Local
Choi trial halted after challenge to judge’s ruling
Preliminary evidence shows ‘vindictive prosecution’
Former Army Lt. Dan Choi and 12 others were arrested last year after protesting ‘Don’t Ask, Don’t Tell’ at the White House. (Blade file photo by Michael Key)
A federal judge on Wednesday suspended the trial of gay former Army Lt. Dan Choi after the prosecutor said she would challenge his preliminary finding that sufficient evidence exists that Choi was targeted for “vindictive prosecution” in connection with a White House protest last November.
Choi and 12 other activists were arrested Nov. 15 for handcuffing themselves to the White House fence to protest the “Don’t Ask, Don’t Tell” law. Choi faces a possible sentence of six months in jail or a $5,000 fine if convicted on a misdemeanor charge of disobeying a lawful order to disperse from the fence.
In a tense exchange between U.S. District Court Magistrate Judge John Facciola, prosecutor Angela George announced she would file a request for a writ of mandamus or legal challenge before the court’s chief judge to contest Facciola’s decision to allow Choi’s attorneys to pursue a vindictive prosecution defense.
Facciola responded by saying he would suspend the trial for 10 days to give George, an assistant U.S. Attorney, time to prepare a motion for a writ of mandamus and to provide Chief Judge Royce Lamberth time to consider it.
William Miller, a spokesperson for the U.S. Attorney’s office, confirmed that George would seek the writ of mandamus from Lamberth. But he declined to comment further on the matter, saying his office never comments on pending cases.
If Lamberth grants the request, legal observers say Facciola would likely be directed not to allow Choi’s attorneys to pursue a vindictive prosecution defense. Should he turn down the request, Facciola would be free to allow the vindictive prosecution defense to move forward.
Such a defense would allow Choi’s attorneys to pursue documents and subpoena witnesses that Choi’s supporters say could possibly link the alleged effort to go after Choi for a harsher prosecution to higher-level government officials, including officials at the White House.
Defense attorney Robert Feldman called Facciola’s finding that the defense presented a “prima facie case” that a vindictive prosecution occurred a “vindication” of Choi’s longstanding contention that his arrest and prosecution violated his constitutional right to free speech.
The clash between George and Facciola came on the third day of the trial and one day after Choi testified for more than two hours as the lead witness for his own defense, saying he was exercising his First Amendment right to free speech at the White House protest.
In response to Feldman’s questions, Choi testified at length about his role as a civil rights activist for LGBT people and for gays in the military. He told how he models his actions on the black civil rights movement of the 1960s, including the famous lunch counter sit-ins at a Woolworth’s department store in Greensboro, N.C., that challenged segregation laws.
Choi testified that a series of three White House protests against the “Don’t Ask, Don’t Tell” law on gays in the military, in which he and other activists were arrested at the White House fence, were based on the same principle used in the black civil rights movement for exercising a constitutional right of free speech.
“I believe that was a transformative moment,” he said of the White House protests.
George objected repeatedly to Choi’s dialogue on civil rights, saying it was not relevant to the case at hand. To the amazement of some courtroom observers, Facciola overruled her objections almost every time she raised them.
In her cross-examination of Choi, George pressed the former Army officer, West Point graduate and combat veteran in the Iraq war to respond to the charge that he disobeyed a lawful order to disperse from the White House fence.
Choi responded by citing a provision in U.S. military law pertaining to unlawful orders.
“If you are given an order that is unlawful or immoral, it is your duty to disobey that order,” he said.
Feldman and defense co-counsel Norman Kent told reporters covering the trial that Choi’s defense is based, in part, on the premise that prosecutors singled him out for a harsher prosecution when they charged him with violating a federal regulation pertaining to White House protests and demonstrations along the White House fence and sidewalk.
The federal regulation carries a penalty of six months in jail and a possible $5,000 fine. The two attorneys said people arrested in virtually all other White House demonstrations in recent memory – including Choi and other activists in similar protests in April and May of 2010 – were charged under a D.C. municipal ordinance they compare to a traffic violation that carries no prison sentence.
In his testimony on Tuesday, Choi said he believes prosecutors decided to invoke the far more harsh federal regulation against him in the Nov. 15, 2010 case, which he now faces at trial, because of his role as a gay former military officer who is “standing up for my beliefs.”
