[00:00:01] Speaker 02: Base number 21.7108 Frederick Douglas Foundation, Inc. [00:00:06] Speaker 02: et al. [00:00:06] Speaker 02: ebalance versus District of Columbia. [00:00:09] Speaker 02: Ms. [00:00:09] Speaker 02: Hawley for the ebalance. [00:00:10] Speaker 02: Mr. Shefferly for the eboli. [00:00:12] Speaker 04: Good morning, Ms. [00:00:19] Speaker 04: Hawley. [00:00:20] Speaker 02: Good morning, Your Honor. [00:00:22] Speaker 02: May it please the court. [00:00:23] Speaker 02: Erin Marrow Hawley for Frederick Douglas Foundation and Students for [00:00:27] Speaker 02: Plaintiffs alleged five instances of disparate enforcement during the same summer involving the same law enforcement, the same resource concerns, same city streets, the same media, and even the same subject of conversation, black lives matter. [00:00:43] Speaker 02: The difference, one word, reborn. [00:00:46] Speaker 02: While the district allowed the former message painted on city streets in permanent paint, it sent six squad cars to arrest two students for planning. [00:00:56] Speaker 02: or for me attempting to talk later. [00:00:59] Speaker 02: Your honor, the district court erred twice. [00:01:02] Speaker 02: First, the court elided in its first and fifth amendment claims and held the former to the higher intent standard of the Fifth Amendment. [00:01:09] Speaker 02: But under this court's decision in the Zuckerman and American Freedom Defense Initiative, a pattern of uneven enforcement like the one alleged in the complaint is sufficient to survive emotional dismissal. [00:01:21] Speaker 02: Second, the complaint erred [00:01:23] Speaker 02: by finding, or excuse me, the lower court here, by finding that the complaint failed to plausibly allege a policy undermined out. [00:01:31] Speaker 02: In contrast, the complaint alleges that the mayor directed the Metropolitan Police Department to be present at and prevent plaintiffs from chalking their message because of a key point. [00:01:42] Speaker 02: Three specific allegations inform this and demonstrate possibility. [00:01:47] Speaker 02: One, the police gave plaintiffs verbal permission to chalk their message. [00:01:52] Speaker 02: 2. [00:01:52] Speaker 02: The plaintiffs sent a letter to the mayor informing her of the date, time, and location of their planned protest, along with their intent to chalk their message, black newborn lives matter. [00:02:03] Speaker 02: 3. [00:02:03] Speaker 02: When plaintiffs arrived on a Saturday morning in August at 6 a.m., there were six squad cars and myriad police officers that arrested plaintiffs when they attempted to chalk based on their viewpoint. [00:02:15] Speaker 02: This reversal in policy and show, of course, demonstrates that someone, either the mayor or some other official with policy making authority changed policy and ordered the National Police Department to be there. [00:02:30] Speaker 04: I don't think that it matters, but maybe I'm misremembering your complaint. [00:02:36] Speaker 04: I thought that they were threatened with arrest, but not actually arrested. [00:02:42] Speaker 02: Yes, the when the group arrived, they were all threatened with arrest. [00:02:49] Speaker 02: If they did in fact, their message, despite the fact that the district had allowed some more messages in the past. [00:02:55] Speaker 02: I have two students, if you'll look at pages 62 of the Joint Appendix, there are two students who were arrested for attempting to chalk that message. [00:03:04] Speaker 02: If you look, the message is about 16 inches high in chalk, in washable chalk. [00:03:10] Speaker 02: And on page 61 of the Joint Appendix, you see one of the messages that the district allowed earlier that summer in June. [00:03:17] Speaker 02: That message, to fund the police, [00:03:19] Speaker 02: spans the city street from sidewalk to sidewalk, spans an entire block, is visible from Google Earth, and remained in place for months. [00:03:28] Speaker 02: And yet, six squad cars arrived to arrest two students for attempting to write Black pre-born lives matter, again, in letters about 16 to 18 inches high. [00:03:40] Speaker 03: Miss Holly, I think it's important here to be very clear about what the legal standards are under the First and Fifth Amendments because the case law is perhaps not the clearest. [00:03:51] Speaker 03: So the organizations that you represent, the brief characterizes the First Amendment claim as an as applied [00:03:58] Speaker 03: challenge but I'm wondering if that's really the right way to talk about this because an as applied challenge is where you know a constitution may be facially constitutional but the application of it is unconstitutional. [00:04:11] Speaker 03: I mean the arrests of these students is not [00:04:16] Speaker 03: in itself unconstitutional. [00:04:19] Speaker 03: The claim that the organizations really have is a selective enforcement claim under the First Amendment. [00:04:25] Speaker 03: And so I'm wondering why that's being characterized as an as applied challenge, which doesn't quite seem to fit. [00:04:34] Speaker 03: Maybe you can speak to that. [00:04:36] Speaker 02: Absolutely, Your Honor. [00:04:37] Speaker 02: So I think it's important to distinguish, as you do, between the First Amendment and the Fifth Amendment. [00:04:42] Speaker 02: And we believe that there's a first amendment that has applied viewpoint discrimination claim here. [00:04:47] Speaker 02: Because of this court held in Mahoney versus Doe, the defacement statute is neutral. [00:04:53] Speaker 02: Content neutral. [00:04:54] Speaker 02: So this court upheld it in Mahoney versus Doe. [00:04:57] Speaker 02: But as this court said in the American Freedom Defense Initiative, of course, the government can, in fact, discriminate, even if you have a neutral statute. [00:05:06] Speaker 02: And when that happens, and it's based on viewpoint, a majority of courts of your sister circuits [00:05:12] Speaker 02: have recognized that that states an as applied claim for viewpoint discrimination. [00:05:16] Speaker 03: Is that really the right way to talk about it though? [00:05:18] Speaker 03: I mean, I'm just wondering if that's the right label. [00:05:20] Speaker 