The Frederick Douglass Foundation (FDF) and Students for Life of America (SLA) sued the city after pro-lifers Warner DePriest and Erica Caporaletti were arrested on Aug. 1, 2020, for writing their "battlecry" on a public sidewalk outside a Planned Parenthood facility. The complainants were pointing out that while they were arrested for temporarily letting out their protests in chalk, the local law enforcement allowed permanently painted Black Lives Matter graffiti across the city.
The student leaders claimed that they informed police and city officials during the permit process that they would be painting the message on the 1200 block of 4th Street NE, citing the precedent of the protesters who painted "Defund the Police" in June on 16th Street NW.
"We were told verbally that we would not be prevented from painting and what kind of paint to buy," said Students for Life spokesperson Kristi Hamrick in an email, adding that the group was told to use non-permanent tempera paint.
We are in front of Planned Parenthood right now rallying with Black pro-life leaders to decry Planned Parenthood's past and present racism.
Some of us were arrested as we attempted to paint and chalk "Black Preborn Lives Matter."
— Students for Life of America (@StudentsforLife) August 1, 2020
Alaina Gertz, spokesperson for the Metropolitan Police Department (MPD), meanwhile insisted that the group had obtained a permit to hold a rally in front of the Planned Parenthood facility, but not to paint the street. Gertz said in an email that MPD issues permit to assemble and markings on the street would have to be permitted by the D.C. Department of Transportation.
However, as per the lawsuit, Washington, D.C. violated their First Amendment rights through "viewpoint discrimination" since the city police arrested them for writing a temporary pro-life message but it is fine with them that the city has been widely vandalized in permanent paint with BLM messages prior to the incident. The appeals court ruling overturned a dismissal of the lawsuit by a lower district court, agreeing with the plaintiff's complaint that Washington, D.C. committed viewpoint discrimination.
"The First Amendment prohibits discrimination on the basis of viewpoint irrespective of the government's motive. We hold the foundation has plausibly alleged the district discriminated on the basis of viewpoint in the selective enforcement of its defacement ordinance," the court decision read.
The released ruling also noted that after the highly publicized death of George Floyd in the summer of 2020, Washington, D.C. "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."
"Over several weeks, the protesters covered streets, sidewalks, and storefronts with paint and chalk. The markings were ubiquitous and in open violation of the District's defacement ordinance, yet none of the protesters were arrested," the court decision observed.
The court also cited the painting of the "street mural" reading "Black Lives Matter = Defund the Police," during which "police officers watched as the alteration took place and did nothing to stop it," despite the fact that the BLM activists had not obtained a permit or consent otherwise to do so. (Related: Kanye West Says 'everyone knows that Black Lives Matter was a scam.')
The "discriminative" actions of the local government did not sit well with these pro-life organizations. In a statement, SLA President Kristan Hawkins said Washington D.C. Mayor Muriel Bowser apparently only thinks that "SOME Black Lives Matter and that only SOME slogans are allowed to be painted on streets."
"After applying and receiving our permit for this event today, after being told by the Metropolitan police that the Mayor has 'opened Pandora's box' by painting public streets, we arrived to find six police cars threatening to arrest our team and students, if they painted, even using the tempura [sic], paint we bought that the police department specifically requested," said Hawkins. "When we asked if we could at least use sidewalk chalk to chalk our anti-violence message on the streets, the police threatened to arrest us."
During the arrest, FDF's Dean Nelson and participants of the protest told police that activists show up every Saturday to chalk their slogan: "Black Preborn Lives Matter" on the public sidewalk. "Every Saturday people are here chalking and you're taking young people and arresting them simply because they're putting 'Black preborn lies matter'?" Nelson directly addressed the cops using a megaphone. "You've got to be joking!"
Last month, Judicial Watch, a conservative activist group that files Freedom of Information Act (FOIA) lawsuits to investigate claimed misconduct by government officials, sued Bowser and district officials after they failed to give a "substantive response" to the group's request to paint on the street in front of its headquarters, "Because Nobody is Above the Law!"
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