Choi stated in his testimony that thousands of people appeared to have violated the same regulation with which he was charged when they gathered at the White House earlier this year to celebrate President Barack Obama’s announcement that accused terrorist Osama bin Laden had been killed in a U.S. military operation in Pakistan.
Choi and his attorneys noted that dozens of the revelers that evening clung to the White House fence and did not move back and forth along the sidewalk, as required under the ordinance for a demonstration, when they cheered and expressed support for the president’s role in bin Laden’s capture and death.
By not attempting to disperse or arrest the throngs that congregated at the fence on that occasion while they arrested Choi and other protesters for challenging Obama on his handling of the “Don’t Ask, Don’t Tell” law shows that Choi was singled out for “vindictive” prosecution, Choi’s attorneys argue.
Choi and his attorneys also argue that the ordinance that Park Police used to arrest Choi violates the 1969 U.S. Supreme Court decision Shuttlesworth v. Birmingham. The decision overturned a Birmingham, Ala., law used by police there to arrest a civil rights protester in 1963 for demonstrating without a permit on grounds that the law was used to stifle his constitutional right to peacefully parade in a civil rights protest.
In anticipation of Choi’s vindictive prosecution defense, the government filed a motion last Sunday, one day before the trial opened, arguing that rules established by previous court decisions require a vindictive or “selective” prosecution defense to be introduced prior to the start of a trial. The 14-page motion argues that such a defense cannot be introduced during a trial and that Choi’s defense team failed to introduce the defense before the trial started.
Facciola did not rule on the motion at the start of the trial, saying he would do so as the trial progressed to first determine whether Choi’s attorneys would move forward with that defense.
When questioned by George during the trial on Wednesday, Facciola said he chose to reject the government motion on grounds that prior decisions by appeals courts requiring a vindictive or selective defense to be introduced prior to trial applied only to jury trials.
Choi’s case moved forward as a non-jury trial similar to other misdemeanor cases involving alleged violation of regulations pertaining to protest demonstrations at the White House.
George’s announcement about the writ of mandamus came after Facciola appeared to side with arguments by the defense that the government singled out Choi for a harsher prosecution for his Nov. 15, 2010 White House protest.
They attracted national media attention when Choi and 12 other LGBT activists handcuffed themselves to the White House fence. About 75 supporters who assembled across the street in Lafayette Park cheered and chanted slogans for LGBT equality while Park Police removed the handcuffs with bolt cutters and placed Choi and the other protesters under arrest.
In May of this year, the 12 others who were arrested agreed to a government offer to plead guilty to the charge in exchange for the government dismissing the case against them in six months if the activists don’t get arrested during that period for any reason, including a similar civil disobedience protest.
Choi told reporters at a news conference outside the federal courthouse Monday, after the trial recessed for the day, that he rejected the government’s plea bargain offer because he believes the law and regulation used to arrest him is unconstitutional.
“I believe there is no law that, in the history of this country, abridges freedom of speech, assembly, or the right to protest for redress of grievances, which were clear and made plain by all of the defendants,” he said.
George called five Park Police officers and a U.S. Park Ranger as government witnesses on Monday. Under questioning from George, they testified that they had no intention of singling out the protesters for their political beliefs or because of their sexual orientation.
In his cross-examination of the officers, Feldman questioned the validity of their decision to charge Choi under the federal regulation rather than the less serious D.C. municipal statute.
Feldman released an e-mail sent to the defense on Friday by George that extended another offer for Choi to plead guilty to the charge in exchange for the dismissal of the case by the government if Choi refrained from getting arrested for the next four months.
Feldman said Choi responded by saying he would accept the offer only on condition that the government issue a public apology to Choi in court on Monday for the arrest and prosecution against him. Feldman said the government rejected the conditions, prompting Choi to turn down the offer.
A spokesperson for the U.S. Attorney’s office said the office would have no comment on the case while the trial is in progress.
Park Police Lt. Robert Lachance, who led a team of officers assigned to arrest the protesters, testified that an assistant solicitor general at the Department of Interior, which has jurisdiction over the Park Police, advised him that the act of chaining oneself to the White House fence violated a federal regulation against actions that pose a threat to public safety, obstruct traffic, and potentially prevent “emergency responders” from carrying out their work.