03: Like, isn't the right label for that type of claim a selective enforcement, a claim for selective enforcement about viewpoint discrimination under the First Amendment? [00:05:31] Speaker 02: I mean, that label might be accurate as long as you're clear that it is a claim under the First Amendment. [00:05:37] Speaker 03: I mean, I think the case is certainly suggested is one. [00:05:39] Speaker 03: I'm just not sure that as applied is the right way to talk about it. [00:05:43] Speaker 03: And I think that may actually have consequences for how we think about what the standards are. [00:05:48] Speaker 02: So there, I think I disagree with you, Your Honor, if you suggest that the change in the name would change the standards. [00:05:53] Speaker 02: So a number of courts, if you look at the Second Circuit's decision in Burke in 2021, the Second Circuit said, [00:06:00] Speaker 02: To be sure, there are some similarities between an as-applied viewpoint discrimination claim, their words, and a selective enforcement claim alleging a violation of the First Amendment. [00:06:10] Speaker 02: But despite that similarity, the court allowed holes to go forward, as did the 4th Circuit in McGuire, as did the 9th Circuit in Foley. [00:06:20] Speaker 02: And the reason that these courts are allowing these claims to go forward is because there is a First Amendment claim. [00:06:26] Speaker 02: And the claim is that the district here allowed [00:06:30] Speaker 02: We just allowed protesters rather to write on city streets. [00:06:35] Speaker 02: If you look at the verbal permission that the police officer gave, he noted that the mayor had opened up Pandora's box. [00:06:42] Speaker 02: And yet it was enforced twice against the plaintiff students here. [00:06:47] Speaker 02: So I think it is a first-men claim. [00:06:49] Speaker 02: I think it's as applied because the statute is contentious. [00:06:56] Speaker 02: And to your question as to standard, I think that does matter. [00:07:00] Speaker 02: So the selective enforcement standard, of course, is both that there is an intent to discriminate based on viewpoint. [00:07:07] Speaker 03: So that's what I'm wondering. [00:07:08] Speaker 03: I mean, I think that the cases may recognize that there's a selective enforcement claim under the First Amendment, which is different from selective enforcement claims under the Fifth Amendment. [00:07:22] Speaker 02: So again, [00:07:23] Speaker 02: I don't that that could be a correct interpretation. [00:07:26] Speaker 02: The cases use the term as a point discrimination. [00:07:29] Speaker 02: And the reason they do that, I believe, is to make clear that it is a lower intent standard. [00:07:34] Speaker 02: That's right. [00:07:36] Speaker 03: Because you're not really challenging the validity of defacement ordinance, which is neutral on its face and could have been applied both to the organizations here as well as to the other Black Lives Matter [00:07:48] Speaker 03: protesters right you know in an even-handed manner and there would be no constitutional problems with the enforcement of this ordinance if it was even-handed so so it seems to me I just think it's more clarifying to say that there is a selective enforcement challenge under the first amendment so I think [00:08:08] Speaker 02: problem with that, Your Honor, is that it might suggest that you have court the intent standard from those selective enforcement cases. [00:08:15] Speaker 02: And this court has been clear in Superman as well as American freedom defense initiative that a pattern of uneven enforcement is the most relevant evidence. [00:08:25] Speaker 03: Uh, if you look at this, why would we have to import that fifth amendment intent requirement into the selective enforcement claim under the first amendment? [00:08:33] Speaker 02: You wouldn't, your honor, but I worry that would be confusing. [00:08:36] Speaker 02: And I suspect that's why these other circuits, the Ninth Circuit, the Fourth Circuit, and these other circuits have called this an as-applied viewpoint discrimination claim. [00:08:45] Speaker 02: The reason being is that there is a content neutral statute, and there's disparate enforcement based on that. [00:08:53] Speaker 03: Isn't what you're challenging in effect the isn't what the organizations that you represent they're challenging in effect It seems to me you can tell me if this isn't correct an unwritten policy of the DC government to have selective enforcement of the defacement ordinance and if that unwritten policy discriminates on the basis of viewpoint Then you wouldn't have to show intent under cases like reach [00:09:21] Speaker 02: I think that could be correct, Your Honor. [00:09:24] Speaker 02: And I think what we have here as a policy in which the district enforces debasement ordinance against disfavor speech, like plaintiffs, and did not enforce it during the summer of 2020 against favor speech. [00:09:41] Speaker 02: And so I do think you have a disparate intent, a disparate enforcement. [00:09:46] Speaker 02: And this court's cases, again, in Zuckerman, as well as Supreme Court's cases in Reed, suggest that that isn't [00:09:56] Speaker 02: So also, Your Honors, I think the district court went wrong when looking at the complaint and failing to find a sufficient official policy. [00:10:05] Speaker 02: There are a number of specific allegations that move the needle from a due plausibility on those allegations. [00:10:14] Speaker 02: First, the complaint alleges that a Metropolitan Police Department informed plaintiffs that they would be allowed to chalk their message, Black freeborn lives matter, [00:10:24] Speaker 01: because the mayor had opened up Pandora's box by allowing others to talk similar messages or even matter to you that the racial justice protesters that you point to neither applied for or had a permit. [00:10:37] Speaker 02: I don't believe so, your honor. [00:10:38] Speaker 02: The district court considered that and rejected that factor. [00:10:42] Speaker 02: The reason being is that plaintiffs attempt to comply with the permitting requirements should not subject them to greater enforcement. [00:10:49] Speaker 02: