Jessie K. Liu, the United States Attorney for the District of Columbia, says she strongly disagrees with critics who say her office has failed to adequately prosecute hate crimes in D.C., including about half of the reported hate crimes last year in which the victims were lesbian, gay or transgender.
In an Oct. 25 interview with the Washington Blade, Liu said her office has prosecuted the underlying offense, such as threats, assault, murder, or other criminal offenses, in the vast majority of hate crimes cases when her office dropped the hate crimes designation.
As she has stated in recent public meetings, Liu told the Blade prosecutors must be able to prove beyond a reasonable doubt to a jury that hate was a motive for someone arrested by D.C. police for a criminal offense designated by police as a hate crime.
Liu noted that D.C. police, whom she has praised for being highly trained on how to recognize a hate crime, have a lesser burden of showing “probable cause” when they make an arrest and designate the offense as a possible bias related crime.
“We are prosecuting the underlying offense in the vast, vast majority of cases that are brought to us by MPD as potential bias related crimes,” she said. “And so that’s something I think is important to understand – that this is not a situation where the police are bringing us potential bias related offenses and we’re doing nothing at all,” Liu said. “We’re doing quite a bit.”
Liu spoke to the Blade two days after D.C. Council member Charles Allen (D-Ward 6), who serves as chair of the Council’s Committee on the Judiciary and Public Safety, criticized Liu for declining to appear at an Oct. 23 committee hearing on the subject of hate crimes.
Prior to the start of the hearing, Allen released a statement citing a Washington Post investigative report earlier this year that found prosecutions had declined sharply in recent years for cases with a hate crime designation.
“Despite 113 arrests in bias-motivated crimes in the past two years, the U.S. Attorney’s Office prosecuted only five as a hate crime, with two of those ending with a plea deal,” Allen said in his statement.
“D.C.’s LGBTQ residents are being attacked because of bias and hatred against who they are, yet prosecutions using hate crime enhancements are almost non-existent,” Allen stated. “That is a very distressing message to send to victims and survivors and the broader community,” he said.
During the Oct. 23 hearing, Allen criticized Liu for declining his invitation to appear at the hearing to testify on what he called her office’s “failure” to adequately prosecute hate crimes in D.C.
Liu instead sent Allen and the committee a seven-page letter describing in detail her office’s procedures and policies for prosecuting hate crimes and several changes she has made to step up efforts to investigate crimes considered bias related. In a separate statement released to the press, Liu said she chose not to appear at the hearing, in part, because she believed the hearing’s title showed a bias toward her office’s handling of hate crimes cases.
“What I actually said, and I can clarify that, was that I think the title of the hearing, which was “Hate Crimes In The District Of Columbia and The Failure To Prosecute By The Office of The United States Attorney,” suggests that the Council or at least the committee had already reached a conclusion before hearing all of the facts that would be aired at the hearing,” Liu told the Blade.
“In light of that, I thought the more productive thing to do was to send a letter that would provide a more full explanation of our work in this area,” she said. “My office and I remain open to talking with all of our community partners, including the Council if they would like to do that, about how we as a community can address this issue most effectively.”
When asked about one of the findings of the Washington Post investigative report on D.C. hate crimes that significantly more hate crimes prosecutions were brought by the two previous D.C. U.S. Attorneys than have been brought by the office under Liu’s leadership, she said her office was looking to why that appears to be the case.
“That’s something that we’re looking at,” she said. “And I don’t have a very clear answer as to why that might be,” she continued. “What I will say is that there has been a suggestion that maybe there’s been some sort of policy change within the office to not be as aggressive about pursuing bias related offenses. And that’s just not true.”
Washington Blade: In your letter to D.C. Council member Charles Allen, who chairs the committee that held a hearing on Oct. 23 on concerns that your office was not adequately prosecuting hate crimes, you said you would not appear at the hearing because you thought the hearing and Council member Allen might be biased in interpreting the intentions of the U.S. Attorney. Can you elaborate on that?