At the news conference, Feldman said he planned to argue at the trial that Choi’s action at the White House fence did not violate the regulation and statute cited by the Park Police and by prosecutor George.
“It’s uncontroverted that Lt. Choi is no threat to the public safety whatsoever,” said Feldman. “Neither does he obstruct traffic, which is the second part of the regulation.”
Feldman said he would also argue that the regulation used by authorities to arrest Choi applies only to the sidewalk next to the White House fence. He noted that Choi and the other protesters were standing on a masonry ledge that rises above the sidewalk and serves as an anchor for the White House fence.
“It’s very clear that my client was never on the sidewalk,” Feldman said. “He was on the masonry fence, which is above the sidewalk. And the warnings from Lt. Lachance said, ‘Get off the sidewalk.’ How can you get off the sidewalk if you were never on the sidewalk?”
He said he would also argue that Choi was unable to hear the warning that Lachance made to the protesters through a loudspeaker brought to the scene by Park Police. Lachance testified that he read a scripted message three times ordering the protesters to leave the fence and warning them they would be arrested if they did not comply with that order.
Feldman said Lachance’s warnings were drowned out by loud shouts and chants by Choi and the other 12 protesters handcuffed to the fence as well as by dozens of other protesters assembled in Lafayette Park.
The chants and shouts could be heard in a video recording of the protest that George played in the courtroom as part of a prosecution exhibit for the trial.
“There’s a cacophony of noise all around, and how can you possibly hear Lt. Lachance’s warnings to go away?” Feldman said at the news conference.
Gay activist and former military Capt. Jim Pietrangelo II testified on Tuesday as a defense witness, saying he observed first-hand what he believes were attempts by Park Police and government officials overseeing the police action an effort to single Choi out for a harsher charge based on Choi’s statutes as a gay former military officer and advocate for gays in the military.
District of Columbia
D.C. Council gives first approval to amended PrEP insurance bill
Removes weakening language after concerns raised by AIDS group
The D.C. Council voted unanimously on Feb. 3 to approve a bill on its first of two required votes that requires health insurance companies to cover the costs of HIV prevention or PrEP drugs for D.C. residents at risk for HIV infection.
The vote to approve the PrEP D.C. Amendment Act came immediately after the 13-member Council voted unanimously again to approve an amendment that removed language in the bill added last month by the Council’s Committee on Health that would require insurers to fully cover only one PrEP drug.
The amendment, introduced jointly by Council members Zachary Parker (D-Ward 5), who first introduced the bill in February 2025, and Christina Henderson (I-At-Large), who serves as chair of the Health Committee, requires insurers to cover all U.S. Food and Drug Administration approved PrEP drugs.
Under its rules, the D.C. Council must vote twice to approve all legislation, which must be signed by the D.C. mayor and undergo a 30-day review by Congress before it takes effect as a D.C. law.
Given its unanimous “first reading” vote of approval on Feb. 3, Parker told the Washington Blade he was certain the Council would approve the bill on its second and final vote expected in about two weeks.
Among those who raised concerns about the earlier version of the bill was Carl Schmid, executive director of the D.C.-based HIV+Hepatitis Policy Institute, who sent messages to all 13 Council members urging them to remove the language added by the Committee on Health requiring insurers to cover just one PrEP drug.
The change made by the committee, Schmid told Council members, “would actually reduce PrEP options for D.C. residents that are required by current federal law, limit patient choice, and place D.C. behind states that have enacted HIV prevention policies designed to remain in effect regardless of any federal changes.”
Schmid told the Washington Blade that although coverage requirements for insurers are currently provided through coverage standards recommended in the U.S. Affordable Care Act, known as Obamacare, AIDS advocacy organizations have called on D.C. and states to pass their own legislation requiring insurance coverage of PrEP in the event that the federal policies are weakened or removed by the Trump administration, which has already reduced or ended federal funding for HIV/AIDS-related programs.
“The sticking point was the language in the markup that insurers only had to cover one regimen of PrEP,” Parker told the Blade in a phone interview the night before the Council vote. “And advocates thought that moved the needle back in terms of coverage access, and I agree with them,” he said.
In anticipation that the Council would vote to approve the amendment and the underlying bill, Parker, the Council’s only gay member, added, “I think this is a win for our community. And this is a win in the fight against HIV/AIDS.”
