82 F.4th 1122
D.C. Cir.2023Background
- Summer 2020: large Black Lives Matter (BLM) protests in D.C. produced widespread painting, chalking, and graffiti on streets, sidewalks, and some private property; police largely did not arrest or charge participants for violations of the District's defacement ordinance.
- On Aug. 1, 2020, the Frederick Douglass Foundation and Students for Life ("the Foundation") held a small rally to chalk "Black Pre-Born Lives Matter." Officers—after warning—arrested two students for chalking; the event was videotaped.
- The Foundation had applied for a permit and received verbal guidance from an officer; the Foundation alleges police told them they could not paint/chalk despite Mayor Bowser’s commissioning of a BLM mural and visible non-enforcement of others.
- The Foundation sued under 42 U.S.C. § 1983, alleging selective enforcement violative of the First Amendment (viewpoint discrimination) and the Fifth Amendment (equal protection); the district court dismissed, concluding both claims required pleading discriminatory intent and that Monell liability was not shown.
- The D.C. Circuit affirmed dismissal of the equal protection claim for lack of plausible invidious motive, but reversed dismissal of the First Amendment selective-enforcement claim, holding viewpoint discrimination can violate the First Amendment irrespective of the government’s motive and that the complaint plausibly alleged both "similarly situated" and a Monell policy/practice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a First Amendment selective-enforcement (viewpoint discrimination) claim requires proof of government discriminatory intent | Foundation: selective enforcement that permits BLM messages but punishes pro-life chalking is viewpoint discrimination; intent not required for First Amendment challenge | District: First Amendment claim is functionally the same as an equal protection claim and therefore requires pleading discriminatory purpose | Held: Intent is not required for a First Amendment selective-enforcement/viewpoint claim; viewpoint discrimination is prohibited regardless of motive |
| Whether the Foundation’s members were similarly situated to unprosecuted BLM participants | Foundation: both groups engaged in political speech on public streets/sidewalks, violated the same defacement ordinance, officers were present, and enforcement differed | District: BLM protests were larger and posed different enforcement/prioritization concerns; Foundation sought permit (self-reporting) which distinguishes them | Held: At the motion-to-dismiss stage the complaint plausibly alleges the Foundation was similarly situated to some BLM participants (including smaller events) for selective-enforcement purposes |
| Whether the complaint plausibly alleges a Monell policy or custom causing the constitutional violation | Foundation: widespread, uniform non-enforcement of the ordinance for BLM speech, plus Mayor’s actions and officer statements, reasonably infer policymaker involvement or deliberate indifference | District: no allegation of an official policy favoring certain viewpoints; isolated acts insufficient | Held: Complaint plausibly alleges a persistent and widespread practice (non-enforcement of BLM messages) sufficient to survive dismissal on Monell pleading grounds |
| Whether the Fifth Amendment equal protection selective-enforcement claim survives | Foundation: disparate treatment of pro-life speech shows equal protection violation | District: equal protection requires discriminatory purpose; the complaint lacks plausible facts showing animus | Held: Affirmed dismissal—equal protection claim fails for lack of plausible allegation of invidious discriminatory intent |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (establishes plausibility pleading standard)
- Monell v. Department of Social Services, 436 U.S. 658 (municipal liability requires an official policy or custom)
- Wayte v. United States, 470 U.S. 598 (selective-prosecution principles and prosecutorial discretion)
- Thomas v. Chicago Park District, 534 U.S. 316 (waiving rules for favored speakers is unconstitutional in public forums)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (viewpoint discrimination barred by First Amendment)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (content- and viewpoint-based regulation doctrine)
- United States v. Armstrong, 517 U.S. 456 (similarly situated requirement for selective-prosecution claims)
- Heckler v. Chaney, 470 U.S. 821 (non-reviewability and prosecutorial discretion principles)
- Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (standard for proving selective enforcement is demanding)
- Uzuegbunam v. Preczewski, 141 S. Ct. 792 (nominal damages and redressability for First Amendment violations)
- Zukerman v. United States Postal Service, 961 F.3d 431 (D.C. Cir. recognition of viewpoint-discrimination/selective-enforcement claim)