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Marriage dominoes falling after Supreme Court’s surprise move

Action impacts six other states in the Fourth and Tenth circuits

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Supreme Court, same-sex marriage, gay marriage, marriage equality, gay news, Washington Blade
Jeff Zarillo, Paul Katami, Sandy Stier, Kris Perry, David Boies, Chad Griffin, gay marriage, same-sex marriage, marriage equality, Proposition 8, Defense of Marriage Act, DOMA, Prop 8, California, Supreme Court, gay news, Washington Blade

The Supreme Court action on marriage is affecting multiple states beyond the initial five that won marriage equality. (Washington Blade file photo by Michael Key)

The U.S. Supreme Court added five states to the marriage equality column this week by declining cases challenging their bans on gay nuptials, but at least a half-dozen more are on track to join them as a result of the decision from justices.

On Monday, the court denied seven petitions for certiorari seeking to overturn appellate courts ruling in favor of same-sex marriage in Utah, Oklahoma, Virginia, Wisconsin and Indiana.

That effectively legalized same-sex marriages in those jurisdictions, bringing the total of states with marriage equality to 24 in addition to D.C. and making it so 60 percent of the country lives in an area where same-sex couples have access to marriage rights.

Republican governors and state officials who were defending their state bans on same-sex marriage in court expressed discontent with the action from the court, but acquiesced to marriage equality in their states.

Wisconsin Gov. Scott Walker, who’s seeking re-election, conceded that the fight against same-sex marriage is “over” in his state. In a news conference on Monday, Utah Gov. Gary Herbert said he was disappointed but asserted marriage equality is now the “law of the land” in Utah.

Oklahoma Gov. Mary Fallin, who represents probably the most conservative state among the five, also said Oklahoma would accept the decision, but was caustic in her response.

“Today’s decision has been cast by the media as a victory for gay rights,” Fallin said. “What has been ignored, however, is the right of Oklahomans – and Americans in every state – to write their own laws and govern themselves as they see fit. Those rights have once again been trampled by an arrogant, out-of-control federal government that wants to substitute Oklahoma values with Washington, D.C. values.”

But other states with bans on same-sex marriage in the Tenth Circuit, which is where Utah and Oklahoma are located, and the Fourth Circuit, which is where Virginia is located, are impacted by the court action because the federal court rulings that were left alone now have established precedent in favor of marriage equality within those jurisdictions.

Those states in the Tenth Circuit are Colorado, Kansas and Wyoming and in the Fourth Circuit are West Virginia, North Carolina and South Carolina. Bringing these states into the marriage equality column would raise the number of states where it is legal to 30.

Among those six states, Colorado has come the furthest to embrace the Supreme Court’s decision and has now become a marriage equality state. In a statement on Tuesday, Attorney General John Suthers, a Republican who had previously fought marriage equality in his state, instructed clerks throughout Colorado to give licenses to same-sex couples.

“There are no remaining legal requirements that prevent same-sex couples from legally marrying in Colorado,” Suthers said. “Beginning today, Colorado’s 64 county clerks are legally required to issue licenses to same-sex couples who request them. In addition, the Colorado Department of Public Health and Environment is required to register such marriages in the records of the State of Colorado.”

On the same day, the U.S. Tenth Circuit Court of Appeals dissolved the stay on a ruling against the same-sex marriage ban by a federal district court in the case of Burns v. Hickenlooper. And the Colorado Supreme Court dismissed the appeals and lifted its stay on a similar ruling from a state court against the Colorado marriage ban in the case of Brinkman v. Long.

The other two states in the Tenth Circuit — Kansas and Wyoming — won’t be so easy, where Govs. Sam Brownback and Matt Mead issued statements in support of their states’ prohibition on same-sex marriage.

According to the Topeka Capital Journal, Dan Barnes and Wade Honey attempted to apply for a marriage license in Shawnee County, Kansas, after they learned of the Supreme Court’s action, but were denied by a local official.

“You can’t do that in the state of Kansas,” Nancy Escalante, supervisor for marriage licenses at the court was quoted as saying. “Our application says ‘man and woman.’ The legislature has not changed it.”

Thomas Witt, executive director of Equality Kansas, said in an e-mail blast to supporters that different counties are taking a number of approaches to same-sex couples seeking a marriage license in the state.

“Right now, we know that some counties are taking completed applications (Cowley, Wyandotte), some are taking the applications and immediately denying them (Reno), and some are refusing to accept applications at all (Sedgwick),” Witt said. “This could all change before I hit “send” on this email, but that’s where we are now. There are a lot of moving pieces, and there’s still quite a bit of confusion over what to do next.”

