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Frederick Douglass Foundation, Inc. v. District of Columbia
Citation: Not availableDocket: Civil Action No. 2020-3346
Court: District Court, District of Columbia; September 1, 2021; Federal District Court
Original Court Document: View Document
The United States District Court for the District of Columbia addresses a legal dispute involving the Frederick Douglass Foundation, Students for Life of America, and individual supporters challenging the District of Columbia's enforcement of its ordinance against defacing public property. The plaintiffs allege that their constitutional rights were violated when they were prohibited from painting “Black Pre-Born Lives Matter” on city streets during a rally. In March 2021, the court denied the plaintiffs' request for a preliminary injunction to allow painting at the rally. The plaintiffs submitted an Amended Complaint, which the defendant moved to dismiss. The court, applying the Rule 12(b)(6) standard, found that the plaintiffs failed to present a facially plausible claim on all counts and thus dismissed the case. The factual background highlights that during an August 2020 rally near the Planned Parenthood Carole Whitehill Moses Center, the plaintiffs intended to create a mural to protest abortion's impact on African-American children. They received a permit for the rally, including verbal approval for using washable tempera paint. However, upon arrival, they encountered significant police presence and were threatened with arrest for defacing property under the District's ordinance, which prohibits unauthorized marking on public and private property. Despite this, two individuals proceeded to chalk the message and were arrested. On March 27, 2021, Plaintiffs sought permission from the District to paint “Black Pre-Born Lives Matter” at a rally but were denied the opportunity to do so, although they were allowed to assemble with a bullhorn and music stand. After being denied this request twice, they filed an as-applied challenge under 42 U.S.C. § 1983, claiming the Defacement Ordinance was unconstitutionally enforced against them, alleging targeting based on their “religious and pro-life beliefs,” while similar expressions by racial-justice protesters were not penalized. The racial-justice protests in June 2020, following George Floyd's death, included the commissioning of a “Black Lives Matter” mural by D.C. Mayor Muriel Bowser and subsequent graffiti by protesters, which went unpunished despite police presence. The Plaintiffs assert that these protests occurred without prior permission and that their own requests were unjustly denied. Procedurally, the Plaintiffs initially filed this challenge in November 2020, seeking a preliminary injunction to allow mural painting during their March 2021 rally, which was denied by the Court on the grounds of insufficient likelihood of success on the merits. They subsequently filed an Amended Complaint in April 2021, which the District seeks to dismiss. This Complaint includes five claims related to the abridgment of their freedom of speech, equal protection, freedom of association, and rights under the Religious Freedom Restoration Act. The Court is obligated to evaluate these claims under a lower standard due to the motion to dismiss rather than the previous preliminary injunction standard. In evaluating the Defendant’s Motion to Dismiss, the Court will treat the factual allegations in the complaint as true and grant the plaintiffs all reasonable inferences from those facts. Legal conclusions presented as factual allegations, as well as unsupported inferences, are not accepted as true. Under Rule 12(b)(6), a complaint must state a claim upon which relief can be granted, requiring sufficient factual matter to render a claim plausible on its face. While detailed factual allegations are not necessary, the facts must raise a right to relief above a speculative level. A plaintiff can survive a motion to dismiss while failing to meet the higher standard required for a preliminary injunction. The Court previously denied a preliminary injunction to the Plaintiffs, having considered extrinsic evidence and applied the more stringent "substantial likelihood of success" standard, which is not applicable at the motion-to-dismiss stage. The Court will analyze the case under the motion-to-dismiss standard, acknowledging that this may seem redundant but is mandated by the Federal Rules of Civil Procedure. The analysis will focus primarily on the Fifth Amendment, although prior discussions included the First Amendment. The Court will address municipal liability and the remaining counts related to freedom of association, RFRA, and free exercise. Specifically, for Count One concerning freedom of speech under the First Amendment, the Plaintiffs' claim hinges on the enforcement of the Defacement Ordinance, which is determined to be facially content-neutral. The Court will allow for an as-applied challenge to this neutral law, assuming a claim of discriminatory enforcement based on content or viewpoint, which the Plaintiffs must substantiate. The District is accused of enforcing the Defacement Ordinance selectively against speech it opposes, rather than speech it supports. The Court previously expressed uncertainty about whether to analyze this claim under the First or Fifth Amendment but noted that this distinction does not prejudice the Plaintiffs since the legal analysis remains fundamentally similar. The D.C. Circuit has not definitively resolved the applicable legal framework for such claims, but it appears that