Pro-life activists are seeking to reinstate a lawsuit against the District claiming that police violated the free speech rights of two college students who were arrested for chalking “Black Preborn Lives Matter” on a sidewalk in front of Planned Parenthood in the summer of 2020.
Students for Life of America and the Frederick Douglass Foundation filed an appeal last Thursday in the U.S. Court of Appeals for the D.C. Circuit.
The court filing asserts that the federal judge who dismissed the November 2020 lawsuit wrongly overlooked D.C. officials singling out pro-lifers during the summer of Black Lives Matter protests following the killing of George Floyd.
“It was not until Plaintiffs — pro-life groups concerned about the hundreds of thousands of unborn Black children killed by abortion each year — requested a permit to gather and paint their own mural stating ‘Black Pre-Born Lives Matter,’ that the District rediscovered its Defacement Ordinance,” the filing states, noting that D.C. police allowed similar “Black Lives Matter” chalk protests without arrests.
The filing adds that the abortion protesters had requested a permit and got verbal permission from the city to chalk “Black Preborn Lives Matter,” pointing out that the unknown vandals who wrote “defund the police” on the city’s Black Lives Matter memorial several weeks earlier did not request a permit.
D.C. police arrested Warner DePriest of Southeast and Erica Caporaletti of Highland, Maryland, when they refused to stop chalking the sidewalk in front of the Planned Parenthood facility on the 1200 block of Fourth Street NE in August 2020. Both were affiliated with Students for Life of America.
The Office of the U.S. Attorney for the District of Columbia quietly dropped misdemeanor charges of defacing public property against the students in October 2021, and U.S. District Judge James E. Boasberg, an Obama appointee, dismissed the students’ original free speech lawsuit last March.
Attorneys for the students said the District dropped the charges after 14 months had elapsed without bringing it to trial after realizing that the chalk does not count as defacement and sidewalks do not count as public property under the city’s ordinance.
The Metropolitan Police Department and Mayor Muriel Bowser’s office did not respond Monday to a request for comment.
In his ruling, Judge Boasberg denied the pro-lifers a preliminary injunction to chalk their message, saying D.C. police could not enforce the city’s defacement ordinance against the “thousands upon thousands of impassioned Americans” who protested at the White House in June 2020.
“While enforcing the Ordinance may have led to a cleaner street, it all too easily could have transformed a then-peaceful gathering into something far less sedate, with considerable risk to the safety of both civilians and dramatically outnumbered law-enforcement personnel,” Judge Boasberg said in the ruling.
Attorneys from the conservative advocacy nonprofit Alliance Defending Freedom, which is representing the pro-life activists in the appeals process, argue that Judge Boasberg wrongly dismissed the First Amendment’s protections against viewpoint discrimination and the Fifth Amendment’s prohibition against selective enforcement.
They are asking a three-judge panel to reinstate the lawsuit on those grounds.
“The District of Columbia singled out Frederick Douglass Foundation and Students for Life of America for discriminatory treatment based on their pro-life message,” said attorney Erin Hawley. “The Metropolitan Police Department turned a blind eye towards certain favored speech while shutting down pro-life speech with which it disagreed. This is the essence of viewpoint discrimination and selective enforcement in violation of the First and Fifth Amendments.”
Added Kristan Hawkins, president of Students for Life of America: “It’s striking that one of the few ways for protestors to get the attention of D.C. officials is not by violence or vandalism, but by voicing love and concern for the preborn.”
• Sean Salai can be reached at ssalai@washingtontimes.com.
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