Two Tier Justice System...

[seer]

Like we didn't know this...

DC 'selectively enforced' defacement laws against BLM, pro-life group, federal appeals court rules

A federal appeals court ruled Tuesday that the city of Washington, D.C., unevenly enforced its "defacement" ordinances against anti-abortion groups.

The court ruled that city authorities treated pro-life protestors more harshly than Black Lives Matter activists and reversed a lower court's dismissal of a complaint filed by the Frederick Douglass Foundation.

https://www.msn.com/en-us/news/us/dc...es/ar-AA1fjjBg

[oxmixmudd]

Like we didn't know this...

I think it more likely that DC didnt have the resources during such widesoread protests to enforce those laws over more important and more immefiate concerns. At woodstock, public indecency laws were not enforced, but likely were in that same area at other times. I would agree that they cant choose to enforce the laws based on whether they support or disagree with a message, but I dont think this is that.

To see if the enforcement in fact was selective, you'd need to pick a case more similar to the circumstance under which the abortion protestors were prosecuted.

[seer]

I think it more likely that DC didnt have the resources during such widesoread protests to enforce those laws over more important and more immefiate concerns. At woodstock, public indecency laws were not enforced, but likely were in that same area at other times. I would agree that they cant choose to enforce the laws based on whether they support or disagree with a message, but I dont think this is that.

To see if the enforcement in fact was selective, you'd need to pick a case more similar to the circumstance under which the abortion protestors were prosecuted.

Nonsense, the DC Court of Appeals SAID it was selective. They did not have to arrest the pro-lifers...Face it Jim the leftists in DC support BLM but not pro-lifers...

[CivilDiscourse]

I think it more likely that DC didnt have the resources during such widesoread protests to enforce those laws over more important and more immefiate concerns. At woodstock, public indecency laws were not enforced, but likely were in that same area at other times. I would agree that they cant choose to enforce the laws based on whether they support or disagree with a message, but I dont think this is that.

To see if the enforcement in fact was selective, you'd need to pick a case more similar to the circumstance under which the abortion protestors were prosecuted.

For the record, this is an appeals decision that isn't ruling that the viewpoint discrimination DID happen, it's assessing the appeal of the dismissal under the assumption that the facts stated are true. This is similar to how judges will look at a slander/libel lawsuit dismissal request to see if the plaintiffs case, as stated, meets the criteria for slander/libel.


The decision can be found here: https://www.foxnews.com/us/dc-select...ls-court-rules
I'll box all the quotes as I go (All bolding is mine):

WRT to the "at face value"

At the motion to dismiss stage, we “accept as true all of the allegations” in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We recount the facts as set forth by the Foundation, most of which are not contested by the District.

Basic facts:

George Floyd’s death at the hands of a Minneapolis police officer in May 2020 sparked a wave of protests across the country. The District played host to some of the largest and most sustained of these Black Lives Matter protests, which addressed the excessive use of police force and other issues of racial justice. Most of the protests occurred in May and early June but some scattered events continued until late summer. District leadership, including Mayor Muriel Bowser, supported the message of the protests and commissioned a painting of “Black Lives Matter” to cover a street for more than a city block.

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. The complaint offers a number of examples. The day after Mayor Bowser’s street mural was revealed, protestors added an equal sign and “Defund the Police,” so the message read “Black Lives Matter = Defund the Police.”

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. In fact, the District left the addition in place for months, eventually removing it in mid-August. Black Lives Matter protesters also covered construction scaffolding outside the Chamber of Commerce with graffiti, murals, and photographs. Again the protesters were neither stopped nor arrested for blatant violations of the defacement ordinance.3 Over weeks and months, many individuals painted streets, sidewalks, and storefronts with graffiti and chalk espousing variations on the “Black Lives Matter” message. Not a single permit was sought, and not one person was punished for violating the defacement ordinance. For months, the District allowed many of the Black Lives Matter markings, paintings, and drawings to remain on public property.

Also in the summer of 2020, two pro-life organizations planned a protest. The Frederick Douglass Foundation is a nonprofit education and policy group that advocates for free markets and limited government. Among other things, the Frederick Douglass Foundation “acts as a liaison between black, faith-based organizations” and elected officials, and seeks to protect “black babies still in the womb.” Students for Life of America, the nation’s largest pro-life youth organization, recruits and mobilizes students to help abolish abortion. These organizations planned a small rally—for less than 50 supporters—to proclaim “Black Pre-Born Lives Matter” and paint this message on the streets. In the lead up to the pro-life rally, the Foundation applied for and received a permit to assemble. In a conversation about the permit, a police officer gave the Foundation verbal permission to paint its “Black Pre-Born Lives Matter” message on the street. The officer explained that he believed Mayor Bowser had effectively opened up the District’s streets for political markings. The Foundation also sent a letter to Mayor Bowser asking to paint a mural and declaring it a constitutional right to do so. Mayor Bowser did not respond.