Doug Bonney, legal director for the American Civil Liberties Union of Kansas, said his organization intends to file to litigation to remove all doubt over whether same-sex couples can wed in the state.

“The responsible folks haven’t done the responsible things, and so we have to assist them with a little lawsuit,” Bonney said.

Bonney said it’s uncertain whether the litigation could be filed, saying he planned on doing so during the week of Oct. 20, but possibly as soon as this week.

UPDATE:Chief District Judge Kevin Moriarty of Johnson County, the largest county in Kansas, announced late Wednesday same-sex couples would be able to wed in his jurisdiction.

Another denial happened in Wyoming, where a lesbian couple, Brie Barth and Shelly Montgomery, were unable to obtain a marriage license Tuesday in Laramie County.

On Tuesday, the National Center for Lesbian Rights announced it had filed federal litigation on behalf of four same-sex couples and Wyoming Equality called on the state to comply with the decision making marriage equality the law of the land in the Tenth Circuit.

“With the Tenth Circuit’s decision now final and binding, there is no longer any legal basis for the State of Wyoming to continue to enforce its marriage ban, which serves only to harm and stigmatize one group of Wyoming families,” said Shannon Minter, legal director of the National Center for Lesbian Rights. All families deserve equal respect and protection, including same-sex couples and their children.”

In the Fourth Circuit, the lingering hold on bans on same-sex marriage is more the result of the courts considering litigation seeking marriage equality as opposed to state officials.

U.S. District Judge William Osteen, who’s considering marriage litigation in North Carolina, wrote in an order Monday that plaintiff same-sex couples “appear” to be entitled to a decision in their favor in light of the Supreme Court’s actions.

Still, he called for “a status report” from parties involved in the case on the appropriate resolution due within 10 days. UPDATE: On Wednesday, Osteen announced he’s lifting the stay on the lawsuit, which could mean a decision as early as Thursday.

Chris Sgro, executive director of Equality North Carolina, said the LGBT community in his state is “excited” about the possibility of an imminent resolution to that litigation.

“We are hopeful that the defendants in that case will express that they don’t need any briefing time, so that we more expeditiously move toward marriage,” Sgro said. “Either way, I think that we’re still hopeful that this is something that is a matter of days or weeks, and not continued months.”

In West Virginia, Lambda Legal, which had filed marriage litigation in that state, issued a request calling on a federal court to lift its hold on the case and issue a decision in favor of same-sex couples. Following that request, U.S. District Judge Roberts Chambers lifted his stay, but allowed the state to file a response on resolution to the case by Oct. 21.

Andrew Schneider, executive director of Fairness West Virginia, said he’s waiting on the court to make a final resolution on marriage in his state in the immediate future.

“Soon marriage equality will be the law of the land across the states within the 4th Circuit including West Virginia,” Schneider said. “At Fairness West Virginia, we look to Federal Judge Robert C. Chambers to make a swift ruling in support of marriage equality in the Mountain State.”

The situation in dicier in South Carolina, where Gov. Nikki Haley has pledged to continue enforcing the state’s ban on same-sex marriage until litigation challenging the law is resolved.

“Our voter-approved state law should be followed until a court rules on it directly,” Doug Mayer, a Haley spokesperson, was quoted as saying in The State newspaper.

But on Wednesday, same-sex couples were apparently able to start the process of getting married in the state. According to the Associated Press, Charleston County Probate Judge Irvin Condon issued a license to a lesbian couple: Charleston County Council member Colleen Condon and Nichols Bleckley.

Irvin Condon said in a statement Wednesday as a result of the Supreme Court’s refusal to hear the Virginia marriage case, Charleston County is required to accept and issue marriage licenses for same-sex couples.

“As a result of the action of the United States Supreme Court on Oct. 6, 2014, the Charleston County Probate Court is required to accept and issue marriage licenses for same-sex couples,” Irvin Condon writes. “Applications will be accepted beginning today, October 8, 2014, and the Charleston County Probate Court will issue the marriage license after the mandatory 24-hour waiting period unless stayed by the South Carolina Supreme Court or another appropriate court.”

UPDATE: South Carolina Attorney General Alan Wilson announced late Wednesday he’s asked the state Supreme Court to stop Condon from issuing marriage licenses to same-sex couples.

Meanwhile, marriage equality is advancing in other states in an expedited fashion following the Supreme Court action. On Monday, Missouri Attorney General Chris Koster announced his state won’t appeal a district judge’s ruling requiring the state to recognize same-sex marriages performed out-of-state. The U.S. Fifth Circuit Court of Appeals has also said it would expedite a legal challenge to the marriage ban in Texas.