Jessie Liu: Well I think what I actually said, and I can clarify that, was that I think the title of the hearing, which was “Hate Crimes In The District of Columbia and The Failure To Prosecute By The Office of The United States Attorney” suggests that the Council or at least the committee had already reached a conclusion before hearing all of the facts that would be aired at the hearing.
In light of that, I thought the more productive thing to do was to send a letter that would provide a more full explanation of our work in this area. My office and I remain open to talking with all of our community partners, including the Council if they would like to do that, about how we as a community can address this issue most effectively.
Blade: One of the things Councilman Allen, the chairman of the committee, said at the hearing was he received your letter and read it and acknowledged it was quite detailed. But he said that by you not being there to testify in person prevented him and others on the committee from asking you specific follow-up questions. He said one question would have been about your mentioning that some changes might be needed in the city’s hate crimes law to address possible ambiguous wording that has led to jury instructions that you have said may be bias against prosecutors. Would you be willing to answer those questions if they were to send them to you?
Liu: Yeah, we would certainly take a look at anything the Council would like to send. And again, we have no problem in engaging with the Council. I think we’ve long had a very productive relationship with the Council. But the way this particular hearing was filed and the statement that there was a failure by my office in the very title of the hearing I think just doesn’t give much opportunity for a productive discussion. And so if the Council was interested in engaging productively with us of course I would love to do that.
You have seen me at a number of Hate Violence Task Force meetings. You and I have had conversations at those meetings. We have had meetings with other community groups, including as I said in the letter, the ADL [Anti-Defamation League] and the ANC Rainbow Caucus. And I think all of those discussions have been very, very productive. But those are situations where I think all the participants come with an open mind…and I’m happy to continue those discussions.
Blade: One other thing that came up at the Council hearing was that you reportedly had not responded to D.C. Congressional Del. Eleanor Holmes Norton’s inquiries about D.C. hate crimes.
Liu: You know I can address that. We responded to that. We responded to Congresswoman Norton in writing.
The other thing that I want to just highlight in context on the manner in which we responded to the Council—- as you know, we did send a very detailed letter — seven pages in length. Just historically speaking, I don’t think that any of my predecessors have personally testified at a Council hearing in at least the last 10 years. We did go back and ask around the office to see whether, for example, Ron Machen or Channing Phillips testified personally at a D.C. Council hearing and I don’t believe that they did.
We do of course have a career prosecutor testify. And in the past that’s been Pat Reilly at times who is now retired from my office or Arana Cooper. But we don’t always testify. And the Council’s hearing notices will say you can testify in person or you can send a written statement. And this was an instance where we thought — and frankly some of the complexities of the issues — that it was better to send a written statement.
But this is not a situation where we ignore the Council. We view the Council as a very important partner in the work we do. We hope that they see us in the same way. We wouldn’t ignore them. I understand there has been some commentary suggesting that we’re giving the Council the back of our hand or we’re being disrespectful. And I don’t agree with that.
Blade: As you may have heard, the chair of the committee, Charles Allen, said something like that at the end of the hearing. Are you saying you responded adequately in your detailed letter?
Liu: Well yes. I think it was a very detailed letter. I think in a number of other hearings that happened since the Council returned from recess – there was a hearing on fire arms trafficking. I understand that there was some unhappiness that we did not have someone there in person with that hearing. We did send a very detailed letter on that occasion as well. The committee also held a hearing – I think it was the 17th going into the morning actually into the 18th – on a proposal to decriminalize sex work and commercial sex work. And we had four or five representatives from our office there who testified at around midnight on Oct. 17 going into the morning on Oct. 18.
So these are all career prosecutors who had to stay up until very late at night and appeared before the Council very late at night to give our views. We also had a written statement about which was provided by Arana Cooper on that occasion. I just don’t think the record shows that we are ignoring the Council.
Blade: At yesterday’s Council hearing on the hate crime issue, a deputy D.C. Attorney General testified on the hate crimes issue and said their office has submitted a bill to the Council that would give them authority to file civil suits against people charged with a hate crime even if a criminal charge is not filed or is dropped. They prosecute mostly juveniles. Is that something your office has considered? Could that be a tool to be used for dealing with hate crimes?
