State of Delaware v. Jahi U. Issa

Opinion

IN 'l`l~'ll§ COURT OF COMMON PLEAS lN THE STATE OF DELAWARE lN AND FOR KENT COUNTY STATE OF DELAWARE

) ) Case No.: 1203000747 V- ) ) JAI~~II' U. ISSA, ) Defelidarit. ) Samuel L. Guy, Esquire Zachary George, Esquire P.O. Box 25464 Deptlty Attorney General Wilrniiigton, DH 19899 Departinerit of justice Attorney for the Defendant 102 West Water Street Dover, DE 19901 Attorney for the State

Stibinitted: April 3, 2014 Decided: l\/_[ay S, 2014

DECISION ()N DEFENDANT’S MOTION 'I`O DISMISS F()R SELECTIVE PR()SECUTION AND DEFENDANT’S MOTI()N 'I`() ALL()W PRE-TRIAL I)ISCOVERY IN ADVANCE OF MOTION IN LIMINE

Deferidant, Dr. Jahi U. Issa, was originally cliarged with disorderly conduct pursuant to ll Del. C. § l301(l)(e), offensive touching of a law enforcement officer pursuant to ll Del. C. § 601(:».1)(1) and (c), and resisting arrest pursuant to ll Del. C, §

l257(b). The charge of disorderly conduct has previously been dismissed by the Court.

'l`iieretore, the two charges remaining against the defendant are offensive touching of a law enl'orcerneiit officer and resisting arrest. The defendant has filed a motion to disiniss for selective prosecution, or in the alternative, to allow pre-trial discovery in advance of a motion in limine The Court has obtained a proffer of evidence from the defendant in support of his claim of selective prosecution and has received a submission from the State in opposition to the claim. This opinion constitutes the Court’s decision on the defendant’s motions The defendant’s motion to dismiss for selective prosecution and his

motion to allow pre-trial discovery in advance of a motion in limine are denied.

LEGAL STANDARD

A selective prosecution claim is not a defense on the rnerits of the case, but ratlier, asserts that the prosecutor has brought the charge(s) for reasons not allowed by the Constitution. Unil'ed Sz‘ares v. Armstrong, 517 U.S. 456, 463 (1996). The standard of proof is a "deniandiiig one" because there is a presurnptioii of regularity that supports prosecutorial decisions Ici'. "[I]n the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties." Id. at 464 (qtioting Um'ted Stal'es v. Chein. Fou,=icil., ]rzc., 272 U.S. l, 14-45 (1926)) (internal quotation inarks omitted). I~Iowever, prosecutorial discretion is subject to constitutional constraint A.riiz.s'li'orzg, 517 U.S. at 464. The decision to prosecute may not be "deliberately based upon an unjustifiable standard such as . . . the exercise of protected . . . constitutional rights." Wayte v. U'rzi'ied Sla'l'es, 470 U.S. 598, 608 (1985) (citation

omitted) (iiiternal quotation marks ornitted). in order to dispel the presumption that

supports prosecutorial discretion, a defendant must present "clear evidence" to the contrary. Arnisfrong, 517 U.S. at 465.

To establish entitlement to discovery on a claim of selective prosecution, the defendant must "prodtice some [credible] evidence that similarly situated defendants . . . could have been prosecuted, but were not . . . ." Arrii.s'tr‘oizg, 517 U.S. at 469. The burden on the defendant upon requesting discovery on such a claim is a lesser burden than requesting dismissal of the case based on such a claim. However, some credible evidence must be produced in order to obtain discovery.

In order to prove a claim of selective prosecution, the defendant must establish two elements: "(l) the policy to prosecute or enforce the law had a discriiniiiatory effect and (2) it was motivated by a discriminatory purpose." Drwnniond v. Slale, 909 A.2d 594, 2006 WL 2842732, at ’*‘2 (Del. Oct. 5, 2006) (TABLE) (citing Arrnsl'roag, 5l7 U.S. at 465). "'l`o show discriminatory effect, the defendant must show that a similarly situated person . . . could have been arrested for the same offense for which the defendant was arrested, but was iiot." let In order to show discriminatory purpose, "the defendant rnust demonstrate that intent to discriminate was a rnotivating factor in the decision to enforce the criminal law against the defendant." Ia'. (citations omitted) (internal

quotation inarks omitted).

