The Frederick Douglass Found. v. Dist. of Columbia

THE FREDERICK DOUGLASS FOUNDATION, INC., et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 20-3346 (JEB)

United States District Court, District of Columbia

September 1, 2021

MEMORANDUM OPINION

JAMES E. BOASBERG United States District Judge

With the paint barely dry on its earlier decision in this matter the Court returns to the question of whether the District of Columbia improperly prohibited anti-abortion advocacy groups and their individual supporters from painting or chalking the message “Black Pre-Born Lives Matter” on city streets and sidewalks. Plaintiffs - the Frederick Douglass Foundation, Students for Life of America, and three members of those organizations - contend that the District's enforcement of its ordinance prohibiting the defacing of public or private property against them but not against racial-justice protesters violated a slew of constitutional and statutory protections.

In March 2021, this Court denied Plaintiffs' motion for a preliminary injunction to require the District to allow them to paint their message at a rally that month. See Frederick Douglass Found., Inc. v. District of Columbia 2021 WL 1166841 (D.D.C. Mar. 26, 2021). They now return with a somewhat different Amended Complaint, which Defendant moves to dismiss. As the Court's ultimate determination remains the same under the Rule 12(b)(6) standard - even though some of its analysis differs - it concludes that Plaintiffs have failed to state a facially plausible claim on each of their counts and will dismiss the case.

I. Background

The backdrop for this case was laid out in this Court's March 2021 Opinion. See Frederick Douglass Found., Inc., 2021 WL 1166841, at *1-4. In light of the different factual information a court may consider at the preliminary-injunction stage, as opposed to on a motion to dismiss, the Court sketches a summary of events drawn from Plaintiffs' Amended Complaint and then recounts the procedural history.

A. Factual Background

Plaintiffs held a joint rally on August 1, 2020, at which they sought to paint a mural in front of the Planned Parenthood Carole Whitehill Moses Center, located in Northeast Washington, which would have read “Black Pre-Born Lives Matter.” ECF No. 26 (Am. Compl.), ¶ 2. They wished “to recognize the fact that Planned Parenthood and the abortion industry kill tens of thousands of unborn African-American children in the womb each year.” Id.; see also id., ¶ 56. Expressing such a message is consistent with Plaintiffs' broader advocacy work. “Frederick Douglass Foundation is a national education and public policy organization . . . that advocates free-market and limited-government ideas” and serves as a “liaison between black, faith-based organizations” and conservative politicians. Id., ¶¶ 16, 19. Students for Life of America is “the nation's largest youth pro-life organization.” Id., ¶ 26. The three individual Plaintiffs are involved with these two organizations. Id., ¶¶ 23, 24, 31.

Plaintiffs “applied for a permit for assembly with [D.C.] police” and received permission to use “bullhorns, [a] music stand, and signs with paint supplies.” Id., ¶ 58. They also allege that they received verbal confirmation that they could paint their mural so long as they used tempera paint, which washes out. Id., ¶ 59. When Plaintiffs arrived to begin painting, however, they were “confronted by myriad police cars and law-enforcement officers” and told that if they marked the streets or sidewalk, “they would be arrested” for violating the District's ordinance against defacing property. Id., ¶ 3. The Defacement Ordinance, codified at D.C. Code § 22-3312.01, states:

It shall be unlawful for any person or persons willfully and wantonly . . . to write, mark, draw, or paint, without the consent of the owner or proprietor thereof, or, in the case of public property, of the person having charge, custody, or control thereof, any word, sign, or figure upon: Any property, public or private, building, statue, monument, office . . . dwelling or structure of any kind . . . .

Under the Ordinance, “property” includes streets and sidewalks. Id. § 22-3312.05(9). Two individuals nonetheless went forward with chalking the message and “were immediately arrested.” Am. Compl., ¶ 3.

