Penkoski v. Bowser

• Decision Date: 21 August 2020
• Docket Number: Case No. 20-cv-01519 (TNM)
• Citation: 486 F.Supp.3d 219
• Parties: Rich PENKOSKI, et al., Plaintiffs, v. Muriel BOWSER, Defendant.
• Court: U.S. District Court — District of Columbia

486 F.Supp.3d 219

Rich PENKOSKI, et al., Plaintiffs,

v.Muriel BOWSER, Defendant.

Case No. 20-cv-01519 (TNM)

United States District Court, District of Columbia.

Signed August 21, 2020

Rich Penkoski, Washington, DC, pro se.

Chris Sevier, Washington, DC, pro se.

Tex Christopher, Nashville, TN, pro se.

Pamela A. Disney, Gavin Noyes Palmer, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

Rorschach tests

are non-descript inkblots scrawled on notecards. People looking at the same inkblot identify entirely different images, based on their background, personality, and state of mind.

Just outside the White House, stretching two blocks down 16th Street, D.C. Mayor Muriel Bowser has painted her own sort of inkblot. Large yellow letters spanning the width of the street proclaim, "BLACK LIVES MATTER." The Mayor views this display ("the Mural"), as something that commemorates demonstrators who lined the streets this summer protesting police brutality. The D.C. chapter of Black Lives Matter ("BLM"), on the other hand, regards it as a "performative distraction from real policy changes."¹

And Plaintiffs—non-black Christians—perceive it as a sign that they are not welcome in the District. Pointing to statements from BLM's website and leaders declaring that it is "unapologetically Black in [its] positioning" and embraces policies that "disrupt the Western-prescribed nuclear family structure" and "foster a queer-affirming network," Plaintiffs see the Mural as something that declares the District's preference for black citizens who adhere to Secular Humanism. This favoritism, they claim, violates both the Establishment Clause and Equal Protection Clause.

Plaintiffs raise non-trivial objections to the Mural. But federal courts are not in the business of correcting all constitutional errors wherever they appear. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 489, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). No matter the importance of the issues presented, federal courts may adjudicate a "case" or "controversy." Id. Since Plaintiffs fail to show that they have standing to raise these constitutional challenges, the Court must dismiss their claims.

I.

Early this summer, Black Lives Matter protests swept across the country. According to Plaintiffs, tens of thousands of protestors in Washington, D.C., gathered for weeks outside the White House in Lafayette Square, chanting and kneeling together. Christopher Mot. for Inj. ("Christopher Mot.") at 39, ECF No. 18; Penkoski Mot. for Inj. ("Penkoski Mot.") at 19, ECF No. 20.² By late May, though, the protests turned violent, as rioters clashed with police officers and set American flags, parked cars, and historical landmarks—like St. John's Church—on fire. See id. ; see also Pls.’ Statement of Undisputed Material Facts ("Pls.’ Statement") ¶¶ 29, 35, 36, ECF Nos. 42-1, 44-1, 46-1 (identical).

In a press conference after a particularly destructive night, the President threatened to deploy the U.S. military to crack down on the violence. See Falcicchio Decl. ¶ 5, ECF No. 29-3. Later that day, federal law enforcement officers cleared Lafayette Square shortly before the President made an appearance at St. John's Church. Id. ¶ 4; Pls.’ Statement, ¶ 29.

Allegedly in response to the President's statements and federal law enforcement's actions, Mayor Bowser directed the D.C. Department of Public Works to create a mural on 16th Street N.W., near the White House, to "honor the peaceful protesters from June 1, 2020 and send a message that District streets are a safe space for peaceful protestors." Falcicchio Decl. ¶ 6 (cleaned up).³ The Mural, painted in bright yellow lettering that spans the width of the street and stretches the length of two city blocks, reads "BLACK LIVES MATTER." Compl. ¶ 2, ECF No. 1; Sevier Mot. for Inj. ("Sevier Mot.") at 15, ECF No. 22; Falcicchio Decl. ¶ 7. The Mayor also proposed renaming several blocks of 16th Street "Black Lives Matter Plaza," which the Council for the District of Columbia ("the Council") later approved. Falcicchio Decl. ¶ 10; Compl. ¶ 2.

Five days after the District painted the Mural, Pastor Rich Penkoski and lobbyists Chris Sevier and Tex Christopher sued pro se challenging its constitutionality. See Compl. They claim that the Mural violates the Equal Protection Clause and the Establishment Clause because it labels them—non-black Christians—"second class citizens." Id. ¶ 44.