During the Feb. 3 Council session, Henderson called on her fellow Council members to approve both the amendment she and Parker had introduced and the bill itself. But she did not say why her committee approved the changes that advocates say weakened the bill and that her and Parker’s amendment would undo. Schmid speculated that pressure from insurance companies may have played a role in the committee change requiring coverage of only one PrEP drug.
“My goal for advancing the ‘PrEP DC Amendment Act’ is to ensure that the District is building on the progress made in reducing new HIV infections every year,” Henderson said in a statement released after the Council vote. “On Friday, my office received concerns from advocates and community leaders about language regarding PrEP coverage,” she said.
“My team and I worked with Council member Parker, community leaders, including the HIV+Hepatitis Policy Institute and Whitman-Walker, and the Department of Insurance, Securities, and Banking, to craft a solution that clarifies our intent and provides greater access to these life-saving drugs for District residents by reducing consumer costs for any PrEP drug approved by the U.S. Food and Drug Administration,” her statement concludes.
In his own statement following the Council vote, Schmid thanked Henderson and Parker for initiating the amendment to improve the bill. “This will provide PrEP users with the opportunity to choose the best drug that meets their needs,” he said. “We look forward to the bill’s final reading and implementation.”
Maryland
4th Circuit dismisses lawsuit against Montgomery County schools’ pronoun policy
Substitute teacher Kimberly Polk challenged regulation in 2024
A federal appeals court has ruled Montgomery County Public Schools did not violate a substitute teacher’s constitutional rights when it required her to use students’ preferred pronouns in the classroom.
The 4th U.S. Circuit Court of Appeals in a 2-1 decision it released on Jan. 28 ruled against Kimberly Polk.
The policy states that “all students have the right to be referred to by their identified name and/or pronoun.”
“School staff members should address students by the name and pronoun corresponding to the gender identity that is consistently asserted at school,” it reads. “Students are not required to change their permanent student records as described in the next section (e.g., obtain a court-ordered name and/or new birth certificate) as a prerequisite to being addressed by the name and pronoun that corresponds to their identified name. To the extent possible, and consistent with these guidelines, school personnel will make efforts to maintain the confidentiality of the student’s transgender status.”
The Washington Post reported Polk, who became a substitute teacher in Montgomery County in 2021, in November 2022 requested a “religious accommodation, claiming that the policy went against her ‘sincerely held religious beliefs,’ which are ‘based on her understanding of her Christian religion and the Holy Bible.’”
U.S. District Judge Deborah Boardman in January 2025 dismissed Polk’s lawsuit that she filed in federal court in Beltsville. Polk appealed the decision to the 4th Circuit.
District of Columbia
Norton hailed as champion of LGBTQ rights
D.C. congressional delegate to retire after 36 years in U.S. House
LGBTQ rights advocates reflected on D.C. Congressional Del. Eleanor Holmes Norton’s longstanding advocacy and support for LGBTQ rights in Congress following her decision last month not to run for re-election this year.
Upon completing her current term in office in January 2027, Norton, a Democrat, will have served 18 two-year terms and 36 years in her role as the city’s non-voting delegate to the U.S. House.
LGBTQ advocates have joined city officials and community leaders in describing Norton as a highly effective advocate for D.C. under the city’s limited representation in Congress where she could not vote on the House floor but stood out in her work on House committees and moving, powerful speeches on the House floor.
“During her more than three decades in Congress, Eleanor Holmes Norton has been a champion for the District of Columbia and the LGBTQ+ community,” said David Stacy, vice president of government affairs for the Human Rights Campaign, the D.C.-based national LGBTQ advocacy organization.
“When Congress blocked implementation of D.C.’s domestic partnership registry, Norton led the fight to allow it to go into effect,” Stacey said. “When President Bush tried to ban marriage equality in every state and the District, Norton again stood up in opposition. And when Congress blocked HIV prevention efforts, Norton worked to end that interference in local control,” he said.
In reflecting the sentiment of many local and national LGBTQ advocates familiar with Norton’s work, Stacy added, “We have been lucky to have such an incredible champion. As her time in Congress comes to an end, we honor her extraordinary impact in the nation’s capital and beyond by standing together in pride and gratitude.”
Norton has been among the lead co-sponsors and outspoken supporters of LGBTQ rights legislation introduced in Congress since first taking office, including the currently pending Equality Act, which would ban employment discrimination based on sexual orientation and gender identity.
