Two of President Trump’s choices for the judiciary — one gay, the other with an anti-gay record — faced questions during their confirmation hearing Wednesday about their fitness for the bench, which led one to break down in tears over assertions he harbors animus toward LGBT people.
Lawrence VanDyke, one of two nominees Trump has selected for open seats on the U.S. Ninth Circuit Court of Appeals, was unable to speak and visibly crying before the Senate Judiciary Committee in response to the American Bar Association’s conclusion he wouldn’t be fair to LGBT people as a judge.
“No, I did not say that,” VanDyke said through tears under questioning from Sen. Josh Hawley (R-Mo.). “I do not believe that.”
“It is a fundamental belief of mine that all people are created in the image of God,” VanDyke said. “They should all be treated with dignity and respect, Senator.”
Asked by Hawley to confirm he’d treat “every living entity” who came before him as a judge with respect and dignity, VanDyke replied, “Absolutely, Senator.”
“I would not have allowed myself to have been nominated for this position if I did not think I could do that, including members of the LGBT community and any other community that has been historically disadvantaged in this country,” VanDyke said.
VanDyke’s public emotional display comes one day after ABA, which evaluates whether judicial nominees are fit for the federal court, went public with a scathing letter that determined he was “not qualified” based on his temperament and animus toward LGBT people.
“Mr. VanDyke’s accomplishments are offset by the assessments of interviewees that Mr. VanDyke is arrogant, lazy, an ideologue and lacking in knowledge of the day-to-day practice including procedural rules,” the letter says. “There was a theme that the nominee lacks humility, has an ‘entitlement’ temperament, does not have an open mind and does not always have a commitment to being candid and truthful.”
LGBT rights were specifically mentioned in the letter. Over the course of interviewing 60 individuals in the legal profession on VanDyke, the ABA said individuals questioned whether the nominee would be fair to LGBT litigants. During the course the interview with VanDyke himself, the nominee “would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community,” ABA reported.
VanDyke said he was “shocked” to see the conclusion in the letter when it became public last night. The letter provided evidence for progressive groups, such as the Leadership Conference and Civil & Human Rights and People for the American Way, to oppose his confirmation.
Paul Gordon, senior legislative counsel for the People for the American Way, said VanDyke’s emotional display does nothing to change the organization’s views.
“Lawrence VanDyke is not the victim here,” Gordon said. “The victims are the millions of LGBTQ+ people who have shed tears over injustices we have endured. Let’s just say Lawrence VanDyke’s record on LGBTQ rights speaks for itself, and that along with the rest of his record remains disqualifying.”
When asked whether he was aware of the letter before it came out, VanDyke said an ABA member went over it with him shortly beforehand on the same day, but cut him off before he was allowed to respond on the basis that time was short.
VanDyke also said one of his ABA raters, Marcia Davenport, donated to the opponent of his campaign when he ran in 2014 — unsuccessfully — for a seat on the Montana Supreme Court. (Montana is one of the states where members of the Supreme Court are elected by voters at the ballot).
William Hubbard, chair of the ABA Standing Committee on the Federal Judiciary, insisted the ABA evaluation is fair, pointing only out only a small number — three percent — of Trump judicial nominees have received the rating of “not qualified.” (Not a single nominee from President Obama was found “not qualified.”
“The evaluations are narrowly focused, nonpartisan, and structured to assure a fair and impartial process,” Hubbard said. “No nominee gets a ‘not qualified’ rating without another review.”
An ABA spokesperson confirmed Davenport did the initial evaluation and donated money to Michael Wheat, a two-term incumbent whom VanDyke was challenging in the race.
But after Davenport’s initial report, a full committee of 15 ABA members voted in majority for a “not qualified” rating, the ABA spokesperson said. Per standing review procedure, a supplemental review was done and second vote held, the ABA spokesperson added.
The ABA process for determining VanDyke was “not qualified” became a significant point of contention among members of the Senate Judiciary Committee.
On one side was Hawley, who said the ABA letter was “a shameful exercise in political bias” and called on the White House to stop granting the organization access to nominees. On the other side was Sen. Chris Coons (D-Del), who said the opinion of the 60 legal professions ABA consulted was significant.
“They interviewed not one or two or three people who reach conclusions about your lack of professionalism and skills,” Coons said. “But they interviewed 60 people across four states, both judges and attorneys within the practice, and for me that’s fairly damning.”
Sen. Sheldon Whitehouse (D-R.I.) called for Senate hearings on the ABA to get to the bottom of its process of evaluation, saying closed-door sessions would be appropriate — an idea that seemed to have bipartisan traction; although Sen. Mike Lee (R-Utah) said dozens of people who support VanDyke should also be interviewed.
It ended up being convenient for Sen. Lindsey Graham (R-S.C.) to hold VanDyke’s confirmation hearing jointly with the confirmation hearing for Patrick Bumatay, who’s another Trump pick for the Ninth Circuit. Bumatay, who currently works as a U.S. prosecutor in Southern California, is gay.
Graham took advantage of this pairing without explicitly mentioning Bumatay’s sexual orientation.
