With a U.S. House vote on the Equality Act set for next week, talks between LGBTQ rights advocates and Capitol Hill have begun on getting the legislation across the finish line with Democratic control of both chambers of Congress and the White House, although that has become more complicated with opponents raising fears about transgender kids in sports and Sen. Mitt Romney’s (R-Utah) newly declared opposition to the bill.
LGBTQ rights supporters, who agreed to speak on condition of anonymity for greater candor, said they were engaged in talks with lawmakers — including in the Senate, where the major fight will be — in the same week House Majority Leader Steny Hoyer (D-Md.) announced a floor vote would take place on the Equality Act.
Sen. Jeff Merkley (D-Ore.), the sponsor of the bill in the Senate, said in a statement to the Washington Blade he’s serious about seizing the moment to get the job done with the Equality Act.
“For years, Mitch McConnell’s legislative graveyard blocked the Equality Act from getting so much as a hearing,” Merkley said. “But the American people raised their voices loud and clear in the 2020 elections, and gave Congress and President Biden a strong mandate to make this country a more equal and free place for everyone—including LGBTQ Americans. With new Senate leadership, decisive public support and strong momentum in the U.S. House, I’ll be doing everything I can to ensure that this year will finally be the year that this landmark bill becomes the law of the land.”
Opponents, however, will likely raise as an objection to the Equality Act the participation of transgender kids in sports, which critics say distorts the issue. Sen. Rand Paul (R-Ky.), in remarks during a committee hearing, said the idea was “bizarre” and Nikki Haley wrote an op-ed for the National Review against it.
The Equality Act’s supporters have affirmed the issue has come up in discussion. No changes are expected in advance of the House vote next week, but the Senate is an open question. One LGBTQ advocate said no decision had been made one way or another to address the issue of transgender kids in sports, although another said the expectation is no changes will be made.
Gillian Branstetter, a transgender advocate and spokesperson for the National Women’s Law Center, rejected the idea the bill’s supporters would concede on the issue of transgender kids in sports, saying an ultimate agreement to such language would be a “surprise.”
“The broad-based coalition organizations that support the Equality Act will proudly and loudly tell you that trans women are women,” Branstetter said. “And if you apply an asterisk to that, if you buy into the idea that a trans woman athlete, if she wins, is apparently cheating, that you are applying an asterisk to the idea that she is a woman and therefore on equal footing with all other women.”
The Equality Act doesn’t explicitly address sports, but would prohibit anti-LGBTQ discrimination in education and federal programs and suggest schools would have to allow transgender girls to compete in events consistent with their gender identity. Major sports associations, including the Olympics and the NCAA, have established internal rules based on sex characteristics, such as hormone levels, to govern allowing transgender athletes to compete in those leagues consistent with their gender identity.
Despite any objections in the House, approval of the Equality Act should be straightforward under Democratic control, and even more so given leadership’s decision to move the bill directly to the floor without the regular order of holding hearings or a committee vote. Two hearings took place in the House in 2017, when the Democrats approved Equality Act legislation in a party-line vote and were joined by eight Republicans.
Hoyer, in a statement to the Blade, said he made the decision to forego regular order in the current Congress because the legislation demands immediate attention.
“I was proud to bring the Equality Act to the House floor last Congress, and pleased to see this critical legislation pass with strong support,” Hoyer said. “It is imperative that we move this priority swiftly to advance the cause of equality and ensure our laws recognize the equal rights and dignity of LGBTQ people in our country.”
One thing that will be different from the last Congress is having a supportive administration in the White House. White House Press Secretary Jen Psaki told the Washington Blade earlier this month President Biden “stands by” his campaign pledge to sign the legislation within 100 days.
One LGBTQ advocate said he would expect the White House to issue a formal Statement of Administration Policy, an official written communication outlining the executive branch’s position on a particular legislative action, in anticipation of the House vote detailing President Biden’s support for the Equality Act. The White House didn’t immediately respond to a request to confirm its plans for input.
In the Senate, the new Democratic control presents an opportunity for the first time to advance the legislation in that chamber. While regular order on the Equality Act may be absent in the House, that likely won’t be the case in the Senate. The bill’s supporters are expecting a hearing in the Senate Judiciary Committee, although the timing isn’t yet certain.
The Senate hearing would be another opportunity for the Biden administration to throw its weight behind the Equality Act. In 2010, Tom Perez, then-U.S. assistant attorney general for the Civil Rights Division, represented the Obama administration in a Senate hearing in support of the Employment Non-Discrimination Act. If the Biden administration were to send the same representative, the distinction would fall to Kristen Clarke, who’s been designated for the same job at the Justice Department.
