The controversy over metro Denver homeowners' associations banning residents from displaying Black Lives Matter flags and other humanistic signage has been raging in recent weeks. And now, a lawsuit filed by the ACLU of Colorado takes the matter into a new realm: the federal judicial system.
In a complaint just filed in U.S. District Court for the District of Colorado, homeowner David Pendery, represented by the ACLU of Colorado, is taking on Whispering Pines Metropolitan District #1, which encompasses a neighborhood of 300 homes located in Arapahoe County east of Centennial. Last year, the district put restrictions on the ability of Hendery and his family to display a Pride flag and a sign that reads, "We Believe Black Lives Matter, Women's Rights Are Human Rights, No Human Is Illegal, Science Is Real, Love Is Love, Kindness Is Everything."
That sign is identical to one that a Lafayette HOA has ordered homeowners Kristen and John Freaney to remove from outside their home.
The Pendery suit contends that the Whispering Pines restrictions are "facially unconstitutional under the Free Speech Clause of the First Amendment."
According to the complaint, Pendery, his husband and their two young children moved to the Whispering Pines development in March 2020, and put out a Pride flag around the end of August. Within days, however, Pendery received an email notice from the Teleos Management Group, which manages the district on behalf of Whispering Pines. According to the email, the company had "no record that pre-approval was sought" for displaying the flag and cited a section of its design guidelines laying out how the process works.
The rule states that pre-approval isn't required to fly "the American flag," "a service flag bearing a star or denoting the [military] service of the Owner or occupant of the Lot," "sports teams' flags...during the duration of a single sporting event (not the entire sport season)," and "holiday flags," so long as they're hoisted within thirty days of the date in question and removed no later than fifteen days afterward.
The Teleos notice contended that "approval is required for all other flags/banners," the suit continues, and included an application form for the Pride flag that required Pendery to "include the purpose/symbolism of the flag."
His response: "As an LGBTQ family living within the Whispering Pines Metro District, we have elected to periodically display a Pride flag, with the full support of our neighbors, to show support and solidarity with families like ours, who face discrimination on a daily basis."
On September 8, a Teleos representative emailed Pendery that he could fly the flag "with conditions" — specifically, that he could only do so until December 31, after which he would need to submit another application and again ask for permission. However, he has refrained from doing so, and from displaying a "We Believe" sign, because "he is forbidden from doing so without pre-approval," the suit states. "The Metro District maintains unfettered discretion over applications with no narrow, objective, and definite standards for whether, when, and for how long to grant such approval. Mr. Pendery has not sought approval, because he believes the Constitution protects him from the requirement that he submit his proposed expression to the whim of decisionmakers exercising such standardless discretion."
Pendery is asking the court for "interim injunctive relief to stop the Metro District from infringing on his constitutional right to free speech on his own property. Plaintiff also seeks a declaratory judgment, a permanent injunction, and nominal damages."
We've reached out to Teleos Management Group for comment about the lawsuit and will update this post with any response. In the meantime, click to read David Pendery v. Whispering Pines Metropolitan District #1.