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Trump’s far-fetched plan to undo marriage equality

Experts say it’s unlikely GOP frontrunner could make good on pledge

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Donald Trump, Values Voter Summit, gay news, Washington Blade
Donald Trump, Values Voter Summit, gay news, Washington Blade

Donald Trump has said he’d appoint justices to the Supreme Court who’d overturn marriage equality. (Washington Blade file photo by Michael Key)

Donald Trump has renewed his commitment to appoint justices to the U.S. Supreme Court who would reverse marriage equality — but legal observers are skeptical he’ll be able to make good on his pledge if he’s elected president.

On Monday, Trump during a news conference at a D.C. construction site, announced he’d make public soon a list of 10 conservatives from which as president he’d select his nominees for the Supreme Court. The list, Trump said, was being made in consultation with The Heritage Foundation, a conservative think-tank known for its opposition to LGBT rights.

“We’re going to have a conservative, very good group of judges,” Trump said. “I’m going to submit a list of justices, potential justices of the United States Supreme Court that I will appoint from the list. I won’t go beyond that list.”

Responding to criticism from rival Sen. Ted Cruz (R-Texas) that a Trump administration would be open to appointing liberals to the Supreme Court, Trump said, “People say maybe I’ll appoint a liberal judge. I’m not appointing a liberal judge.”

Making the case it would be a “disaster” for Republicans to run a third-party candidate against him in the general election, Trump said that would enable the election of a Democratic president who’d have numerous opportunities to make liberal appointments to the Supreme Court.

“You’re going to have probably four and could even be five Supreme Court justices approved that will never allow this country to be the same,” Trump said. “It’ll take a hundred years, but that won’t work. So they better be careful, and they certainly should be careful with third party stuff.”

Trump’s pledge to appoint justices to the Supreme Court from a list of conservatives builds on previous comments in which he said he opposes same-sex marriage and would seek to appoint justices who’d reverse the Supreme Court’s historic 2015 Obergefell v. Hodges decision.

Calling the ruling “shocking” and “massive” in an interview last month with the Christian Broadcasting Network, Trump said social conservatives should trust him to oppose same-sex marriage. In a January interview on Fox News just before the Iowa caucuses, Trump said he’d “strongly consider” appointing justices who’d reverse the Supreme Court’s historic decision in favor of same-sex marriage.

Despite the renewed commitment from Trump, legal experts say Trump is unlikely to change the makeup of the court for some time, and even if he did, it’s hard to imagine a sufficient conflict emerging that would prompt the Supreme Court to reverse the decision.

James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project, said the “chances are virtually nil” of Trump overturning the Supreme Court ruling in favor of marriage equality.

First Trump has to win the election, Esseks said, then he has to have the opportunity to replace justices on the high court who had ruled in favor of Obergefell. Such an opening, Esseks said, would likely only happen as time goes on after the country has become more acclimated to marriage equality, which polls have shown 60 percent of the population already supports.

“There’s no reason to think this is going to happen anytime soon,” Esseks said. “The more time goes on, the more the country gets used to the current reality, which is same-sex couples are marrying in every corner of the country. This is just part of the landscape now. I think it’s very unlikely both that there’s going to be justices that want to overturn it and the country’s going to be a place where people are going to want to have this discussion again in any serious way.”

Evan Wolfson, former president of the now-closed Freedom to Marry, was among those skeptical that Trump could reverse the Supreme Court decision on same-sex marriage.

“While there are scenarios one could spin out in which our freedom to marry is overturned, I think it highly unlikely, especially given that more than 1 million gay people have gotten legally married and, even before winning in the Supreme Court, we had won in the court of public opinion,” Wolfson said. “A near super-majority of Americans support the freedom to marry.”

If Trump meets the first condition of changing the makeup of the court, there then would need to be a conflict on the issue of same-sex marriage that would compel the court to revisit the issue. One possibility is a state could decide to defy Obergefell and pass a law barring or inhibiting marriage rights for gay couples.

Such a measure already failed just two months ago in Tennessee. The Natural Marriage Defense Act, which would have sought to block the Supreme Court ruling in favor of same-sex marriage, died in a House committee after a 4-1 vote against the measure.

Another way the conflict could present itself to the Supreme Court is a Kim Davis-like situation in which a clerk refuses to give marriage licenses to same-sex couples, prompting either a lawsuit from same-sex couples or from the clerk if that official is removed from his or her post.

In either scenario of a new state law or a defiant clerk, the subsequent lawsuit would almost certainly result in the trial court and the appellate court upholding same-sex marriage in accordance with the precedent of Obergefell. At that time, the Supreme Court would have the opportunity to weigh in after a writ of certiorari is filed before justices.

But Esseks said even with a changed court in those situations, justices may deny the petition to rehear the issue because the Supreme Court has already ruled.

“You got to look around: We haven’t seen a backlash of the basic idea that same-sex couples get to get married,” Esseks said. “It is now part of reality in this country, and we see some nibbling around the edges, but no frontal assault because this is right and people don’t see a way around the Supreme Court, and I don’t think that even with a President Trump that that is going to change.”

John Eastman, board chair of the anti-gay National Organization for Marriage, stood out from the pro-LGBT legal observers by saying he’s not so sure Trump would be unable to reverse the decision.

