Amy Coney Barrett, President Trump’s pick for the now vacant seat on the U.S. Supreme Court, fended off questions Tuesday during her confirmation hearing on whether she’d undo same-sex marriage, declining to disavow dissents to historic rulings for marriage equality from her mentor Antonin Scalia.
Sen. Dianne Feinstein (D-Calif.), top Democrat on the Senate Judiciary Committee, invoked the memory of gay rights pioneers Del Martin and Phyllis Lyon in questioning Barrett, recalling their wedding in 2008 after the California Supreme Court ruled in favor of marriage equality.
Feinstein, recalling when Martin died two months later that Lyon was ineligible for Social Security survivor benefits because of the Defense of Marriage Act, asked Barrett about Scalia’s dissent to the 2013 ruling striking down the Section 3 of DOMA, which barred federal recognition of same-sex marriage.
“Now you said in your acceptance speech for this nomination that Justice Scalia’s philosophy is your philosophy,” Feinstein said. “Do you agree with this particular point of Justice Scalia’s view that the U.S. Constitution does not afford gay people, the fundamental right to marry?”
Barrett insisted upon her confirmation “you would be getting Justice Barrett, not Justice Scalia.”
“I don’t think that anybody should assume that just because Justice Scalia decided a certain way that I would, too,” Barrett said.
Barrett, however, then invoked the rule associated with the late U.S. Associate Justice Ruth Bader Ginsburg, as is customarily done for judicial nominees, to avoid answering directly how she’d directly rule on same-sex marriage — which is consistent with her testimony and other judicial nominees seeking confirmation.
“No hints, no previews, no forecasts,” Barrett said. “That had been the practice of nominees before her, but everybody calls it the Ginsburg rule because she stated it so concisely and it’s been the practice of every nominee since since. So I can’t — and I’m sorry to not be able to embrace or disavow Justice Scalia’s position but I really can’t do that on any point of law.”
Feinstein, however, wasn’t satisfied with that answer, calling marriage rights for same-sex couples “a fundamental point for large numbers of people, I think, in this country.”
“You identify yourself with a justice that you like him would be a consistent vote to roll back hard fought freedoms and protections for the LGBT community,” Feinstein said. “And what I was hoping you would say is that this would be a point of difference where those freedoms would be respected and you haven’t said that.”
Barrett responded to Feinstein’s concerns by insisting she “has no agenda,” then went on to disavow discrimination on the basis of “sexual preference.”
“I do want to be clear that I have never discriminated on the basis of sexual preference, and would not ever discriminate on the basis of sexual preference,” Barrett said. “Like racism, I think discrimination is abhorrent.”
The term sexual preference is considered inappropriate — and offensive — to describe whether or not a person identifies as LGBTQ because it implies being LGBTQ is a choice. Instead, the standard terms are sexual orientation and gender identity (and in some circles, the term sexual identity is emerging as a broader term to encompass all aspects of the LGBTQ community).
Shannon Minter, legal director for the National Center for Lesbian Rights, criticized Barrett in a statement for using the term “sexual preference,” crediting such terminology with the prevalence of widely discredited conversion therapy.
“When Amy Coney Barrett used the term ’sexual preference’ in her testimony before the Senate today, she perpetuated the dangerous and false stereotype that being LGBTQ is not a fundamental aspect of identity, but a mere ’preference,’” Minter said. “This is why so many people, including many parents who send their children to conversion therapy, think being LGBTQ is a choice. As judges know, language matters.”
Upbraiding Barrett on the committee for use of the term sexual preference was Sen. Mazie Hirono (D-Hawaii), who said that was “offensive and outdated” language and “used by anti LGBTQ activists to suggest that sexual orientation is a choice.”
“It is not,” Hirono continued. “Sexual orientation is a key part of a person’s identity. That sexual orientation is both a normal expression of human sexuality and immutable was a key part of the majority’s opinion in Obergefell, which by the way Scalia did not agree with. So, if it is your view that sexual orientation is merely a preference, as you noted, then the LGBTQ community should be rightly concerned whether you would uphold their constitutional right to marry.”
Although Hirono continued in a tirade against Barrett she didn’t allow the nominee to address those remarks. Sen. Joni Ernst (R-Iowa) at the start of her questioning, gave the nominee an opportunity to clarify and apologize.
“I certainly didn’t mean to use a term that would cause any offense in the LGBTQ community,” Barrett said. “So if I did, I greatly apologize for that. I simply meant to be referring to Obergefell as holding with respect to same-sex marriage.”
The prospect of Barrett’s confirmation leading the Supreme Court to reverse Obergefell v. Hodges, the 2015 ruling granting full marriage rights to same-sex couples, has emerged as a concern following an unexpected statement from U.S. Associate Justices Samuel Alito and Clarence Thomas last week declaring war on the decision.
Sen. Lindsey Graham (R-S.C.), chair of the Senate Judiciary Committee, sought to allay concerns the Trump-appointed nominee would overturn Obergefell — as well as other Supreme Court precedents — with questioning of his own, prompting Barrett to affirm the limited role of justices.