Indeed, if you look at the joint appendix J.A. [00:10:52] Speaker 02: 10, you'll see a declaration and the declaration says that the Metropolitan Police Department enforces violations that is both aware of. [00:11:01] Speaker 02: The complaint alleges that the MPD was aware of these violations and yet did nothing. [00:11:07] Speaker 02: Indeed, many of them remained for months. [00:11:10] Speaker 02: So I don't think that permitting is distinct. [00:11:13] Speaker 01: And I'd also like to get to the First Amendment selective enforcement versus Fifth Amendment selective enforcement on the intent element. [00:11:21] Speaker 01: As you mentioned earlier about there being a pattern of uneven favoritism, but should there be a higher level of intent given that viewpoint discrimination that even if it's egregious form of content-based discrimination, that there should be a higher level of intent versus just using a pattern? [00:11:38] Speaker 02: So I think this court's guidance on what the intent standard is would be welcome. [00:11:42] Speaker 02: It seems like there's a current three-way circuit split. [00:11:45] Speaker 02: The Seventh Circuit in Chicago, Akron said that there's no intent at all. [00:11:50] Speaker 02: Evidence of disparate enforcement is enough, and even a pure or innocent motive does not save viewpoint discrimination. [00:11:58] Speaker 02: In contrast, we have the 4th Circuit in Maguire and the 10th Circuit in Halls that appear to require some sort of direct intent. [00:12:05] Speaker 02: And then we have a number of other circuits, the 2nd, the 3rd, and the 8th, and the 9th, which appear to follow the Supreme Court's decision in Thomas and say that when you have an unlawful pattern of enforcement, which can be shown, again, by a pattern [00:12:19] Speaker 02: like that one alleged in the complaint, then that is sufficient to give rise to an inference as well as evidence of intent. [00:12:27] Speaker 02: So that pattern of uneven enforcement is all that is needed. [00:12:30] Speaker 02: I think that's what this court's cases in Superman and American Freedom Defense Initiative suggest where this court is at. [00:12:37] Speaker 02: When you have viewpoint discrimination, take the Superman case. [00:12:41] Speaker 02: In that case, you had a custom stamp program. [00:12:44] Speaker 02: The artist submitted a stamp that criticized the Supreme Court's decision in Citizens United. [00:12:50] Speaker 02: His complaint was quite simple, and it stated that the stamp vendor discriminated by allowing others to assail views of political views and not allowing him to do so. [00:13:01] Speaker 02: And this court said that stated the most basic claim for viewpoint discrimination, because within a subset of messages, it singled one out for the state [00:13:10] Speaker 02: That's what the complainants here. [00:13:12] Speaker 02: And we think that under Thomas, that unlawful favoritism as well as Superman, American freedom defense initiative, when you have evidence of uneven enforcement, that at least gives rise to a motion to an inference at the motion to dismiss stage at where this case is at. [00:13:28] Speaker 04: Didn't Superman in the court acknowledge that what it was saying with respect to that was really not necessary to the decision. [00:13:38] Speaker 02: So it did acknowledge that your honor, but Superman is on all fours with American freedom defense initiative. [00:13:43] Speaker 02: And what both of those pieces, as well as this court's decision in Mahoney versus Babbitt say is that even though the defacement ordinance is absolutely neutral on its face, the government can of course enforce it in ways that are discriminatory. [00:13:56] Speaker 02: And when it does so based on viewpoint, [00:13:59] Speaker 02: then all the plaintiff needs to allege to survive a motion to dismiss. [00:14:03] Speaker 02: And I think that's key here. [00:14:04] Speaker 02: We are at the motion to dismiss stage. [00:14:06] Speaker 02: And plaintiffs have alleged five instances of what the district court called lapses in enforcement in quote, circumstances that are similar in circumstances and location. [00:14:18] Speaker 02: highly similar in circumstances and location. [00:14:20] Speaker 02: And so I think that uneven pattern of enforcement would survive. [00:14:24] Speaker 02: Zuckerman would survive American Freedom Defense Initiative as well as Mahoney versus that. [00:14:30] Speaker 04: But the district court found that essentially that it wasn't really uneven because the circumstances weren't comfortable. [00:14:40] Speaker 04: Is that a fair summary of the district court's ruling? [00:14:44] Speaker 02: No, your honor, with respect, what the district court found was that it was likely that plaintiffs had alleged enough again at the motion to dismiss stage that plaintiffs as well as the racial justice protesters were similarly situated. [00:14:58] Speaker 02: He looked at both the fact that the plaintiffs sought permits as well as the fact that maybe they were different in scope and still concluded that it was likely they had satisfied the similarly situated requirement. [00:15:10] Speaker 02: That conclusion is really correct for a couple of other reasons. [00:15:14] Speaker 02: First, this is the motion to dismiss stage at that stage under this course decision in Banneker, where there are two possible explanations. [00:15:23] Speaker 02: One, maybe the resource concerns proposed by the district. [00:15:27] Speaker 02: On the other hand, maybe the discriminatory viewpoint proposed by plaintiffs. [00:15:31] Speaker 02: Then that complaint survives a motion to dismiss under Banneker. [00:15:35] Speaker 02: Second, Your Honor, these events took place during the very same summer mass, the same police resource concerns applied to both and yet plaintiffs were, you know, [00:15:47] Speaker 02: when they arrived at 6 a.m. [00:15:49] Speaker 02: on a Saturday morning, six quad cars came up during the summer in which these resource concerns applied. [00:15:56] Speaker 02: So for all of those reasons, the district court was right to conclude that these plaintiffs are likely similarly situated. [00:16:03] Speaker 01: And does the