By GREG MARZULLO
Special to the Blade
Moths cover the walls in the claustrophobic antechamber of the Eloy detention center in Eloy, Ariz. The fluttering insects are dark brown, obvious against the stark white cinderblocks where they crawl toward the room’s single door.
“My grandmother said they were reincarnated souls,” said Dago Bailon, my guide to this Dantean holding cell for America’s undocumented immigrants. I’ve arrived at Eloy with Bailon and other representatives of Trans Queer Pueblo, a Phoenix-based organization whose goal is to assist LGBT undocumented immigrants, providing legal help, access to healthcare, job training and a sense of community.
The town of Eloy is about 80 minutes south of Phoenix, along a desolate expanse of Route 10, and the detention center stands completely isolated from any commerce or housing, although the facility is one of the town’s leading employers. The August sun is unforgiving on the day I visit with Trans Queer Pueblo, a trip organizers and volunteers make monthly to visit detainees in the hopes of connecting them with legal aid.
Five rows of razor wire tower over our heads as we walk up to the entrance. We’re buzzed in by unseen guards at each subsequent door, and as the last one shuts behind me and we enter the detention center, I’m grimly aware of how many obstacles are between me and the outside world.
Each member of the group has the name of someone inside, a person to visit. We take a number and wait to be called. After about half an hour, it’s my turn, and I go up to the guards’ desk. They take my paperwork, my passport, my driver’s license and my bank card before I walk through the metal detector. I am allowed no cell phone or even a pen and paper. I now have no identity — a non-entity inside a veritable prison.
I first met Bailon months earlier at a café in Phoenix.
“I crossed the border,” he said, “I was around 8 or 9. That was an experience I’ll never forget.”
Many of the people I spoke to for this story tell me of their own migration, as well as those of family members – parents, grandparents, siblings and cousins. They are harrowing tales, involving insurmountable odds and, sometimes, death. Since the U.S. Border Patrol began keeping statistics on migrant deaths in 1998, the Arizona border boasts the deadliest record of any other border area in the country.
Bailon, who is now 29, crossed with his grandmother and brother and remains undocumented in a state infamous for its rough handling of Mexican immigrants. In 2011, he helped to found the Arizona Queer Undocumented Immigrants Project in response to the state’s 2010 legislation SB 1070 that was widely regarded as the most draconian immigration law in the country. One of its provisions stipulated that police officers were required to demand papers from anyone they suspected of being in the country illegally. If the suspected immigrant did not have their papers on them, it was considered a misdemeanor.
“Initially, our mission was to bridge the LGBT and migrant communities,” he said. “We saw a lot of the movement was focused on the migrant community and was really religiously led.”
Within five years, however, Bailon and others founded Trans Queer Pueblo in order to address the wide scope of disenfranchisement faced by LGBT undocumented immigrants – healthcare, job training, legal aid and, of course, the confluence of immigration and homophobia or transphobia.
“LGBT communities, the migrant community and the detention movement was really focused on family ties,” said Bailon. “Some of us are running away from our families.”
Even in the organization’s nascent days, Bailon and others heard of gay men, lesbians, bisexuals and trans people in detention centers who desperately needed contacts, legal aid and advocacy to help them navigate a system that often proves deleterious to their safety.
“For people who are LGBTQ, immigration detention is more than just unpleasant – it’s, in fact, dangerous,” said Aaron Morris, executive director of Immigration Equality, a national LGBT immigrant rights organization. “LGBTQ people are much more likely to be subjected to physical assault, trans women in particular.”
Physical and sexual assault and suicide are commonly reported from those inside the detention centers. One of the recent cases that gained national attention was that of Marichuy Leal Gamino, a transgender woman who reported being raped by her male cellmate in 2014 at Eloy.
“They’re all jails at some point,” Morris said of the detention centers, before adding, “We have rarely heard good things about Eloy.”
A 2013 study by the Center for American Progress stated that LGBT detainees are 15 times more likely to experience sexual assault than their heterosexual counterparts – a threat well known by Karyna Jaramillo, a trans woman who spent two weeks in Eloy in the summer of 2015.
