DC officials arrested pro-lifers but ignored 2020 BLM activists, says appeals court.
A Victory for Pro-Life Activists: Court Rules D.C. Officials Can Be Sued for Selective Enforcement
In a significant ruling, a federal appeals court has determined that officials in the Washington D.C. local government can be held accountable for selectively enforcing a property defacement statute. This decision comes after pro-life activists were arrested for writing a pro-life message in chalk on a city sidewalk, while Black Lives Matter (BLM) activists faced no consequences for their more permanent actions.
During the summer of 2020, D.C. police arrested two pro-life activists for chalking “Black Pre-Born Lives Matter” on a public sidewalk. Meanwhile, BLM activists were freely painting their own messages throughout the city without facing similar enforcement measures.
The Frederick Douglass Foundation and Students for Life took legal action against the city, filing a lawsuit in the D.C. Federal court in November 2020. They argued that while the defacement statute is meant to prevent vandalism, the city’s enforcement of the law was biased. The pro-life groups were punished for using easily removable washable chalk, while BLM activists were allowed to use permanent paint. The plaintiffs claimed that this selective enforcement violated their First Amendment and Fifth Amendment rights.
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District Judge James Boasberg, appointed by President Barack Obama, initially dismissed the lawsuit in September 2021. However, the pro-life organizations appealed the decision. On Tuesday, a three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit unanimously decided to partially reverse the lower court’s ruling. This means that the plaintiffs can now proceed with their First Amendment claims in the lower court.
Circuit Judge Neomi Rao, appointed by President Donald Trump, emphasized the importance of the First Amendment in her opinion. She stated, “The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government’s motive.” Judge Rao concluded that the Foundation had presented a plausible case that the District had discriminated based on viewpoint in its selective enforcement of the defacement ordinance.
DC ‘All But Abandoned’ Enforcement on BLM: Judge
Judge Rao highlighted the actions of D.C. Mayor Muriel Bowser, who openly supported BLM activists and ordered city workers to paint “Black Lives Matter” in yellow along a city street. BLM activists later added “Defund the Police” in yellow paint on the same street, connecting it to the “Black Lives Matter” street mural with an equals sign.
“Police officers watched as the alteration took place and did nothing to stop it. Although the Black Lives Matter advocates did not seek a permit or otherwise receive consent, they were neither arrested nor charged under the defacement ordinance,” Judge Rao wrote. She further noted that the District allowed the addition to remain in place for months before eventually removing it in mid-August.
BLM messages appeared in various other locations throughout the city, including streets, sidewalks, and store fronts. One instance involved a BLM message being graffitied onto scaffolding outside a Chamber of Commerce building.
“The District all but abandoned enforcement of the defacement ordinance during the Black Lives Matter protests, creating a de facto categorical exemption for individuals who marked ‘Black Lives Matter’ messages on public and private property,” Judge Rao explained.
The pro-life activists had actually sought permission to display their messages throughout the city. They reached out to Ms. Bowser’s office, but received no response. They also consulted a police officer about their plans to use chalk, and he informed them that they could proceed because he believed Mayor Bowser had opened up the streets for political markings. Despite seeking permission, not a single permit was sought or granted, and no one was punished for violating the defacement ordinance with BLM messages.
In their attempt to dismiss the lawsuit, attorneys for the District of Columbia argued that the plaintiffs had no right to deface public property and that the District’s application of the Defacement Ordinance did not violate their rights.
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