When the pro-life advocates arrived for their rally on August 1, six police cars and many police officers were waiting. The officers said the advocates could assemble in accordance with the Foundation’s permit, but if they painted or chalked their message on the sidewalk, they would be arrested for violating the defacement ordinance. Two students began to chalk “Black Pre-Born Lives Matter” on the sidewalk anyway. Despite the message being written in small, faint letters with washable chalk, the two students were arrested. The entire event was caught on video.

The analysis of the constitutional violation.

We begin with the constitutional violation. The Foundation alleges the District selectively enforced its defacement ordinance on the basis of viewpoint in violation of the First and Fifth Amendments. A selective enforcement claim has two elements: a plaintiff must demonstrate (1) he was similarly situated in material respects to other individuals against whom the law was not enforced, and (2) the selective enforcement infringed a constitutional right. In this Part, we set forth the similarly situated requirement and assess whether the Foundation’s allegations are plausible.

...

Individuals “are similarly situated when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.” Id. at 145 (cleaned up); see also Att’y Gen. v. Irish People, Inc., 684 F.2d 928, 946 (D.C. Cir. 1982) (“Discrimination cannot exist in a vacuum; it can be found only in the unequal treatment of people in similar circumstances.”). The “similarly situated requirement is necessary” to ensure courts are not “‘interfer[ing] with the course of criminal justice.’” United States v. Armstrong, 517 U.S. 456, 466–67 (1996) (quoting Ah Sin v. Wittman, 198 U.S. 500, 508 (1905)).

The similarly situated requirement strikes the proper balance between executive discretion and judicial enforcement of constitutional rights by isolating whether a decision turns on “unlawful favoritism,” rather than lawful prosecutorial considerations. See Thomas v. Chi. Park Dist., 534 U.S. 316, 325 (2002). In practice, courts must assess whether a plaintiff is similarly situated to a person against whom the law was not enforced across the relevant prosecutorial factors. Such factors may include “the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan.” Wayte, 470 U.S. at 607; see also Beverly Health & Rehab. Servs. v. Feinstein, 103 F.3d 151, 153 (D.C. Cir. 1996) (stating executive officials may balance “culpability, evidence, prosecutorial resources, and the public interest” in enforcement decisions).

Finally, the District’s differential response fails to correspond with the culpability of the two groups or the general deterrence value of enforcement against them. The Foundation’s members managed to write a single, small prolife message in washable chalk before being arrested for violating the defacement ordinance. By contrast, for weeks, individuals participating in the Black Lives Matter protests painted their messages on public streets and sidewalks, as well as private property. And yet allegedly no arrests were made for defacement that included the “Black Lives Matter” message. This lopsided prosecutorial response—several arrests for small, chalked pro-life messages and no arrests for widespread “Black Lives Matter” messages—does not comport with the deterrence value or culpability associated with the number of protesters and the scope of defacement, suggesting improper selective enforcement.

We find the Foundation has plausibly alleged its members were similarly situated to individuals expressing “Black Lives Matter” across a range of relevant prosecutorial factors, including the strength of the case, available evidence, culpability, and the resources required to obtain a conviction.

Reminder, this is looking at (and assuming true for the sake of the dismissal argument:

The District argues it is not plausible that individuals at the Foundation’s small rally were similarly situated to individuals at the Black Lives Matter protests. First, the District maintains the Black Lives Matter protests were much larger, involving tens of thousands of people flooding the streets of downtown Washington. In light of the intensity and scale of the protests, the District was concerned that making arrests for defacement would drain police resources and distract officers from other priorities, such as ensuring public safety and addressing widespread looting and property damage.

We do not doubt these are legitimate prosecutorial factors that will be part of the merits assessment of whether the Foundation has demonstrated its members were similarly situated. Nonetheless, at the motion to dismiss stage, the Foundation’s allegations allow us to reasonably infer that its protesters were similarly situated to at least some of the Black Lives Matter protesters.

However

The comparison is not only between the Foundation’s single, small rally and the large Black Lives Matter protests that occurred over weeks. Rather, we consider whether the plaintiffs were similarly situated to any individuals against whom the defacement ordinance was not enforced. The complaint alleges that individuals violated the defacement ordinance during Black Lives Matter protests that varied in size and intensity. Even assuming the District is correct—and defacement by individuals at the largest Black Lives Matter protests presented distinct enforcement challenges—the complaint includes allegations of non-enforcement at smaller and more discrete Black Lives Matter events that are not so easily distinguished. For example, on August 16, a smaller Black Lives Matter event, “Reclaim DC,” called for individuals to once again “create art in all forms” on H Street. There was no enforcement of the defacement ordinance even at these smaller events. Given the scope of the Black Lives Matter protests, the extent of graffiti around the city, and the lack of enforcement by District police, we can readily infer that the Foundation’s members were at times similarly situated to Black Lives Matter proponents.

