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No one has been sentenced to 20 years for filming the Jan. 6 riots, contrary to congressman’s claim

CLAIM: People have been sentenced to 20 years in prison for simply filming the riots at the U.S. Capitol building on Jan. 6, 2021.

AP’S ASSESSMENT: False. The only person to have been sentenced to at least 20 years in prison in connection with the case is Enrique Tarrio, the former leader of the extremist group the Proud Boys. But Tarrio wasn’t charged with filming the riots. He was convicted of seditious conspiracy and other crimes. The majority of defendants so far have received sentences of less than five years in prison.

THE FACTS: Social media users are sharing a clip of U.S. Rep. Thomas Massie calling out U.S. Attorney General Merrick Garland over what he viewed as a disparity in the Jan. 6 riot prosecutions.

During a House Judiciary Committee hearing Wednesday, the Kentucky Republican accused Garland and federal prosecutors of going easy on a one-time Donald Trump supporter who conspiracy theorists have baselessly accused of secretly working with the federal authorities to incite the riots.

Ray Epps pleaded guilty on Wednesday to a misdemeanor charge of engaging in disorderly or disruptive conduct in a restricted building or grounds after he was filmed imploring Trump supporters to go into the Capitol. Federal prosecutors have also stressed he’s never been a law enforcement asset.

“Meanwhile, you’re sending grandmas to prison,” Massie said to Garland. “You’re putting people away for 20 years for merely filming.”

“These people are traitors to our nation!,” wrote one Instagram user who shared the video clip in a post that was liked more than 35,000 times. The clip also circulated on X, the platform formerly known as Twitter, where one post was shared more than 10,000 times.

But few people have been given sentences anywhere close to 20 years in the expansive prosecution that includes more than 1,100 individual cases.

Of the more than 650 defendants sentenced so far, only 39 defendants have been sentenced to five or more years in prison, according to an Associated Press review.

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The notable exceptions are the leaders of right wing extremist groups prosecutors say orchestrated the attack, which was meant to keep Trump in power after the Republican lost the 2020 election.

Earlier this month, former Proud Boys leader Enrique Tarrio was sentenced to 22 years in prison, the stiffest punishment yet. Oath Keepers founder Stewart Rhodes and one-time Proud Boys leader Ethan Nordean received 18-year sentences.

All three were charged with seditious conspiracy and other crimes, not “filming” the riots.

In fact, Tarrio and Rhodes weren’t even at the Capitol at the time. Both were accused of plotting the violence from afar. Nordean, meanwhile, was among the Proud Boy leaders accused of spearheading the destructive breach of the Capitol building itself.

Massie spokesman John Kennedy said the congressman had actually been referring to Ryan Scott Zink, a 34-year-old Texas resident who was convicted last week.

Citing a local media report in Texas, Kennedy argued that Zink could get up to 21 years in prison when he is sentenced in December on one felony and two misdemeanor counts.

While footage Zink took outside the Capitol was used as evidence in the case, he was convicted of felony “obstruction of an official proceeding and aiding and abetting,” as well as two misdemeanor counts of “entering and remaining in a restricted building or grounds and disorderly and disruptive conduct in a restricted building or grounds,” according to prosecutors..

Spokespersons for the U.S. Department of Justice didn’t respond to emails seeking comment Thursday.

But Daniel Charles Richman, a professor at Columbia Law School and former federal prosecutor, said that the maximum penalty under law for any given crime is “almost always irrelevant” to the sentence a defendant actually receives.

“Here, as in all the Capitol breach cases, the judge is far more likely to engage in a close analysis of how the facts in this case compare the facts in other similarly charged cases,” he wrote in an email Thursday.

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Indeed a review of the agency’s database of cases and sentences connected to the riot shows that no one facing charges similar to Zink have been sentenced to anything close to two decades in federal prison.

Zink’s comments during and after the riot also suggest he did more than merely film, noted Jeffrey Kirchmeier, a professor at the City University of New York’s School of Law.

According to prosecutors, Zink says at one point in his videos: “We knocked down the gates! We’re storming the Capitol! You can’t stop us!”

“If he stood outside the Capitol and recorded events, I don’t think he could be charged,” Kirchmeier explained in an email. “The video is only important here because it helps to show Zink’s intent.”

Lawyers for Zink didn’t respond to an email seeking comment Thursday, but his father, Jeff Zink, has argued that the duo never entered the Capitol and were merely observers.

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FILE - Insurrections loyal to President Donald Trump rally at the U.S. Capitol in Washington on Jan. 6, 2021. Ray Epps, an Arizona man who became the center of a conspiracy theory about Jan. 6, 2021, has been charged with a misdemeanor offense in connection with the U.S. Capitol riot, according to court papers filed Tuesday. Epps is charged with a single count of a disorderly or disruptive conduct on restricted grounds. (AP Photo/Jose Luis Magana, File)Ray Epps, Trump supporter targeted by Jan. 6 conspiracy theory, pleads guilty to Capitol riot charge90 279Proud Boys’ Enrique Tarrio gets record 22 years in prison for Jan. 6 seditious conspiracyFILE - Violent protesters, loyal to President Donald Trump, storm the Capitol, Wednesday, Jan. 6, 2021, in Washington. The House committee investigating the Jan. 6 insurrection poked another hole in the pro-Trump conspiracy theory that federal agents orchestrated the attack, confirming on Tuesday, Jan. 11, 2022, that a man at the center of the claims said he’d never been an FBI informant. (AP Photo/John Minchillo, File)FACT FOCUS: Federal agents didn’t orchestrate Jan. 6

Kennedy, meanwhile, maintained Massie’s remarks are accurate.

“Ryan Scott Zink faces over 20 years in prison for the actions described in the DOJ press release,” he wrote in an email. “In contrast, Mr. Epps received a misdemeanor charge.”
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Associated Press reporter Michael Kunzelman in Washington contributed to this story.
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This is part of AP’s effort to address widely shared misinformation, including work with outside companies and organizations to add factual context to misleading content that is circulating online. Learn more about fact-checking at AP.