subject matter of the speech factor into that analysis? [00:16:08] Speaker 02: Absolutely, Your Honor. [00:16:09] Speaker 02: In this case, the subject matter of the speech is precisely the same. [00:16:12] Speaker 02: The racial justice protesters were writing Black Lives Matter, plaintiffs here, [00:16:17] Speaker 02: One each white black newborn lives matter. [00:16:19] Speaker 02: So same subject, same content, different viewpoints. [00:16:23] Speaker 02: And under this court's decisions in Mahoney versus Babbitt, in Zuckerman, in American Freedom Defense Initiative, discrimination based solely on viewpoint is impermeable. [00:16:34] Speaker 01: And how are you suggesting that the mayor's political preferences were connected, like there was some kind of direction to a particular customer policy, just because the mayor had reported Black Lives Matter? [00:16:48] Speaker 02: So it's absolutely appropriate for the mayor to support different policies. [00:16:53] Speaker 02: We have no issue with that. [00:16:55] Speaker 02: What the complaint suggests and the district court found to be consistent with evidence of intent. [00:17:01] Speaker 02: Is it the support for Planned Parenthood? [00:17:03] Speaker 02: and support for Black Lives Matter, might be consistent with an intent to discriminate based on viewpoint. [00:17:10] Speaker 02: I think those consistent allegations, along with the allegations raised in the complaint of uneven enforcement, along with the district's argument below, the district attempted to adopt as its own certain speech in order to promote and share that [00:17:25] Speaker 02: And I think all of these things working together, again, at the motion to dismiss stage might show that there is enough intent, if we're taking all inferences in favor of the plaintiffs, to be able to meet the selective enforcement standard. [00:17:39] Speaker 02: And again, here, we're talking about direct intent and selective enforcement. [00:17:43] Speaker 02: As we've discussed, there's a much lower intent requirement to the uneven treatment that applies to the First Amendment claim. [00:17:50] Speaker 03: For liability under Monell, I mean, [00:17:54] Speaker 03: Do the organizations here have to plausibly allege that they, that the city had a policy targeting pro-life speech, or is it sufficient to show that this, like to plausibly allege that the city had a policy favoring, you know, the Black Lives Matter speech, you know, by those groups of demonstrators? [00:18:16] Speaker 02: So I think what's required under Monell is either an official policy made by a policymaker, in this case, as the go-plane alleges, [00:18:24] Speaker 02: Paragraph 58, or excuse me, 66, either the mayor or another district official who ordered the Metropolitan Police Department to be at the protest and to stop them from shocking a message based on its view. [00:18:38] Speaker 02: I think the other way to satisfy Mo now, which the complaint arguably does as well, is to allege a pattern or practice that is sufficiently widespread to give rise to an inference of that. [00:18:50] Speaker 03: Does it matter if [00:18:52] Speaker 03: What selective is the non-enforcement as opposed to the enforcement? [00:18:57] Speaker 03: Can you say that again? [00:18:58] Speaker 03: I mean, does it matter? [00:18:59] Speaker 03: I mean, you know, does it matter? [00:19:02] Speaker 03: Say the city, if the city was enforcing the ordinance against all groups, pro-life groups as well as other groups, but only giving non-enforcement to the Black Lives Matter group. [00:19:14] Speaker 02: Does that matter? [00:19:15] Speaker 02: So that's not the complaint. [00:19:17] Speaker 02: The complaint alleges that there is a policy of disparate enforcement [00:19:22] Speaker 02: as to plaintiffs for life speech as compared to the non-enforcement during the summer of 2020. [00:19:28] Speaker 02: I'm not sure that it would matter. [00:19:30] Speaker 03: I mean, are those two sides of the same coin or is there a difference? [00:19:36] Speaker 03: Whether the complaint is about non-enforcement versus like targeted enforcement of a particular kind of viewpoint. [00:19:41] Speaker 02: I think those are similar points for showing a pattern of practice of uneven enforcement. [00:19:47] Speaker 02: I think what makes this case unique and maybe combat some of the claims about [00:19:51] Speaker 02: in this case opening up Pandora's box, is that this really is a unique case in that plaintiffs identify three instances of non-enforcement, they identify two instances of enforcement, all taking place during the same summer months, same content, same medium. [00:20:07] Speaker 02: Even the police officer said, you know, you can do it because the mayor's allowed it on the city streets. [00:20:12] Speaker 02: So these circumstances, they're so clearly similar and yet you have disparate enforcement. [00:20:18] Speaker 02: And so I think that certainly survives a motion to dismiss. [00:20:26] Speaker 04: We'll give you some time on everybody. [00:20:28] Speaker 05: Thank you. [00:20:39] Speaker 05: Good morning and may please support all share fully on behalf of the District of Columbia. [00:20:44] Speaker 05: The district court properly dismissed the complaint. [00:20:48] Speaker 05: I just did not. [00:20:50] Speaker 05: I hope I just did not state of credit [00:20:53] Speaker 05: constitutional violation because they failed to adequately allege that the district's enforcement of the evasion statute against them was one, because they were singled out from among others similarly situated, and two, the district had a discriminatory purpose in doing so. [00:21:09] Speaker 05: But I think the easiest and even easier way to resolve this case is because plaintiffs also failed to adequately allege a municipal policy and custom that would have caused any particular constitutional violation [00:21:23] Speaker 05: So I would like to turn to that first. [00:21:27] Speaker 05: What a complaint, in order to state a mental claim, a municipal policy and custom claim, has to identify a particular type of municipal policy or custom on which the plaintiffs are aligned. [00:21:38] Speaker 05: That's what