Selah’s city attorney has again warned that people using chalk on city streets and sidewalks risk prosecution for malicious mischief.
Rob Case, in a letter to the attorney representing a family that has had pro-Black Lives Matter chalk art repeatedly erased from its Selah street, said there is no public right to “deface” government property and that the city is not targeting messages promoting Black Lives Matter or criticizing city officials.
“If anyone truly desires to have their message resonate with city management, repeatedly engaging in malicious mischief is completely counterproductive to that end,” Case wrote Thursday in the letter to attorney Joseph Cutler.
Laura Perez said her family has received an outpouring of support – and donations of chalk – since various media outlets have picked up the story, including the New York Times.
“It’s making us feel like this is our home,” said Perez, adding that Lacey Avenue neighbors have allowed her children to put chalk art in their driveways, out of reach of city power-washer crews.
Meanwhile, former City Councilman Jeremy Burke criticized the city for targeting messages with which he said city officials disagree.
Selah’s issue with chalk art began in June when some of Perez’s children drew pro-Black Lives Matter art on their dead-end street in the wake of protests over the killing of George Floyd when a Minneapolis police officer knelt on his neck.
Perez said city public works crews have washed the messages off her street multiple times. Her family was warned by police Chief Richard Hayes and later Case that they were in danger of being arrested for violating the city’s anti-graffiti ordinance, even though the ordinance does not list chalk as a “graffiti implement.”
Since then, protesters have drawn chalk art supporting Black Lives Matter and criticizing the city and City Administrator Don Wayman, who earlier had called the anti-police-brutality movement a “neo-Marxist organization” and labeled its local supporters as a “mob” that was “devoid of intellect and reason.”
Cutler and Burke said the city appeared to be engaging in viewpoint discrimination by targeting messages that some city officials find offensive.
“I cannot think of a time when a city street sweeper was used to erase a hopscotch (game) or children’s art,” said Burke, who stepped down from the council earlier this year when he accepted a job as a deputy Douglas County prosecuting attorney. “Unless the city can show that, and they did it relentlessly, there is a concern about the application of the law.”
U.S. Courts have ruled that any restrictions on speech are limited to time, manner and place, and must apply to all regardless of their message. Burke noted that in the 1989 case of Texas v. Johnson, the U.S. Supreme Court said it found flag burning by protesters to be offensive but struck down laws banning it because it was protected speech under the First Amendment.
Case, in his letter, insisted that the city was applying the law in a content-neutral way, claiming that chalk art honoring a fallen soldier and obscene drawings were taken down as well as Black Lives Matter messages.
He said that some of the protesters have been using “spray chalk,” which he said damaged sidewalks outside City Hall. That act, he said, constitutes malicious mischief.
“The city has not charged or sued anyone; we have merely issued warnings, explained what the law is, and explained what our prosecution and enforcement priorities will be,” Case wrote.
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