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Judge rules against Choi in ‘vindictive’ prosecution claim

Gay activist on trial for arrest over White House protest

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A federal judge ruled on Oct. 11 that gay former Army Lt. Dan Choi cannot argue in his ongoing trial that he was targeted for “selective” or “vindictive” prosecution following his arrest last year for chaining himself to the White House fence in a protest against “Don’t Ask, Don’t Tell.”

In a 17-page decision, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia overturned an earlier ruling by Magistrate Judge John Facciola that allowed Choi’s lawyers to pursue allegations of selective or vindictive prosecution in the trial, which began Aug. 29.

Lamberth’s decision, among other things, granted a petition by prosecutors for a Writ of Mandamus, a formal and unusual request challenging a ruling of a trial judge by appealing to a higher court or to another judge with greater authority.

Under Lamberth’s decision, Facciola is prohibited from “considering selective or vindictive prosecution as a defense to the merits of the prosecution,” prohibited from “allowing evidence as to either claim” and barred from entertaining any motion filed by Choi to dismiss the case based on selective or vindictive prosecution.

Facciola is presiding over a non-jury trial in which Choi is being prosecuted for a misdemeanor charge of disobeying a lawful police order to disperse from the White House fence. Although the prohibition against Choi’s use of a defense based on selective or vindictive prosecution is a blow to the defense, one of his attorneys, Norman Kent, said Sunday that the defense will move forward on other grounds and that Choi’s defense team remains confident that Choi will be found not guilty.

Choi was the only one of a group of protesters arrested during the November 2010 protest that did not agree to plead guilty to the charge in exchange for having the case dismissed if they weren’t arrested again at the White House within a four-month period.

Through his attorneys, Choi has argued that he had a constitutional right to handcuff himself to the White House fence. The attorneys also have contested the government’s case on a technicality, saying police ordered Choi to disperse from the sidewalk. They note that Choi was standing on an elevated ledge on which the White House fence is attached, not the sidewalk itself and thus Choi was not legally bound to obey the police order.

Lamberth said in his decision that prosecutors were correct in arguing that under longstanding court rules of evidence, a case alleging selective or vindictive prosecution must be initiated in a pre-trial motion, not during the trial itself.

Choi’s attorneys — Kent of Fort Lauderdale, Fla., and Robert Feldman of New York — have argued that they lacked sufficient evidence of selective or vindictive prosecution prior to the start of the trial. The two said persuasive evidence of a selective-vindictive prosecution only emerged during their cross-examination of government witnesses during the trial itself.

Following strong opposition by the prosecutor in the case, Facciola ruled on Aug. 31 that preliminary evidence existed to show a selective or vindictive prosecution could have occurred against Choi. Facciola ruled that Choi’s lawyers could go forward with using selective-vindictive enforcement as a defense.

Feldman and Kent argued that Choi’s decision to handcuff himself to the White House fence in November 2010 was identical to two prior White House protests in which he and others handcuffed themselves to the fence. They noted that while prosecutors charged Choi in the earlier protests under a local municipal statute that carried no jail time, in the November 2010 protests, they charged Choi under a more stringent federal statute that includes a possible sentence of six months in jail.

Feldman and Kent alleged that prosecutors chose the more stringent statute in the November case because Choi’s protests were embarrassing the Obama administration over the gays in the military issue. They said the harsher prosecution was in retaliation for Choi’s political message that the White House wasn’t moving fast enough to repeal “Don’t Ask, Don’t Tell.”

Assistant U.S. Attorney Angela George, the lead prosecutor in the case, disputed that assertion, saying the government prosecuted Choi for refusing to obey a lawful order by police to move away from the White House fence. She said Choi’s political message was irrelevant to the government’s case and had no role in the decision to prosecute him.

In court briefs, George said prosecutors charged Choi under a more stringent law in the November case because it was the third time in less than a year that he had been arrested for the same illegal conduct and the government has legal discretion to select different statutes or regulations under which to make an arrest in such a case.

Facciola put the trial on hold on Aug. 31 after George said the government would take the unusual step of challenging his ruling through a Petition for a Writ of Mandamus. Under U.S. District Court rules, the court’s chief judge rules on such a petition.

