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Two U.S. agencies at odds over protecting gays under Title VII

Case filed by deceased skydiver alleges anti-gay discrimination

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Thurgood Marshall U.S. Courthouse: home of the U.S. Court of Appeals for the Second Circuit. (Photo by Ken Lund; courtesy Flickr)

NEW YORK — Two U.S. agencies — the Justice Department and the Equal Employment Opportunity Commission — were at odds Tuesday in arguments before a federal appeals court over whether existing civil rights law bars anti-gay employment discrimination.

Meanwhile, judges on the U.S. Second Circuit Court of Appeals gave conflicting signals on whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against lesbian, gay and bisexual workers, making a ruling in favor of gay rights anything but assured.

Arguing the Trump administration’s position that lesbian, gay and bisexual people have no protections under Title VII was Deputy Assistant Attorney General Hashim Mooppan. That position is new for the Justice Department and came about after the confirmation of U.S. Attorney General Jeff Sessions.

Chief among Mooppan’s arguments was that Congress didn’t intend the prohibition on sex discrimination to apply to lesbian, gay and bisexual people because lawmakers have resisted spelling out sexual orientation discrimination is illegal.

“Think about what would happen today if Congress were to pass a statute that said no sex discrimination,” Mooppan said. “If it just said sex discrimination, I think it would be indisputable that that did not cover also sexual orientation discrimination. The reason being, you would have both a — until this year — unbroken set of case law saying the two were distinct and you had have several prior acts of Congress that treated them as distinct. So, if that’s the case today, then surely…in 1964 when Congress passed the same, exact word didn’t have some broader notion of sex discrimination compared to what we have today. It just makes no sense.”

As evidence Congress didn’t intend the prohibition on sex discrimination to include sexual orientation discrimination, Mooppan cited efforts in 1991 to amend the Civil Rights Act that didn’t include explicit protections for anti-gay discrimination even though legislation was introduced to spell that out.

Jeremy Horowitz, assistant general counsel for the EEOC, in contrast argued the prohibition on sex discrimination should be construed broadly and applied to anti-gay discrimination based on Supreme Court rulings in such cases as the 1989 Price Waterhouse decision and the 1998 Oncale decision.

“The sex stereotyping that says that if you are a man attracted to men, or a woman attracted women, either way, you don’t meet the stereotype that the employer has for how your gender should behave,” Horowitz said “And so in the case you’re being put to a question: Do I keep my job, or do I keep my choice of partner?”

The EEOC adopted the position Horowitz presented to the court during the Obama administration when the agency found in the 2015 case of Baldwin v. Foxx that anti-gay discrimination is a form of sex discrimination.

Asked whether he thinks congressional intent in 1964 is relevant to Title VII, Horowitz replied, “No, your honor, I don’t. In the Oncale decision, Justice Scalia said it’s the words of the statute rather than the concerns of the legislators that drives the interpretation of the statute.”

Predicting Mooppan’s arguments that congressional failure to enact pro-gay laws demonstrates it doesn’t consider anti-gay discrimination a form of sex discrimination, Horowitz said “legislative inaction is a very poor means of determining congressional intent.”

In one exchange highlighting the unusual nature of two arms of the U.S. government making conflicting arguments in court, Mooppan flat-out refused to comment in response to multiple inquiries from judges on whether the Justice Department signed off on briefs from EEOC — either in this case or more generally — saying he doesn’t “think it’s appropriate” for him to speak to internal deliberations.

“What I’ll say is this: the EEOC had the authority to file the brief they had filed in this case and the Department of Justice, of course, has the authority to file the brief it has filed in this case on behalf of the United States,” Mooppan said.

The case, Zarda v. Altitude Express, was filed by a gay skydiver who asserted he was fired from him his job as a result of his sexual orientation after he disclosed he was gay in mid-air to a female client. After Zarda’s death during a subsequent skydiving accident in 2014, his estate continued his case in his name.

Greg Antollino, a New York-based civil rights attorney, represents the Zarda estate and urged the court to find gay protections under Title VII based on the plain language of the statute, associational discrimination and sex stereotyping.

“In our belief, the discrimination is against Don Zarda because he was a male, because it was a motivating factor in his termination,” Antollino said. “Had he been a woman, this wouldn’t have happened.”

Greg Nevins, workplace fairness program strategist for Lambda Legal, also took part in oral arguments before the court and asserted Title VII prohibits discrimination on the basis of sexual orientation.

