Penkoski v. Bowser
| Decision Date | 12 July 2021 |
| Docket Number | Case No. 20-cv-01519 (TNM) |
| Citation | 548 F.Supp.3d 12 |
| Parties | Rich PENKOSKI, et al., Plaintiffs, v. Muriel BOWSER, Defendant. |
| Court | U.S. District Court — District of Columbia |
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.
When the parties were last before the Court, it determined that Plaintiffs failed to show that they had standing to sue the Mayor over the "BLACK LIVES MATTER" display ("the Mural") near the White House. Penkoski v. Bowser , 486 F. Supp. 3d 219, 224 (D.D.C. 2020). The Court dismissed their claims without prejudice, permitting them to replead. They did so, and they each have filed motions for a permanent injunction and summary judgment to boot. But in the amended complaint and nine later briefs, Plaintiffs have still failed to show that they have viable legal claims. The Court will grant the Mayor's cross-motion for summary judgment.
The Court recounted the facts in its prior opinion, see id. at 224–26, but it now draws from the undisputed facts advanced at the summary judgment stage to supplement that background.
As in many cities across the country, protestors descended upon downtown Washington, D.C., last summer as part of sweeping protests associated with the Black Lives Matter movement. See Def.’s Statement of Undisputed Material Facts ("Def.’s SUMF") ¶ 35, ECF No. 72-2.1 Demonstrations coalesced around Lafayette Square near the White House, where protestors clashed with law enforcement personnel for days and engaged of acts of violence and property destruction. Id. ¶¶ 35–37; Pls.’ Statement of Undisputed Material Facts ( ) ¶¶ 31–32, 40, ECF Nos. 63-1, 66-1, 68-2 (identical).2
In the wake of ongoing unrest, President Trump threatened to deploy the military to quell violence and restore order. Def.’s SUMF ¶ 39. Meanwhile, Mayor Muriel Bowser announced a citywide curfew effective June 1, 2020, "to protect the safety of persons and property in the District."3 Tensions came to a head later that day, though, when federal law enforcement officers forcibly cleared Lafayette Square shortly before President Trump appeared at St. John's Church across the street. Id. ¶¶ 37–38; see also Pls.’ SUMF ¶¶ 31–32.
Reportedly in response to the President's statements and the actions of federal law enforcement, Bowser directed the D.C. Department of Public Works to create a mural on the asphalt of 16th Street N.W., steps away from 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." Decl. of John Falcicchio ("Falcicchio Decl.") ¶ 6, ECF No. 71-5 (cleaned up); see Def.’s SUMF ¶¶ 40–46. MuralsDC, a program within the D.C. Department of Public Works, commissioned 13 artists for the project, but dozens of volunteers and District employees helped paint. Id. ¶¶ 42–46. Stretching the length of two city blocks, the finished mural spells out "BLACK LIVES MATTER" followed by the District's flag, all in bright yellow lettering. Pls.’ SUMF ¶ 9; Def.’s SUMF ¶¶ 40–46.
Along with the Mural, the Mayor directed District employees to install traffic signs bearing the name "Black Lives Matter Plaza" at each corner of 16th Street where it intersects with H, K, and I Streets. Falcicchio Decl. ¶ 7. The D.C. Council later approved the Mayor's proposal to "symbolically name" that portion of 16th Street "Black Lives Matter Plaza." Def.’s SUMF ¶¶ 49–51.
Several days after the Mural's appearance, vandals painted over the three stars that appear at the top of the District's flag and added the phrase "Defund the Police" in the same color and font. Id. ¶ 56. The resulting image appeared to state: "Black Lives Matter = Defund the Police." Id. District employees repainted the three stars in the D.C. flag the next day. Id. ¶ 57. The phrase "Defund the Police" remained for several months until District personnel painted over it too, returning the Mural to its original condition. Id. ¶ 58.4
Last summer, Pastor Rich Penkoski and lobbyists Chris Sevier and Tex Christopher (collectively, "Plaintiffs") sued the Mayor, challenging the constitutionality of the Mural. See Compl., ECF No. 1. They contended that it violates the Establishment Clause and the Equal Protection Clause because the "Black Lives Matter cult is a denominational sect of the religion of Secular Humanism," id. ¶ 2, and the street display labels them—non-black Christians—as "second class citizens," id. ¶ 44. The Mural, Plaintiffs claim, announces the District's preference both for black citizens and adherents to the Black Lives Matter movement. 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 commissioning 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. After the Court denied the motion, each Plaintiff moved separately for a preliminary and permanent injunction. See Christopher Mot. for Inj., ECF No. 17; Penkoski Mot. for Inj., ECF No. 19; Sevier Mot. for Inj., ECF No. 21. The Mayor opposed each filing and cross-moved for summary judgment. Def.’s Cross Mot. for Sum. J., ECF No. 29. Plaintiffs refiled their preliminary injunction motions as motions for summary judgment, and the Court consolidated the briefing with a trial on the merits. Penkoski , 486 F. Supp. 3d at 226 ; see Fed. R. Civ. P. 65(a)(2).
