UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
FREDERICK DOUGLASS FOUNDATION, INC., et al.,
Plaintiffs,
v. Civil Action No. 20-3346 (JEB) DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
For the third time in five years, the Court considers claims brought by organizations
whose members violated D.C.’s anti-defacement ordinance during their anti-abortion protest in
the summer of 2020. Along their winding procedural path — including a trip up to the Circuit
and a remand to this Court — Plaintiffs’ claims against the District of Columbia have been
narrowed to a single issue of alleged selective enforcement. They contend that the District
impermissibly enforced the defacement ordinance against them while failing to do so against
racial-justice protesters during the massive groundswell following the death of George Floyd that
same summer. Faced with Cross-Motions for Summary Judgment and aided by a full
evidentiary record, the Court now considers once again whether Plaintiffs have carried the heavy
burden of making out a selective-enforcement claim. Unfortunately for them, the third time is
not the charm: even looking at the evidence in the light most favorable to Plaintiffs, they have
not shown that any violators were similarly situated to those arrested at their assembly. The
Court will thus grant summary judgment to the District.
1 I. Background
Having penned two prior Opinions concerning the events giving rise to this case, the
Court is well familiar with the general facts. The specifics are drawn largely from video footage
and the parties’ agreed-upon recitations in their respective Statements of Undisputed Material
Facts. Where disputed, the Court views these facts in the light most favorable to Plaintiffs and
draws all reasonable inferences in their favor. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir.
2006).
In July 2020, the organizations Students for Life of America and the Frederick Douglass
Foundation planned a protest in front of a Planned Parenthood building in the District of
Columbia. See ECF Nos. 71-1 (Def. Resp. Pls. SUMF), ¶ 27; 68-25 (SFLA Permit) at ECF p. 2;
68-28 (Bowser Letter) at ECF p. 2. The organizations sought to “proclaim that ‘Black Pre-Born
Lives Matter,’” Def. Resp. Pls. SUMF, ¶ 27, and wanted to communicate that message by
painting or chalking on the public street outside of the building. See Bowser Letter. Such
markings are prohibited by D.C.’s anti-defacement ordinance. See D.C. Code § 22-3312.01 (“It
shall be unlawful for any person . . . to write, mark, draw, or paint [without consent] . . . any
word, sign, or figure upon . . . [a]ny property, public or private . . .”).
SFLA obtained a permit on July 23, 2020, to hold “an assembly on Saturday, August 1,
2020,” outside of the Planned Parenthood location. See SFLA Permit at ECF p. 2. The permit
authorized an assembly of “no more than 49 persons,” and it allowed participants to use
“bullhorns, a music stand, and signs” to communicate their message. Id. The permit expressly
prohibited “[m]arking or painting the street.” Id.
During the permitted protest, two participants nonetheless began writing a message in
chalk on the public sidewalk. See generally ECF No. 66-29 (Aug. 1 BWC) at 1:29–:45. All
2 agree that one of the Metropolitan Police Department officers present warned them to stop
chalking and, when they continued, arrested the two protesters. Id. There is no indication that
the protesters were ever charged. See ECF No. 26 (Am. Compl.), ¶¶ 55–82.
This Court entered the picture when Plaintiffs planned a separate protest in March of
2021. See ECF No. 8 (Mot. PI) at 28. Again seeking to mark the sidewalk, the organizational
Plaintiffs and three of their members prospectively sued the District and asked this Court for a
preliminary injunction that would stop the City from enforcing the defacement ordinance against
them. See generally id. The thrust of their argument was that the District had abdicated its
enforcement of the defacement ordinance during the summer of 2020, in response to massive and
sustained protests following the death of George Floyd at the hands of police officers in
Minnesota. See, e.g., id. at 5–8; id. at 14, 16 (arguing that District had “permitted protestors to
paint and chalk . . . on D.C. streets and sidewalks with abandon” in “summer months following
the death of George Floyd”). Plaintiffs thus contended that to selectively enforce the ordinance
against them would have infringed upon their constitutional rights. See generally id. at 13–22.
The Court found that Plaintiffs were unlikely to succeed on the merits of their claim and
denied their request for a preliminary injunction. Frederick Douglass Found., Inc. v. District of
Columbia, 531 F. Supp. 3d 316, 339–40 (D.D.C. 2021) (discussing selective-enforcement claim);
id. at 346 (denying Motion). The March protest came and went without incident, as Plaintiffs
did not attempt to paint or chalk their message on the public street. See Am. Compl., ¶¶ 71–73.
Undeterred, they subsequently returned to the Court to litigate the merits of their claims.
Frederick Douglass Found., Inc. v. District of Columbia, 2021 WL 3912119, at *2 (D.D.C. Sept.
1, 2021). They asserted a number of constitutional and statutory claims, including violations of
their First and Fifth Amendment rights, viewpoint discrimination via selective enforcement of
3 the defacement ordinance, and violation of their religious freedom under the Religious Freedom
Restoration Act, and sought injunctive relief and damages for those alleged injuries. See
generally Am. Compl., ¶¶ 83–164; id. at 35. The District moved to dismiss Plaintiffs’ suit. See
ECF No. 27 (MTD).