Liu: You know I don’t think I would have much to say on that. The AG’s office is the entity that has civil enforcement authority. We file civil lawsuits under federal law. I think maybe there could be something done under federal law that I’m not aware of in terms of civil lawsuits like that. But I’m not aware that we have the ability to do that under D.C. law.
Blade: The Deputy Attorney General also said something some people may not be aware of. She said the statute already has a provision that allows victims of hate crimes to file some civil action. But she said it is very rare that anyone has done that. She said the reason is that the alleged perpetrators most likely would not have the ability to pay any financial penalty they are given.
Liu: It’s a civil judgement. I don’t know. I can’t really speak to that. I do want to point out something which I point out in the letter and have pointed out in public comment as well, which is we are prosecuting the underlying offense in the vast, vast majority of cases that are brought to us by MPD as potential bias related crimes. So it’s not the case that MPD is bringing us arrests and saying, hey, these may be bias related and we’re not doing anything at all.
Even when we don’t bring the enhancement we are bringing in the vast majority of cases criminal charges of some sort. So for example MPD could present us with a defendant who has been arrested for assault and flagged it as a potential bias related assault. Even if we conclude we can’t make out the bias motivation beyond a reasonable doubt, in many of these cases we are charging the assault.
And so that’s something I think is important to understand – that this is not a situation where the police are bringing us potential bias related offenses and we’re doing nothing at all. We are doing quite a bit.
Blade: Most people familiar with the court system would agree that prosecutors have a greater burden to prove to a jury beyond a reasonable doubt that a hate crime was committed while the police have a lesser burden of arresting someone for just probable cause. But the Washington Post pointed out in its report on the prosecution of hate crimes by the U.S. Attorney’s Office in D.C. that in earlier years there were many more hate crime prosecutions than during the past two years under your leadership.
Liu: I think that’s been the thrust of their articles ever since August when the first article came out. That’s something that we’re looking at. And I don’t have a very clear answer as to why that might be. What I will say is that there has been a suggestion that maybe there’s been some sort of policy change within the office to not be as aggressive about pursuing bias related offenses. And that’s just not true.
We have taken a very careful look at our practice and our policies over the last seven years. I guess 2012 was the first year that the Post had stats and there hasn’t been a policy change since then. There’s been a suggestion I think in some quarters that perhaps the current office leadership is less committed to pursuing bias related offenses than my predecessors. And there’s no basis for that either.
So I can’t say that firmly enough. You’ve met a lot of the people who are involved in screening and investigating and prosecuting potential bias related offenses – you have had the benefit of actually meeting our hate crimes coordinators at the Hate Bias Task Force meetings. And up and down the office, these are career prosecutors who have been in the office for years over many, many administrations who are responsible for looking at these arrests, and everything has to be evaluated on its own facts in deciding what to charge.
So I think that to the extent that there is a suggestion out there that I am less committed to doing this, to pursing potential bias related prosecutions than my predecessors, that’s just not true. …
Blade: It was helpful to have listened to them at the task force meeting. But one other thing that Councilman Allen mentioned after the hearing was that if you had been there they could have asked you to elaborate more on whether there is a need to revise the D.C. hate crimes law to deal with the issue of possible ambiguities that you have raised and the issue of the jury instructions. One of the witnesses who testified at the hearing – a defense attorney – said he is on the committee that writes the jury instructions. He said the committee includes representatives of the U.S. Attorney’s office, defense lawyers, and court personnel.
Liu: Yeah, there’s a committee and my understanding is that they are going to consider – take a look at the standard Redbook instructions for bias related crimes. As I said in my letter, I think that there are some confusing elements about the jury instructions. And there is a dispute actually, a legal dispute between my office and the Public Defender Service as to precisely what the government has to show in terms of the degree of motivation to make out a bias related offense. The Public Defender Service has argued in litigation that the government has to show that the defendant’s bias was the only cause of the crime. In other words it was the only reason and that was the reason that the crime occurred.
