of the charges the Northern California man faces, arguing that the bear spray and metal sign he is accused of using against police officers trying to defend the U.S. Capitol during the insurrection are not dangerous weapons.
McHugh, who allegedly texted someone that he “unloaded a whole can of bear spray on a line of cops,” also has filed a grievance against his jailers, claiming he was hit by pepper spray “for absolutely no reason” and had to wait two hours for medical treatment, court documents say.
Court filings by McHugh attorney Joseph Allen follow a hearing last week during which McHugh rejected a plea bargain offer and U.S. District Judge John D. Bates ordered him to face trial starting April 17, then warned him that he would not allow further delays in the case.
McHugh, a 35-year-old construction worker from Auburn, is the only one of four Sacramento-area defendants charged in the riot who remains in custody. He was arrested at his home in May 2021 and is being held at the Correctional Treatment Facility in southeast Washington, D.C.
Judges in Sacramento and Washington, D.C., have ruled that McHugh remain in custody, citing danger to the community from his alleged actions on Jan. 6 and because of his lengthy criminal history.
But McHugh’s lawyer argues in his latest filing that his client cannot help prepare for trial in jail and that his “mental health is the lowest it can be.”
“Mr. McHugh has now been incarcerated for almost a year and a half, thousands of miles away from his home and family,” Allen wrote in a motion seeking that McHugh be released to the custody of either his father or his “life partner.”
“He has a teenage son who desperately needs him and for whom Mr. McHugh has devoted many years to maintaining and increasing the time he is able to spend with him. Mr. McHugh was, until the date of his incarceration, heavily invested in bonding with his son, including such activities as gymnastics and parkour.
“Further still, the declining health of Mr. McHugh’s father as a result of multiple back and knee surgeries, and the recent diagnosis of macular degeneration, had made him dependent on Mr. McHugh for the majority of any physical or manual aid up to the time of Mr. McHugh’s incarceration.”
Prosecutors had not replied Wednesday to the motion, but in the past have written in court documents that McHugh “came to D.C. prepared for conflict.”
Allen, a Branson, Missouri, lawyer McHugh hired recently to replace his federal defender, argues that conditions inside the Correctional Training Facility make it impossible for him to work with McHugh to fashion a defense. He noted that once he was hired Aug. 10, he and McHugh were unable to speak on a secure phone line until 16 days later because of scheduling problems at CTF.
“For Mr. McHugh to review his discovery, CTF requires that counsel send over a thumb drive loaded with discovery materials,” Allen wrote. “Mr. McHugh is then placed on a waiting list and must wait his turn to be provided a laptop, so he can finally review what is provided on the thumb drive.
“Even if this process worked smoothly, and there is usually some issue or delay, it takes at least a month for the laptop even to get to Mr. McHugh. Further, Mr. McHugh reports that each time he is given a laptop, it is provided without a charger, meaning that he usually is only able to view an hour or so worth of discovery before the laptop must be returned and the whole waiting period begins again.”
Allen also wrote that McHugh is facing mistreatment by jail staff and is in danger even from his fellow Jan. 6 defendants.
“Due to grave danger of being placed in general population, all January 6 defendants have been placed in the same unit,” he wrote. “This has led to a concern by experts that the men in CTF are vulnerable to radicalization due to the circumstances of their incarceration.
“This pressure to conform to certain ideologies is preventing Mr. McHugh from meaningfully contributing to his defense in this case. Mr. McHugh is a young man who is impressionable and whose mental health has significantly declined in the past year given the conditions at the jail and the pressure he has been facing in his surroundings from every angle.
“This is further exacerbated by the distrust among the January 6 defendants themselves where whispers of conspiracy and ‘traitors’ places an enormous strain on any defendant simply seeking to address their charges for what they are.
“Mr. McHugh is no exception and has expressed his fears that speaking with his counsel under the scheduling conditions afforded by the CTF will lead to him being blacklisted among his fellow defendants as conspiring with the Federal Bureau of Investigation or some other Federal entity against the other January 6 defendants, thus placing Mr. McHugh personally at risk from fear and conspiracy driven retaliation.”
McHugh also faces retaliation from jail staff for filing grievances over “inhumane conditions,” Allen wrote.
One grievance was filed in November 2021 after McHugh complained that a staffer had come into a jail area and started pepper-spraying “recklessly because people were not wearing their mask.”
“I was hit for absolutely no reason,” McHugh wrote, adding that he had trouble breathing and was not given medical attention for two hours.
Jail officials responded with a finding that the use of pepper spray “was in concert with policy.”
McHugh also complained the same month about a staffer “started in on how i was priveledged (sic) saying she wishes i was in general population so I could be taught a lesson. Saying i would be stabbed and beat.
“She also said i was a leader of a racist group. She said she wishes she was a leader of BLM so that she could teach me a lesson. She called me a racist b----.”
McHugh also complained that there was black mold in the jail and that the food was unacceptable, citing “see through slimy bologna” and “inadequate veggies” at one meal.
“Mr. McHugh’s mental health has declined significantly since he has been incarcerated at CTF,” Allen wrote in his motion. “He has suffered inhumane conditions, poor nutrition, and has been specifically targeted by staff.”
Allen also filed a separate motion this week asking the judge to dismiss the 10-count indictment McHugh faces, which includes charges of assaulting, resisting or impeding officers while using a dangerous weapon and civil disorder.
Prosecutors say McHugh used a bullhorn to exhort marchers toward police at barricades outside the Capitol, and that he filmed himself as he announced, “Right now we’re storming the Capitol. We’re going to Congress and we’re gonna let them know that we don’t want them to accept the Electoral College votes.”
Court documents say McHugh grabbed onto a metal sign and pushed it into police officers and that he sprayed toward officers with a canister of bear spray he was carrying in a holster on his hip.
His lawyer argues that the indictment should be dismissed because it “lacks specificity” and does not clarify what prosecutors mean when they refer to “bear spray,” suggesting they instead are referring to “an unidentified brand of pepper spray.”
He also argues that pepper spray and metal signs should not be considered dangerous weapons.
Allen wrote that Capitol Police say on their website that pepper spray is prohibited inside the Capitol and visitor center, but added that there is no specific prohibition against carrying it on Capitol grounds.
“Clearly, had United States and District of Columbia Codes, as well as the United States Capitol Police wished to prevent the carrying of pepper spray or mace on Capitol grounds, they would have specifically stated it as such,” he wrote. “Mace and pepper spray, therefore, are permitted to be carried on Capitol grounds, just not inside any Capitol buildings.”
He added that using pepper spray cannot be deemed using a dangerous or deadly weapon.
“Pepper spray is undoubtedly painful, designed (to) deter attackers temporarily,” Allen wrote. “However, it is not capable of, nor likely to cause the kind of extreme pain or serious bodily injury required to be classified as a deadly or dangerous weapon.”
Prosecutors have said McHugh used bear spray — not pepper spray — which can be used to deter attacks on humans by bears. They also have said in court filings that a search of McHugh’s Auburn home in May 2021 turned up a bear spray canister with a warning of “irreversible eye damage if sprayed in the eye.”
As for the allegation that McHugh used a sign to push against police, Allen wrote that McHugh “is at a loss to even begin to formulate a response.”
“Signs, regardless of their material, are not inherently dangerous or deadly items,” Allen wrote.
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