When Graham asked VanDyke if he knew Bumatay, VanDyke replied, “Well, well.” When Graham asked VanDyke subsequently if he could be fair to him, VanDyke replied, “I would sure hope so. Yes, I would.”
Graham then asked Bumatay whether he also thinks VanDyke would be fair to him. Bumatay signaled his affirmation.
Although VanDyke asserts he’d be fair to LGBT people seeking to have their civil rights affirmed before the judiciary, he has a record that suggests otherwise, including ties to the anti-LGBT legal firm Alliance Defending Freedom.
When LGBT advocates were seeking to attain marriage equality through the federal judiciary, VanDyke, as Montana solicitor general, co-signed friend-of-the-court briefs in 2013 favoring the anti-gay Defense of Marriage Act and state bans on same-sex marriage.
In the same year, VanDyke joined another friend-of-the-court brief before the U.S. Supreme Court in the case of Elaine Photography v. Wilock. Elaine Photography, represented by ADF, was found in violation of New Mexico law after it refused to shoot photos for a wedding for a same-sex couple, represented by University of Pennsylvania law professor Tobias Wolff. (The Supreme Court ended up not taking the case.).
Key to VanDyke’s thinking on this case is an email he wrote at the time and published in the Montana-based Great Falls Tribune.
In the email, VanDyke said the Elaine Photography case was important “because there is a fairly obvious collision course between religious freedom and gay rights” and the litigation “(because it is an extreme case) could be very important in establishing that gay rights cannot always trump religious liberty.”
When Sen. Richard Durbin (D-Ill.) asked VanDyke about the email, VanDyke brought up a different case — Christian Legal Society v. University of California, Hastings — that he said was one of his favorite cases in which he was a part.
“It was a case involving LGBTQ rights, and also involving religious liberty, and I’m so happy to have the role that I had in that case because the position we were in —it was illustrating that there doesn’t have to be a conflict,” VanDyke said.
But VanDyke didn’t represent LGBT interests in that case. Instead, he joined with other lawyers who identified themselves as “gays and lesbians for individual liberty” who argued the Christian Legal Society has a First Amendment right to deny admission to LGBT members and still obtain benefits as an officially recognized school group. (The Supreme Court ended up ruling against Christian Legal Society.)
VanDyke’s record against LGBT rights goes back to the time he was a college student. In 2004, VanDyke as a student at Harvard Law School wrote an op-ed in opposition to same-sex marriage, saying it “will hurt families, and consequentially children and society.”
Sen. Patrick Leahy brought up the op-ed during the confirmation hearing in the context of a response to a question from Sen. Catherine Cortez Masto (D-Nev.). The Vermont Democrat said VanDyke’s response was “kind of flippant” and he cited inadequate research on the issue. (There’s significant research showing gay couples do as well as opposite-sex couples in parenting.)
VanDyke initially responded by saying the Supreme Court has spoken and he wouldn’t allow his personal views to interfere with cases before him. When pressed by Leahy, VanDyke conceded “my personal views have definitely changed since 2004,” but insisted they wouldn’t impact his decision-making at the bench.
Objections to VanDyke on his anti-LGBT record are part and parcel of opposition from progressives to his confirmation. That opposition also includes his opposition to gun regulations, environmental rules and access to abortion. Sen. Dianne Feinstein (D-Calif.) took VanDyke to task during the hearing for an NRA candidate questionnaire he filled out in 2014 indicating opposition to gun control.
In terms of records, the hearing was more challenging for VanDyke than it was for Bumatay, who didn’t face similar questions. However, both nominees faced objections based on the lack of support from senators from the states they would represent on the Ninth Circuit.
Sens. Kamala Harris (D-Calif.) and Feinstein have withheld their “blue slips” for the Bumatay nomination, while Masto and Sen. Jacky Rosen (D-Nev.) have withheld them for the VanDyke nomination. Traditionally, judicial nominees would only move forward in the Senate if their home state senators provided “blue slips,” but over time, as senators have started to withhold them more often, that practice has been abandoned.
Addressing Bumatay before the committee, Feinstein said she “appreciate[s] the diversity he would being to the bench,” but he has inadequate experience to become a federal appellate judge and the “blue slip” process should be respected.
“This is the fourth time since President Trump took office that the majority has moved forward with a California Ninth Circuit nominee who does not have the support of Sen. Harris or myself,” Feinstein said
Trump nominated Bumatay for the bench after rejecting a list of proposed nominees for the Ninth Circuit seat from Feinstein and Harris. In a role reversal, that prompted Harris — who has a long record as an LGBT advocate — to come out against the openly gay nominee Trump is pushing forward.
A brief exchange between Leahy and Graham on “blue slips” took place after Feinstein. Leahy said when Democrats were in majority in the Senate, Republicans insisted on the process, but have suddenly reversed now that the tables have turned.
Seemingly unmoved by Leahy’s complaint, Graham replied, “I think the blue slip horse has been beaten to death there and people have been all over the board on both sides.”
When Leahy wouldn’t let up on the complaint, Graham reminded him it was former Sen. Harry Reid who changed the process to allow a simple majority vote to confirm judges as opposed to 60 votes to end a filibuster. Leahy retorted that had nothing to do with the “blue slips.”
“That is fallacious, and you know it,” Leahy said.
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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