The "Black Lives Matter cult," they allege, "is a denominational sect of the religion of Secular Humanism." Id. ¶ 2. This is evidenced both by the BLM protestors’ behavior, see Penkoski Mot. at 19 ("The fact that there is a whole lot of kneeling, washing of feet, and corporate chanting of incantations makes it difficult to argue that Black Lives Matter Global Network is not a religious organization."), and the "scriptures lifted from the Black Lives Matter's marxist liturgical creed," id. (citing What We Believe , Black Lives Matter, https://blacklivesmatter.com/what-we-believe/ (last accessed Aug. 21, 2020) ("BLM Statement")). BLM's "What We Believe" statement announces, among other things, that BLM "is unapologetically Black in [its] positioning," "foster[s] a queer-affirming network," and "disrupt[s] the Western-prescribed nuclear family structure[.]" Id. (quoting BLM Statement). The Mural, Plaintiffs claim, signals the District's preference both for black citizens and for those that adhere to the BLM denomination. Compl. ¶¶ 2, 6.

Plaintiffs filed an Emergency Motion for a Temporary Restraining Order, see Pls.’ Mot. for TRO, ECF No. 9, asking the Court to enjoin the Mayor from constructing more BLM displays and to order her to remove the Mural and return the Plaza's name to 16th Street, see Pls.’ TRO Proposed Order, ECF No. 9-1.

In a hearing later that week, the Court denied Plaintiffs’ motion, but set an expedited preliminary injunction briefing schedule in recognition of Plaintiffs’ assertion that "time is of the essence." TRO Hr'g Tr. ("Hr'g Tr.") at 34–35 (June 18, 2020). The parties agreed both to expedited briefing for Plaintiffs’ Motions for a Preliminary Injunction and to consolidate this briefing with a trial on the merits under Rule 65(a)(2) of the Federal Rules of Civil Procedure. Id. at 33, 36.

Each Plaintiff moved separately for a preliminary and permanent injunction.⁴ See Christopher Mot.; Penkoski Mot.; Sevier Mot. The Mayor cross-moved for summary judgment and opposed Plaintiffs’ motions. Def.’s Mot. for Summ. J. & Opp'n to Pls.’ Mot. ("Def.’s Opp'n"), ECF No. 29-1. And Plaintiffs filed replies and opposition briefs to the Mayor's cross-motion. Christopher Reply, ECF No. 32; Penkoski Reply, ECF No. 33; Sevier Reply, ECF No. 34. The Court later permitted Plaintiffs to supplement their replies with additional evidence. See Order (Aug. 4, 2020); Penkoski Suppl. Mem., ECF No. 39; Christopher Suppl. Mem., ECF No. 40. And Plaintiffs re-filed their preliminary injunction motions as Motions for Summary Judgment.⁵ Penkoski Mot. Summ. J., ECF No. 43; Christopher Mot. Summ. J., ECF No. 45; Sevier Mot. Summ. J., ECF No. 47.

This matter is ripe for decision.

II.

Having granted consolidation under Rule 65(a)(2), the Court "treats the parties’ briefing as cross-motions for summary judgment." Trump v. Comm. on Oversight & Reform of the U.S. House of Representatives , 380 F. Supp. 3d 76, 90 (D.D.C. 2019). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When deciding a motion for summary judgment, the Court "must assume the truth of all statements proffered by the non-movant except for conclusory allegations lacking any factual basis in the record." Dist. Intown Props. Ltd. P'ship. v. District of Columbia , 198 F.3d 874, 878 (D.C. Cir. 1999). The Court's function at the summary judgment stage is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

For the Court to reach the merits, Plaintiffs must first carry their burden of establishing the Court's jurisdiction. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At the summary judgment stage, they cannot rest on "mere allegations," but must produce evidence of "specific facts" that establish jurisdiction. Id. If a court determines that it lacks jurisdiction for any claim, it must dismiss it. Fed. R. Civ. P. 12(h)(3).

III.

Though Plaintiffs assert that the Mayor's conduct here is "so egregious that a standing analysis is not necessary," Christopher Reply at 8 (cleaned up), the Court cannot dispense with standing so easily. This Court's jurisdiction under the Constitution is limited to deciding "cases" and "controversies." Hein v. Freedom from Religion Found., Inc. , 551 U.S. 587, 597–98, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007). And "one of the controlling elements in the definition of a case or controversy under Article III is standing." Id. So even if the Mayor had not challenged Plaintiffs’ standing, the Court would need to consider it sua sponte. See Lee's Summit v. Surface Transp. Bd. , 231 F.3d 39, 41 (D.C. Cir. 2000).

Here, the Mayor urges that Plaintiffs lack standing to bring both their Establishment Clause, Def.’s Opp'n at 19–26, and Equal Protection Clause claims, id. at 24. To satisfy their burden to prove standing, Plaintiffs must offer evidence showing that they have suffered an "injury in fact" that is "concrete and particularized," and "actual or imminent, not conjectural or hypothetical." Lujan , 504 U.S. at 560, 112 S.Ct. 2130 (cleaned up). This injury must be "fairly traceable to the challenged action of the defendant and not the result of the...