this court explained in blue, that there are four recognized ways that such a policy or custom can be identified. [00:21:46] Speaker 05: But here, plaintiffs have identified none. [00:21:49] Speaker 05: They simply make a conclusory allegation that the district had [00:21:53] Speaker 05: a, quote, policy and practice of enforcing the defacement ordinance against each disagreement, end quote. [00:21:59] Speaker 05: That sort of conclusory allegation is insufficient. [00:22:02] Speaker 05: It was insufficient under Blue. [00:22:04] Speaker 05: That alone dooms the plaintiff's complaint. [00:22:07] Speaker 05: But even if this court were to speculate about what particular theory the plaintiffs are relying upon, and that's not the court's rule, but assuming this court were to assume, for example, that the plaintiff was relying upon a final policymaker theory, [00:22:22] Speaker 05: the allegations are, once again, simply insufficient. [00:22:25] Speaker 05: The allegation is that the mayor and or, uh, district officials, uh, were the individuals who, uh, were responsible for the constitution. [00:22:37] Speaker 04: Hang your whole argument on and or instead of him. [00:22:44] Speaker 05: I think the and or is important. [00:22:46] Speaker 05: I mean, it's a [00:22:47] Speaker 05: It's obviously a deliberate method that the plaintiffs use in pleading their case and not claiming some sort of inadvertent typo or, and what I heard here this morning as well, or some other district official who was a final policymaker. [00:23:03] Speaker 05: And I think that's because there is no basis alleged that it was the mayor herself who was responsible for the constitutional violations. [00:23:11] Speaker 05: There's no allegation that the mayor [00:23:15] Speaker 05: was involved in any enforcement decision with respect to the statement statute? [00:23:19] Speaker 03: I think it's interesting that DC, I mean understandably, focuses on the targeting of the enforcement against these particular groups. [00:23:28] Speaker 03: But one of the things that's alleged here is that there was a policy of non-enforcement against a favored group. [00:23:35] Speaker 03: And that arguably has been plausibly alleged. [00:23:41] Speaker 03: I mean, isn't that enough under Monell? [00:23:43] Speaker 03: I mean, a policy of not enforcing against a favored type of speech is arguably a constitutional violation in the same way as targeting an unfavored group of speech. [00:23:56] Speaker 03: So your arguments all go to enforcement. [00:23:58] Speaker 03: What about the allegations about the selective non-enforcement? [00:24:05] Speaker 05: I disagree that would be sufficient. [00:24:07] Speaker 05: First of all, that's not how I think the plaintiff's claim is fairly characterized. [00:24:11] Speaker 05: claim that they were targeted. [00:24:14] Speaker 05: And another thing I'll mention is it still doesn't get them past the policy or custom element of Monell. [00:24:21] Speaker 05: There's no allegation that the mayor herself made an enforcement decision or non-enforcement decision with respect to any instances. [00:24:31] Speaker 03: There are allegations that despite widespread demonstrations with widespread, you know, [00:24:40] Speaker 03: instances of defacement of property and paint on the sidewalk and all of this, that there was no enforcement of the defacement ordinance in those circumstances. [00:24:53] Speaker 03: So there's at least some plausible inference that that might have resulted from a policy of non-enforcement favoring that speech. [00:25:00] Speaker 03: I mean, at the motion to dismiss stage. [00:25:02] Speaker 05: I recognize the motion to dismiss stage, but I think the court was clear in blue that that is not sufficient. [00:25:08] Speaker 05: uh, that there is no allegation here or the mayor or this or a specific policy maker. [00:25:14] Speaker 05: Even assuming that's a theory, we don't even have a theory in this case on the complaint of which particular type of customer policy, but even if it was that final policy maker theory, they have not led the mayor herself or specifically identified some other final policy maker who was responsible for any of these enforcement decisions. [00:25:35] Speaker 05: Your honor, I do want to point out [00:25:36] Speaker 05: and the important policy ramifications of the plaintiff's position as well. [00:25:42] Speaker 05: It's not just the plaintiffs who would be able to avoid enforcement of the placement statute. [00:25:49] Speaker 05: Anyone would be free to follow the law under plaintiff's theory, simply ignore the statute by pointing to the very same instances of non-enforcement that the plaintiffs are relying upon. [00:26:00] Speaker 05: Anyone could say the statute was enforced against them, wait, look, it was enforced against me, [00:26:05] Speaker 05: but it wasn't enforced in the same instances plaintiffs are aligned in the Floyd protest. [00:26:11] Speaker 05: And therefore it's because the district disagreed with my speech. [00:26:14] Speaker 05: And if that plausibly stated a claim, that would have enormous implications. [00:26:20] Speaker 05: And I would say it's not just the defacement statute. [00:26:23] Speaker 05: Well, this argument would apply to any statute where any individual could point to instances of non-enforcement and say it must have been because of my speech in the course of the encounter with police, [00:26:34] Speaker 03: T-shirt I was wearing because the bumpers- Those may be reasons that they don't, you know, succeed ultimately in their claim, but I'm not sure that those are reasons why they don't survive the motion to dismiss stage. [00:26:48] Speaker 05: And I think this is something that the Supreme Court itself has recognized. [00:26:52] Speaker 05: Most recently in the NAEA states that there is a real importance value in not subjecting officers, law enforcement suits, even if [00:27:04] Speaker 05: the argument would be, well, it can be resolved at the summary judgment stage. [00:27:08] Speaker 05: The court has emphasized the need for sort of a objective task or a high standard. [00:27:13] Speaker 03: The court has also said in many different cases that