The Court granted the District’s Motion to Dismiss in full. Frederick Douglass Found.,
2021 WL 3912119, at *14. Relevant here, it reasoned that Plaintiffs’ selective-enforcement
claim was best analyzed under the Fifth Amendment. Id. at *6–7 (noting that “impermissibly
subjecting Plaintiffs to unequal treatment” is in essence an “equal-protection claim”) (cleaned
up). Fifth Amendment selective-prosecution or selective-enforcement claims require a plaintiff
to show a discriminatory effect and purpose; because the Court held that, as alleged, Plaintiffs
had not demonstrated such purpose (though it had made out a discriminatory effect), it dismissed
that claim. Id. at *9–10; see also United States v. Dixon, 486 F. Supp. 2d 40, 45 (D.D.C. 2007)
(applying same standards for selective-prosecution and selective-enforcement claims).
The D.C. Circuit disagreed. It held that selective-enforcement claims based on an alleged
First Amendment violation require only a discriminatory effect, not a discriminatory purpose.
Frederick Douglass Found., Inc. v. District of Columbia, 82 F.4th 1122, 1143 (D.C. Cir. 2023)
(selective-enforcement claim “under the First Amendment” does not “require a plaintiff to
demonstrate intentional discrimination”). As this Court had previously concluded, Frederick
Douglass Found., 2021 WL 3912119, at *7–9, the Circuit held that Plaintiffs had sufficiently
alleged a discriminatory effect at the motion-to-dismiss stage. Frederick Douglass Found., 82
F.4th at 1138. The Circuit thus reversed this Court’s dismissal of the selective-enforcement
claim and remanded for discovery, while affirming the dismissal of all other claims. Id. at 1151.
4 The parties then proceeded to discovery on the selective-enforcement allegation alone.
Discovery now having closed, the parties cross-move for summary judgment. See ECF Nos. 66
(Def. MSJ), 68 (Pls. MSJ). The Court takes up this claim once more, aided for the first time by a
fully compiled evidentiary record.
II. Legal Standard
Summary judgment may be granted 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Holcomb, 433
F.3d at 895. A fact is “material” if it is capable of affecting the substantive outcome of the
litigation. Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See
Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion”
by “citing to particular parts of materials in the record” or by “showing that the materials cited
do not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
When a motion for summary judgment is under consideration, “[t]he evidence of the non-
movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Liberty
Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary
judgment, the court must “eschew making credibility determinations or weighing the evidence.”
Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). The nonmoving party’s opposition,
however, must consist of more than mere unsupported allegations or denials and must be
5 supported by affidavits, declarations, or other competent evidence setting forth specific facts
showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). The nonmovant is required to provide evidence that would
permit a reasonable jury to find in its favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242
(D.C. Cir. 1987). If the nonmovant’s evidence is “merely colorable” or “not significantly
probative,” summary judgment may be granted. Liberty Lobby, 477 U.S. at 249–50.
III. Analysis
Plaintiffs face a “particularly demanding” standard in making out a selective-enforcement
claim. Frederick Douglass Found., 82 F.4th at 1137. They must show that they were “similarly
situated in material respects to other individuals against whom the law was not enforced” and
that the enforcement “infringed a constitutional right.” Id. at 1136. The Court need only address
the first element because “[i]f there was no one to whom [plaintiff] could be compared in order
to resolve the question of [enforcement] selection, then it follows that [plaintiff] has failed to
make out one of the elements of its case.” Branch Ministries v. Rossotti, 211 F.3d 137, 144–45
(D.C. Cir. 2000).
As to that element, Plaintiffs must demonstrate “unequal treatment of people in similar
circumstances.” Att’y Gen. v. Irish People, Inc., 684 F.2d 928, 946 (D.C. Cir. 1982)
(“Discrimination cannot exist in a vacuum.”). Proper comparators need not be identical; they
must only be similarly situated in “material respects.” Frederick Douglass Found., 82 F.4th at
1136.
As the D.C. Circuit has acknowledged, material factors that distinguish comparator
groups “will vary and cannot be reduced to a singular list.” Id. at 1137. At root, a material
factor is one that could justify the “legitimate” exercise of enforcement discretion. Branch
6 Ministries, 211 F.3d at 145. For example, courts have long recognized that threats to officer and
public safety are permissible factors in officer decisionmaking. See Graham v. Connor, 490 U.S.
386, 396 (1989). It follows that proposed comparators are not similarly situated when they
present different safety concerns. See United States v. Judd, 579 F. Supp. 3d 1, 7–8 (D.D.C.
2021) (two groups attacking federal buildings not similarly situated when one group “endangered
hundreds of federal officials”). Other factors, like the need to maintain public order or conserve
officer resources, might likewise justify different enforcement decisions. See Fuller v. Salt Lake
City, 775 F. Supp. 3d 1212, 1225 (D. Utah 2025); Frederick Douglass Found., 82 F.4th at 1139
(differing enforcement permissible when arrests “would drain police resources”). The
requirement that “no distinguishable legitimate [enforcement] factors” differ between
comparators, Branch Ministries, 211 F.3d at 145 (emphasis added), “cabin[s]” selective-
enforcement claims and “allow[s] courts to review [such claims] without second-guessing
decisions based on [enforcement] discretion.” Frederick Douglass Found., 82 F.4th at 1145.
“Determining whether a plaintiff is similarly situated to those not prosecuted will be a
fact-intensive and case-specific comparative inquiry.” Id. at 1138. While the existence of a
comparator “‘ordinarily presents a question of fact for the jury,’ the Court may grant summary
judgment if no reasonable juror could find that the plaintiff and the comparators were similarly
situated.” Steele v. Vought, 2025 WL 3687598, at *8 (D.D.C. Dec. 19, 2025) (quoting George v.
