Day was arrested last month in Heber: The story.
Day’s legal team, represented by Luke Mulligan and Mark Rumold, have filed to have the charges dismissed on constitutional grounds, and two counts of interstate threats against his client should be thrown out because the indictment doesn’t allege that Day made statements of intent to harm any specific person.
“We have the right to free speech in this country,” Mulligan said.
Rumold said Day’s online comments were not serious expressions of an intent to carry out violence and instead were protected speech under the First Amendment of the U.S. Constitution.
A newly-released court transcript has revealed the interactions Day had with the FBI after he was arrested earlier this month. In it, a federal prosecutor detailed Day’s violent criminal history, particularly towards police and allegations that he made threats towards the arresting officers, which ultimately led a judge to deny him bail.
Day was arrested by tactical teams near the Heber shared Dairy Queen and service station parking lot, after police believed it was too dangerous to detain him at his Antelope Valley ranch.
Dondi Osborne from the US Attorney’s Office described how a shipping container surrounded by stacked sandbags on his property created an effective sniper’s nest for Day. Osborne said Day and his wife Sabrina Spires were prepared to die during a “last stand” with police at his fortified off-grid property in Antelope Valley, outside of Heber Arizona.
The court heard agents found nine firearms, several thousand rounds of ammunition, body armor, and gas masks at the address.
Mulligan said Day was not a threat to anybody, did not have contact with law enforcement for more than 20 years, that his firearms were owned by his wife, and they used the shooting perch to defend their chickens against coyotes.
The prosecution said Day had referenced this property as the spot for his “last stand” against any law enforcement.
It’s alleged Day told FBI agents: “If anything happens to my wife, and if I ever get out of these cuffs, I’ll come for every f***ing one of you”.
In arguing for his continued detention, the prosecutor referenced repeated calls Day made for the mass killing of law enforcement and government officials in the lead-up to the death of the Trains.
One instance cited was in July last year on a YouTube channel called Kansas Prepper, Day allegedly called for people to rally with him at Wounded Knee, the site of the massacre of Native Americans in South Dakota by the US Army, to “kill the bad guys”, but none had answered his call.
Cases for Day retrieved by the court show that from 1986 to 1990, he was convicted for robbery, five counts of battery including against police and emergency personnel, and the assault of a prisoner.
The court heard he had spent more than six years in jail.
The lawyers also revealed Day had stage four colon cancer, with Day understanding it was brain cancer which went into remission after he received “treatment from his wife and a medicine woman” before it metastasized to his colon.
“He can’t flee. He has nowhere to go. He has no ability to flee, and his physical condition prevents him from fleeing,” Mulligan told the court.
Federal Judge Camille Bible referenced In her decision to keep Day behind bars, “very, very devastating series of events that occurred in Australia” and Day’s role in them. She also said the weight of evidence suggested he posed a danger to the public.
Judge Bible dismissed the defense’s First Amendment arguments, saying that Day was not being prosecuted for his ideologies, but for the “very specific” threats he made and the pattern of adverse interactions he has had with police officers.
Judge Bible recognized Day’s declining health but said “it is concerning to the court that he’s not sought medical treatment and that there was no formal diagnosis.” She said given the circumstances, Day would be “better off in custody where he can get care and treatment.”
The jury trial for Day is scheduled on February 6.
Molly K Ottman Executive Editor/Journalist for Mountain Daily Star