Kent told the Blade on Oct. 16 that following consultation with Choi he and Feldman are strongly considering appealing Lamberth’s decision to the U.S. Court of Appeals for D.C. He said Choi’s legal team would make a final decision on whether to file an appeal by Oct. 20, a deadline set by Judge Facciola for the two sides to inform the court whether an appeal will be made or whether the trial will resume.

Choi enjoyed widespread support from LGBT activists when he worked with the LGBT direct action group GetEqual last year in a series of non-violent civil disobedience protests at the White House and other locations to pressure Congress and the Obama administration to push harder for repeal of “Don’t Ask, Don’t Tell.”

But since Obama signed legislation approved by Congress repealing “Don’t Ask, Don’t Tell” and since the repeal took effect on Sept. 20, some activists have questioned the rationale for Choi’s decision to demand a trial in the current case. Some have asked why Choi is contesting the type of civil disobedience arrest that most other protesters acknowledge involves breaking a law and choose to resolve by paying a small fine or agreeing to a plea offer like the one prosecutors made to Choi.

Gay rights attorney and television commentator Mark Levine called non-violent civil disobedience arrests an important and historic tradition in the U.S. civil rights movement made famous by Martin Luther King Jr. in his efforts to end racial discrimination. Levine said the benefit of drawing public attention to an injustice comes from the arrest itself, “not a long drawn out trial that has the potential for wasting court resources that would be better used for something else.”

Choi has said he chose to take his case to trial because he believes his action handcuffing himself to the White House fence is protected by his First Amendment right to free speech and should not be considered an illegal act.

 

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District of Columbia

Weekend brings two shootings in U Street, Dupont Circle areas

Man dies after incident at Desperados

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Two shooting incidents marred the weekend.

A man was shot to death shortly after 1 a.m. on Saturday, April 27, inside the Desperados Burgers & Bar at 1342 U St., N.W., which is located on the same block a short distance away from the LGBTQ nightclub Bunker D.C. and around the corner less than a block away from the recently opened LGBTQ bar Crush on 14th Street, N.W.

The incident prompted Bunker to post on its Facebook page a message saying its security team quickly ushered patrons standing outside to enter the club and as a precautionary measure prevented patrons from leaving until it was deemed safe to do so.

A D.C. police statement identifies the shooting victim as Kenneth Goins, 43, of Salisbury, Md. The statement says officers on patrol in the 1300 block of U Street, N.W. heard gunshots at about 1:12 a.m. and immediately arrived at Desperados to investigate the incident.

“Officers located a man inside with multiple gunshot wounds,” the statement says. “Despite all life saving efforts, the victim was pronounced dead on the scene,” it says. Neither the statement nor a police incident report pertaining to the shooting provides a description of the person who committed the shooting nor discloses whether any of the customers inside the restaurant and bar witnessed the shooting.

The statement says the police Homicide Branch is investigating the shooting and urges anyone with knowledge of the incident to call police at 202-272-9099. Like all homicide cases, it says the D.C. Metropolitan Police Department offers a reward of up to $25,000 to anyone who provides information that leads to the arrest and conviction of the person or persons responsible for a homicide committed in the District.  

 “There was a shooting incident on U ST. N.W., just 4 doors down from BUNKER,” the Bunker Facebook post says. “Our security team promptly responded, ensuring the safety of everyone by ushering them inside for cover,” it says. “Currently, the courageous police officers are outside, handling the situation and working diligently to maintain a secure environment for our guests,” the message continues.

“As a responsible establishment, we strongly prioritize your safety, and as a precautionary measure, we will not permit anyone to exit the building until we deem it safe to do so,” the posting says. “Rest assured, we, as the owners, take this matter very seriously, and your safety remains our highest priority.” 

The U Street shooting at Desperados Burgers & Bar took place a little over two hours after six people were shot and wounded outside the Decades nightclub at 1219 Connecticut Ave., N.W. near Dupont Circle and near several gay bars on P Street and 17th Street in the Dupont Circle area. Police said none of those who were shot suffered life-threatening injuries

A separate police statement says with the help of several witnesses, police identified and arrested Rennwel Mantock, 29, of Hyattsville, Md., in connection with the shooting on charges of Assault with Intent to Kill, Possession of Unregistered Ammunition, and Possession of an Unregistered Firearm. The statement says a gun belonging to Mantock was recovered on the scene. Court records show a judge has ordered him to be held without bond until a May 7 preliminary hearing.