Leavitt, 407 F.3d 405, 414 (D.C. Cir. 2005)). Because the Court so holds here, it need not
examine Plaintiffs’ Cross-Motion for Summary Judgment.
A. Plaintiffs’ Protest
Before the Court can weigh Plaintiffs’ circumstances against those of potential
comparators, it must describe the events leading up to Plaintiffs’ arrest. Their conduct and the
7 surrounding circumstances are largely undisputed. All agree that Plaintiffs sought permission
twelve days in advance to protest in front of Planned Parenthood. See Def. Resp. Pls. SUMF,
¶ 34. Individuals affiliated with the organizational Plaintiffs sent a separate letter to Mayor
Bowser and various MPD officers “request[ing] permission to paint Black Pre-Born Lives
Matter” on the street. See Bowser Letter at ECF p. 2. It is also undisputed that MPD granted
Plaintiffs a permit for their August 1 protest but specifically denied them permission to “[m]ark[]
or paint[] the street.” ECF No. 66-25 (Pls. Permit).
The District asserts — and Plaintiffs do not dispute — that “approximately 30” MPD
officers were present at Plaintiffs’ protest site on the morning of August 1. See ECF No. 66-3
(Def. SUMF), ¶ 23. Prior to the start of the protest, the officers closed the street to vehicle
traffic. Id., ¶ 22. By 5:15 a.m., six protesters had arrived. Id., ¶ 25. That number grew to
approximately 20 by the event’s 6:00 a.m. start time and held steady until at least 7:30 a.m. Id.,
¶¶ 26, 28; see also ECF No. 68 (Pls. Resp. Def. SUMF), ¶¶ 22–29 (not disputing District’s
account of Plaintiffs’ protest circumstances).
The parties also agree that one of the individual Plaintiffs asked an MPD officer whether
the protesters could paint the street or chalk the sidewalk. The officer denied both requests. See
Def. SUMF, ¶ 25; ECF No. 66-27 (Lieutenant Fleming Email). At 6:15 a.m., the same Plaintiff
asked a different MPD officer for permission to chalk the sidewalk; that officer denied the
request and informed Plaintiff that chalking was “an arrestable offense.” Def. SUMF, ¶ 27.
Police officers still outnumbered protesters, and the street remained closed to traffic. Id., ¶ 22;
ECF No. 66-16 (Lieutenant Mejia Deposition) at 55:3–7, 75:9–14. The parties agree that around
7:20 a.m., two protesters knelt and began marking the sidewalk with chalk. See Def. SUMF,
¶ 28. Nor do they dispute what happened next: Lieutenant Mejia ordered the two to stop
8 chalking, but they continued to do so. Id.; Mejia Dep. at 82:1–19; Aug. 1 BWC at 1:29–:45.
MPD officers then placed the two chalkers under arrest, handcuffed them, and transported them
from the site via police car. See Def. SUMF, ¶ 28; Aug. 1 BWC at 1:45–2:30. The protest
continued without additional arrests. See Def. SUMF, ¶ 29; see also generally Pls. Resp. Def.
SUMF, ¶¶ 23–29.
B. Proposed Comparators
This Court previously held that Plaintiffs had alleged facts sufficient to show that they
“may be similarly situated to the racial-justice protesters.” Frederick Douglass Found., 2021 WL
3912119, at *9. The D.C. Circuit agreed, noting that Plaintiffs had “plausibly alleged” that they
“were similarly situated to the Black Lives Matter advocates.” Frederick Douglass Found., 82
F.4th at 1138. Plaintiffs’ allegations, however, only propelled them through the motion-to-
dismiss stage, where the courts’ analyses were confined to the four corners of the Complaint.
Frederick Douglass Found., 2021 WL 3912119, at *3. The Circuit itself acknowledged that
factual discovery might reveal “legitimate prosecutorial factors” that separated Plaintiffs’
circumstances from those of their proposed comparators, and that the courts would consider
those at a later time. Frederick Douglass Found., 82 F.4th at 1139.
That time has arrived. Faced with dueling Motions for Summary Judgment, the Court
surveys the evidentiary record to determine “whether the Foundation has demonstrated its
members were similarly situated . . . . to at least some of the Black Lives Matter protesters.” Id.
It first looks at Plaintiffs’ general allegations and then at the more specific ones.
1. General Comparators
Plaintiffs broadly assert that MPD “consistently declined to enforce the Defacement
Ordinance” against protesters associated with the Black Lives Matter movement, “even at
9 peaceful gatherings showing no discernible threat of violence.” Pls. MSJ at 2–3. They refer
generally to “most BLM protests” as being similar to their August 1 protest, id. at 6, and invoke
“prolonged and prominent violations” throughout the summer of 2020. Id. at 8. Generalized
assertions of uneven enforcement, however, do not satisfy the similarly-situated-comparators
requirement. See United States v. Stone, 394 F. Supp. 3d 1, 34 (D.D.C. 2019); United States v.
Young, 2024 WL 3030656, at *4 (D.D.C. June 17, 2024) (no comparator when defendant
generally referenced “literally thousands” of Black Lives Matter protesters “who were not
arrested or charged at all”); cf. Ill. Republican Party v. Pritzker, 470 F. Supp. 3d 813, 822 (N.D.
Ill. 2020) (dismissing selective-enforcement claim when plaintiff did not present specific
evidence that state officials enforced order). Only the “specific identification of an alleged
comparator” or “specific examples of differential treatment” can satisfy this element.
