From U.S. v. Wilson, decided yesterday by Ninth Circuit Judge Danielle Forrest, joined by Judge Patrick Bumatay and District Judge James Donato (N.D. Cal.) (for a similar result in a case alleging selective prosecution against alleged white supremacist rioters, see U.S. v. Rundo (9th Cir. 2024)):
On May 31, 2020, Defendants-Appellees Nathan Wilson and Christopher Beasley allegedly joined a protest in Santa Monica, California [following the killing of George Floyd] and set fire to a police car. They were both federally indicted on one count of arson. Defendants moved to dismiss their indictment, arguing that they were unconstitutionally singled out for prosecution based on the perception that they held anti-government views.
The panel held (disagreeing with the trial court) that defendants weren't entitled to "discovery on their selective-prosecution claim":
The Executive Branch has "'broad discretion' to enforce the Nation's criminal laws." Thus, a "'presumption of regularity supports' … prosecutorial decisions and, 'in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.'" Selective-prosecution claims—assertions that a prosecutor has brought charges for reasons forbidden by the Due Process Clause of the Fifth Amendment—require courts "to exercise judicial power over a 'special province' of the Executive." …
Given the separation-of-powers concerns at play, the standard for proving selective prosecution is "a demanding one." The Supreme Court has established a two-factor standard: the defendant must demonstrate "clear evidence," first that the decision to prosecute "had a discriminatory effect and[, second,] that it was motivated by a discriminatory purpose." "[T]he showing necessary to obtain discovery" on a selective-prosecution claim is "correspondingly rigorous," and is intended to be a "significant barrier to the litigation of insubstantial claims." …
To show discriminatory effect sufficient to warrant discovery, a defendant must "produce some evidence that similarly situated defendants … could have been prosecuted, but were not." … Defendants argued to the district court that they were unconstitutionally prosecuted based on a policy of the Trump Administration to prosecute an arbitrary class: "'individuals associated with protests who the government thought held anti-government views, regardless of what actual views they held.'" And they asserted that to evaluate the discriminatory effect of their prosecution, the district court should look to "a control group consisting of 'all individuals whom the [U.S. Attorney's Office] could charge federally for arson.'" …
Focusing on its selected control group—arsonists in the Central District of California—the district court turned to statistics. It noted that the U.S. Attorney's Office for the Central District brought four arson cases related to the George Floyd protests, two arson cases in the previous 10 years, and nine others in the decade before that. It also highlighted that the George Floyd protest cases were the first stand-alone arson charges brought since 2007. The district court further surveyed arson cases occurring in the area within the Central District overall, finding that between 2010 and 2019, an annual average of 3,500 arsons were reported and 559 were prosecuted. Based on these statistics, the district court found that the U.S. Attorney's Office was "obviously aware of and chose not to federally prosecute far more serious and damaging arsons" than the police-car burning for which Defendants were charged. As a result, it concluded that Defendants met their burden to show evidence of discriminatory effect.
This was an abuse of discretion because the district court "based its ruling on an erroneous view of the law." In defining the control group with only two shared facts—(1) arson (2) within the Central District—the district court did not account for many other facets of the crimes….
Here, Defendants did not offer evidence, and the district court did not make any findings, about the nature of the proposed comparators other than that they committed a shared crime in a shared location. There are no facts indicating, for example, which of the other arsons identified were eligible for federal prosecution or if the arsons involved government property, were committed by defendants with criminal records, were committed by defendants in connection with the expression of ideas, or were publicly touted by the defendants. Rather, the district court simply presumed, without evidence, that the comparator arsonists fell outside Defendants' defined arbitrary class of "'individuals associated with the protests who the government thought held anti-government views.'" This is insufficient to satisfy the "rigorous" standard that must be met before ordering the Government to produce selective-prosecution discovery….
[W]e resolve this case on the discriminatory-effect factor alone and decline to address whether Defendants presented evidence of discriminatory intent. {The discriminatory-intent factor is quite muddled. As the Sixth Circuit has recognized, "the appellate courts … have had difficulty articulating a clear and uniform standard for what constitutes 'some evidence' of discriminatory intent."} Because Defendants failed to meet their burden to produce some evidence that similarly situated individuals could have been prosecuted but were not, we reverse the district court's selective-prosecution discovery order and its dismissal of the Defendants' indictment without prejudice, and we remand for further proceedings consistent with this opinion.