viewpoint discrimination is highly pernicious and a severe constraint on people's individual liberties. [00:27:25] Speaker 03: Where the executive is enforcing laws in a selective manner that discriminates on the basis of viewpoint, this is a serious constitutional [00:27:34] Speaker 03: problem. [00:27:35] Speaker 05: I do recognize that. [00:27:36] Speaker 05: And, of course, the question is, does this adequately state a claim? [00:27:40] Speaker 05: I would say it doesn't get past the Monell stage, because those allegations are inefficient. [00:27:45] Speaker 05: But even if we were to get to more directly the allegations of predicate constitutional violation, those allegations do fail as well. [00:27:54] Speaker 05: One, because plaintiffs have not met the first element of showing that they were similarly situated to others. [00:28:01] Speaker 04: On the Monell issue, the complaint alleges that they wrote a letter to the mayor with their request of what they wanted to be able to paint or chalk or whatever, right? [00:28:17] Speaker 04: And that letter was also copied to the chief of police. [00:28:21] Speaker 04: And their complaint also alleges that they submitted a permit application [00:28:28] Speaker 04: and that permit application was granted for their rally, but said that you can't talk or paint any message, right? [00:28:40] Speaker 04: Complaint alleges those things. [00:28:43] Speaker 04: And why isn't it a fair inference that someone at the policymaker level was a person who addressed and adjudicated their permit [00:28:59] Speaker 04: Um, so that combined with them putting the mayor on notice and the mayor taking interest in like what messages are going to be painted on the street by actually commissioning the black lives matter mural. [00:29:17] Speaker 04: Why isn't that enough to at least possibly allege the mayor or some other, um, policymaker at a sufficient high level. [00:29:28] Speaker 04: Um, [00:29:28] Speaker 04: are involved in these decisions. [00:29:32] Speaker 05: First, I would say it's not enough to say there may have been some other final policy maker besides the mayor. [00:29:38] Speaker 05: They don't identify anyone. [00:29:39] Speaker 05: That would be their burden, even at the motion to dismiss stage. [00:29:43] Speaker 05: As far as the mayor herself, simply the fact that the plaintiff sent a letter to the mayor, that's not sufficient or plausible to infer that she actually read the letter. [00:29:55] Speaker 04: As a legal matter, are you saying that the mayor is the only policymaker, mayor, and the chief of police? [00:30:02] Speaker 04: I'm just trying to understand what your contention is there. [00:30:07] Speaker 05: I think as a general matter, as an abstract matter, only the mayor, perhaps the chief of police, in certain circumstances, depending on the circumstances, would be a final policymaker. [00:30:17] Speaker 05: I think more importantly, it's the plaintiff's burden even at the complaint stage to identify who the final policymaker is. [00:30:23] Speaker 05: And then you need some plausible allegation that that final policymaker was the one responsible for the action, simply because the letter was sent to the mayor. [00:30:33] Speaker 05: I don't think it's plausible that the mayor even read it, let alone that she made any enforcement decision with respect to anything, let alone that that was discriminatory. [00:30:43] Speaker 05: Those would not be plausible allegations. [00:30:46] Speaker 05: Those allegations of discrimination are purely conclusory, simply because the mayor has certain policy [00:30:52] Speaker 05: is the only thing that seems to approach a factual allegation with respect to the mayor. [00:30:57] Speaker 04: Maybe my recollection is inaccurate, but some of the litigation arising out of the protests in the early 2000s at IMF and World Bank and all of that, surrounding mass arrests and things of that nature. [00:31:18] Speaker 04: didn't this court find police officials lower than the chief to be policymakers sufficient to hold the city liable, or am I not remembering those cases correctly? [00:31:35] Speaker 05: I'm familiar with the cases. [00:31:36] Speaker 05: I have not looked at them recently, so I would want to double-check. [00:31:39] Speaker 05: I can't at least stand in here and say anyone below the chief of police would be, but... I take your point, though. [00:31:47] Speaker 05: Right. [00:31:48] Speaker 05: And really, this is a matter of cleaning deficiency. [00:31:51] Speaker 05: Even if one could argue that someone else is the final policy, other than the mayor, the plaintiffs have not plausibly alleged that in this case whatsoever. [00:32:04] Speaker 05: There are countless district officials. [00:32:07] Speaker 05: Virtually none of them are final policy makers. [00:32:10] Speaker 05: This is simply alleged that a district official is responsible. [00:32:14] Speaker 05: This not suffice for menial purposes. [00:32:17] Speaker 05: And the question of a final policymaker is a question of law. [00:32:22] Speaker 05: And so a legal conclusion that someone is a final policymaker, even if that exists in the case, would not be sufficient. [00:32:31] Speaker 01: Do you have a view on the element of intent with respect to the First Amendment? [00:32:38] Speaker 05: Yes, Your Honor. [00:32:40] Speaker 05: But we do believe it is probably characterized as a Fifth Amendment equal protection claim. [00:32:46] Speaker 05: But even if it were to be some sort of First Amendment claim, the standard would be the same. [00:32:52] Speaker 05: The requirement of intent would be the same. [00:32:55] Speaker 01: How are you defining intent? [00:32:57] Speaker 01: What's necessary to prove it? [00:32:58] Speaker 05: I think there are two elements. [00:33:01] Speaker 05: The first requiring that others similarly situated. [00:33:05] Speaker 05: The statute was not enforced against them. [00:33:08] Speaker 05: And then in addition to that, evidence of discriminatory purpose. [00:33:14] Speaker 05: And the plaintiffs have come where nowhere come near showing either one of those. [00:33:19] Speaker 05: I briefly mentioned why the similarly situated element