Our position – my office’s position – is that we need only show that the defendant’s bias was a contributing factor and there might have been other reasons – personal anger, revenge, you know, what have you. But as long as we can show that the defendant’s bias was a factor in the crime that we should be able to get a conviction on the bias related enhancement. So that’s an open legal question that is before the D.C. Court of Appeals. So when the D.C. Court of Appeals rules on that we’ll have an answer to it.
And I think as you and I discussed at the last Hate Bias Task Force meeting, I think the language of the statute itself is a little bit unclear. So the statute defines a bias related crime as a crime that quote unquote demonstrates the accused’s prejudice. And I think people reading that statute could have a legitimate disagreement about exactly what that means.
Blade: One of the witnesses at the hearing, Advisory Neighborhood Commissioner Mike Silverstein, urged the Council to change the law so that it becomes clear that hate need only be one of the motives of a crime in order for the person to be convicted on a hate crime enhancement. Isn’t that the position you are arguing?
Liu: Yes, that’s the position that we have taken in litigation. But as I say, it’s certainly not so clear that there’s no disagreement over it.
Blade: And that’s what the witness asked the Council to clarify. So when I asked Councilman Allen about that he said the U.S. Attorney should come to us and say exactly what she thinks should be changed. Is that something you think you could tell them, possibly in a written brief?
Liu: Yeah, I think that’s a useful conversation to have. So we would welcome having that conversation.
Blade: You and others have mentioned this appeals court case on this issue. But have you said it can’t be released because it may be sealed?
Liu: You know this is interesting. It was publicly argued about a month or so ago and I believe the briefs are still publicly available. But one of the defendants was subject to a Youth Act set aside. And so we have been just out of an abundance of caution not mentioning that person’s name publicly. So what we could do. I don’t know what your deadline is. But we can dig into that a little bit more and see if there’ s more information we can provide you. Just because of the Youth Act element we’ve really tried to be careful and not run afoul of that statute.
Blade: OK. And one final question — the same witness, Mike Silverstein, called on the Council to change the juvenile law so that the dispositions in juvenile cases become public without releasing the name or identifying in any way the juvenile offender. He noted that in a number of recent cases where transgender women and also LGBT people in general have been attacked and injured the people arrested have been juvenile males.
Liu: I think that’s something for the Attorney General to comment on. You may know we do Title 16 cases involving 16 and 17 year olds who are charged with very serious offenses. But because the AG has jurisdiction over juveniles more generally, that question is better put to him.
Blade: Is that something your office decides on, whether to charge a juvenile as an adult if it’s a very serious crime?
Liu: Yes, a very, very serious – and I don’t recall an incident where we had 16 or 17-year-olds who qualified for a Title 16 treatment that was involved in a potential bias related offense. And there could have been one that I’m just not aware of it or I’m just not recalling right now. But there’s a pretty small number of cases where we charge 16 and 17-year-olds as adults under Title 16. And the vast, vast majority of juvenile cases are handled by the AG’s office.
Blade: What message would you have to members of the LGBT community should they unfortunately become of victim of a hate crime in terms of how the case would be handled by your office for prosecution?
Liu: Well in terms of prosecution as with any crime that’s brought to us for potential prosecution we are going to look at the facts of that case. We’re going to make a fair determination about the most appropriate charge to bring. The cases that are flagged for us as potentially bias related by MPD, we have been bringing criminal charges in the vast majority of those cases. And we have a very robust victim-witness unit. We are committed to working with victims and to staying in touch with them. We take all of our obligations under the victims’ rights statutes very seriously.
But we want to go beyond that too. I really think we do have a great set of advocates. We have about 17 people in the office right now whose job it is to help victims and witnesses of crimes through the criminal justice process. We’re committed to ongoing and robust engagement with the community.
And you’ve seen what we do with the Hate Bias Task Force. We have community prosecutors and community outreach specialists who are out in the community pretty much every night of the week. I personally have met with Mike Silverstein’s group, the ANC’s Rainbow Caucus We welcome dialogue with our partners in the community. And they should reach out to our community outreach division if there’s something they want to talk about. And we absolutely welcome that dialogue.
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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