Florida Attorney General Pam Bondi, who’s been defending the state’s ban on same-sex marriage in court, was quoted in a Florida newspaper as saying through a spokesperson she’s “reviewing the impact of these decisions, as well as other cases around the country.”

That doesn’t even get into the ramifications of the U.S. Ninth Circuit Court of Appeals decision on Tuesday to strike down marriage bans in Nevada and Idaho, which should mean prohibitions on same-sex marriage in Alaska, Arizona, Montana and U.S. territories are unconstitutional. However, U.S. Associate Justice Anthony Kennedy placed a stay on that ruling the day after as pertains to Idaho; and the Ninth Circuit later withdrew its mandate with regard to that state and was reconsidering its mandate with regard to Nevada.

Finally, the Supreme Court’s action will likely have a bearing on an upcoming decision from the U.S. Sixth Circuit Court of Appeals, which is expected to rule soon on marriage bans in Michigan, Ohio, Kentucky and Tennessee. Prior to the actions by the court, the Sixth Circuit was seen as most likely among the appeals court that have fully heard marriage cases to uphold prohibitions on same-sex marriage.

Suzanne Goldberg, co-director of Columbia University’s Center for Gender & Sexuality, said she expects the Supreme Court’s actions to inform the Sixth Circuit.

“The Sixth Circuit judges are certainly well aware of the Supreme Court’s cert denial and its consequences – including the significant expansion of ‘freedom to marry’ states,” Goldberg said. “Likewise the court is surely aware that a contrary ruling will appear even more out of step with the national trend out after the cert denial than before. This doesn’t tell us what the court will do, but it does tell us a lot about the atmosphere into which the court’s ruling will be received.”

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Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead

No political willpower to force vote or reach a compromise

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Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.

Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.

In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.

If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.

“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”

The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.

Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”

“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process.  We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”

Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.

“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”

A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.

Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”

Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.

The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.

Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.

“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”

Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.

For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.

Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”

“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”

But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.

No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.

Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.

“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”

Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.

Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.

Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.

To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.

A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.

“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”

But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.

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D.C. bill to ban LGBTQ panic defense delayed by Capitol security

Delivery of bill to Congress was held up due to protocols related to Jan. 6 riots

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New fencing around the Capitol following the Jan. 6 insurrection prevented some D.C. bills from being delivered to the Hill for a required congressional review. (Blade file photo by Michael K. Lavers)

A bill approved unanimously last December by the D.C. Council to ban the so-called LGBTQ panic defense has been delayed from taking effect as a city law because the fence installed around the U.S. Capitol following the Jan. 6 insurrection prevented the law from being delivered to Congress.

According to Eric Salmi, communications director for D.C. Council member Charles Allen (D-Ward 6), who guided the bill through the Council’s legislative process, all bills approved by the Council and signed by the D.C. mayor must be hand-delivered to Congress for a required congressional review.

“What happened was when the Capitol fence went up after the January insurrection, it created an issue where we physically could not deliver laws to Congress per the congressional review period,” Salmi told the Washington Blade.

Among the bills that could not immediately be delivered to Congress was the Bella Evangelista and Tony Hunter Panic Defense Prohibition and Hate Crimes Response Amendment Act of 2020, which was approved by the Council on a second and final vote on Dec. 15.

Between the time the bill was signed by Mayor Muriel Bowser and published in the D.C. Register under procedural requirements for all bills, it was not ready to be transmitted to Congress until Feb. 16, the Council’s legislative record for the bill shows.

Salmi said the impasse in delivering the bill to Congress due to the security fence prevented the bill from reaching Congress on that date and prevented the mandatory 60-day congressional review period for this bill from beginning at that time. He noted that most bills require a 30 legislative day review by Congress.

But the Evangelista-Hunter bill, named after a transgender woman and a gay man who died in violent attacks by perpetrators who attempted to use the trans and gay panic defense, includes a law enforcement related provision that under the city’s Home Rule Charter passed by Congress in the early 1970s requires a 60-day congressional review.

“There is a chance it goes into effect any day now, just given the timeline is close to being up,” Salmi said on Tuesday. “I don’t know the exact date it was delivered, but I do know the countdown is on,” said Salmi, who added, “I would expect any day now it should go into effect and there’s nothing stopping it other than an insurrection in January.”

If the delivery to Congress had not been delayed, the D.C. Council’s legislative office estimated the congressional review would have been completed by May 12.

A congressional source who spoke on condition of being identified only as a senior Democratic aide, said the holdup of D.C. bills because of the Capitol fence has been corrected.