Richardson v. Didok, 2020 WL 5602526, at *3 (E.D. Pa. Sept. 17, 2020).
Without details about a given event, moreover, Plaintiffs cannot point to evidence in the
record showing that MPD officers even witnessed any specific defacement during protests. If no
officers witnessed protesters painting or chalking messages in violation of the ordinance,
Plaintiffs would obviously not be similarly situated. In other words, it would have been
impossible for MPD to enforce the defacement ordinance contemporaneously to the defacement
itself if it did not “even kn[o]w of” the violation as it was occurring. Daubenmire v. City of
Columbus, 507 F.3d 383, 390 (6th Cir. 2007) (affirming dismissal of selective-prosecution claim
when plaintiff did not allege City’s awareness of comparator violation); see also Sheets v.
Jimenez, 2025 WL 807345, at *3 (M.D. Fla. Mar. 13, 2025) (no comparator when no allegation
relevant officers “were even present at the time” of similarly situated violation).
10 Plaintiffs rejoin that even if no MPD officers were present during a specific violation, the
Department always could have investigated the wrongdoers and enforced the ordinance
afterwards. See ECF No. 75 (Pls. Resp. MSJ) at 1–2, 5. But a violation that requires
investigation for later enforcement inherently concerns different “relevant [enforcement]
factors,” Frederick Douglass Found., 82 F.4th at 1137, from a contemporaneous arrest. The
former requires different, and likely more, department resources. The Department might weigh
the “general deterrence value” of an immediate response versus a later-in-time arrest, or consider
the “strength of [a] case” reliant on third-party video rather than officer-eyewitness testimony —
legitimate factors that could drive prosecutorial discretion. Id. (quotation marks removed). Two
situations concerning different enforcement mechanisms are thus unlikely to be comparators in
respects material to enforcement decisions. See, e.g., Church of Am. Knights of the Ku Klux
Klan v. Kerik, 356 F.3d 197, 210–11 (2d Cir. 2004) (mask-wearing protesters who were not
arrested not similarly situated to plaintiff seeking permit for masked protest); Geller v. Cuomo,
476 F. Supp. 3d 1, 19 (S.D.N.Y. 2020) (similar, though plaintiff had not yet applied for permit);
cf. also Wayte v. United States, 470 U.S. 598, 609–10 (1985) (non-registrants for draft who did
not self-report and were not investigated not similarly situated to self-reported non-registrants
who were prosecuted). Only specific instances of non-enforcement, therefore, are eligible as
potential comparators for purposes of Plaintiffs’ selective-enforcement claim.
2. Specific Comparators
Not conceding yet, Plaintiffs offer three specific instances of non-enforcement as
potential comparators. See ECF No. 68 (Pls. SUMF), ¶¶ 7–8 (citing record evidence referencing
three events). All three constitute individual violations of the District’s defacement ordinance
during nationwide protests following the death of George Floyd in the summer of 2020. Id.
11 Drawing on facts undisputed by the parties and resolving any disputes and competing
inferences in favor of Plaintiffs, the Court outlines each instance of non-enforcement in turn and
considers its suitability as a comparator.
a. “= Defund the Police”
The first specific instance Plaintiffs cite occurred on June 6, 2020. Days prior, Mayor
Bowser had commissioned a large mural of the words “Black Lives Matter” painted in yellow on
16th Street, N.W., across several blocks. See Pls. SUMF, ¶ 5; Def. Resp. Pls. SUMF, ¶ 5.
During the evening of June 6, an unidentified person or persons appended “= Defund the Police”
to the mural in similar yellow paint. See Pls. SUMF, ¶ 6; Def. Resp. Pls. SUMF, ¶ 6; see also
Michael E. Miller, Protesters Paint ‘Defund the Police’ on D.C. Street, Washington Post (June 6,
2020), [https://perma.cc/FM5A-7ZQK] (June 6 Video). It is undisputed that: 1) the painting of
“= Defund the Police” violated the defacement ordinance; 2) MPD neither received a request for
nor granted a permit for the painting; and 3) MPD did not arrest anyone in connection with the
painting. See Pls. SUMF, ¶ 6; ECF No. 43 (Answer), ¶¶ 40–42.
The parties do contest several facts about this event, most notably whether any MPD
officers witnessed the defacement. The District notes that Plaintiffs offer no direct evidence that
any officers were present; indeed, a video of the event that Plaintiffs entered into the record
shows no MPD officers. See generally June 6 Video. Plaintiffs counter with deposition
testimony that officers were typically present in the general area in the summer of 2020, given
the volume of Black Lives Matter and related protests. See Pls. Resp. Def. SUMF, ¶ 30; ECF
No. 68-4 (Commander Glover Deposition) at 144:21–145:5; see generally ECF Nos. 68-2
(Commander Bagshaw Deposition) at 60:20–65:6 (discussing increased officer response in
summer of 2020); 68-3 (Chief Carroll Deposition) at 87:13–89:1. The site of this protest,
12 moreover, was an undisputed central location both in the District in general and for protesting in
particular — a point made obvious by Mayor Bowser’s selection of that block for the mural
placement. See Def. SUMF, ¶ 39. Taken together, and drawing all inferences in favor of
Plaintiffs, the Court holds that a reasonable jury could find that officers were either present
during the painting of “= Defund the Police” or were aware of the protest and could have
responded.