“Discrimination against someone in a same-sex relationship is the same as discrimination against someone in an interfaith relationship is the same as discrimination against someone in an interracial relationship — and they all are equal,” Nevins said.

Saul Zabell, the lawyer for Altitude Express Inc., on the other hand pointed to a state court decision finding insufficient evidence for sexual orientation discrimination in Zarda’s case (New York state court has a higher threshold for making such claims), which he said the plaintiff didn’t initially make upon filing a complaint before EEOC.

“If he does not raise the issue of being discriminated against because of his sexual orientation in his EEOC charge, then he doesn’t get the opportunity now seven years after filing the EEOC charge after all the facts are out in this case to now somehow amend his pleadings and amend his EEOC charge to say, ‘No, no, no. Because the court might be willing to change its interpretation of the application of Title VII to sexual orientation, I want to change my EEOC charge to make it fit with what the court might consider,” Zabell said.

Zabell’s arguments were undercut when a judge read aloud Zarda’s initial charge, which said although he’s not filing a complaint based on his sexual orientation, he’s making it because “in addition to being discriminated against because of my sexual orientation, I was also discriminated against because of my gender.”

Addressing the court as an expert was Adam Mortara, a Chicago-based attorney who struck a different chord than other attorneys, but nonetheless undercut the idea of gay protections under the Title VII by arguing for limited interpretation of the law.

“It is not true that merely being non-conforming to gender by itself gives you a sex discrimination claim,” Mortara said. “It has to also be true that there’s something additional: Evidence of misogyny, evidence of highly traditional sexist views about women and children. That’s kind of the back case for the court. There has to be something more.”

Although a three-judge panel on the Second Circuit ruled in April against the idea sexual orientation bias is sex discrimination based on precedent in the jurisdiction, the full court agreed to rehear the case as part of “en banc” review of the litigation.

With the issue before the 11 judges instead of just three, some expressed skepticism over gay protections under Title VII, with some conveying support for the idea and many holding their cards close to the vest.

U.S. Circuit Judge Reena Raggi, an appointee of George W. Bush, repeatedly challenged the notion anti-gay discrimination is a form of sex discrimination, saying the intent of Title VII is to ensure neither men nor women are economically advantaged over the other.

“There is a presumption, a stereotype, a bias, whatever we want to call it that people should be attracted to people of their same sex, and it’s applied both to men and women, and I’m having trouble understanding how that’s discrimination that differentiates between men and women as opposed to a different kind of discrimination that we might well wish to prohibit, but that’s not sex discrimination,” Raggi said.

Raggi said language in the 1989 Price Waterhouse decision indicating not all incidents of sex stereotyping are sufficient for claims under Title VII demonstrates anti-gay discrimination may not be a violation to sue under the law.

“Is it putting a disadvantage on one sex — either men or women — or is it putting a disadvantage on homosexuals and that that’s now the distinction, it’s not men and women, it’s homosexuals versus heterosexuals?” Raggi asked at one point.

During Nevins’ time before the bench, U.S. Circuit Judge Dennis Jacobs, a George H.W. Bush appointee, raised the question about whether the ruling from the bench would also impact religious freedom — an issue Nevins evaded by responding: “I feel confident there will be another day in which this court will be called upon to address that question, but that day is not before the court today.”

It could be months before the Second Circuit renders a decision. One circuit court, the U.S. Seventh Circuit Court of Appeals, found gay protections under Title VII this year, but the U.S. Eleventh Circuit Court of Appeals reached the opposite conclusion.

In the meantime, the U.S. Supreme Court may take up the issue of lesbian, gay and bisexual protections under Title VII as a result of a petition filed by Lambda Legal in a separate case on behalf of Jameka Evans, a security guard who claims she was effectively terminated from her job at Georgia Regional Hospital for being a lesbian.

Rachel Tiven, executive director of Lambda Legal, told reporters on the steps of the courthouse the arguments were “a dress rehearsal” for a resolution from the Supreme Court on the issue.

“This is third time in one year that Lamdba Legal has stood in front of a circuit court of appeals in the United States to say that sexual orientation discrimination is a form of sex discrimination, and the Supreme Court has to address the split in the circuits,” Tiven said. “When you add to that the extremely unusual situation of the Justice Department seeking to intervene in a case to add its opinion to say that they don’t agree with the Equal Employment Opportunity Commission — and we saw that the court was quite interested in how that came to be, and how unusual that is — it really just cries out for resolution by the Supreme Court.”

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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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