“When I got there, they started yelling at me,” Jaramillo said of the other detainees, speaking to me through an interpreter. “They would yell homophobic slurs, transphobic slurs. They started screaming, ‘Yeah, we’re going to have someone we can get laid with tonight, fresh meat.’ They would grab their parts and tell me, ‘Look at this, this is all you’re going to have.’”
As I walk into the larger waiting room at Eloy, “Captain America” plays on the television. The iconic white hero frees prisoners of war from a cage just as we’re about to enter one. Chairs and benches are filled with visitors, mostly young mothers trailing children or elderly men and women, some limping, others with the shakes. Every single one of the people I see in the waiting room over the next three hours is Latino.
Shortly, the discomfort and anxiety at being trapped inside gives way to the tedium of bureaucracy. There’s nothing to be done but wait for our visiting time slot, which could be in an hour or several. The credits roll for “Captain America,” but not before a little girl claps her hands and chants his name in excitement. Family members buy candy, chips and Hot Pockets from the vending machines that only take special payment cards you can purchase for a fee outside the metal detector.
Eventually, our turn comes, along with about 20 others, and we’re ushered into a holding pen. The door shuts behind us and locks. Another door in front of us opens, and we’re finally in the visiting room.
It’s packed. A mother carrying a boy with Down syndrome rushes to embrace a man, seemingly the boy’s father. There are smiles and tears. People share Fritos, candy and conversation while a tall, broad-shouldered guard patrols the room.
Bailon and I meet with an immigrant who describes himself as bisexual. He doesn’t know I’m a reporter. If I were to declare myself a journalist upon entering Eloy, I never would have made it past the front desk, and the circulating guards in the room make it impossible to have a private conversation.
What I can say is that listening to his story – the death threats in his home country, the mind-numbing conditions of detention, the Kafka-esque bureaucracies he’s wrangling in order to obtain asylum – I wonder how anyone in this place retains their sanity.
Jaramillo said her stay at Eloy was a battle against her own mind as much as the system itself.
“It was a constant fight with my thoughts,” she said. “It was this war that was happening inside my head – desperation, depression…absolute fear.”
Jaramillo, 46, only got out of Eloy after she finally spoke to a U.S. Immigration and Customs Enforcement (ICE) representative, who set her bond price at $5,000. Her family was only able to raise $4,500, but ICE accepted the lesser amount and let her go.
“That’s why sometimes cases take forever,” she said, “because we are a bank for the state and for this country.”
Jaramillo, born and raised in Cuernavaca Morelos, about an hour south of Mexico City, first came to the United States 27 years ago. She says there weren’t as many border guards then and crossing was relatively easy. Thirteen years after her initial entry, she was living in Texas and got pulled over by police for expired license plates. She was deported, and the journey back to the United States was torturous. At first, she was caught, but she made the attempt again the same day.
“I had to walk for two nights and two days. We had to get water from where the cows drink. It’s dirty. There’s cow poop. It was contaminated. At the end, my thighs gave out on me, and I was pulling them with my hands so I could continue walking. We had to pay a lot of money – about $3,000 – to the coyotes.”
“Coyotes” are human smugglers who get people across the border for a steep price, and they’re known for leaving their charges to die in the desert or demanding more money than originally agreed upon.
When I asked Jaramillo what would drive her to risk such an experience across the Sonora, she begins to cry.
“I had been threatened before [in Mexico] by gangs and people who told me that I had to sell drugs or had to give my body to them.”
About a decade after her second crossing into the U.S., Jaramillo, who has struggled with alcoholism, began drinking again. She was stopped by the police, and upon investigating her background, they discovered she had an unpaid DUI on her record from 10 years prior. The police contacted ICE, and six ICE officials picked her up outside of the gym. They handcuffed her and eventually sent her to Eloy.
“I’ve always been afraid of the police,” she said. “In Mexico, the police, instead of helping, are part of the corruption. They’re the ones harassing you, and the same happened with ICE. They never respected my gender identity. They continued to treat me as a man, telling me I was not a woman.”
She was detained with other men, and in recounting her time there, she begins to cry again.
“I was thinking if I could make it another day. If I was going to be able to stay alive in there, knowing somebody could start something and get me in trouble. If they send me back to Mexico, I would lose my life. I had the fear…of somebody touching me without my consent and not being able to protect myself, and if I do that, they’re going to say it was my fault.”