Still, even under Plaintiffs’ characterization of the racial-justice protest at which the
“= Defund the Police” painting occurred, it was dissimilar from Plaintiffs’ protest in at least four
interrelated ways. First, there were hundreds of protesters at the June 6 event, compared to
Plaintiffs’ roughly twenty. Compare June 6 Video at 0:00–:42, with Def. SUMF, ¶¶ 25–26, 28.
The video Plaintiffs themselves offer shows a square of the street cordoned off with caution tape,
within which a handful of individuals paint the “= Defund the Police” message and at least a
dozen more dance, while hundreds of onlookers flood the street and encircle the cordoned area.
See generally June 6 Video. Second, in part because of the high attendance, the racial-justice
protest was very loud, thus inhibiting officers’ ability to coordinate or interact with protesters at a
normal conversational volume. Id. Third, the time and location (at night, on a centrally located
street) was the opposite of Plaintiffs’ early-morning event on a closed-off side street. Id. Fourth,
any police would have been vastly outnumbered by the protesters at the “= Defund the Police”
painting, while the ratio of officers to protesters was approximately even at Plaintiffs’ planned
protest. Compare id., with Aug. 1 BWC at 0:24–1:15, 5:25–:39, and Def. SUMF, ¶¶ 23–28.
The Court nonetheless acknowledges that those descriptive dissimilarities do not
necessarily determine the comparator analysis. Violations that take place under nominally
different circumstances can still be appropriate comparators for purposes of a selective-
13 enforcement claim if their differences present “no distinguishable legitimate . . . factors” that
would “justify making different . . . decisions” in the two circumstances. United States v.
Hastings, 126 F.3d 310, 315 (4th Cir. 1997) (quoting United States v. Olvis, 97 F.3d 739, 744
(4th Cir. 1996)).
Plaintiffs argue that certain enforcement factors were indeed consistent across the two
scenarios and thus should have counseled in favor of enforcement against the Black Lives Matter
protesters. They focus on commonly discussed factors in a selective-prosecution claim —
namely, the strength of a potential prosecutorial case against both sets of individuals and the
relative deterrence value of each potential arrest. See generally Pls. MSJ at 7–9; see also Wayte,
470 U.S. at 607 (highlighting “strength of the case” and “general deterrence value” as relevant
factors in selective-prosecution claim). Plaintiffs are right that the cases’ strength is similar: it is
undisputed that spray-painting “= Defund the Police” in the street and chalking “Black Pre-Born
Lives Matter” both violated the defacement ordinance, see Answer, ¶¶ 40–42; Pls. SUMF, ¶ 28,
and it would be easy to identify the violators in court via either video footage or police-
eyewitness testimony.
The deterrence value of arresting the spray-painters, conversely, is not immediately clear.
On one hand, “enforcing the law against large-scale, visible defacement . . . has obvious
deterrence value.” Pls. MSJ at 8. On the other hand, the deterrence value in arresting violators
at Plaintiffs’ protest is arguable higher: the chalkers — unlike their racial-justice counterparts —
persisted in violating the defacement ordinance even after MPD reminded them during the
permitting process and on the day of the protest that marking the street was not allowed. See
Def. SUMF, ¶¶ 20, 25–28. The deterrent value of arresting such flagrant violators might
reasonably outweigh that of arresting violators who did not directly defy a warning against
14 defacement. Courts have found that violators who are unresponsive to government officials’
warnings are not similarly situated to violators who are responsive or received no warning. See,
e.g., Juluke v. Hodel, 811 F.2d 1553, 1555, 1562 & n.28 (D.C. Cir. 1987) (defendant who
continued violation not similarly situated to violators who came into “voluntary compliance”
with regulation after warning); Occupy Nashville v. Haslam, 949 F. Supp. 2d 777, 804 (M.D.
Tenn. 2013) (no valid comparators when plaintiff-protesters “refused to vacate the Plaza after
being notified to do so on pain of arrest” and no warnings issued during proposed comparators’
use of Plaza), rev’d on other grounds, 769 F.3d 434 (6th Cir. 2014). This Court is thus “hesitant”
to conclude that the “general deterrence value” of arrests in both scenarios is equivalent, mindful
that such calculations are “not readily susceptible to the kind of analysis the courts are competent
to undertake.” Wayte, 470 U.S. at 607.
What is more, Plaintiffs focus on relevant factors in selective-prosecution claims — that
is, cases where the Government has chosen to charge and prosecute a defendant with the benefit
of time, investigation, and consultation with other officials. Those factors are less applicable in
selective-enforcement cases like this one. In our case, other legitimate concerns unique to the in-
the-moment decision to arrest or not arrest a violator move to the fore: the officers’ safety, an
arrest’s likely impact on crowd control, and the violation’s effect on daily life, to name a few.
Cf. Figuero v. City of Saratoga Springs, 2025 WL 460784, at *14 (N.D.N.Y. Feb. 11, 2025)
(noting that differences like protesting “in the street” would warrant different enforcement
responses); Fuller, 775 F. Supp. at 1225 (outlining permissible factors, “such as maintaining
public safety and order,” for enforcement discretion). In addition, Plaintiffs do not dispute that
MPD “weighs several factors when determining whether to make an arrest,” including “whether
officers have sufficient resources,” “whether the arrests can be made without endangering officer
15 or public safety,” and whether an arrest could “create a more dangerous situation.” Def. SUMF,
¶ 8; Pls. Resp. Def. SUMF, ¶ 8. The D.C. Circuit, moreover, has recognized that “ensuring
public safety” or preserving “police resources” are “legitimate” factors governing officers’
enforcement discretion. Frederick Douglass Found., 82 F.4th at 1139. Differences in public-
safety or resource considerations would thus undermine the similarity of a comparator group.