“The House found an immediate workaround, when this issue first arose after the Jan. 6 insurrection,” the aide said.

“This is yet another reason why D.C. Council bills should not be subject to a congressional review period and why we need to grant D.C. statehood,” the aide said.

The aide added that while no disapproval resolution had been introduced in Congress to overturn the D.C. Evangelista-Hunter bill, House Democrats would have defeated such a resolution.

“House Democrats support D.C. home rule, statehood, and LGBTQ rights,” said the aide.

LGBTQ rights advocates have argued that a ban on using a gay or transgender panic defense in criminal trials is needed to prevent defense attorneys from inappropriately asking juries to find that a victim’s sexual orientation or gender identity or expression is to blame for a defendant’s criminal act, including murder.

Some attorneys have argued that their clients “panicked” after discovering the person against whom they committed a violent crime was gay or transgender, prompting them to act in a way they believed to be a form of self-defense.

In addition to its provision banning the LGBTQ panic defense, the Evangelista-Hunter bill includes a separate provision that strengthens the city’s existing hate crimes law by clarifying that hatred need not be the sole motivating factor for an underlying crime such as assault, murder, or threats to be prosecuted as a hate crime.

LGBTQ supportive prosecutors have said the clarification was needed because it is often difficult to prove to a jury that hatred is the only motive behind a violent crime. The prosecutors noted that juries have found defendants not guilty of committing a hate crime on grounds that they believed other motives were involved in a particular crime after defense lawyers argued that the law required “hate” to be the only motive in order to find someone guilty of a hate crime.

Salmi noted that while the hate crime clarification and panic defense prohibition provisions of the Evangelista-Hunter bill will become law as soon as the congressional review is completed, yet another provision in the bill will not become law after the congressional review because there are insufficient funds in the D.C. budget to cover the costs of implementing the provision.

The provision gives the D.C. Office of Human Rights and the Office of the D.C. Attorney General authority to investigate hate related discrimination at places of public accommodation. Salmi said the provision expands protections against discrimination to include web-based retailers or online delivery services that are not physically located in D.C.

“That is subject to appropriations,” Salmi said. “And until it is funded in the upcoming budget it cannot be legally enforced.”

He said that at Council member Allen’s request, the Council added language to the bill that ensures that all other provisions of the legislation that do not require additional funding – including the ban on use of the LGBTQ panic defense and the provision clarifying that hatred doesn’t have to be the sole motive for a hate crime – will take effect as soon as the congressional approval process is completed.

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D.C. man charged with 2020 anti-gay death threat rearrested

Defendant implicated in three anti-LGBTQ incidents since 2011

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shooting, DC Eagle, assault, hate crime, anti-gay attack, police discrimination, sex police, Sisson, gay news, Washington Blade

A D.C. man arrested in August 2020 for allegedly threatening to kill a gay man outside the victim’s apartment in the city’s Adams Morgan neighborhood and who was released while awaiting trial was arrested again two weeks ago for allegedly threatening to kill another man in an unrelated incident.

D.C. Superior Court records show that Jalal Malki, who was 37 at the time of his 2020 arrest on a charge of bias-related attempts to do bodily harm against the gay man, was charged on May 4, 2021 with unlawful entry, simple assault, threats to kidnap and injure a person, and attempted possession of a prohibited weapon against the owner of a vacant house at 4412 Georgia Ave., N.W.

Court charging documents state that Malki was allegedly staying at the house without permission as a squatter. An arrest affidavit filed in court by D.C. police says Malki allegedly threatened to kill the man who owns the house shortly after the man arrived at the house while Malki was inside.

According to the affidavit, Malki walked up to the owner of the house while the owner was sitting in his car after having called police and told him, “If you come back here, I’m going to kill you.” While making that threat Malki displayed what appeared to be a gun in his waistband, but which was later found to be a toy gun, the affidavit says.

Malki then walked back inside the house minutes before police arrived and arrested him. Court records show that similar to the court proceedings following his 2020 arrest for threatening the gay man, a judge in the latest case ordered Malki released while awaiting trial. In both cases, the judge ordered him to stay away from the two men he allegedly threatened to kill.

An arrest affidavit filed by D.C. police in the 2020 case states that Malki allegedly made the threats inside an apartment building where the victim lived on the 2300 block of Champlain Street, N.W. It says Malki was living in a nearby building but often visited the building where the victim lived.

“Victim 1 continued to state during an interview that it was not the first time that Defendant 1 had made threats to him, but this time Defendant 1 stated that if he caught him outside, he would ‘fucking kill him.’” the affidavit says. It quotes the victim as saying during this time Malki repeatedly called the victim a “fucking faggot.”