selective enforcement claims might align more closely with the Fifth Amendment than with First Amendment viewpoint discrimination challenges. The Circuit has clarified that the focus in selective enforcement cases is not on the constitutionality of a law’s application to specific facts, but rather on whether the government can constitutionally apply the same law differently to similarly situated individuals. Plaintiffs argue that the District’s enforcement aimed to suppress their constitutional rights by censoring their message based on its content and viewpoint. Other Courts of Appeals exhibit differing approaches to categorizing claims of selective enforcement based on viewpoint, with some treating them as equal protection claims and others as distinct First Amendment challenges. Despite these classifications, courts generally require proof of intent when assessing facially neutral statutes to establish whether enforcement was indeed viewpoint discriminatory, as a mere disproportionate impact does not suffice to prove such discrimination. In McGuire, the Tenth Circuit articulated that government policies, although viewpoint-neutral, can result in disparate impacts if they are combined with the intent to discriminate against or favor a particular viewpoint. In Pahls v. Thomas, the court addressed viewpoint-discrimination claims related to the placement of protesters with differing messages. Municipal liability under 42 U.S.C. § 1983 often involves selective enforcement actions by police, requiring proof of discriminatory policies or practices. To establish municipal liability for the selective enforcement of a neutral regulation, a plaintiff must demonstrate a consistent pattern of enforcement reflecting intentional viewpoint or content discrimination. The court's prior opinion emphasized the necessity of showing a "pattern of unlawful favoritism," where one viewpoint was suppressed while another was allowed to express itself. This requires evidence of a governmental policy or custom aimed at intentional discrimination. The Supreme Court has clarified that a mere disproportionate impact on certain speakers does not suffice to classify a regulation as content or viewpoint discriminatory; rather, the purpose behind the regulation must be evaluated. Regulations that pursue objectives unrelated to expression content remain neutral, even if they inadvertently affect some messages differently. The shared viewpoint of petitioners regarding abortion does not inherently indicate a discriminatory motive. Plaintiffs contend that the analysis of viewpoint discrimination should not be conflated with selective enforcement, arguing that the Supreme Court does not necessitate a finding of intent for content or viewpoint discrimination, citing Reed v. Town of Gilbert and National Institute of Family and Life Advocates v. Becerra. However, the absence of an intent requirement in those cases was due to their distinct circumstances, not applicable to the current case. The excerpt addresses legal issues surrounding compelled and professional speech, with a focus on the application of strict scrutiny to content-based regulations. It references the Supreme Court's stance in Reed, indicating that intent is secondary to whether a law is facially content-based, which triggers strict scrutiny regardless of the government's motives. The analysis distinguishes between content-based and content-neutral laws, noting that for facially neutral laws, governmental motive may be relevant. The text transitions to a discussion of the Plaintiffs' claims under the Fifth Amendment, specifically allegations of equal protection violations and selective enforcement concerning the Defacement Ordinance. The Plaintiffs assert that they were unfairly targeted compared to similarly situated individuals or organizations, thus arguing for unequal treatment. The court recognizes that despite the varied terminology used by the Plaintiffs, their claims fundamentally hinge on selective enforcement. To establish a violation of the Equal Protection Clause due to selective enforcement, Plaintiffs must demonstrate that they were singled out from similarly situated individuals and that the enforcement was improperly motivated by arbitrary classifications. The court outlines that it will evaluate these criteria before considering municipal liability under the precedent set by Monell v. Department of Social Services. Additionally, the Plaintiffs provide examples of three individuals who faced no penalties for similar conduct, supporting their assertion of selective enforcement. The excerpt outlines specific events related to public murals and street art in Washington, D.C., occurring primarily in 2020. It notes three key instances: 1) the painting of the "Defund the Police" mural in June 2020; 2) graffiti on the U.S. Chamber of Commerce headquarters during the summer of 2020; and 3) street art along H Street on August 16, 2020. The "Black Lives Matter" mural on 16th Street, commissioned by the District, is excluded from consideration as it is classified as government speech. The Court addresses the concept of "similarly situated" parties in relation to selective enforcement claims, stating that such parties must lack distinguishable legitimate prosecutorial factors that justify differing decisions. The Court notes the complexity in defining who is similarly situated to the Plaintiffs but ultimately finds that the Plaintiffs have not sufficiently alleged improper motives or a municipal policy of selective enforcement. Specifically regarding the "Defund the Police" mural, the Amended