Here, Plaintiffs’ violation of the defacement ordinance differed from the painting of
“= Defund the Police” in material respects. Most critically, their protest was sparsely attended,
and the ratio of MPD officers to protesters was approximately 1:1. See Def. SUMF, ¶¶ 23–29;
Pls. Resp. Def. SUMF, ¶¶ 23–29. Making an arrest thus posed no safety risk to the officers. At
the racial-justice protest, by contrast, police seeking to arrest the painters would have had to
squeeze their way through throngs of protesters and draw a crowd’s attention as they arrested
violators within an already-cordoned-off area at the center of a massive protest. See June 6
Video at 0:01–:20. The safety calculus for any officers present was obviously different. The
Court agrees with Plaintiffs that the District cannot rely on a “broad ‘enflaming-passions’
theory” to neutralize any possible comparator groups by citing generalized concerns about
energizing a crowd with an arrest. See Pls. MSJ at 10. But where, as here, the size and scale of
the protest, and the protesters’ awareness of police presence, are polar opposites, any arresting
officer would plainly face different risks.
One material difference between proposed comparator groups is enough to defeat the
similarly situated requirement. Gilani v. Matthews, 843 F.3d 342, 348 (8th Cir. 2017)
(comparator group must be similarly situated “in all relevant respects”) (emphasis added). The
Court, however, sees additional factors that would legitimately weigh on arrest decisions that are
worth mentioning. First, the time and location of Plaintiffs’ protest (early in the morning, on a
16 street closed to traffic) reduced the number of people around and thus any public-safety concerns
that would arise when attempting to make arrests during a protest in a hub of activity. On top of
that, the “= Defund the Police” painting occurred in an area that was a hotbed for large,
unplanned protests during the summer of 2020. See Am. Compl., ¶¶ 34–35 (noting “significant
protest activity” that prompted original “Black Lives Matter” mural); Def. SUMF, ¶ 39; Pls.
Resp. Def. SUMF, ¶ 39. Courts in this district have found that the time of day and location of
otherwise similar violations can render them unsuitable as comparators. See United States v.
Judd, 579 F. Supp. 3d 1, 7 (D.D.C. 2021) (distinguishing unlawfully attacking Capitol filled with
people in “broad daylight” from nighttime assault on “vacant” building).
Second, as discussed above, MPD had repeatedly and explicitly informed Plaintiffs that
marking public property was not permitted. There is no evidence in the record, conversely, that
the painters of “= Defund the Police” received a warning about the ordinance, either prior to or
during the violation. Arresting violators in the former scenario but not the latter fulfills a valid
enforcement priority: responding to flagrant violations immediately following an officer’s
warning. Through the lens of that legitimate priority, the choice to enforce the defacement
ordinance by arresting chalkers at Plaintiffs’ protest — whether out of concern for the example
such defiance would set for other protesters or the desire to limit willfully violative behavior —
would not counsel in favor of arrest at the “= Defund the Police” protest.
The Court is convinced that, based on the undisputed characterizations of the “= Defund
the Police” protest, no reasonable jury could find that this protest was similarly situated to
Plaintiffs’ event. In one circumstance the police (if they were even present) faced a
spontaneously gathered and substantial crowd of people in the middle of a centrally located street
late at night. In the other, the police stood with as many fellow officers as protesters and
17 watched two of those protesters violate the defacement ordinance in the early morning, on a
previously closed side street, after already having been warned that chalking on the public
sidewalk was not permitted by the ordinance. Compare June 6 Video at 0:01–:42, with Aug. 1
BWC at 1:30–2:10. The “= Defund the Police” protest is thus not a comparator that would
demonstrate a discriminatory effect by MPD’s enforcement.
b. August 16, 2020
The second proposed comparator event took place on August 16 of the same summer.
That event featured a gathering of individuals on H Street, NW, near the United States Chamber
of Commerce, where at least two protesters spray-painted messages on the street in violation of
the defacement ordinance. See Pls. SUMF, ¶ 10; Def. Resp. Pls. SUMF, ¶ 10. Most of the
information about the event comes from a body-worn-camera video excerpt submitted by
Plaintiffs, see generally ECF No. 68-16 (Aug. 16 BWC) (on file with Court), and the parties do
not dispute the circumstances and events that the video shows.
From the video, the Court can discern several critical facts. First, the gathering took
place during the day, and it comprised dozens of individuals on the sidewalk and spilling into the
street. Id. at 0:45–:52; 1:18–:35. Second, the police presence also numbered in the dozens,
though protesters outnumbered MPD officers. Id. at 0:02–:25, 1:26–:35. Third, the officers
were arranged in a line between protesters and the street, which was open to vehicle traffic; cars
can be seen driving down the street as the protest was ongoing. Id. at 0:45–:56. Fourth, the
BWC clip shows protesters drawing or painting on signs, walking or skateboarding through the
gathering, and at several points engaging with the lined-up officers. See, e.g., id. at 0:45–:57,
1:41–2:59. Fifth, during the BWC clip, at least two protesters can be seen spray-painting on the
street in clear view of MPD officers. Id. at 1:53–:58, 3:16–:20. Finally, it is undisputed that the
18 spray painting violated the defacement ordinance and that no arrests were made on that afternoon
for defacement. See Def. Resp. Pls. SUMF, ¶¶ 10–12.