was not established because it is distinctive to [00:33:25] Speaker 05: in two fundamental ways, the nature, the size and duration of the protest that the plaintiffs are comparing themselves to, and lack of advance notice. [00:33:34] Speaker 05: And in addition, the allegations of discriminatory intent are, once again, purely conclusory. [00:33:41] Speaker 05: There is no factual allegation that would support it, again, simply because the mayor has a certain policy view. [00:33:47] Speaker 01: It does not mean the mayor would. [00:33:48] Speaker 01: But I'm asking about under the First Amendment as well, the element of intent. [00:33:53] Speaker 05: Yes, sir. [00:33:54] Speaker 01: I know you're saying that it should be a fifth amendment, but I'm but I'm also asking about it because the district court seemed to have complete conflated the two claims. [00:34:04] Speaker 01: And so I want to know what your view would be on First Amendment, elective enforcement element of intent. [00:34:10] Speaker 05: I was what I meant to say is I think it would be the same, the same standard, whether you use the Fifth Amendment or the first would be the same standard. [00:34:18] Speaker 05: And that's because there is probable cause [00:34:21] Speaker 05: in these types of cases. [00:34:22] Speaker 05: That is ample legal justification for the action that is taken. [00:34:26] Speaker 05: And so the plaintiff has to come forward with some particularly strong evidence in order to overcome that. [00:34:31] Speaker 05: And that does require proof, one, that other individuals similarly situated with the statute is not enforced against, and two, in addition to that, actual factual allegations of this. [00:34:41] Speaker 03: What cases can you point to that suggest that you have to have intent in a First Amendment selective enforcement claim? [00:34:48] Speaker 03: So if [00:34:49] Speaker 03: you know, taking the plaintiff's allegations in their complaint that the District of Columbia has, you know, essentially some kind of unwritten policy of viewpoint discrimination in terms of how they enforce the defacement ordinance. [00:35:05] Speaker 03: I mean, if that is true, then they don't have to show more intent after that. [00:35:10] Speaker 03: I mean, if there's a viewpoint discriminatory, there's a statute that discriminates on the basis of viewpoint, you don't have to show intent. [00:35:17] Speaker 03: So if the executive has a policy in enforcing a law that discriminates on the basis of viewpoint, why would you need to show intent? [00:35:28] Speaker 03: I mean, the viewpoint discrimination itself is the First Amendment. [00:35:33] Speaker 05: I take your point. [00:35:33] Speaker 05: If there is an actual policy and it is itself a discriminatory policy with discriminatorians. [00:35:41] Speaker 03: Oh, those are their allegations. [00:35:42] Speaker 05: Well, I was going to say, I disagree that those are the allegations, respectfully, Your Honor. [00:35:47] Speaker 05: That's not the First Amendment theory that was before it in this case at any point, even if it were. [00:35:52] Speaker 05: Again, I'm going back to my point about the efficiency of the allegations with respect to any policy or custom. [00:35:58] Speaker 05: There's no, even, and I don't want to repeat myself. [00:36:01] Speaker 03: But why would intent be a part of, assuming that is the claim, just take, you know, that if they are alleging [00:36:08] Speaker 03: that there is a viewpoint that the executive is enforcing in a viewpoint discriminatory manner. [00:36:15] Speaker 03: Why would they also have to show intent in such a selective enforcement claim under the First Amendment? [00:36:21] Speaker 05: I mean, in the ordinary case, one would because in order to establish a constitutional violation of the First Amendment. [00:36:32] Speaker 05: Yes. [00:36:32] Speaker 03: Not under the Equal Protection Clause. [00:36:37] Speaker 05: I'm sorry, maybe I'm misunderstanding, but under either one. [00:36:45] Speaker 04: My understanding of Judge Rao's question is the question that I also have, which is similarly situated is part of the protection jurisprudence. [00:36:59] Speaker 04: Why is that necessarily a part of First Amendment jurisprudence? [00:37:04] Speaker 05: I would point this court to the Natives versus Bartlett decision recently. [00:37:08] Speaker 05: And in that case, the court said, with respect to a First Amendment retaliatory arrest, have to show lack of probable cause. [00:37:17] Speaker 05: There's probable cause loop. [00:37:20] Speaker 05: Now, it did have a narrow qualification onto that, and that is in a very narrow qualification, that if there were some sort of objective evidence that others similarly situated, the law had not been enforced. [00:37:34] Speaker 05: that violations of the law were endemic, that there was a particularly vocal protester who happened to be, of course, against the jaywalking example from that decision. [00:37:46] Speaker 05: So I think I would point to, so even in a First Amendment context, you do have to show, in order to overcome the existence of probable cause, both discriminatory effect [00:38:00] Speaker 05: through the showing reliance on similarly situated individuals against whom the statute was not enforced. [00:38:05] Speaker 03: And in addition, that that differential effect was... So you're saying that the District of Columbia can selectively enforce a statute in a viewpoint discriminatory manner if they have probable cause to arrest someone? [00:38:26] Speaker 03: I'm not sure I'm following. [00:38:28] Speaker 05: It's just a matter of what the plaintiff has to allege and ultimately prove in order to establish the plan. [00:38:35] Speaker 05: I'm just saying it's a high standard given the existence. [00:38:38] Speaker 04: So you're saying that, let's suppose that the complaint alleged that, um, that the mayor during these protests, um, 100 people [00:38:57] Speaker 04: messages and graffiti. [00:39:02] Speaker 04: And 50 of them were arrested. [00:39:08] Speaker 04: And of those of 49 that were arrested, they had pro-Black Lives Matter messages. [00:39:20] Speaker 04: And we were the only ones that had