But the Senate is a real fight. With the chamber in a 50-50 split, the Equality Act’s supporters will need to find 10 Republicans to reach the 60 votes needed to end a filibuster on the legislation. Alternatively, Democrats could opt to junk the legislative filibuster, but that idea may a non-starter with Sens. Kyrsten Sinema (D-Ariz.) and Joe Manchin (D-W.Va.) saying they’d vote to reject such a proposal.
Romney has already come out against the Equality Act, citing a lack of sufficient religious liberty provisions in the legislation.
“Sen. Romney believes that strong religious liberty protections are essential to any legislation on this issue, and since those provisions are absent from this particular bill, he is not able to support it,” said Arielle Mueller, a Romney spokesperson, via email to the Washington Blade.
But strategy behind advancing the Equality Act in the Senate by claiming 60 votes to overcome a filibuster appears to be a genuine effort, not just a plan to force a vote on the legislation to make Republican opponents look bad without any real expectation the legislation will pass.
One way to address religious liberty concerns is the imminent ruling from the U.S. Supreme Court in the case of Fulton v. City of Philadelphia, which will determine whether a Catholic foster care agency has a First Amendment right to ban same-sex couples. Although the conservative court may deliver a ruling against LGBTQ rights, observers have said the decision may let the air out of the religious liberty issue and allow additional Republicans to come aboard.
Still, getting to 10 Republicans is a challenge. The two Republicans who appear to be the lowest hanging fruit are Sen. Susan Collins (R-Maine), who was the only Republican co-sponsor in the previous Congress, and Sen. Lisa Murkowski (R-Alaska), who voted for the LGBTQ Employment Non-Discrimination Act in 2013 and signaled she cast a ballot as a regular voter in 2018 against an anti-transgender bathroom initiative in Anchorage.
Collins, who’s reportedly peeved after the Human Rights Campaign snubbed her in the 2020 election in favor of her Democratic challenger, didn’t respond to multiple requests by the Blade to comment on the Equality Act. A spokesperson for Murkowski couldn’t immediately be reached.
The next tier is Sen. Rob Portman (R-Ohio), who has a gay son, and Sen. Pat Toomey (R-Pa.). Both Portman and Toomey voted for the Employment Non-Discrimination Act in 2013. After that, the bill’s supporters may look to Joni Ernst (R-Iowa), who has signaled an openness to allowing transgender people in the military, and Thom Tillis (R-N.C.), who has voted to affirm spousal benefits to same-sex couples.
But with Romney signaling via a spokesperson late Tuesday he won’t support the Equality Act, the remaining math is tricky. Options could be Sens. Rick Scott (R-Fla.) and Marco Rubio (R-Fla.), although their presidential ambitions may mean their votes are off the table, or John Cornyn (R-Texas) with demographic changes making his state more “blue.” Sen. Richard Burr (R-N.C.) voted for “Don’t Ask, Don’t Tell” repeal in 2010, but against the Employment Non-Discrimination Act in 2013.
Neither Sinema nor Manchin’s office responded to the Blade’s request to comment on the Equality Act and whether they’d reconsider their opposition to scrapping the filibuster to enact the legislation. (Manchin’s support for the Equality Act itself is in question. In the previous Congress, Manchin declined to support the legislation, citing insufficient guidance on “students transitioning between genders in public schools.”)
One Republican lobbyist said talk is underway about a Republican compromise along the lines of the Fairness for All Act introduced last year by Rep. Chris Stewart (R-Utah).
“I think there’s well over 10 Republicans in the Senate who want to get to ‘yes,’” the Republican lobbyist said. “And I think that right now we have this dynamic which is that there are more pro-LGBTQ Republicans in Congress, than probably at any time, but we have to meet them, not even in the middle, we just have to come over a few notches from the left, and meet them and take their concerns seriously.”
If the Equality Act were amended “to reflect those concerns to protect fundamental religious freedoms,” the Republican lobbyist said, such as granting greater leeway to religious institutions in the Equality Act, supporters could “pass that through with 60 or more votes.”
Meanwhile, efforts to pass LGBTQ non-discrimination are getting a boost the LGBTQ group Freedom for All Americans promoting its Conservatives Against Discrimination campaign, which has been propelled by a recent $1 million grant from the Gill Foundation. The initiative isn’t geared toward any specific piece of legislation, but seeks to raise general awareness of the issue.
CLARIFICATION: The article has been updated to clarify the Conservative Against Discrimination campaign isn’t intended to support any piece of legislation, such as the Fairness for All Act.
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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