Plaintiffs contend that this event was a “comparable protest[]” to theirs because it was a
“small, peaceful BLM demonstration.” Pls. MSJ at 10. They further assert that, because the two
protests were sufficiently similar, MPD’s failure to arrest defacers at the BLM protest reveals
impermissible targeting of Plaintiffs for their speech. Id.
The Court agrees that the two events are indeed similar in certain respects. Unlike the
“= Defund the Police” protest, approximately two dozen officers are visibly present near the
Chamber of Commerce. The BWC camera footage of both Plaintiffs’ anti-abortion protest and
the gathering on August 16 shows officers in a line, close in proximity to the protesters. See
Aug. 1 BWC at 9:30–:45; Aug. 16 BWC at 0:02–:25. If police officers had decided to make
arrests on August 16, they would not have faced the same threat to officer safety inherent in
wading through a packed crowd. Finally, the footage shows frequent officer-protester
interaction, making clear — as with Plaintiffs’ protest — that the protesters were aware of the
substantial police presence. Compare Aug. 16 BWC at 1:55–2:10, with Aug. 1 BWC at 1:40–
:55.
Despite their similarities, however, two factors made the August 16 protest markedly
different — and presented distinct enforcement trade-offs — from Plaintiffs’. Most notably, the
parties do not dispute that MPD closed the street prior to Plaintiffs’ planned, permitted event.
See Def. SUMF, ¶¶ 20–22. The street outside the Chamber of Commerce, by contrast, remained
open to traffic, and MPD officers formed a line between the gathered protesters and the cars
traversing the block. See generally Aug. 16 BWC at 0:53–1:07. The parties also agree that
evidence in the record reflects officers’ concern about pedestrians’ safety from passing cars. See
19 ECF No. 75 (Pls. Reply) at 14; ECF No. 66-9 (Captain Caron Deposition) at 101:4–102:17
(explaining safety concern in high-traffic area). Closing a section of H Street without advance
notice, in the middle of the day, would have caused considerably more disruption. Perhaps for
this reason, Plaintiffs do not contend that MPD should have closed the street in response. They
do note that officers “could have initiated an investigation to identify the perpetrators and arrest
them later,” Pls. Reply at 14 — but for the reasons explained supra, post-event investigation is
not comparable to concurrent arrest. And although Plaintiffs contend that both events had a
“traffic buffer around the protestors,” id. at 14 n.2, the footage of the August 16 protest clearly
shows that this buffer was provided by the police officers themselves — the same officers who
would have needed to leave the buffer to arrest spray-painters.
Further, as the undisputed spray-painting violation occurred, officers were engaged in
conversation with several protesters who were not violating the defacement ordinance but were
expressing displeasure with police actions generally and at the protest. See Aug. 16 BWC at
2:08–:16 (another protester asking officers to “go back on the other side of the street”). At one
point, a protester asked officers why they were “killing us” and “murdering” people, presumably
in reference to the deaths of George Floyd and other Black individuals that sparked the wave of
Black Lives Matter protests. Id. at 2:22–:31, 3:04–:06. The same protester referred to the police
presence as “intimidating” and “crazy.” Id. at 3:14–:32. The District contends that those
interactions triggered a “cost-benefit” analysis for officers on the scene that weighed “attempting
to make an arrest” against “the potential for that attempt to turn a peaceful event into a violent
one.” ECF No. 71 (Def. Reply) at 8.
The Court agrees. The vocal criticism of police on August 16 generally gave rise to
specific concerns about maintaining a peaceful protest that were not a factor during the lead-up
20 to the arrests at Plaintiffs’ protest. To be sure, the content of a protester’s speech is not a
legitimate factor upon which enforcement decisions can rest in general. Frederick Douglass
Found., 82 F.4th at 1141. But here the critical protesters were not violating the defacement
ordinance — instead, their words and actions contributed to the circumstances surrounding the
violation. And those circumstances revealed a discontent with police presence that — as it had
during other protests in the summer of 2020 — risked imminently escalating the gathering into a
violent affair.
Risks to civil order prompt the type of “challenging circumstances” that the D.C. Circuit
has recognized “require difficult decisions about allocating limited police resources.” Id. at 1145
(quotation marks removed); see also Fuller, 775 F. Supp. 3d at 1225 (when city lacks “ability or
bandwidth” to enforce ordinance globally, “maintaining public safety and order” can guide
enforcement decisions). On August 16, 2020, MPD officers faced a decision: arrest violators of
the defacement ordinance or maintain orderly conversations with protesters. They faced no such
decision point at Plaintiffs’ protest. Because protection of public safety is a legitimate
enforcement factor, Frederick Douglass Found., 82 F.4th at 1145, no jury could find that the
August 16 protest was similarly situated to Plaintiffs’.
This concern is especially persuasive against the backdrop of “ongoing, large-scale, and
national demonstrations,” of which the August 16 protests were a part. Frederick Douglass
Found., 2021 WL 3912119, at *9. Those demonstrations required crowd control and mediating
the relationship between protesters and police that other protests (like Plaintiffs’) did not. A
gathering that was undeniably part of an unprecedented mass movement thus creates different
concerns from a one-off, permitted protest.
