They fought at the Capitol, a D.C. police officer on duty at his first riot and a retired New York Police Department veteran attending his first protest as a civilian. On Friday, a federal jury in Washington began deliberating on who to believe.
In video shown to the jury, Webster emerges from a crowd, jabs his finger at officers and hurls obscenities at a line of police before pushing a metal bike rack barrier into Rathbun. When the D.C. officer pushes him back hard with an open palm to the face, Webster swings down a Marine Corps flagpole he was carrying at the bike rack several times and tackles the officer to the ground as the crowd surges forward.
But Webster, in a four-day trial in U.S. District Court in D.C., blamed Rathbun for not de-escalating the situation. Webster said the younger D.C. police officer started the fight amid the mayhem, beckoning him with a hand gesture out of camera view as if to say “C’mon,” before visibly swatting him in the face. Webster said the blow felt “like a freight train” and caused him to fight back out of fear for his safety.
“I saw him starting to separate the racks to come after me,” Webster testified in his own defense on Thursday, explaining why he tackled the officer. “I’m afraid. I thought he’s some rogue cop, and I was concerned for my safety.”
Webster, who served as a Marine Corps infantryman from 1985 to 1989, characterized the event as “almost a role reversal” — echoing consciously or not a view by some supporters of former president Donald Trump that police were the perpetrators and members of the crowd the victims that day. Some conservative commentators blame law enforcement for not preventing a riot by turning out in greater force or keeping demonstrators at a greater distance, while Webster criticized the use that day of crowd-control measures such as chemical irritants and plastic projectiles.
Prosecutors and a string of police and FBI witnesses — several like Webster with U.S. military backgrounds — expressed bewilderment at that through-the-looking-glass argument.
“This case is about a former officer who violently attacked another officer on the line outside the Capitol on Jan. 6 … with Congress at his back and nothing but a bike rack protecting him from thousands of angry rioters in front of him,” Assistant U.S. Attorney Hava Mirell told jurors in an opening statement.
Joanna Burger, a U.S. Capitol Police officer standing next to Rathbun, testified that “officers were calling for help everywhere,” and faced a hostile crowd on all sides and a shower of tossed metal pipes, wood, glass and plastic bottles.
“All of our commands were ineffective. No one was listening,” Burger said. “They didn’t care if they had to hurt us to get to lawmakers,” she said, adding, “The threat … it was all around us at that point.”
How Webster, a gregarious 20-year NYPD officer who spent much of his career on the personal protective detail for then-Mayor Mike Bloomberg and Gracie Mansion, ended fighting for 30 seconds on video with an on-duty D.C. police officer is one of the most confounding altercations in a storm of violence around the Capitol as Congress met to certify the 2020 election results.
Nearly 140 officers were assaulted, according to authorities. And of about 780 people federally charged, nearly a third are accused of interfering with police, including over 85 individuals charged with causing bodily harm or using weapons including bats, metal poles, fire extinguishers, chemical spray and Tasers. Prosecutors have signaled resistance to bargaining down police assault charges in plea deals.
In a pretrial hearing last June, U.S. District Judge Amit P. Mehta said he was “mystified” by Webster’s conduct toward a person doing a job — crowd control protecting dignitaries — that Webster himself did for years.
“You want to talk about some of the worst behavior, some of the most horrific conduct that I’ve seen somebody engage in. It’s right there on video,” Mehta said, while granting Webster pretrial release and saying he was presumed innocent. “You were a police officer, and you should have known better.”
Webster, a married father of three who has done landscaping work since retiring in 2011, admitted driving alone to Washington overnight on Jan. 4, eating military rations in his hotel room, then listening to Trump’s speech at the Ellipse on Jan. 6 before joining protesters at the Capitol. There, he said he grew angered by seeing children crying and a person in their 70s retreating with blood on their face, rushed up to a besieged police line and picked out an officer with a gas mask and helmet as one who “could handle it” if Webster got upset.
The officer was Rathbun, whose body-camera footage shows what happened next.
Webster unleashes a string of profanities at Rathbun, calls the police “Commies,” shouts, “You’re gonna attack Americans?” and challenges Rathbun to “take his [gear] off” and fight. At that point, he shoves the bike rack into the police line.
With his open left hand, Rathbun then cuffs Webster’s face, knocking him back. The move can’t be seen on his police camera footage at full speed, but it is visible on other videos recorded from farther away introduced by both sides. The videos don’t show whether Rathbun gestured at Webster beforehand as the retired New York police officer claimed.
FBI and D.C. police investigators said they did not at first see Rathbun’s open-hand strike in video that led them to charge Webster, but testified it made no difference to his prosecution because the D.C. officer was appropriately trying to “clear space” and defend the security perimeter as members of the mob surged forward on either side.
