Dan Choi, Now Discharged, Sees DC Protest Charge Dismissed

When charges of failing to obey a lawful order against Dan Choi and James Pietrangelo were dismissed on July 14, GetEqual, a newly minted activist group, quickly issued a press release.

“Today, truth was the victor against a demeaning, discriminatory law known as Don’t Ask, Don’t Tell,” Choi said in the statement. “We won’t stop pressing for repeal and pressuring those standing in the way until the day comes when not one more gay or lesbian servicemember is fired. And, as of today, the president refuses to tell us when that day will actually come.”

The two former military servicemembers were discharged under Don’t Ask, Don’t Tell and were arrested after handcuffing themselves to the fence surrounding the White House to protest that policy. They drafted a subpoena seeking President Barack Obama’s testimony in their trial, so the dismissal was seen as a win against the Obama administration on some gay blogs and in the GetEqual press release.

Truth, of course, can be relative.

Choi and Pietrangelo were prosecuted by the District of Columbia government, not the federal government. After receiving queries from reporters, the district released a statement saying it had “determined that we could not maintain the charge.”

The misdemeanor makes it unlawful to remain on a sidewalk or street after being told to move by a police officer. The district concluded that Choi and Pietrangelo had moved to a ledge above the sidewalk after being told to move and just before the handcuffing.

“As such, he was not blocking pedestrian traffic,” the statement read. “Once that was realized, the focus of the investigation shifted to what happened immediately prior to his handcuffing himself… After interviewing law enforcement we determined that the defendant had not been asked to move on at that point. Therefore, we could not prosecute him for any activity prior to the handcuffing either.”

The subpoena was never served on the Obama administration.

“It was a long shot,” said Ann C. Wilcox, one of two attorneys who represented Choi and Pietrangelo. Had it been served, the judge in the case probably would have quashed it. They might have put some of Obama’s public statements into evidence, but even that was questionable.

“We didn’t even get that far because as soon as the trial was called for scheduling today, the charges were dropped,” Wilcox said. “Whether [the judge] would have considered it in his final decision is also not terribly likely.”

The defense theory was that Obama had urged the broader community to press him to act and the two men were following that instruction.

“He had made all these statements, agitate, make me do it… then he was turning around and not moving on the policy,” Wilcox said. “Whatever [the president] said, it sort of motivated Dan and Jim to do what they did,”

Choi lost his battle with the Pentagon on June 29 when his discharge from the Army under the Don’t Ask, Don’t Tell policy was finalized. While Choi’s National Guard unit informed him by registered mail and with phone messages, he has not disclosed the action. He did not respond to an email seeking comment.

Generally, Choi’s protests and media appearances have been well received in the gay and lesbian community, though there are some voices, notably Bil Browning at the Bilerico Project, that have questioned the effectiveness of his advocacy.

When the May hunger strike that Choi and Pietrangelo began and ended in seven days without achieving any of its goals, Browning posted a piece on bilerico.com titled “Choi's Hunger Strike Lite: Now With More Calories,” writing, “With all of Choi's recent actions, tons of media appearances, chaining himself to the White House fence and this hunger strike, many in the community think Choi’s gone off the deep end. They say this has become more about his ego than a smart strategy to repeal DADT quickly.”

Choi has made a number of appearances at explicitly political events in his uniform. That may violate the Uniform Code of Military Justice. He attended his July 14 court date in uniform, and that may violate federal law as he is no longer entitled to wear it following his discharge. Any legal issues aside, some in the military and some veterans are offended by those who wear the uniform while engaging in politics.

“There are a lot of gay servicemembers who are a little concerned that this kind of activity could cast them in a negative light,” said Aaron Belkin, director of the Palm Center, a think tank at the University of California that studies Don’t Ask, Don’t Tell. “Others believe that the community has to do what it takes to end discrimination.”

Belkin was aware of some complaints concerning Choi, but he saw Choi’s work as a valuable contribution to repealing the policy.

“I don’t agree with those complaints,” Belkin said. “I think its effect has been important and positive. It took a Malcolm X for people to be willing to deal with a Martin Luther King. Dan has kept the temperature up on this issue.”