Plaintiffs retort that “[b]y the Government’s logic, officers could forgo making an arrest
21 at any event simply because it might provoke tension.” Pls. Reply at 15. But the August 16
protest, and those of its ilk, was not “any event” — it was part of the fallout from the
“immediate, spontaneous outpouring of righteous anger tha[t] reverberated around the globe”
following George Floyd’s death. Geller, 476 F. Supp. 3d at 14. Although the parties dispute the
precise percentage of Black Lives Matter protests that gave way to violence or other disruptive
activity, Plaintiffs concede that at least 30 percent were not peaceful. See Pls. MSJ at 8; Pls.
SUMF, ¶ 3. Later litigation in this District and others attests to a multitude of clashes between
racial-justice protesters and police during the summer of 2020. See, e.g., Goodwin v. District of
Columbia, 2025 WL 637467, at *4–5 (D.D.C. Feb. 27, 2025); Ferris v. District of Columbia,
2023 WL 8697854, at *2–3 (D.D.C. Dec. 15, 2023) (describing protests resulting in use of
pepper spray, sting-ball munitions by MPD); Judd, 579 F. Supp. 3d at 6 n.5 (recounting
allegations that protester “threw a firecracker at police during a Black Lives Matter protest in
August 2020”). The Court “need not close its eyes to the obviously dissimilar facts on the
ground,” Frederick Douglass Found., 2021 WL 3912119, at *9 — namely, the unique concern
officers faced that an arrest could rapidly escalate tensions during racial-justice protests that was
not present at Plaintiffs’ one-off, permitted protest. To hold that those events could be similarly
situated would be to ignore “critical context” and “miss[] the proverbial forest for the trees.”
Goodwin, 2025 WL 637467, at *17.
All told, the officers at the August 16 gathering faced two priorities not present during
Plaintiffs’ protest: promoting public safety by maintaining the separation between ongoing
vehicle traffic and a large group of protesters, and reducing the risk of escalating interactions
between protesters and police. Either of these priorities could have overcome the perceived
benefit to enforcing the defacement ordinance by arresting violators. Plaintiffs’ second proposed
22 comparator thus does not pass muster.
c. August 28, 2020
The final discrete event that Plaintiffs raise as a possible comparator is a spontaneous
protest that occurred on August 28, 2020. See Pls. SUMF, ¶¶ 14–16. This daytime protest took
place on Pennsylvania Avenue, NW. Id.; see Def. Reply at 8. Based on the video of the event
that Plaintiffs put into the record, one protester spray-painted on the street in the middle of
dozens of, if not over one hundred, people. See Leftist Spray-Paints ‘Black Lives Matter,’
‘Jacob Blake’ Outside Department of Justice During 2020 March on Washington, available at
https://jwp.io/s/wU4Xrxd2 [https://perma.cc/36XU-DHPA] (last visited Feb. 9, 2026) (Aug. 28
Video) at 2:40–3:36. The eight-lane, bidirectional street is at least partially open to traffic, and
people surround the protesters, both as event participants and as pedestrians or observers on the
sidewalk and street. See generally id. at 4:30–5:36.
Unlike the “= Defund the Police” protest discussed supra, it is undisputed that officers
were present in the general area of the protest. But, as with that proposed comparator, any police
officers seeking to intervene and arrest violators would have needed to navigate a significant
crowd that was many times the size of the police group. Id. at 5:20–:36; see also id. at 5:52
(showing six officers on scene). At the time of the violation, the officers were across an
intersection and on the other side of the street from the spray painter, who was crouching down
amidst a group of standing people who were yelling, chanting, and engaging in other, non-
violative expressive activity. Id. at 5:49–6:47. Any move to enforce the defacement ordinance
would have newly engaged the officers with the protesters, in a heavily trafficked area and in full
view of passersby. The officers would have undisputedly been significantly outnumbered by
protesters. This scenario raises all the same concerns of public safety, crowd control, and
23 drawing attention to officer presence that the “= Defund the Police” event did. It, too, cannot
pass muster as a comparator.
* * *
At root, each of Plaintiffs’ proffered comparator events involved fundamentally different
trade-offs among officer priorities. All agree that, at First Amendment assemblies, those
priorities include officer safety, public safety, maintaining peaceful activity during protests, and
enforcing the defacement ordinance and other laws. See Def. SUMF, ¶ 8; Pls. Resp. Def.
SUMF, ¶ 8. One could readily argue that the officers did not respond to the safety or deterrence
concerns in the different events correctly — but the point of the similarly situated requirement is
that those differences existed. See United States v Rundo, 108 F.4th 792, 803 (9th Cir. 2024)
(“judiciary is not well-equipped to second-guess” enforcement decisions when “provide[d with]
a facially neutral explanation”); Goodwin, 2025 WL 637467, at *18 (crediting MPD choice to
protect commercial area despite dispute over “[w]hether such concern was reasonable”).
The role of the Court is not to second-guess how officers apply their enforcement
discretion when faced with scenarios that implicate different legitimate enforcement factors.
Here, the Court finds that no reasonable jury could conclude that any of the three protests that
Plaintiffs point to was similarly situated to theirs. Without an appropriate comparator, Plaintiffs
cannot prevail on their selective-enforcement claim. Branch Ministries, 211 F.3d at 145.
IV. Conclusion
For the foregoing reasons, the Court will grant the District’s Motion for Summary
Judgment and deny Plaintiffs’ Cross-Motion for Summary Judgment. A separate Order so
stating will issue this day.
24 /s/ James E. Boasberg JAMES E. BOASBERG Chief Judge Date: February 24, 2026