Boasberg's blunder? Judge usurped jury by tossing pro-life discrimination suit twice, groups say

During the Black Lives Matter racial protests of 2020, the Washington, D.C., government commissioned the painting of the message on a street near the White House and looked the other way when protesters illegally scrawled it across the city, with one notable exception: black lives not yet born. 

The federal judge best known for "abuse of discretion" in a contempt investigation of the Trump administration twice upheld D.C.'s right to single out "Black Pre-Born Lives Matter" for enforcement, by prohibiting its writing in erasable chalk outside a Planned Parenthood center and arresting pro-life activists who did it anyway.

The First Amendment challenge to the city's finicky enforcement of its defacement laws now returns to the U.S. Court of Appeals for the D.C. Circuit, which three years ago ordered U.S. District Judge James Boasberg to reconsider the viewpoint-discrimination claim by the Frederick Douglass Foundation and Students for Life of America.

Though the three-judge panel said Boasberg wrongly required the plaintiffs to show "invidious discrimination" was behind the city's selective enforcement of its defacement ordinance against pro-life views, Boasberg rubber-stamped his 2021 ruling this February, granting the city summary judgment while grousing that the case kept returning to his docket.

SFLA and the pro-life foundation named after the famed abolitionist, whose California chairman told the John Solomon Reports podcast that systemic racism better applies to the Democratic Party than to police, filed their opening brief with the D.C. Circuit last week.

They argue that Boasberg usurped a jury by finding Black Lives Matter vandals weren't "similarly situated" to the pro-life chalkers, ignoring evidence compiled during legal discovery that allegedly shows the city's "consistent custom of inconsistent enforcement" under Assistant Chief of Police Jeffery Carroll, who oversaw the Metropolitan Police Department's Special Operations Division.

"Equal justice means applying the law equally, not rewarding favored speech while punishing dissenting voices," foundation chairman Troy Rolling said. SFLA President Kristan Hawkins marveled that "one of the few ways for protestors to get the attention of D.C. officials is not by violence or vandalism, but by voicing love and concern for the preborn with chalk."

Black lives are disproportionately ended via abortion, according to estimates by the Guttmacher Institute. The abortion-rights research group, which kept financial ties to Planned Parenthood until 2010, says black women account for 29% of abortions, while the Census Bureau estimates blacks constitute less than 14% of the U.S. population.

Named after a longtime Planned Parenthood president and American Eugenics Society vice president, the institute does not mention Alan Guttmacher's support for eugenics and for abortion as one method of eugenics, documented by Justice Clarence Thomas in a concurrence when the Supreme Court partially restored an Indiana abortion regulation.

Inspector warned Mayor Bowser's mural opened 'Pandora's box'

Boasberg's February ruling, "aided for the first time by a fully compiled evidentiary record" as ordered by the D.C. Circuit, claimed the plaintiffs hadn't found "any violators [who] were similarly situated to those arrested at their assembly" at the Planned Parenthood near Capitol Hill on Aug. 1, 2020, for violating the permit's ban on "[m]arking or painting the street."

He emphasized SFLA and the foundation couldn't show that MPD officers "even witnessed any specific defacement during [Black Lives Matter] protests," including the "Defund the Police" defacement of Mayor Muriel Bowser's block-long "Black Lives Matter" mural on 16th Street NW, then refused arrests. 

The pro-life protest was also much smaller than BLM protests and the two pro-life activists who were arrested ignored direct orders from officers to abstain from chalking, Boasberg said. 

"The deterrent value of arresting such flagrant violators might reasonably outweigh that of arresting violators who did not directly defy a warning against defacement," he wrote.

The plaintiffs' opening brief before the D.C. Circuit accuses Boasberg of ignoring hard evidence that's inconvenient to his similarly-situated finding and falsely characterizing BLM protests as too big for police to effectively monitor for vandalism, with many events drawing "fewer than 50" or "only a handful of people."

The plaintiffs introduced bodycam video of "officers standing by while a protester peacefully spray-painted 'I can’t breathe' on the street near the U.S. Chamber of Commerce" – also near the White House – just two weeks after the arrests at Planned Parenthood. MPD Cpt. Michelle Caron cited "guidance" from Assistant Chief Carroll and others for officers' inaction.

Another video shows spray-painting of BLM messages outside the Department of Justice 12 days after the vandalism outside the Chamber of Commerce. About halfway through the 11-minute video, the camera pans from a kneeling vandal to officers watching the broader scene from across the street.

When a reporter asked MPD to "explain the discrepancy" between the arrests at Planned Parenthood and the failure to "warn or arrest" the DOJ vandal, Chief Peter Newsham told MPD to convey that they were "looking into it," the brief says.

Carroll testified being "present" at BLM protests featuring "defacement" of property, public and private, and Lt. Jason Bagshaw admitted seeing defacement "related to" BLM protests, the brief emphasizes.

"Despite numerous violations of the defacement ordinance, the record does not show that MPD arrested a single protestor for defacement with a Black Lives Matter message," it said.

Meanwhile, when pro-life activists invoked the lack of enforcement against BLM vandalism in their request to chalk at the Planned Parenthood protest, MPD and the District Department of Transportation each claimed the other's authority was required, despite officers telling "at least one person" that MPD policy doesn't prohibit chalking, the brief says. 

The best comparator for a jury is probably the official inaction at the Chamber of Commerce protest, which like the Planned Parenthood protest was also small, the plaintiffs argue. "In both cases, dozens of officers were confronted with peaceful but vocal crowds that video evidence and officer testimony indicates were comparable."

The brief says Judge Boasberg botched his obligations at the summary-judgment stage, arrogating for himself the role reserved for a jury: to decide whether the Chamber of Commerce and Planned Parenthood protests were factually distinguishable for enforcement purposes.

He "dismissed the other comparator events out of hand" and conflated evidence standards for selective prosecution and selective enforcement, the latter of which only requires a preponderance of evidence, the plaintiffs claim.

A reasonable jury could find the city violated the plaintiffs' civil rights because Assistant Chief Carroll "directed the selective enforcement at the Planned Parenthood and Chamber of Commerce events," according to the brief.

MPD's "consistent refusal" to let them chalk a pro-life message, "paired with its consistent non-enforcement" against BLM messages, could also persuade a jury that this "established a District custom of unconstitutional viewpoint discrimination." 

The city "received several warnings that its viewpoint-discriminatory approach violated the First Amendment," the brief says, noting Inspector Robert Glover's response to the pro-life activists' request for permission to chalk at the Planned Parenthood protest.

They reminded MPD and Mayor Bowser, a Democrat, that she had "opened the streets of your city for public expression" with the authorized BLM mural. Glover, who ran special operations for much of summer 2020 and testified being at "95 percent" of BLM protests, told Carroll and other special ops staff that Bowser had opened "Pandora's box."