Judge Bumatay joined the other judges, but added a concurring opinion:
While I join the majority opinion showing that the district court botched the discriminatory-effect analysis, it's worth explaining why the district court's discriminatory-purpose analysis was also flawed. The district court found that the Defendants proved "some evidence" of discriminatory intent because it concluded that the government "may have identified, as 'anti-government extremists,' individuals accused of engaging in criminal activity during the George Floyd protests." The district court held that targeting violent lawbreakers with "anti-government" views "qualifies as an arbitrary classification within the meaning" of the Fifth Amendment Due Process Clause. But that's wrong.
First, the government does not engage in arbitrary classifications when it singles out political violence for prosecution. Of course, prosecution "may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights." But targeting political violence is not arbitrary—it's central to governance. The federal government has done so since the ratification of the Constitution. President Washington himself rode at the head of an army to suppress the Whiskey Rebellion. And federal military officers helped to stamp out the Ku Klux Klan during the early years of Reconstruction. Indeed, compelling evidence suggests that the Fourteenth Amendment's Equal Protection Clause is an explicit guarantee of federal protection against violence. See Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (2021).
It defies common sense and constitutional history to say that the Executive acts arbitrarily when it weeds out one of the "great natural and historical enemies of all republics[:] open violence." No one can deny the government's interest in combatting political violence. And it's also true that the government cannot eradicate all political violence. Thus, "[m]ere selectivity in prosecution creates no constitutional problem." Selecting some violent extremists for prosecution doesn't mean the government is acting with improper intent. And, of course, a government "investigation spurred by a high-profile event," like the wave of violent protests in the summer of 2020, "is not unconstitutional." … "[T]he Government's enforcement priorities … are not readily susceptible" to judicial review ….
Second, while no one denies the central importance of free speech, the First Amendment doesn't alter the government's discretionary authority to target political violence. While political speech is no doubt protected, "[t]he First Amendment does not protect violence." … So while the Defendants may have attempted to express some heartfelt political belief by burning the police car, they are not free from prosecution simply because they committed arson "in order to 'protest' the law." …
Third, the Defendants offered no evidence that the government prosecuted them for protected non-violent expression. Defendants cite several statements from President Trump and Attorney General William Barr. But these statements only communicated the intent to prosecute rioters for their violence—not for any political belief the government thought they expressed….
District Judge Donato likewise joined the other judges but also added his own concurring opinion:
There is no doubt that this claim "asks a court to exercise judicial power over a 'special province' of the Executive." "[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute … generally rests entirely in his discretion."
It is also true that a prosecutor's discretion is not "unfettered." "Selectivity in the enforcement of criminal laws is … subject to constitutional constraints," including but not limited to the fundamental right against viewpoint discrimination under the First Amendment and the equal-protection guarantee of the Due Process Clause of the Fifth Amendment. A prosecutor may not charge a person based on "an unjustifiable standard such as race, religion, or other arbitrary classification," "including the exercise of protected statutory and constitutional rights."
The constitutional protections remain just as robust irrespective of whether the charged conduct involves violence, the destruction of property, or other mayhem. Perpetrators of violent conduct should be prosecuted, but the Constitution commands that prosecutors may not charge only those perpetrators whose race, religion, or political viewpoints are disfavored by the government….
[W]e must take care to ensure that the threshold a defendant must cross for obtaining discovery is not so high as to foreclose a plausible selective-prosecution claim before the merits are even examined…. [Nonetheless, n]either defendant produced evidence establishing a "colorable basis," for concluding that similarly situated individuals were not prosecuted for arson because they did not engage in the public expression of certain political viewpoints…. On remand, I see no reason why defendants may not seek to renew a selective-prosecution discovery request and claim with proper evidence….
I close by noting that neither … [the] precedents, nor our decision today, preclude district courts from asking the government to provide "some response," short of document productions or evidentiary hearings, when the evidence before the court is "sufficiently disturbing." … In this case, it is undisputed that the 2020 charges filed against Wilson and Beasley were the first stand-alone prosecutions for arson by the United States Attorney for the Central District of California since 2007. It is also undisputed that defendants were prosecuted after the then-President and Attorney General made public statements blaming the violence at George Floyd protests on individuals with leftist viewpoints such as antifa and anarchism, and threatening them with severe criminal penalties and long jail sentences. In these circumstances, the District Court could reasonably request a word of explanation from the prosecutors….
Alexander P. Robbins argued for the government.
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