Without access to her hormones, Jaramillo said she began thinking of committing suicide. She told the medical staff at Eloy about her needs, and they did give her hormones and antidepressants. However, she’s dubious about the center’s motivation and fast turnaround time.
“I know that at that time, something had happened and they were investigating the detention centers. Far from wanting to help me, I think they wanted to look good.”
The Eloy detention center is run by CoreCivic, the newly renamed Corrections Corporation of America, a publicly traded company that owns and runs both prisons and detention centers. Its reach in the industry is large, trailing only the federal government and three states, and it works hand-in-hand with ICE, which has 34,000 beds reserved for immigrants nationwide every night. At the time this article was written, CoreCivic’s shares were going for $20.92 on the New York Stock Exchange, after a 43 percent jump in price the day after the presidential election.
When dealing with privately owned companies of this scope, questions of regulation are bound to surface with immigrant rights advocates decrying the conditions in which detainees are held at private detention centers.
“In thinking about regulations,” said Morris of Immigration Equality, “you should think about two different schemes. For facilities that are owned and operated by the federal government, they are subject to regulation. There are detention standards they are required to obey. However, the privately run facilities are under no similar regulatory scheme.”
Morris is quick to point out that it’s not a complete free-for-all at privately run facilities. The federal government negotiates terms and regulations with any new facility or those seeking a renewed contract, but, he said, “the U.S. government has historically said it’s hard to increase requirements on facilities.”
According to a November 2016 Washington Post article, ICE holds more than 60 percent of its detainees at private facilities that follow, as Morris puts it, their “own set of rules,” which, historically, hasn’t been good for LGBT detainees.
“If you’re talking about a vulnerable population of people who have different needs or additional factors that make them in danger, relying on a corporation that has mixed or terrible reports or histories of abuse – it seems irresponsible at the very least. Surely, when you throw in a profit motivation, it changes the dynamic of how people are treated in a facility.”
In statements sent to the Blade by CoreCivic and ICE, both parties stressed their commitment to insuring the safety and well being of detainees.
“We have a zero-tolerance policy for all forms of sexual abuse and sexual harassment,” wrote Jonathan Burns, director of public affairs for CoreCivic. “We take very seriously and investigate any reported allegations. Under our policy, any allegation of this nature is also reported to outside law enforcement so that an independent investigation can be conducted.”
He also stated that the company’s “eight ICE-contracted facilities adhere to the federal government’s Performance-Based National Detention Standards,” a detailed document of instructions regarding all aspects of a person’s detention, from hygiene to segregating an individual in solitary confinement to secure their safety or, in certain cases, as a form of discipline.
Yasmeen Pitts O’Keefe, an ICE public affairs officer, also said in an e-mail that ICE “has a zero tolerance policy for any kind of abusive or inappropriate behavior in its facilities and takes any allegations of such mistreatment very seriously.”
In 2015, ICE came out with its Transgender Care Memo, a set of policies that, according to Pitts O’Keefe, “was the result of a six-month agency working group that examined issues and concerns related to LGBTI detainees and incorporates input from transgender individuals who visited various non-federal facilities across the country to observe best practices.”
ICE also has a designated national LGBTI coordinator and field office liaisons for local officers. Pitts O’Keefe reports that detainees have access to a toll-free number where they can report any abuse, even anonymously if they choose, and a flier about the hotline is posted in every ICE facility.
Yet neither Pits O’Keefe nor Burns addressed my question about the seeming discrepancy between what the official policies are and the first-hand accounts of LGBT immigrants’ detention experience.
Flor Bermudez, the detention project director at the Transgender Law Center in California, fills in some of the gaps, especially about ICE’s Transgender Care Memo.
“One of the biggest criticisms is that it’s optional,” she said. “The one facility where they are doing it is Santa Ana [in California]. Because this policy is only optional for facilities…the culture in the entire system has not changed.”
Santa Ana’s city jail has a special transgender unit for immigrants, but Bermudez calls it “terrible” and said when detainees at other centers consider disclosing their transgender status, “they know the consequences will be solitary in Eloy or [a transfer to] Santa Ana. Many of them choose not to disclose and they are exposed to the risk.”
Finally, she said LGBT sensitivity training for staff at the detention centers, at least as it concerns trans people, is inadequate.