The Court dismissed Plaintiffs’ challenges for lack of standing. Penkoski , 486 F. Supp. 3d at 227–38. It declined to consider five new First Amendment claims that did not appear in the Complaint, but it invited Plaintiffs to file an amended complaint adding those claims. Id. at 238–40.
According to Plaintiffs, they then considered "taking self-help measures." Pls.’ SUMF ¶ 36. They allege that they bought paint cans, loaded them in a car, and planned to drive to the Mural and blot it out with paint. Id. They turned back after calling the D.C. police "while en route to carry out this criminal agenda" and learning that they would face arrest for defacing public property in violation of D.C. Code § 22-3312.01. Id. ¶ 36 (cleaned up). Plaintiffs "assured District police that if" they did not secure the judicial relief, "they would have no choice but to revive their unlawful self-help agenda"—including a promise to "make an epic display and pin the blame on the judicial branch." Id. ¶ 37.5
So Plaintiffs again sought legal remedies. They filed an Amended Complaint that reasserts their Establishment Clause claim as well as advances a claim of viewpoint discrimination under the First Amendment. Am. Compl. ¶¶ 91–100, ECF No. 51.6 They ask the Court to "declare that Secular Humanism is [a] religion that the Black Lives Matter organization is inseparably linked to"; require the Mayor to remove the Mural and permit Plaintiffs to paint their own murals; "enjoin the Mayor from creating any more non-secular Black Lives Matter displays"; and order the renaming of 16th Street. Id. at 38–39.7 Plaintiffs followed up with three motions for a preliminary and permanent injunction, see ECF Nos. 52, 54, and 56, and three motions for summary judgment seeking similar relief, see ECF Nos. 63, 65, and 67. The Mayor opposes all Plaintiffs’ claims and cross-moves to dismiss the complaint or, in the alternative, for summary judgment. See ECF Nos. 71, 72. This matter is ripe.8
The parties have submitted cross-motions for summary judgment, and the Court addresses Plaintiffs’ claims under that standard. See Hedgeye Risk Mgmt., LLC v. Heldman , 196 F. Supp. 3d 40, 46–47 (D.D.C. 2016) ; see also Food & Water Watch, Inc. v. Vilsack , 808 F.3d 905, 912 (D.C. Cir. 2015) (). Summary judgment is appropriate if "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). The Court's role 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).
Plaintiffs are proceedings pro se , so the Court generally subjects their pleadings to "less stringent standards than formal pleadings drafted by lawyers." Gray v. Poole , 275 F.3d 1113, 1115 (D.C. Cir. 2002) (cleaned up). But when a pro se plaintiff is an attorney—as Sevier identifies himself, see Am. Compl. ¶ 1—courts do not "automatically" apply "the very liberal standards afforded to a non-attorney pro se plaintiff." See Richards v. Duke Univ. , 480 F. Supp. 2d 222, 234 (D.D.C. 2007) ; Robinson v. Howard Univ., Inc. , 335 F. Supp. 3d 13, 22 (D.D.C. 2018), aff'd sub nom. Robinson v. Wutoh , 788 F. App'x 738 (D.C. Cir. 2019). Any leeway does not extend to the evidence required at summary judgment, as courts hold pro se plaintiffs to the same evidentiary burdens and presumptions as represented plaintiffs. See Prunte v. Univ'l Music Grp., Inc. , 699 F. Supp. 2d 15, 21–22 (D.D.C. 2010), aff'd , 425 F. App'x 1 (D.C. Cir. 2011).
Plaintiffs advance two claims: (1) the Mural violates the First Amendment's Establishment Clause by promoting the religion of Secular Humanism, and (2) the Mural is a public forum for community speech but Plaintiffs have been denied the opportunity to add their own messages based on the content of their proposed messages. They cannot proceed down either path. The Court will consider them in reverse order.
Take first Plaintiffs’ allegations of viewpoint discrimination. They contend that the...
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