“Judges can’t just wake up one day and say, ‘I have an agenda. I like guns. I hate guns. I like abortion. I hate abortion,’ and walk in like a royal queen and impose their will on the world,” Barrett said.
Initially asking Barrett to identify the Supreme Court ruling in favor of same-sex marriage (which Barrett correctly identified as Obergefell), Graham asked if the process for a state seeking to defy the decision would be the same for any legal challenge.
“It would and one thing I’ve neglected to say before that’s occurring to me now is that not only would someone have to challenge that statute…if they outlawed same-sex marriage, there’d have to be a case challenging it, and for the Supreme Court to take it up, you’d have to have lower courts going along and saying we’re going to flout Obergefell,” Barrett said.
Barrett went on to downplay the prospect of the Supreme Court overturning same-sex marriage based on lower courts rejecting the challenge — flat-out ignoring the prospect of the Supreme Court reviewing those lower court decisions and deciding to overturn Obergefell as precedent.
“The most likely result would be that lower courts, who are bound by Obergefell would shut such a lawsuit down, and it wouldn’t make its way up to the Supreme Court but if it did, it would be the same process I’ve described,” Barrett said.
Sen. Patrick Leahy (D-Vt.), attending the confirmation hearing virtually, asked Barrett whether she’d respect the principle of stare decisis — the idea the Supreme Court should keep with precedent to ensure consistency in the law — with respect to same-sex marriage.
After Barrett initially simply affirmed the holding in Obergefell that same-sex couples have a right to marry, the nominee declined to say whether she agrees with that precedent consistent with her testimony in her response to other cases.
“Senator, for the reasons I’ve already said, I’m not going to as Justice Kagan put it, give a thumbs up or thumbs down to any particular precedent,” Barrett said. “It’s precedent of the Supreme Court that gives same-sex couples a right to marry.”
Upon further questioning from Leahy, however, Barrett affirmed she would not seek to overturn decisions just because a majority of the court supported it, saying “the doctrine of stare decisis requires that.”
Leahy also brought up Barrett admitting to having taken speaking fees to address the Blackstone Legal Fellowship, which is a project of the anti-LGBTQ Alliance Defending Freedom, asking her if she was familiar with the law firm’s filings in support of keeping same-sex relations criminalized in the United States, and recriminalizing them abroad.
“They celebrated when India restored a law punishing sodomy with 10 years in prison,” Leahy said. “Now I don’t — whether you believe being gay is right or wrong is irrelevant to me, but my concern is you worked with an organization working to criminalize people for loving a person that they’re in love with. So, that’s what worries me.”
Barrett, however, said her experience with Blackstone “was a wonderful one,” saying it gathers “the best and brightest Christian law students from around — law students from around the country,” making a notable correction to describe her response.
“As you said, I gave a one-hour lecture on originalism,” Barrett said. “I didn’t read all the material that students were given to read. That had nothing to do with my lecture. I enjoyed teaching the students about what my specialty was, which was constitutional law.”
Barrett went on to defend the Blackstone fellowship despite having ties to the legal firm that has been at the forefront of curtailing LGBTQ rights, most recently before the U.S. Supreme Court in the Bostock v. Clayton County case that affirmed firing workers for being LGBTQ was illegal.
“Nothing about any of my interactions with anyone involved in Blackstone were ever indicative of any kind of discrimination on the basis of anything,” Barrett said.
Sharon McGowan, legal director for Lambda Legal, criticized Barrett for refusing to denounce ADF during the confirmation hearing.
“Clearly, Judge Barrett sees no inherent problem with her affiliation with ADF, which is deeply problematic to us and should be to anyone who cares about LGBTQ people and our families,” McGowan said. “ADF is among the largest, best known, and most extreme of the many anti-LGBT legal organizations, so her claim that she isn’t aware of their hostility toward LGBTQ people is disingenuous at best.”
Coming to Barrett’s defense on the committee was Sen. John Cornyn (R-Texas), who listed judges who ruled in unforeseen ways, pointing out U.S. Associate Justice Neil Gorsuch, a Trump appointee, ended up ruling anti-LGBTQ discrimination is prohibited under Title VII of the Civil Rights Act of 1964.
“I think about the attacks on Neil Gorsuch for his unwillingness to make a prior commitment on LGBT issues,” Cornyn said. “He wrote the Bostock case extending Title VII of the Civil Rights Act to gay or transgender. Obviously, those predictions were wrong.”
McGowan added Barrett’s choice of the term “sexual preference” goes hand-in-hand with her past work with the anti-LGBTQ legal group.
“Her use of the term ‘sexual preference’ instead of ‘sexual orientation’ during today’s hearing, as well as her prior misgendering of transgender people, come straight out of the ADF playbook,” McGowan said. “Such language is not only dismissive of our identities, but also reveals a deep hostility to our entitlement to equal protection of the law. It is unreasonable to think that she would be able to administer fair and impartial justice to our communities if she can’t even accept our basic humanity and dignity.”
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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