“They’ve developed a one-hour video. The video has Caitlyn Jenner as an example of a transgender woman. It also has a transgender immigrant cartoon. The training…has no backup of an enforceable policy. It’s not helpful or efficient.”
CAP released a report in October stating that ICE officials kept greater numbers of LGBT immigrants in detention during fiscal year 2015 than 2014 – 88 percent of the time – instead of releasing them to community advocacy groups for monitoring.
In 2014, ICE, at the direction of the Department of Homeland Security Secretary Jeh Johnson, began to implement the Priority Enforcement Program (PEP), which enabled law enforcement and ICE officials to work together on identifying undocumented immigrants. When local law enforcement arrests and books someone, they send fingerprints not only to the FBI, but, under PEP, to ICE as well, allowing all parties to identify undocumented immigrants considered a threat to public safety – a designation defined by Congress in 1996 with the Illegal Immigration Reform and Immigrant Responsibility Act.
“Certain portions of the law [don’t] just authorize detention of immigrants – it requires it,” Morris said, adding that when the law was passed in 1996, “Congress was focused overmuch on punitive measures. A lot of the laws they passed offered very little wiggle room for immigration officers on the borders.”
Specific petty crimes (e.g. moral turpitude, theft or fraud) on someone’s record automatically result in detention. Morris tells of one of his clients who had AIDS. Being poor, the 19-year-old male tried to self-medicate, stealing Advil and nasal spray to keep his nose from running. Technically, he could be held as a flight risk or as a danger to the community because of the two thefts, something Morris calls “ludicrous.”
It’s no secret that the Obama administration has deported more people than any other, claiming they’re focusing on criminals instead of young people and families. However, something as innocuous as jumping a New York subway turnstile can result in a criminal charge.
“I think the Obama administration was great at…tossing what was a temporary Band-Aid and then allowing us to bleed in another way,” said Bailon.
Despite the Obama administration’s high deportation numbers, the looming Trump presidency is causing even more anxiety.
“We are in a state of aggressive triage,” said Morris. “When you think about what President-elect Trump has really prioritized throughout his campaign and continuing through his president-elect status, he has consistently said he is going to deport people – a great number of those individuals will be LGBT people.”
“We’re figuring out strategy,” Bailon said. “LGBT communities are criminalized at a higher rate. We understand that we might be the first ones to be deported.”
For Bailon, Jaramillo and others, returning to Mexico or other countries where homophobic and transphobic violence are the norm, the increased threat of deportation takes on life-or-death consequences, and the day-to-day pressure of living in the U.S. as an undocumented immigrant increases exponentially.
“It’s very difficult to live like this every day,” said Jaramillo, who is in the midst of fighting her asylum case. “It’s like when someone tells you, ‘we’re going to send you to this place,’ and you’re waiting for somebody to shoot you…and end your life.”
After almost four hours inside Eloy, it’s time for us to go. As I walk out the door of the visiting room, I cast a backwards glance at the crowd and see a door at the opposite end. It looks just like the one I’m standing in – the same color, presumably the same make – but its destination is much different. In a few moments, I’ll get my passport, driver’s license and debit card back with relatively little hassle. I’ll pass through three more doors and stacks of razor wire, go to the parking lot, get in the car and text my husband that I’m out. I’ll drive home to my apartment, and my life will resume. That other door, though, on the far end of the visitors’ room, leads to a labyrinth where people seeking asylum or hoping to live that capricious American dream are lost in the bowels of institutionalized racism, xenophobia and anti-LGBT bias.
Sitting at lunch with the Trans Queer Pueblo workers after our visit, Jaramillo asks me how my experience was inside. I tell her that I was surprised not to be frightened. More than anything, I was disgusted. I ask her what makes her come back to this place where she, herself, suffered detainment and the possibility of sexual assault.
“To share the pain of the others,” she said. “To feel the impotence of it. We can leave and continue with our lives, and they’re caged like rats. I’m here because I want to continue fighting against this feeling of impotence. To open those gates and let everyone free.”
Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead
No political willpower to force vote or reach a compromise
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.
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
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.
D.C. man charged with 2020 anti-gay death threat rearrested
Defendant implicated in three anti-LGBTQ incidents since 2011
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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