“The detectives’ investigation determined Mantock opened fire after employees removed him from a nightclub following a dispute,” according to the statement.

A police arrest affidavit filed in D.C. Superior Court says Mantock told police at the time he was apprehended on the scene that he was dancing with a woman at the club when a security guard ordered him to leave and then “grabbed him by the neck and punched him in the face right before dragging him down the steps.” The Decades club states on its website that it has several floors with multiple bars.

According to the arrest affidavit, Mantock told police that one of the security officials punched him in the face again and threw him to the ground after dragging him out the door. It says Mantock “stated that he then pulled out his gun and started shooting” because “he was very upset about the security punching him in the face,” adding that he “began firing at the Decades’ security.”

The affidavit says five of the six people shot were Decades employees.

Gay former Dupont Circle Advisory Neighborhood Commissioner Mike Silverstein, who lives near where the shooting took place, said Decades is not known as a place that LGBTQ people patronize but said the surrounding neighborhood is home to many LGBTQ residents and draws many LGBTQ visitors. 

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Maryland

Md. governor signs Freedom to Read Act

Law seeks to combat book bans

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Maryland Gov. Wes Moore (Public domain photo/Twitter)

Maryland Gov. Wes Moore on Thursday signed a bill that seeks to combat efforts to ban books from state libraries.

House Bill 785, also known as the Freedom to Read Act, would establish a state policy “that local school systems operate their school library media programs consistent with certain standards; requiring each local school system to develop a policy and procedures to review objections to materials in a school library media program; prohibiting a county board of education from dismissing, demoting, suspending, disciplining, reassigning, transferring, or otherwise retaliating against certain school library media program personnel for performing their job duties consistent with certain standards.”

Moore on Thursday also signed House Bill 1386, which GLSEN notes will “develop guidelines for an anti-bias training program for school employees.”

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District of Columbia

Catching up with the asexuals and aromantics of D.C.

Exploring identity and finding community

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Local asexuals and aromantics met recently on the National Mall.

There was enough commotion in the sky at the Blossom Kite Festival that bees might have been pollinating the Washington Monument. I despaired of quickly finding the Asexuals and Aromantics of the Mid-Atlantic—I couldn’t make out a single asexual flag among the kites up above. I thought to myself that if it had been the Homosexuals of the Mid-Atlantic I would’ve had my gaydar to rely on. Was there even such a thing as ace-dar?

As it turned out, the asexual kite the group had meant to fly was a little too pesky to pilot. “Have you ever used a stunt kite?” Bonnie, the event organizer asked me. “I bought one. It looked really cool. But I can’t make it work.” She sighed. “I can’t get the thing six feet off the ground.” The group hardly seemed to care. There was caramel popcorn and cookies, board games and head massages, a game of charades with more than its fair share of Pokémon. The kites up above might as well have been a coincidental sideshow. Nearly two dozen folks filtered in and out of the picnic throughout the course of the day.

But I counted myself lucky that Bonnie picked me out of the crowd. If there’s such a thing as ace-dar, it eludes asexuals too. The online forum for all matters asexual, AVEN, or the Asexual Visibility and Education Network, is filled with laments: “I don’t think it’s possible.” “Dude, I wish I had an ace-dar.” “If it exists, I don’t have it.” “I think this is just like a broken clock is right twice a day type thing.” What seems to be a more common experience is meeting someone you just click with—only to find out later that they’re asexual. A few of the folks I met described how close childhood friends of theirs likewise came out in adulthood, a phenomenon that will be familiar to many queer people. But it is all the more astounding for asexuals to find each other this way, given that asexual people constitute 1.7% of sexual minorities in America, and so merely .1% of the population at large. 

To help other asexuals identify you out in the world, some folks wear a black ring on their middle finger, much as an earring on the right ear used to signify homosexuality in a less welcoming era. The only problem? The swinger community—with its definite non-asexuality—has also adopted the signal. “It’s still a thing,” said Emily Karp. “So some people wear their ace rings just to the ace meet-ups.” Karp has been the primary coordinator for the Asexuals and Aromantics of the Mid-Atlantic (AAMA) since 2021, and a member of the meet-up for a decade. She clicked with the group immediately. After showing up for a Fourth of July potluck in the mid-afternoon, she ended up staying past midnight. “We played Cards against Humanity, which was a very, very fun thing to do. It’s funny in a way that’s different than if we were playing with people that weren’t ace. Some of the cards are implying, like, the person would be motivated by sex in a way that’s absurd, because we know they aren’t.” 