The affidavit, prepared by the arresting officers, says that after the officers arrested Malki and were leading him to a police transport vehicle to be booked for the arrest, he expressed an “excited utterance” that he was “in disbelief that officers sided with the ‘fucking faggot.’”

Court records show that Malki is scheduled to appear in court on June 4 for a status hearing for both the 2020 arrest and the arrest two weeks ago for allegedly threatening to kill the owner of the house in which police say he was illegally squatting.

Superior Court records show that Malki had been arrested three times between 2011 and 2015 in cases unrelated to the 2021 and 2020 cases for allegedly also making threats of violence against people. Two of the cases appear to be LGBTQ related, but prosecutors with the U.S. Attorney’s Office did not list the cases as hate crimes.

In the first of the three cases, filed in July 2011, Malki allegedly shoved a man inside Dupont Circle and threatened to kill him after asking the man why he was wearing a purple shirt.

“Victim 1 believes the assault occurred because Suspect 1 believes Victim 1 is a homosexual,” the police arrest affidavit says.

Court records show prosecutors charged Malki with simple assault and threats to do bodily harm in the case. But the court records show that on Sept. 13, 2011, D.C. Superior Court Judge Stephen F. Eilperin found Malki not guilty on both charges following a non-jury trial.

The online court records do not state why the judge rendered a not guilty verdict. With the courthouse currently closed to the public and the press due to COVID-related restrictions, the Washington Blade couldn’t immediately obtain the records to determine the judge’s reason for the verdict.

In the second case, court records show Malki was arrested by D.C. police outside the Townhouse Tavern bar and restaurant at 1637 R St., N.W. on Nov. 7, 2012 for allegedly threatening one or more people with a knife after employees ordered Malki to leave the establishment for “disorderly behavior.”

At the time, the Townhouse Tavern was located next door to the gay nightclub Cobalt, which before going out of business two years ago, was located at the corner of 17th and R Streets, N.W.

The police arrest affidavit in the case says Malki allegedly pointed a knife in a threatening way at two of the tavern’s employees who blocked his path when he attempted to re-enter the tavern. The affidavit says he was initially charged by D.C. police with assault with a dangerous weapon – knife. Court records, however, show that prosecutors with the U.S. Attorney’s Office lowered the charges to two counts of simple assault. The records show that on Jan. 15, 2013, Malki pleaded guilty to the two charges as part of a plea bargain arrangement.

The records show that Judge Marissa Demeo on that same day issued a sentence of 30 days for each of the two charges but suspended all 30 days for both counts. She then sentenced Malki to one year of supervised probation for both charges and ordered that he undergo alcohol and drug testing and undergo treatment if appropriate.

In the third case prior to the 2020 and 2021 cases, court records show Malki was arrested outside the Cobalt gay nightclub on March 14, 2015 on multiple counts of simple assault, attempted assault with a dangerous weapon – knife, possession of a prohibited weapon – knife, and unlawful entry.

The arrest affidavit says an altercation started on the sidewalk outside the bar when for unknown reasons, Malki grabbed a female customer who was outside smoking and attempted to pull her toward him. When her female friend came to her aid, Malki allegedly got “aggressive” by threatening the woman and “removed what appeared to be a knife from an unknown location” and pointed it at the woman’s friend in a threatening way, the affidavit says.

It says a Cobalt employee minutes later ordered Malki to leave the area and he appeared to do so. But others noticed that he walked toward another entrance door to Cobalt and attempted to enter the establishment knowing he had been ordered not to return because of previous problems with his behavior, the affidavit says. When he attempted to push away another employee to force his way into Cobalt, Malki fell to the ground during a scuffle and other employees held him on the ground while someone else called D.C. police.

Court records show that similar to all of Malki’s arrests, a judge released him while awaiting trial and ordered him to stay away from Cobalt and all of those he was charged with threatening and assaulting.

The records show that on Sept. 18, 2015, Malki agreed to a plea bargain offer by prosecutors in which all except two of the charges – attempted possession of a prohibited weapon and simple assault – were dropped. Judge Alfred S. Irving Jr. on Oct. 2, 2015 sentenced Malki to 60 days of incarnation for each of the two charges but suspended all but five days, which he allowed Malki to serve on weekends, the court records show.

The judge ordered that the two five-day jail terms could be served concurrently, meaning just five days total would be served, according to court records. The records also show that Judge Irving sentenced Malki to one year of supervised probation for each of the two counts and ordered that he enter an alcohol treatment program and stay away from Cobalt.

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