On March 27, 2021, Plaintiffs held another rally for which they again sought permission from the District to paint or chalk “Black Pre-Born Lives Matter” in the same location. Id., ¶ 71. They were again allowed to assemble with a bullhorn and music stand, but not to paint or draw their message. Id. Having been twice denied the opportunity to paint or chalk, they brought this as-applied challenge pursuant to 42 U.S.C. § 1983, alleging that the Defacement Ordinance has been unconstitutionally enforced to limit their activities, but not to punish others. Id., ¶ 1. They contend that the District targeted them because of their “religious and pro-life beliefs, ” id., ¶ 74, while failing to enforce the Ordinance against individuals expressing messages with which it agreed - namely, the racial-justice protesters last summer. See, e.g., id., ¶ 53.

Those protests occurred in June 2020 amid the national response to the killing of George Floyd in Minneapolis. At the time, D.C. Mayor Muriel Bowser “commissioned a mural, extending along 16th Street, NW” that read “Black Lives Matter” in yellow paint followed by the D.C. flag. Id., ¶ 35. The following day, “protestors with Black Lives Matter D.C. painted the words ‘Defund the Police'” next to the message and painted over the stars in the D.C. flag such that the text on the street read “Black Lives Matter = Defund the Police.” Id., ¶ 36. The words “Defund the Police” remained through mid-August when they were removed for pre-planned roadwork; the stars, meanwhile, were quickly repainted. Id., ¶¶ 37, 39. Protesters added drawings, paintings, and graffiti on scaffolding along the side of the nearby headquarters of the U.S. Chamber of Commerce until this display was removed for preservation in August 2020. Id., ¶ 44. Later that summer, “public sidewalks and streets of the District were [again] marked with graffiti, street art, and street chalking, ” including at an event on August 16, 2020, when protesters sought to “reclaim[] the H Street Art Tunnel at BLM Plaza.” Id., ¶ 48. Plaintiffs allege that the protesters did not seek advance permission from the District or the owners of private property to mark the streets and sidewalks, id., ¶¶ 40-41, 45-46, 50-51, that members of the Metropolitan Police Department were present during the painting of “Defund the Police” and the August 2020 street art, id., ¶¶ 38, 52-53, and that no one was punished for these actions. Id., ¶¶ 42, 47, 52.

B. Procedural Background

Plaintiffs first brought this challenge in November 2020 and moved that December for a preliminary injunction that would have allowed them to paint a mural during their rally outside Planned Parenthood on March 27, 2021. See ECF No. 8 (Mot. for Preliminary Injunction) at 3. In March 2021, this Court denied that motion and held that Plaintiffs had not established a likelihood of success on the merits of any of their claims. See Frederick Douglass Found., Inc., 2021 WL 1166841, at *1. Plaintiffs then filed an Amended Complaint in April 2021, which the District now moves to dismiss. See ECF No. 27 (Def. MTD). That Complaint asserts five counts, claiming abridgement of their freedom of speech, right to equal protection of the laws, freedom of association, rights under the Religious Freedom Restoration Act, and free exercise of religion. Id., ¶¶ 83-164.

Although this pleading presents the same five claims that this Court addressed in its earlier decision, the Court is bound to consider them pursuant to the different and lower burden that a plaintiff bears when fending off a motion to dismiss rather than when seeking a preliminary injunction.

II. Legal Standard

To obtain a preliminary injunction, the moving party must “show, among other things, a substantial likelihood of success on the merits.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (citation and internal quotation marks omitted). Further, when assessing such a motion, a court need not confine itself to the facts alleged in the complaint and may consider evidence outside of the complaint such as affidavits or witness testimony. See LCvR 65.1(c) (outlining process for both parties to submit affidavits in preliminary-injunction motion). In now evaluating Defendant's Motion to Dismiss, however, the Court must “treat the complaint's factual allegations as true . . . and must grant plaintiff[s] ‘the benefit of all inferences that can be derived from the facts alleged.'” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The Court need not accept as true “a legal conclusion couched as a factual allegation, ” nor an inference unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

Rule 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a claim upon which relief can be granted.” Although “‘detailed factual allegations'” are not necessary to withstand a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). To do so, the facts alleged in the complaint “must be enough to...