Where so many social organizations withered during the pandemic, the AAMA flourished. Today, it boasts almost 2,000 members on meetup.com. Karp hypothesized that all the social isolation gave people copious time to reflect on themselves, and that the ease of meeting up online made it convenient as a way for people to explore their sexual identity and find community. Online events continue to make up about a third of the group’s meet-ups. The format allows people to participate who live farther out from D.C. And it allows people to participate at their preferred level of comfort: while many people participate much as they would at an in-person event, some prefer to watch anonymously, video feed off. Others prefer to participate in the chat box, though not in spoken conversation.

A recent online event was organized for a discussion of Rhaina Cohen’s book, “The Other Significant Others,” published in February. Cohen’s book discusses friendship as an alternative model for “significant others,” apart from the romantic model that is presupposed to be both the center and goal of people’s lives. The AAMA group received the book with enthusiasm. “It literally re-wired my brain,” as one person put it. People discussed the importance of friendship to their lives, and their difficulties in a world that de-prioritized friendship. “I can break up with a friend over text, and we don’t owe each other a conversation,” one said. But there was some disagreement when it came to the book’s discussion of romantic relationships. “It relegates ace relationships to the ‘friend’ or ‘platonic’ category, to the normie-reader,” one person wrote in the chat. “Our whole ace point is that we can have equivalent life relationships to allo people, simply without sex.” (“Allo” is shorthand for allosexual or alloromantic, people who do experience sexual or romantic attraction.)

The folks of the AAMA do not share a consensus on the importance of romantic relationships to their lives. Some asexuals identify as aromantic, some don’t. And some aromantics don’t identify as asexual, either. The “Aromantic” in the title of the group is a relatively recent addition. In 2017, the group underwent a number of big changes. The group was marching for the first time in D.C. Pride, participating in the LGBTQ Creating Change conference, and developing a separate advocacy and activism arm. Moreover, the group had become large enough that discussions were opened up into forming separate chapters for D.C., Central Virginia, and Baltimore. During those discussions, the group leadership realized that aromantic people who also identified as allosexual didn’t really have a space to call their own. “We were thinking it would be good to probably change the name of the Meetup group,” Emily said. “But we were not 100% sure. Because [there were] like 1,000 people in the group, and they’re all aces, and it’s like, ‘Do you really want to add a non-ace person?’” The group leadership decided to err on the side of inclusion. “You know, being less gatekeep-y was better. It gave them a place to go — because there was nowhere else to go.”

The DC LGBT Center now sponsors a support group for both asexuals and aromantics, but it was formed just a short while ago, in 2022. The founder of the group originally sought out the center’s bisexual support group, since they didn’t have any resources for ace folks. “The organizer said, you know what, why don’t we just start an ace/aro group? Like, why don’t we just do it?” He laughed. “I was impressed with the turnout, the first call. It’s almost like we tapped into, like, a dam. You poke a hole in the dam, and the water just rushes out.” The group has a great deal of overlap with the AAMA, but it is often a person’s first point of contact with the asexual and aromantic community in D.C., especially since the group focuses on exploring what it means to be asexual. Someone new shows up at almost every meeting. “And I’m so grateful that I did,” one member said. “I kind of showed up and just trauma dumped, and everyone was really supportive.”

Since the ace and aro community is so small, even within the broader queer community, ace and aro folks often go unrecognized. To the chagrin of many, the White House will write up fact sheets about the LGBTQI+ community, which is odd, given that when the “I” is added to the acronym, the “A” is usually added too. OKCupid has 22 genders and 12 orientations on its dating website, but “aromantic” is not one of them — presumably because aromantic people don’t want anything out of dating. And since asexuality and aromanticism are defined by the absence of things, it can seem to others like ace and aro people are ‘missing something.’ One member of the LGBT center support group had an interesting response. “The space is filled by… whatever else!” they said.  “We’re not doing a relationship ‘without that thing.’ We’re doing a full scale relationship — as it makes sense to us.”

CJ Higgins is a postdoctoral fellow with the Alexander Grass Humanities Institute at Johns Hopkins University.

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