pro-life or [00:39:26] Speaker 04: Black Lives Matter message that were arrested. [00:39:30] Speaker 04: And the mayor said, um, right before we are arrested, you know, arrest those people because I don't like their message. [00:39:40] Speaker 04: Um, and all of that is alleged in the complaint. [00:39:43] Speaker 04: You're saying that that complaint would be deficient because there were still, um, at least 49 [00:39:57] Speaker 04: was because they were defacing the property as well. [00:40:06] Speaker 05: No, Your Honor. [00:40:07] Speaker 05: And that's because I think if I understand the hypothetical, there's direct evidence of discriminatory intent. [00:40:14] Speaker 05: And that's a carve-out we'll acknowledge. [00:40:17] Speaker 05: There's no direct evidence alleged in this case. [00:40:21] Speaker 05: And so we're in the ordinary, [00:40:24] Speaker 05: case. [00:40:24] Speaker 05: We're not in the extraordinary case, the ordinary mind. [00:40:27] Speaker 04: So direct direct evidence. [00:40:29] Speaker 04: You don't need to prove any sort of a pattern or or that you're treating differently and similarly situated. [00:40:38] Speaker 04: Um, I think what if there were 100 defacements and they were all arrested? [00:40:45] Speaker 04: But the only thing that was different about these plaintiffs that the mayor said, make sure you [00:40:53] Speaker 04: definitely arrest them because they've got the message that I don't like. [00:40:58] Speaker 04: And that's the allegation. [00:41:01] Speaker 04: Yeah. [00:41:01] Speaker 04: So, so you have direct evidence, but everybody got arrested. [00:41:05] Speaker 04: So would there still be a violation in the first amendment? [00:41:11] Speaker 05: Um, that's an interesting question. [00:41:15] Speaker 05: I think it might fail at the causation level, but even if there was [00:41:19] Speaker 05: discriminatory intent in the abstract. [00:41:21] Speaker 05: It didn't cause a constitutional violation, so it may fail at the causation level. [00:41:28] Speaker 05: I haven't fully thought about that. [00:41:30] Speaker 05: But I will acknowledge that where there is direct evidence, where there's an admission by, say, the mayor ordering an arrest in order to retaliate against someone's speech, that that's a different category of case. [00:41:43] Speaker 05: And so I'm not here to argue that a plaintiff would have to show the other similarly situated [00:41:48] Speaker 05: In the minor cases, as this is, that would be a requirement, in addition to showing discriminatory intent to explain that. [00:42:09] Speaker 04: All right, thank you. [00:42:13] Speaker 04: Ms. [00:42:13] Speaker 04: Pauli, I believe that you were out of time, but we'll give you three minutes for rebuttal. [00:42:24] Speaker 02: Thank you. [00:42:27] Speaker 02: Thank you, Your Honor. [00:42:28] Speaker 02: First, I would like to address opposing counsel's claim that this case spells undermined now. [00:42:34] Speaker 02: Under this court's decision in Baker and Blue, that is not the case. [00:42:39] Speaker 02: What Baker requires [00:42:40] Speaker 02: is then quoting here that if a complaint alleging municipal liability under section 1983 may be read in a way that supports a claim from relief, thereby giving the defendant fair notice of the claim, that is sufficient. [00:42:54] Speaker 02: Your honor, with respect to this claim, these allegations in the claim clearly alleged that the mayor required the Metropolitan Police Department to be there on Saturday morning at 6 a.m. [00:43:07] Speaker 02: with the purpose of preventing plaintiffs from expressing their message based on people. [00:43:11] Speaker 02: There are a number of allegations in the complaint that make that allegation plausible. [00:43:17] Speaker 02: Again, there's the verbal permission from the police officer. [00:43:19] Speaker 02: There's the letter that you referenced that was sent both to the mayor and the chief of police. [00:43:24] Speaker 02: And then we have a change in policy undoubtedly made by someone with frame. [00:43:30] Speaker 02: Those inferences [00:43:31] Speaker 02: all suggest that the mayor required the Metropolitan Police Department to be there and to stop talking, as is alleged in the complaint, and that satisfies Manel. [00:43:43] Speaker 02: Also, Your Honors, I think that sort of verbiage or nomenclature aside, I agree with Judge Rao that one way that you could look at this is a viewpoint discrimination claim, and her contention [00:43:57] Speaker 02: that Reed suggests that no intent is required, just viewpoint discrimination is consistent with Judge Posner's opinion in Chicago Acorn. [00:44:05] Speaker 02: In that case, the court found that the motive was completely innocent. [00:44:09] Speaker 02: The fair organizers there, it was a dock station that rented out space. [00:44:19] Speaker 02: And in renting out space, they had sought to attract larger crowds to help the local businesses. [00:44:26] Speaker 02: So there was no motive based on political viewpoint, but the court found that incident motive did not matter. [00:44:31] Speaker 02: That could certainly be the case for viewpoint discrimination claims under Reed. [00:44:35] Speaker 02: In all of this, this court should take the opportunity to clarify that, as we have the fourth and the tenth circuit that do suggest some sort of intent is required. [00:44:43] Speaker 02: In any event, at the motion to dismiss stage, all the circuits, including the fourth and the tenth, which find that an unlawful pattern of favoritism is enough, that is alleged in the complaint. [00:44:55] Speaker 02: In addition, Your Honor, if I may conclude. [00:44:59] Speaker 02: Thank you, sir. [00:45:00] Speaker 02: I think that this case is unique in that it alleges both widespread unenforcement of the debasement statute in 2020, as well as two specific instances of enforcement against plaintiffs. [00:45:13] Speaker 02: At the motion to dismiss stage, this certainly is a plausible inference under Section 1983 of disparate enforcement under both the First Amendment and the Fifth Amendment. [00:45:25] Speaker 04: Thank you. [00:45:26] Speaker 04: We'll take matter under advisement.