(UnitedVoice.com) – Amidst protests taking place over police brutality and excessive force that resulted in George Floyd’s death at the hands of former police officer Derek Chauvin during the summer of 2020 in Washington, DC, a small weekly protest took place in front of a local Planned Parenthood Women’s Health Clinic.
DC metro police disregarded enforcing the city’s defacement ordinance while most of the district experienced protesters painting and chalking signs on streets, sidewalks, buildings, and private property. Yet, officers keenly enforced the law when a pro-life group, mostly comprised of students, used colored chalk to write a simple message on the public walkway in front of the clinic.
On August 15, a Federal Appeals Court ruled in favor of allowing a lawsuit brought by those pro-life students to proceed, overturning a lower court’s dismissal of the suit.
Sidewalk Chalk Leads to Arrests and Litigation
On August 1, 2020, DC Metro officers arrested the two pro-life protesters who chalked messages that said, “Black Pre-Born Lives Matter,” after warning them not to deface public property. In response, the Alliance Defending Freedom (ADF) filed a lawsuit against the District of Columbia in the US District Court for the District of Columbia in November 2020 on behalf of Students for Life of America and the Frederick Douglass Foundation (collectively known as “The Foundation”).
The plaintiffs in the suit sought relief for five claims against the District of Columbia, including
- Violation of First Amendment Free Speech Rights
- Violation of the Due Process Clause of the Fifth Amendment, specifically regarding selective enforcement of the law
- Violation of First Amendment Free Association Rights
- Violation of the Religious Freedom Restoration Act
- Violation of First Amendment Free Exercise of Religion Rights
The District Court dismissed the case without prejudice on September 1, 2021, and The Foundation filed an appeal with the DC Appellate Court by September 30, 2021. A three-judge panel consisting of Neomi Rao, a Trump appointee, Robert Wilkins, an Obama appointee, and Michelle Childs, a Biden appointee, reviewed the case and issued a unanimous opinion on August 15.
DC Appeals Court Finds Plausible Argument Allowing Suit To Proceed
The Appeals Court found the plaintiff’s second claim plausible. Specifically, on behalf of The Foundation, ADF claimed that DC authorities selectively applied and enforced defacement laws in the summer of 2020, potentially violating First Amendment Freedom of Speech and Fifth Amendment Due Process and Equal Protections.
In the opinion handed down on August 15, Rao wrote that freedom of speech protections apply to how jurisdictions enforce laws and the underlying legislation. She also pointed out that the government’s motives don’t matter; they must uphold First Amendment prohibitions on discrimination based on viewpoint.
Moreover, Rao wrote that the court unanimously held that the plaintiffs “plausibly alleged the District discriminated […] in the selective enforcement of its defacement ordinance.” The panel of judges reversed the lower court’s dismissal and remanded the case to the District Court to consider the selective enforcement charge.
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