SELAH — Selah’s city attorney said a Lacy Avenue family who has put pro-Black Lives Matter chalk art on their street could face prosecution if they do it again.

In a letter to Laura Perez’s attorney, City Attorney Rob Case said using chalk to draw on a public street constitutes third-degree malicious mischief, a gross misdemeanor punishable by up to a year in jail and/or a fine not exceeding $5,000.

“At this point, your clients have merely been warned,” Case wrote to attorney Joseph Cutler. “The city does not desire to prosecute anyone over this, but neither will the city give repeated warnings ad nauseum or let your clients (or anyone else) create unauthorized graffiti on public property with impunity.”

Perez said her family is holding off on more while her attorney reviews Case’s letter.

“I’m being patient and seeing what the next move is,” Perez said.

Cutler said Wednesday he has received the letter and is taking it under consideration. He said Case’s threat to escalate the matter reinforces the points about selective enforcement he raised in his letter.

Starting June 7, some of Perez’s adult children and others drew pro-Black Lives Matter chalk art on the dead-end street. Each time, a city public works crew came by and washed the chalk off the street. The most recent incident was Tuesday, when crews with a large water truck again removed the chalk art.

The city has been the focus of protests since City Administrator Don Wayman called Black Lives Matter a “neo-Marxist organization” and described its supporters as “devoid of intellect and reason.”

Wayman’s remarks have spurred additional protests, including chalk art on the sidewalk in front of Selah City Hall, calls for Wayman to resign or be fired, as well as calls to boycott Mayor Sherry Raymond’s restaurants until Wayman is ousted.

Cutler wrote police Chief Richard Hayes Monday, responding to Hayes’ letter warning that the chalk art was considered illegal graffiti. Cutler said the city’s graffiti ordinance did not cover chalk art, as water-soluble chalk is not listed as a “graffiti implement” in the city’s ordinance.

Erasing chalk art promoting Black Lives Matter while allowing other chalk drawings such as rainbows, stars or “Selah Class of 2020” to remain unmolested constituted a violation of the artists’ First Amendment guaranteed freedom of expression because the city is only removing art that illustrates an unpopular viewpoint, Cutler said.

Also, Cutler said, Case singled out a member of the Perez family who wasn’t involved in creating the chalk art.

In his response, Case said that the malicious mischief statute does not define any particular implement, but just states that a person is guilty if they draw or write on property that is not their own without the owner’s consent.

Case also argued that Perez’s family was not being singled out because of their support for Black Lives Matter. He said the city removed the chalk after receiving complaints, and would do the same to any other chalk art, even if it were a pro-Donald Trump message.

“Selah is not Seattle. The laws will be enforced in Selah,” Case said. “Those who break the law will be warned where appropriate and will be prosecuted where appropriated. Unauthorized graffiti, including ‘chalk art,’ will be removed. It will not be removed due to any political viewpoints it might express.”

In a statement issued Tuesday, the ACLU of Washington criticized prosecuting people for using chalk to express political opinions on public streets and sidewalks.

“Publicly stating a view that someone may not like is not a crime. Using graffiti laws against chalk marking, if it leaves no physical damage, to erase a message that someone does not like raises potential First Amendment concerns,” the ACLU’s statement said.

Reach Donald W. Meyers at dmeyers@yakimaherald.com or on Twitter: donaldwmeyers, or https://www.facebook.com/donaldwmeyersjournalist.