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A federal judge on Monday sentenced 40-year-old Cody Melby to five years of probation for firing a gun at the façade of the Mark O. Hatfield federal courthouse in downtown Portland on Jan. 8.
The reason he fired the weapon: “He wanted to get in front of the court for political and patriotic reasons,” said Melby’s attorney, public defender Bryan Francesconi, in a Monday hearing. “He is an intensely patriotic person.”
As WW reported in January, federal prosecutors alleged Melby fired several rounds from a 9 mm handgun into the courthouse’s exterior on the evening of Jan. 8. Two days prior, on Jan. 6, police cited Melby for criminal trespass while in possession of a firearm after he allegedly sought entry into the Oregon State Capitol during a far-right rally and refused to leave after police in Salem asked him to do so.
Last month, Melby pleaded guilty to one count of possession of a firearm in a federal facility for the Jan. 8 incident. As federal prosecutor Paul Maloney noted Monday, that felony conviction typically carries a prison sentence.
“However,” Maloney said, “given his lack of criminal history, and the totality of the facts and circumstances of this case, we believe that a sentence of probation is warranted.”
Federal prosecutors and Melby’s attorney asked U.S. District Judge Karin Immergut to instead sentence Melby to eight months of community confinement, which would be credited with time served for Melby’s stay in pretrial custody, and five years of federal probation.
During sentencing, Immergut told the attorneys she had “concerns about what I perceive to be the leniency of this sentence.” But both the prosecution and the defense rationalized Melby’s actions, explaining that the Army veteran fired at the federal courthouse because he was influenced by the 2020 election, wildfires and the political landscape in Portland, and felt an urgency to express those views to a federal judge.
“During this time, he became fixated on the civil discourse surrounding the 2020 protests, as well as the presidential election,” Maloney said at sentencing. “As the court notes, there [were] publicly posted YouTube videos of the defendant advocating for violence in support of his views….Mr. Melby was determined to get himself in front of a federal judge to express those views. He determined that he needed to fire a weapon at the structure of the Hatfield courthouse.”
“He did not aim inside the building,” Maloney continued. “He aimed at a part of the building that was unable to hold people. He aimed at one of the columns that was wrapped in plywood. Effectively, judge, this defendant used a firearm to commit an act of misdemeanor vandalism.”
Leading up to Jan. 6, when rioters attempted an insurrection at the U.S. Capitol, Melby had posted videos onto his YouTube channel that included “statements that subscribe to the ‘Alt-Right’ ideology of ‘Stop the Steal’ and QAnon conspiracy theories,” federal prosecutors wrote in their initial criminal complaint against Melby.
For example, in a YouTube video posted Jan. 5, federal prosecutors allege, Melby called on former President Donald Trump to invoke the Insurrection Act and claimed that Portland city officials had allowed “antifa to grow into a terrorist organization.” In the video, Melby also called for the arrest of elected officials, including Oregon Gov. Kate Brown and Portland Mayor Ted Wheeler, as well as media figures like Anderson Cooper and Mark Zuckerberg, prosecutors said.
“He describes the events around the 2020 presidential election as an attack on the very foundation of our republic and a ‘theft of votes,’” federal prosecutors wrote in a January criminal complaint. “Melby states, ‘multiple state governments and federal agencies have committed treason against the United States.’ Melby asserts that multiple politicians have committed treason, rebellion, insurrection, sedition, advocated the overthrow of the government and have established unconstitutional mask mandates.”
But on Monday, the government’s tone shifted. Prosecutors highlighted in their sentencing memo that Melby, who lives in Beavercreek, Ore., served in the U.S. Army in Kosovo in 2001, followed by three tours in Iraq. During his final tour, prosecutors noted, he was injured during rocket fire, effectively earning a Bronze Star. Melby retired from the Army in 2017.
“The unquestionable reality is, he’s an incredibly patriotic person who did what he believed was necessary as part of his duties to this country based off his years of service,” Francesconi told the judge Monday.
Melby explained at sentencing what, exactly, he wanted to communicate to a federal judge.
“I looked around first to make sure no one was around,” he said about the Jan. 8 shooting. “Because this was my intent right here, was to just be able to talk to you and kind of come forward with some stuff.”
Melby claimed that he held a secret security clearance while in the Army, which allowed him to work in “top-secret environments,” and that he had been granted a “courier card” which enabled him to transport “confidential and classified materials.”
“Our government had extremely high trust in me throughout my career,” Melby told the judge at sentencing. “My statement before you today is simple: I’m here to state that, under penalty of perjury since my permanent retirement from the Army, I’ve been involved in a series of military operations on American soil for the Trump administration. It is important that I come forward as a whistleblower, because our Constitution has possibly been subverted due to loopholes and inadequate government.”
Melby told the judge that he wanted to be released from custody so that he could bring forth sensitive information to Congress.
That caught the judge’s attention.
“With respect to your desire to be in touch with Congress,” Judge Immergut asked, “what medium do you expect to use to engage in that sort of discussion?”
“Email, your honor,” Melby responded.
Immergut agreed with the attorneys’ recommendation of a five-year probation sentence, on the condition that Melby enter treatment in a mental health facility upon his release from custody while he awaits a bed in the Veterans Administration-run mental health facility. She also granted the government’s recommended condition that Melby cannot frequent “websites containing content related to conspiring with or inciting others to commit acts of violence.”
“I will ask you to have a discussion with probation before you start sending emails to folks, because I’m concerned that you could find yourself going down a path that would not be helpful to you,” Immergut told Melby at sentencing. “So to the extent that there is anything that’s perceived as threatening, for example—that would not be good for you.”
The judge also approved the prosecution’s request to bar Melby from entering the three-block radius surrounding the downtown federal courthouse.
“The area around the Hatfield courthouse, as the court is aware, became a locus for protests and protest-related criminal activity,” Maloney said Monday. “Barring the defendant from being within that zone is calculated to prohibit the likelihood of him engaging in future conflicts.”
Immergut expressed concerns that Melby could have been killed by courthouse security officers on Jan. 8 or could have injured one of them when he fired his weapon. She questioned Melby’s ability to scale the tall black fencing that has surrounded the federal courthouse since Black Lives Matter protests began in the summer of 2020.
“Honestly, I hope that the government is looking into how it is you got over the fence in the first place and had the opportunity just to walk around in the enclosed, protected area because that was, frankly, pretty shocking to me,” Immergut said. “I do have that concern that when you do something like that, that you could have put an officer in the position of shooting you down, or you could have shot them because they came out with guns a’blazing, which —in that security area—I’m surprised they didn’t, honestly.”
Melby still faces charges in Marion County for the Jan. 6 incident, as well as in Multnomah County for the federal courthouse shooting. He is currently being held in the Multnomah County Inverness Jail, according to jail records.
Following Melby’s sentencing yesterday, acting U.S. Attorney for the District of Oregon Scott Erik Asphaug issued the following statement.
“Cody Melby is a disabled combat veteran who, after becoming detached from his mental health support system, made an extraordinarily poor and dangerous decision to fire a gun at the Hatfield Courthouse,” Asphaug said. “Fortunately, nobody was injured during this incident. The sentence imposed today will ensure Mr. Melby receives the treatment he needs while also protecting the community.”