Complaint claims that protesters added to the existing "Black Lives Matter" mural without a permit, while Metropolitan Police Department (MPD) officers, present during the event, neither punished the individuals painting nor enforced the Defacement Ordinance, allegedly due to the District's agreement with the message. The Court rejects the Defendant's classification of the mural as government speech, noting the differences in support from the District compared to other cases cited by the Defendant. The excerpt concludes by indicating that not all allegations in the complaint are entitled to an assumption of truth, as guided by legal precedent. Plaintiffs claim that the police did not enforce the Defacement Ordinance against mural creators because of the District's alignment with the mural's message, rather than due to safety concerns from large protests. The Court finds this assertion lacks factual support, categorizing it as a mere "bare assertion" of motive. The Court acknowledges factual allegations that no permits were sought, MPD officers were present, and no enforcement actions occurred. Unlike at the preliminary-injunction stage, the Court cannot consider external evidence about MPD's safety concerns. A complaint can survive dismissal if it presents plausible alternative explanations from both parties. Regarding protest art on the Chamber of Commerce, Plaintiffs allege that it was placed without permission and that no punishment ensued. The Defendant argues this did not violate the Ordinance as the artwork was on private property and the Chamber had consented to its display. The Court takes judicial notice of a Chamber statement about preserving the artwork but notes it does not address permission status at the time of the artwork's installation. Accepting Plaintiffs' well-pleaded facts, the Court finds sufficient basis to support their claim of potential violations of the Ordinance without factoring in broader protest contexts. Lastly, concerning graffiti around 17th and H Streets, Plaintiffs assert that no permission was sought and that no enforcement actions were taken despite MPD's presence. Defendants argue that plaintiffs fail to specify the graffiti's content or the identities of its creators, claiming the images in the Amended Complaint do not add relevant information. However, the graffiti messages, which include phrases related to the Black Lives Matter movement, are directly linked to the plaintiffs' allegations concerning violations of the Defacement Ordinance. The Court considers plaintiffs' claims credible, suggesting that members of the Metropolitan Police Department (MPD) did not enforce the Ordinance against them on August 16, 2020, despite their presence. Two key distinctions are noted between plaintiffs and racial-justice protesters. First, the city maintains that plaintiffs, who applied for a permit, differ from unnamed protesters who did not inform the District of their intent to deface property, emphasizing that MPD enforces known violations. However, plaintiffs assert that MPD was present and did not enforce the law despite witnessing violations. The Court finds the notification status less significant since MPD was present to address known violations. Second, the protests led by plaintiffs were smaller and shorter in duration compared to the large-scale demonstrations following George Floyd's death, which the Court recognizes as a widely known fact. Plaintiffs' protests were permitted for 25 to 49 participants, contrasting with the extensive protests seen in D.C. during that period. This difference in scale suggests that the plaintiffs and racial-justice protesters might not be similarly situated, reflecting distinguishable factors that could justify different enforcement actions. Additionally, for the plaintiffs' selective-enforcement claim to succeed, they must demonstrate that the District acted with an improper motive in enforcing the Ordinance against them, a requirement they have not met. Plaintiffs assert that Mayor Bowser supports Planned Parenthood and has enforced the Defacement Ordinance in a manner that discriminates against their religious and pro-life beliefs. They claim that this enforcement was motivated by a desire to suppress their constitutional rights and that the District acted with discriminatory intent, targeting them while not enforcing the ordinance against similarly situated individuals. However, most of their allegations are deemed conclusory and lack specific, non-conclusory facts to establish that Mayor Bowser was involved in the enforcement decisions or that the ordinance was selectively enforced to suppress their message. The court finds that the allegations fall short of establishing a plausible claim for discrimination. Additionally, even if a selective-enforcement claim could be plausibly alleged, the Plaintiffs have not sufficiently shown that the District is liable under 42 U.S.C. § 1983 for the actions of the Metropolitan Police Department (MPD). To establish municipal liability, Plaintiffs must demonstrate that their injuries were caused by an official municipal policy or custom. This includes actions by lawmakers, policymaking officials, or widespread practices. The court outlines a two-step inquiry to determine municipal liability: first, establishing a predicate constitutional violation, and second, proving that a municipal custom or policy caused that violation. The court has concluded that no predicate constitutional violation has been established in this case. Plaintiffs failed to provide sufficient factual support for their claim that a municipal custom