“If he replaces Ruth Bader Ginsburg and Anthony Kennedy with people who are more Scalia and Alito and Thomas, then I think the chances are good,” Eastman said. “It was certainly a contentious decision, one where the dissent uniformly challenged not only the reasoning of the decision and the wrongness of the outcome, but the very legitimacy of the decision.”

Eastman drew attention to the dissent written by the late U.S. Associate Justice Antonin Scalia, which Eastman said encouraged states not to comply with the decision.

“In those terms, I think we have a decision much like Dred Scott and Lincoln’s response in first inaugural,” Eastman said. “It settles the matter for that particular group of plaintiffs but if it were to take it as settling the matter for the entire country, we’ll have ceased to be self-governing to that extent.”

In the event the Supreme Court did elect to reconsider the issue, another layer of defense for marriage equality is stare decisis, a legal term meaning the Supreme Court generally allows an issue already resolved by the courts to remain resolved.

One example of a Supreme Court decision exemplifying this idea is the 1992 ruling of Casey v. Planned Parenthood, the result of a lawsuit challenging several provisions of Pennsylvania state law restricting access to abortion. When the Supreme Court decided to take up the case, observers wondered 19 years after Roe v. Wade if newly appointed U.S. Associate Justices Anthony Kennedy, Sandra Day O’Connor and David Souter would elect to roll back abortion rights.

As it turned out, those three justices upheld the right to an abortion (although they altered the standard for analyzing restrictions on that right) under the principle of stare decisis.

“The Roe rule’s limitation on state power could not be repudiated without serious inequity to people who, for two decades of economic and social developments, have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail,” the justices wrote. “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain costs of overruling Roe for people who have ordered their thinking and living around that case be dismissed.”

Adam Romero, senior counsel and Arnold D. Kassoy Scholar of Law for the Williams Institute at the University of California, Los Angeles, cited the Casey decision in saying stare decisis would likely be the guiding principle for a Supreme Court revisiting the issue of same-sex marriage.

“Stare decisis would strongly counsel any future justice of the Supreme Court to not overrule Obergefell v. Hodges, even if that justice has personal reluctance to the correctness of its holding,” Romero said. “However, the rule of stare decisis is not absolute. If a majority of the court were inclined to overrule Obergefell, it could certainly do so in the appropriate case, or could limit Obergefell’s reach in the area of parenting for example.”

Wolfson said instead of fretting about Trump overturning the ruling in favor of same-sex marriage, LGBT advocates should focus on the new goal of securing LGBT non-discrimination protections in federal law.

“Rather than worrying about remote worst-case scenarios, better to focus on avoiding the greater danger: That we get complacent, miss chances to capitalize and expand on the marriage conversation as an engine of transformation, and fail to do the legal and political organizing to harness the power of our marriage win to the work of winning non-discrimination protections while increasing cultural acceptance and inclusion for LGBT people throughout the U.S. and around the world,” Wolfson said.

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8 Comments

8 Comments

  1. lnm3921

    March 22, 2016 at 9:02 pm

    All these assessments that a different SCOTUS makeup is highly unlikely to result in a marriage equality reversal is really shortsighted and naive. It fails to see the long-term big picture!

    First of all, when do social conservatives ever worry about what the majority thinks on the issue or GLBT issues in general? Has it stopped them from trying to reverse abortion?

    The marriage equality decision was narrowly won with four very strong dissenting opinions. That it in itself leaves open the question on whether the decision was made correctly or not and leaves an opening for activist judges to attempt to reverse it! It also can embolden social conservatives to look for a case they can bring to the court to make a challenge to the decision. They have done so with abortion repeatedly.

    Also stop to consider that marriage equality is hardly the only issue we have to worry about. A majority of conservatives justices could mean that they rule that a federal religious liberty law, if one ever gets passed, can constitutionally trump GLBT rights! It would give them a way around the marriage equality decision and other non-discrimination laws! They wouldn’t even have to wait to find an excuse to challenge the marriage equality decision.

    Saying that the marriage equality decision is settled law ignores the fact that you could have argued that about the first SCOTUS decision on Sodomy laws that said their was no constitutional right to sodomy. That was later challenged and revered in part on the premise that the original decision was incorrectly decided!

    Social Conservatives also hate to extend what they consider legal rights under the law to another minority. As such, any legal cases that may come their way that can result in GLBT being considered a suspect class or a legally recognized minority entitled to federal protections would likely not go our way.

  2. Brooks Austin

    March 22, 2016 at 10:17 pm

    The key take away here is that LGBT voters have to get out in November and vote for the Democratic nominee, no matter who the nominee is.

    • Warden

      March 23, 2016 at 6:42 am

      Amen to that.

  3. Sailor Azeroth

    March 23, 2016 at 12:42 pm

    Just so sad.

    People who forget their history are doomed to repeat it.

    • TRAPPED

      April 19, 2016 at 8:52 am

      not true that is such a generalization ?❤️?❤️?❤️

  4. lnm3921

    March 23, 2016 at 10:30 pm

    They’ve always been like that. They always make it up the specific sexual acts and obsess about it in graphic detail.

  5. Mark Cichewicz

    March 25, 2016 at 10:57 am

    Brooks is right we need to keep the democratic momentum going or we will be dead in the water come November. Most of all because we have republican majorities in the House and Senate. Look what they did in Kansas and North Carolina. They need to be stopped.

  6. Chicken McPhee

    October 25, 2016 at 2:37 am

    Trump embodies everything shameful about the United States. KKK, treating people in general poorly and his micropenis.

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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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