[rogue06]

Didn't they actually go after some of the folks who tried to clean up some of the BLM graffiti? Or who "defaced" it.

[seer]

Didn't they actually go after some of the folks who tried to clean up some of the BLM graffiti? Or who "defaced" it.

Probably.

[oxmixmudd]

For the record, this is an appeals decision that isn't ruling that the viewpoint discrimination DID happen, it's assessing the appeal of the dismissal under the assumption that the facts stated are true. This is similar to how judges will look at a slander/libel lawsuit dismissal request to see if the plaintiffs case, as stated, meets the criteria for slander/libel.


The decision can be found here: https://www.foxnews.com/us/dc-select...ls-court-rules
I'll box all the quotes as I go (All bolding is mine):

WRT to the "at face value"

At the motion to dismiss stage, we “accept as true all of the allegations” in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We recount the facts as set forth by the Foundation, most of which are not contested by the District.

Basic facts:

George Floyd’s death at the hands of a Minneapolis police officer in May 2020 sparked a wave of protests across the country. The District played host to some of the largest and most sustained of these Black Lives Matter protests, which addressed the excessive use of police force and other issues of racial justice. Most of the protests occurred in May and early June but some scattered events continued until late summer. District leadership, including Mayor Muriel Bowser, supported the message of the protests and commissioned a painting of “Black Lives Matter” to cover a street for more than a city block.

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. The complaint offers a number of examples. The day after Mayor Bowser’s street mural was revealed, protestors added an equal sign and “Defund the Police,” so the message read “Black Lives Matter = Defund the Police.”

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. In fact, the District left the addition in place for months, eventually removing it in mid-August. Black Lives Matter protesters also covered construction scaffolding outside the Chamber of Commerce with graffiti, murals, and photographs. Again the protesters were neither stopped nor arrested for blatant violations of the defacement ordinance.3 Over weeks and months, many individuals painted streets, sidewalks, and storefronts with graffiti and chalk espousing variations on the “Black Lives Matter” message. Not a single permit was sought, and not one person was punished for violating the defacement ordinance. For months, the District allowed many of the Black Lives Matter markings, paintings, and drawings to remain on public property.

Also in the summer of 2020, two pro-life organizations planned a protest. The Frederick Douglass Foundation is a nonprofit education and policy group that advocates for free markets and limited government. Among other things, the Frederick Douglass Foundation “acts as a liaison between black, faith-based organizations” and elected officials, and seeks to protect “black babies still in the womb.” Students for Life of America, the nation’s largest pro-life youth organization, recruits and mobilizes students to help abolish abortion. These organizations planned a small rally—for less than 50 supporters—to proclaim “Black Pre-Born Lives Matter” and paint this message on the streets. In the lead up to the pro-life rally, the Foundation applied for and received a permit to assemble. In a conversation about the permit, a police officer gave the Foundation verbal permission to paint its “Black Pre-Born Lives Matter” message on the street. The officer explained that he believed Mayor Bowser had effectively opened up the District’s streets for political markings. The Foundation also sent a letter to Mayor Bowser asking to paint a mural and declaring it a constitutional right to do so. Mayor Bowser did not respond.

When the pro-life advocates arrived for their rally on August 1, six police cars and many police officers were waiting. The officers said the advocates could assemble in accordance with the Foundation’s permit, but if they painted or chalked their message on the sidewalk, they would be arrested for violating the defacement ordinance. Two students began to chalk “Black Pre-Born Lives Matter” on the sidewalk anyway. Despite the message being written in small, faint letters with washable chalk, the two students were arrested. The entire event was caught on video.

The analysis of the constitutional violation.

We begin with the constitutional violation. The Foundation alleges the District selectively enforced its defacement ordinance on the basis of viewpoint in violation of the First and Fifth Amendments. A selective enforcement claim has two elements: a plaintiff must demonstrate (1) he was similarly situated in material respects to other individuals against whom the law was not enforced, and (2) the selective enforcement infringed a constitutional right. In this Part, we set forth the similarly situated requirement and assess whether the Foundation’s allegations are plausible.

...

Individuals “are similarly situated when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.” Id. at 145 (cleaned up); see also Att’y Gen. v. Irish People, Inc., 684 F.2d 928, 946 (D.C. Cir. 1982) (“Discrimination cannot exist in a vacuum; it can be found only in the unequal treatment of people in similar circumstances.”). The “similarly situated requirement is necessary” to ensure courts are not “‘interfer[ing] with the course of criminal justice.’” United States v. Armstrong, 517 U.S. 456, 466–67 (1996) (quoting Ah Sin v. Wittman, 198 U.S. 500, 508 (1905)).