Activists familiar with Norton’s work also point out that she has played a lead role in opposing and helping to defeat anti-LGBTQ legislation. In 2018, Norton helped lead an effort to defeat a bill called the First Amendment Defense Act introduced by U.S. Sen. Mike Lee (R-Utah), which Norton said included language that could “gut” D.C.’s Human Rights Act’s provisions banning LGBTQ discrimination.
Norton pointed to a provision in the bill not immediately noticed by LGBTQ rights organizations that would define D.C.’s local government as a federal government entity and allow potential discrimination against LGBTQ people based on a “sincerely held religious belief.”
“This bill is the latest outrageous Republican attack on the District, focusing particularly on our LGBT community and the District’s right to self-government,” Norton said shortly after the bill was introduced. “We will not allow Republicans to discriminate against the LGBT community under the guise of religious liberty,” she said. Records show supporters have not secured the votes to pass it in several congressional sessions.
In 2011, Norton was credited with lining up sufficient opposition to plans by some Republican lawmakers to attempt to overturn D.C.’s same-sex marriage law, that the Council passed and the mayor signed in 2010.
In 2015, Norton also played a lead role opposing attempts by GOP members of Congress to overturn another D.C. law protecting LGBTQ students at religious schools, including the city’s Catholic University, from discrimination such as the denial of providing meeting space for an LGBTQ organization.
More recently, in 2024 Norton again led efforts to defeat an attempt by Republican House members to amend the D.C. budget bill that Congress must pass to eliminate funding for the Mayor’s Office of LGBTQ Affairs and to prohibit the city from using its funds to enforce the D.C. Human Rights Act in cases of discrimination against transgender people.
“The Republican amendment that would prohibit funds from being used to enforce anti-LGBTQ+ discrimination regulations and the amendment to defund the Mayor’s Office of LGBTQ+ Affairs are disgraceful attempts, in themselves, to discriminate against D.C.’s LGBTQ+ community while denying D.C. residents the limited governance over their local affairs to which they are entitled,” Norton told the Washington Blade.
In addition to pushing for LGBTQ supportive laws and opposing anti-LGBTQ measures Norton has spoken out against anti-LGBTQ hate crimes and called on the office of the U.S. Attorney for D.C. in 2020 to more aggressively prosecute anti-LGBTQ hate crimes.
“There is so much to be thankful for Eleanor Holmes Norton’s many years of service to all the citizens and residents of the District of Columbia,” said John Klenert, a member of the board of the LGBTQ Victory Fund. “Whether it was supporting its LGBTQ+ people for equal rights, HIV health issues, home rule protection, statehood for all 700,000 people, we could depend on her,” he said.
Ryan Bos, executive director of Capital Pride Alliance, the group that organizes D.C.’s annual LGBTQ Pride events, called Norton a “staunch” LGBTQ community ally and champion for LGBTQ supportive legislation in Congress.
“For decades, Congresswoman Norton has marched in the annual Capital Pride Parade, showing her pride and using her platform to bring voice and visibility in our fight to advance civil rights, end discrimination, and affirm the dignity of all LGBTQ+ people” Bos said. “We will be forever grateful for her ongoing advocacy and contributions to the LGBTQ+ movement.”
Howard Garrett, president of D.C.’s Capital Stonewall Democrats, called Norton a “consistent and principled advocate” for equality throughout her career. “She supported LGBTQ rights long before it was politically popular, advancing nondiscrimination protections and equal protection under the law,” he said.
“Eleanor was smart, tough, and did not suffer fools gladly,” said Rick Rosendall, former president of the D.C. Gay and Lesbian Activists Alliance. “But unlike many Democratic politicians a few decades ago who were not reliable on LGBTQ issues, she was always right there with us,” he said. “We didn’t have to explain our cause to her.”
Longtime D.C. gay Democratic activist Peter Rosenstein said he first met Norton when she served as chair of the New York City Human Rights Commission. “She got her start in the civil rights movement and has always been a brilliant advocate for equality,” Rosenstein said.
“She fought for women and for the LGBTQ community,” he said. “She always stood strong with us in all the battles the LGBTQ community had to fight in Congress. I have been honored to know her, thank her for her lifetime of service, and wish her only the best in a hard-earned retirement.”
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