ACLU helping Arapaho County man sue his metro district over flag rule

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ARAPAHOE COUNTY, Colo. — David Pendery sees his pride flag as a sign of unity and welcome.

“It is your standard pride flag, standard size that you would get,” Pendery said. “We fly an American flag from time to time. We fly a Colorado flag from time to time, just like people fly sports teams flags”

The flag, and its meaning, has been embraced by his Arapahoe County neighborhood, Whispering Pines.

“Our neighbors have fully welcomed my family in here — my husband and our two kids,” Pendery said. “Great neighborhood. We never had any issues.”

But it is not his neighbors who found his flag to be unsatisfactory. When he posted an image of the front of his house to Facebook, his management group raised objections.

“It had full support, people saying ‘that’s great.’ It was the metro district that didn’t think so,” Pendery said. “They have the power to levy property taxes to cover district property in debt that’s been raised for infrastructure and things like that.”

After months of discussions with Whispering Pines Metropolitan District #1, he is suing to protect what he sees as his First Amendment rights.

In this fight, he has gained a powerful ally.

“This case highlights the issue that so many Coloradans are silenced by these neighborhood rules, mostly enforced by homeowners associations,” said Mark Silverstein, the legal director of the ACLU Colorado, which has taken up the case. “We believe that Mr. Pendery has a constitutional right to fly a flag.”

The issue has come up several times recently with HOAs in Colorado that restrict signs and flags being flown outside of homes. Recently, a Littleton woman has engaged in a similar fight with her HOA to allow her to fly a Black Lives Matter flag outside of her home.

“Homeowners buy a house and probably don’t even realize that they are, in essence, signing away their right to free expression,” Silverstein said. “There are right now thousands and thousands of Coloradans that are silenced because they live in neighborhoods with these restrictions.”

The ACLU has opened an email hotline for Coloradans living in similar situations at HOAfreespeech@ACLU-CO.org.

But Pendery believes his case is even stronger because Whispering Pines Metropolitan District #1 is a public governing body.

“They’re a different structure. They’re governed by Colorado state statute, and they’re actually a quasi-governmental entity,” Pendery said. “This is a governmental entity that is, in my opinion, infringing upon free speech.”