The similarly situated requirement strikes the proper balance between executive discretion and judicial enforcement of constitutional rights by isolating whether a decision turns on “unlawful favoritism,” rather than lawful prosecutorial considerations. See Thomas v. Chi. Park Dist., 534 U.S. 316, 325 (2002). In practice, courts must assess whether a plaintiff is similarly situated to a person against whom the law was not enforced across the relevant prosecutorial factors. Such factors may include “the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan.” Wayte, 470 U.S. at 607; see also Beverly Health & Rehab. Servs. v. Feinstein, 103 F.3d 151, 153 (D.C. Cir. 1996) (stating executive officials may balance “culpability, evidence, prosecutorial resources, and the public interest” in enforcement decisions).

Finally, the District’s differential response fails to correspond with the culpability of the two groups or the general deterrence value of enforcement against them. The Foundation’s members managed to write a single, small prolife message in washable chalk before being arrested for violating the defacement ordinance. By contrast, for weeks, individuals participating in the Black Lives Matter protests painted their messages on public streets and sidewalks, as well as private property. And yet allegedly no arrests were made for defacement that included the “Black Lives Matter” message. This lopsided prosecutorial response—several arrests for small, chalked pro-life messages and no arrests for widespread “Black Lives Matter” messages—does not comport with the deterrence value or culpability associated with the number of protesters and the scope of defacement, suggesting improper selective enforcement.

We find the Foundation has plausibly alleged its members were similarly situated to individuals expressing “Black Lives Matter” across a range of relevant prosecutorial factors, including the strength of the case, available evidence, culpability, and the resources required to obtain a conviction.

Reminder, this is looking at (and assuming true for the sake of the dismissal argument:

The District argues it is not plausible that individuals at the Foundation’s small rally were similarly situated to individuals at the Black Lives Matter protests. First, the District maintains the Black Lives Matter protests were much larger, involving tens of thousands of people flooding the streets of downtown Washington. In light of the intensity and scale of the protests, the District was concerned that making arrests for defacement would drain police resources and distract officers from other priorities, such as ensuring public safety and addressing widespread looting and property damage.

We do not doubt these are legitimate prosecutorial factors that will be part of the merits assessment of whether the Foundation has demonstrated its members were similarly situated. Nonetheless, at the motion to dismiss stage, the Foundation’s allegations allow us to reasonably infer that its protesters were similarly situated to at least some of the Black Lives Matter protesters.

However

The comparison is not only between the Foundation’s single, small rally and the large Black Lives Matter protests that occurred over weeks. Rather, we consider whether the plaintiffs were similarly situated to any individuals against whom the defacement ordinance was not enforced. The complaint alleges that individuals violated the defacement ordinance during Black Lives Matter protests that varied in size and intensity. Even assuming the District is correct—and defacement by individuals at the largest Black Lives Matter protests presented distinct enforcement challenges—the complaint includes allegations of non-enforcement at smaller and more discrete Black Lives Matter events that are not so easily distinguished. For example, on August 16, a smaller Black Lives Matter event, “Reclaim DC,” called for individuals to once again “create art in all forms” on H Street. There was no enforcement of the defacement ordinance even at these smaller events. Given the scope of the Black Lives Matter protests, the extent of graffiti around the city, and the lack of enforcement by District police, we can readily infer that the Foundation’s members were at times similarly situated to Black Lives Matter proponents.

Thanks, that is good information and does make the point fairly strongly that there was a double standard apllied.

[CivilDiscourse]

Thanks, that is good information and does make the point fairly strongly that there was a double standard apllied.

It seems this case is much stronger than the standard rhetorical I've seen like.

Person A and Person B was similar. The only difference is Race, and A was sentenced much worse than B.

When in Fact, Person A and Person B were from entirely different states, person A and person B have different criminal records, State A and State B have different laws, different legal definitions, different punishments for the same crimes, etc.

[rogue06]

It seems this case is much stronger than the standard rhetorical I've seen like.

Person A and Person B was similar. The only difference is Race, and A was sentenced much worse than B.

When in Fact, Person A and Person B were from entirely different states, person A and person B have different criminal records, State A and State B have different laws, different legal definitions, different punishments for the same crimes, etc.

It reminds me of how a few decades ago one of the local channels had an exclusive about "redlining" and used several examples where whites with the same job and income were getting better deals on loans.

One of their competitors took great pleasure eviscerating the story noting how they had absolutely ignored things like credit ratings including histories of repos and bankruptcies.