KANSAS CITY, Mo. — A northwest Missouri man scheduled to go to trial early next year for allegedly breaching the Capitol on Jan. 6 is now arguing that his case should be dismissed, saying the charges are “undeniably unconstitutional.”

Lloyd Casimiro Cruz Jr. says he was merely exercising his First Amendment rights when he entered the building that day.

“Cruz’s indictment is aimed at chilling Cruz’s (and millions of others’) right to petition and speak against perceived government abuses at the Capitol,” said the motion, filed last week in U.S. District Court for the District of Columbia.

“The government seeks to insulate congressional representatives, staff, officials and attendees from receiving the messages of Cruz and other protestors and petitioners. Such efforts by the government are undeniably unconstitutional.”

Cruz, 39, of Polo — about 50 miles northeast of Kansas City — was arrested Feb. 28 on charges of parading, demonstrating or picketing in a Capitol building and entering or remaining in a restricted building or grounds. Both charges are misdemeanors.

Prosecutors say Cruz first denied invading the Capitol building, then later told agents that reviewing videos he took that day reminded him that he had indeed gone inside.

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Cruz’s attorney, John M. Pierce, told U.S. District Judge Reggie B. Walton at a hearing last week that he planned to file the motion. He said “we’ve come across some evidence” that was available to the public online that indicated “that in fact the Capitol was indeed open at that point in time.”

Walton then asked Assistant U.S. Attorney Mona Furst to summarize the charges against Cruz.

Furst told the judge the evidence would show that Cruz entered the Capitol building about two minutes after the initial breach and walked around inside for seven or eight minutes, recording with a GoPro.

Walton asked Furst what was occurring inside the building when Cruz entered.

“Was it peaceful at the time of his entry, or was there chaos taking place?” he asked. “Were alarms going off?”

Furst told the judge there was plenty going on. She said Cruz would have seen officers fighting to keep people off the northwest steps. After those steps were breached, she said, Cruz climbed them, filming as he went.

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“He was filming on the Upper West terrace,” she said. “He was filming people trying to get into the building. He was filming people breaking windows. He was filming chants of, you know, ‘This is our house’ [and] ‘USA.’

“When he went in the door two minutes after the breach — as you know, it was a very violent breach, windows were bashed in, officers had to retreat — the alarm was going off on the Senate wing door as he entered. And there was a lot of screaming, yelling and chanting as he entered as well.”

Walton then addressed Pierce: “If the evidence, Mr. Pierce, supports what the government is saying, I think you’ve got a difficult, uphill road to make your case that somehow there’d be a First Amendment violation … that somehow he had a right to do what he did.”

Cruz’s motion, filed on Saturday, argued he could not be convicted of entering and remaining in a restricted building without authority to do so because the Capitol is not a restricted building.

“Generally speaking, the Capitol is open to the public during normal business hours,” the motion said. And, it said, Cruz had a Constitutional right under the First Amendment “to monitor, watch, advocate, petition, and protest regarding the work of representatives and officials inside the building.”

“Indeed, it can be argued that Cruz has a civic duty to monitor, observe, watch, and (try to) influence the goings-on inside the Capitol,” the motion said.

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As for the second charge against him, Cruz argued that “parading, demonstrating and picketing for redress of grievances is the birthright of every American.”

“Cruz is accused of nothing more than walking into the Capitol during normal business hours as part of a demonstration of expression regarding the fairness of the 2020 presidential election,” the motion said. “Cruz has a 1st amendment right to express his opinions in such a manner.”

Walton has set Cruz’s trial to begin on Jan. 17 in federal court in Washington, D.C. Attorneys said they expected it to take two to four days.

Cruz is among three of the 23 Missouri defendants in Capitol riot cases to be scheduled for a trial. John George Todd III of Blue Springs has a trial date set for Nov. 14, and Nevada locksmith Isaac Yoder — accused of roaming the Capitol building dressed as George Washington — has a Feb. 7 trial date.

Of the remaining Missouri defendants, 10 have pleaded guilty and have been sentenced, and five have pleaded guilty and await sentencing.