or policy led to a violation of their rights, or that such a violation resulted from actions by a policymaker. They consistently assert that the District enforces the Defacement Ordinance selectively, targeting speech it opposes while favoring speech it supports. Despite outlining potential avenues for establishing such a policy, including discriminatory permit practices and selective enforcement, the Plaintiffs did not demonstrate that favored speakers applied for permits or that any discriminatory practices were in place. The Court noted that inferring a discriminatory policy from limited enforcement data is challenging, and the few instances cited by the Plaintiffs did not substantiate a broader policy of selective enforcement against disfavored messages. Moreover, allegations regarding Mayor Bowser's actions—such as commissioning a Black Lives Matter mural and supporting Planned Parenthood—do not establish her as a policymaker responsible for the alleged discriminatory enforcement of the Ordinance. The Court concluded that the incidents cited by the Plaintiffs do not collectively indicate a municipal policy of unconstitutional enforcement, and allowing the case to proceed based on these allegations would circumvent established legal standards regarding municipal liability. The Court cannot deduce a "persistent and widespread" practice of non-enforcement that constitutes official municipal policy from a limited number of related instances. Citing Connick and Sanders, it emphasizes that isolated incidents do not support municipal liability without evidence of a pervasive policy or custom. The arrest data presented, which indicates 22 arrests under the Defacement Ordinance between May 30, 2020, and December 31, 2020, does not substantiate allegations of selective enforcement against specific speech, as there are no facts detailing the motives or nature of these arrests. The District's request for judicial notice of arrest and incident reports related to the racial-justice protests does not meet the criteria to infer a pattern of selective enforcement. Consequently, the Court concludes that the Plaintiffs have not provided sufficient factual support to establish a Monell claim or to suggest intentional discrimination based on viewpoint, leading to the dismissal of their Fifth Amendment and freedom-of-speech claims. Regarding the freedom of association claim, the Court reiterates that Plaintiffs failed to demonstrate how the enforcement of the Ordinance interfered with their group association for expressing their views. The Amended Complaint does not address this deficiency, resulting in the dismissal of this claim as well. Plaintiffs assert their opposition to abortion and their desire to promote the message "Black Pre-Born Lives Matter," but this claim lacks the necessary factual support to proceed. The application of the Defacement Ordinance to the Plaintiffs is argued to chill and restrict their participation in activities aligned with their beliefs. However, the allegations lack specific details demonstrating how the Ordinance's enforcement has hindered their ability to associate and express their views. Although the Plaintiffs reference the freedom of expressive association, they fail to substantiate the claim that their inability to chalk messages has made group membership less appealing. Regarding the Religious Freedom Restoration Act (RFRA), it is stipulated that the government cannot substantially burden a person's religious exercise unless it serves a compelling governmental interest and is the least restrictive means to achieve that interest. The Plaintiffs carry the initial burden to demonstrate that the government's actions significantly impede their religious practices. The court previously found that the Plaintiffs did not claim their religious beliefs necessitate engaging in pro-life advocacy specifically through painting or chalking public streets. The Plaintiffs assert that their sincere religious beliefs affirm the value of life from conception and that the enforcement of the Defacement Ordinance burdens their religious exercise. However, this assertion is deemed a mere conclusion without supporting facts, as they do not demonstrate that chalking is essential for expressing their beliefs. Consequently, the Plaintiffs’ RFRA claim is not sufficiently grounded in fact, leading to its dismissal. The same reasoning applies to their Free Exercise claim, which also fails to advance. Not all restrictions on religiously motivated conduct constitute a First Amendment violation; only those imposing a substantial burden on a central tenet of a religion do. To succeed in a claim under the Free Exercise Clause or the Religious Freedom Restoration Act (RFRA), plaintiffs must demonstrate that their religious practice is significantly burdened. In this case, plaintiffs' assertion that the District's refusal to allow chalking substantially burdens their religious exercise lacks sufficient grounding, as they do not claim that such expressions are central to their faith. Their arguments about the District's enforcement of the Defacement Ordinance chilling religious exercise and being non-neutral do not hold, as they have failed to establish any substantial burden. The court finds no evidence of hostility or selective enforcement regarding the Ordinance, stating that the application was not motivated by discriminatory intent against religious practices. Consequently, the court concludes that the individual plaintiffs’ free-exercise claim is unsubstantiated and dismisses the claim, granting the Defendant's Motion to Dismiss.