Rathbun testified he had stood guard for an hour as “the temperature and the tension” of the crowd on the Lower West Terrace of the Capitol mounted. Officers were running out of options to protect the building, which was breached on the west side at 2:13 p.m. and on the east about a half-hour later, when Webster appeared in front of Rathbun at 2:28 p.m. holding a potential weapon and shouting what prosecutors called “fighting words.”
“He grabbed hold of the bike rack and pushed it into me,” Rathbun testified. “That was very concerning to me because he’s engaging in aggressive behavior, physically assaultive behavior. I was concerned that part of the barrier would be compromised and pushed out and everybody would be able to come forward.”
He said he pushed Webster back to create distance, as taught to Civil Disturbance Unit officers.
“My hand was open to try to push him back. He moved forward and I moved forward, and my hand came up from his sleeve and hit his face,” Rathbun said, claiming it was unintentional.
In the ensuing fight, the aluminum flagpole snapped before Rathbun pulled the remaining part away from Webster, who then grapples with Rathbun, who appears to fall. In a photograph widely shared on social media that Twitter sleuths erroneously tagged #EyeGouger, Webster in a red-white-and-black jacket uses his hands to grip the gas mask around Rathbun’s face.
In Webster’s defense, attorney James E. Monroe blasted Rathbun for appearing to violate D.C. police use-of-force guidelines when he incited and taunted the older man, reached over the bike rack and punched him without provocation. He suggested Rathbun had a guilty conscience, because he did not immediately disclose the incident to his superior or an FBI investigator, complete a use-of-force report or mention it in a private text to his brother.
“This case is built on the lies of a young officer of the D.C. police and the officer’s improper use of force,” Monroe said. “Did he tell them this whole issue started when he punched Mr. Webster in the face? No. He doesn’t mention that he started the whole thing.”
Monroe told jurors in closing arguments that they had only look to the officers on either side of Rathbun who kept their hands on the barriers in front of them, adding, “This is a dishonest, unprofessional police officer who took it on himself to punish my client for expressing himself in a way he found objectionable. That’s the ABCs of this case.”
Webster explained to the jury that he was enraged by what he saw as poor police practices. He saw protesters injured by crowd-control measures such as stun grenades or chemical spray far from where police lines were set up when he arrived, and heard no warnings amid the din.
“Why are they targeting people that far back?” Webster said. “I communicated that to Rathbun. … It was not a very good choice of words, but I was upset.”
Webster said Rathbun’s response was “crazy” and “wrong.” Webster testified he had “never witnessed a cop do something like that” and that based on his professional experience Rathbun should have been reprimanded for endangering the public and other officers.
“This officer incited me. He waved me over the fence. It’s wrong to do this. … It was shocking to see that,” Webster said. Once that happened, he said, “I felt like I needed to do something to try to protect myself,” and fought back out of fear and “just pure frustration.”
“Don’t hurt the kid, but just let him know he’s not going to hit me again,” Webster testified, adding he made it a point not to hit or punch Rathbun.
Three character witnesses said they had only known the Brooklyn native Webster to be a soothing, “calm and collected officer,” who they had never seen act violently. On the stand, Webster testified that the altercation ended “just like a schoolyard fight. … He got up. I got up, that was it.”
U.S. trial attorney Katherine Nielsen pointed jurors to video, saying it was Webster who invited Rathbun to fight and who was the aggressor, and that Rathbun was not on trial.
“Your testimony is you put your hands on [Rathbun’s] head to pull of his gas mask and helmet so he knew you were not going to hurt him?” Nielsen asked Webster on cross-examination in a tone of mocking disbelief, adding to jurors in closing arguments, “All we see from an officer of 20 years is no de-escalation on his part, but escalation at every possible turn.”
Capitol Police said in September they were disciplining six officers for misconduct in the Capitol breach and prosecutors have turned over files on several dozen internal investigations conducted by D.C. and Capitol Police after the event, but no such information was discussed during Webster’s trial.
Rathbun joined the D.C. police in November 2015, working as a patrol and riot officer and spending the past six months as a police academy instructor. He was recently cleared in the fatal line-of-duty shooting last May of a 26-year-old man, Vedo Hall, who authorities said was armed with a rifle and had held a woman against her will inside an apartment in Southeast Washington.
Rathbun, for his part, remarked on the abuse he heard from the crowd that day, saying, “It was strange because they were holding FOP [Fraternal Order of Police] flags.”
“I’m a police officer. I intend to retire a police officer in this city,” he reflected to jurors. “I want to do the best I can, and you think about how to prevent this sort of thing in the future. I think it’s unfortunate to be in the capital of the United States and to be treated like that by U.S. citizens.”