STATE’S FACTS SUPPORTING THE CI~IARGES The Court has heard evidence supporting the open charges of offensive touching

of a law enforcement officer and resisting arrest against the defendant as follows

On l\/larch i, 2012, a demonstration group was gathering at the l\/lartin Luther Kiiig, .h'. Student Center ("Student Center"), located on the Delaware State University ("DSU") campus in Kent County, Delaware. The Student Center is a common area where students and other members of the DSU comrnunity normally assemble and gatlier for various reasons A DSU law enforcerneiit officer was dispatched upon receiving a radio call regarding a possible unapproved protest occurring at the Student Center. When the officer arrived at the Student Center. he observed the defendant addressing a group of about forty people The group was peaceful and was not disruptive. 'l`he officer was not sure if the group should be considered a protest or a gathering, so he contacted his Lieutenant back at the DSU Police Departineiit for direction. Shortly thereafter, Chief l~iarry Downs ("Chief Downs"), who is the Chief of Police for DSU’s Police Departnieiit, arrived at the Student Center. Chief Downs met with the law enforcement officer to evaluate the situation Chief Downs, then, approached the defendant and notified the defendant that he was "Chief Downs." Chief Downs advised the defendant that the group had to disperse because it did not have a permit to demonstrate. The defendant refused. Chief Downs next placed his hand on the defendant so as to escort him away from the gathering. He asked the deferidaiit to come along with him so that they could discuss the matter. 'l`he defendant responded by telling Chief Downs "I don’t care who you are" and shoved Chief Downs away. At that point, Chief Downs decided to arrest the defendant lie instructed the assisting law enforcement officer to place the defendant under arrest.

The assisting DSU law enforcement officer atteinpted to place handcuffs on the defendant, but, the defendant refused to place his hands behind his back as instructed

lnstead, the defendant pulled himself away from Chief Downs and the law enforcement

oflicer. 'l`he law enforceinerit officer grabbed the defendant and started to reniove him from the scene. As they were walking away from the scene, the defendant pulled himself away and fell to the ground. As a result of his conduct, the defendant was charged with the misdemeaiior offenses of offensive touching of a law enforcement officer in violation

of ll Dei’. C. § 60l(a)(l) and (c) and resisting arrest in violation of ll Dei'. C`. § l257(b).l

DEFENDANT’S PR()FFEI{

The defendant, who is blacl<, contends that he is entitled to an evidentiary hearing on his claim of selective prosecution lie also contends that lie is entitled to discovery on the claim of selective prosecution because he can satisfy the threshold showing that the State has declined to prosecute siinilarly situated suspects. I~Iis argument focuses on two events that lie contends will show that with regard to gatherings at DSU involving the exercise of 131 Aniendrnent Constitutional rights:

(l) the law is enforced solely and exclusively against persons of the black race

and not otherwise; (2) the conditions and practices associated with gathering, to which the law was directed, did not exist exclusively among the black members of

the DSU community; [an.d] (3) . . . that the law is applied against black members of the DSU cominunity but not against any caucasian members of the DSU community.

Defs.’ Br. at 3.

The first event upon which the defendant focuses is a DSU Equestriaii Team protest that occurred prior to the defendant’s arrest. The defendant contends that during that protest, the mostly white inembers of the DSU Equestriaii 'l`eam rode their horses

around the DSU campus. No students or factilty who were involved in the protest faced

' T lie defendant contests this version of the facts. l~lowever, the Court has found that stifficieiit credible evidence exists to support the open charges reinaiiiiiig against the defendant

any arrest or disciplinary actions by DSU, even though horse manure was spread throughout the DSU cainpus, leading to unsanitary conditions.

'l`he second event upon which the defendant focuses is the "Occupy” Delaware demonstration that took place in Wilniiiigton, Delaware, when protestors established an encainpiiieiit in Peter Spencer Plaza. During that protest, Wilniingtoii’s l\/Iayor made several public statements that einpliasized that the protestors would not be forcibly renioved, or arrested, until a favorable judgment for the city was obtained in court. 'l`he defendant contends that the Occupy Delaware protest disrupted a sheriffs sale that was being held by the Sheriff of New Castle County, but no one was arrested or approached by law enforcement

'l` he defendant argues that unlike the members of the DSU Equestrian Team and the Occupy Delaware demonstrators, he was unlawfully arrested by DSU police officers. As a result, the defendant contends that his right to free speech under the constitution and his right to exercise his academic freedom pursuant to his employment as a DSU professor were violated. The defendant contends that even though other individuals were

present for the protest in which the defendant participated, he was singled out for arrest.

DISCUSSION As discussed earlier, a selective prosecution claim is not a defense on the merits of the case, but ratlier, asserts that the prosecutor has brought charges for reasons not permitted by the Constitution. Um'l'ed Slates v. Ai'ni.s'trong, 517 U.S. 456, 463 (1996). 'i`he standard of proof is a "demanding one" because there is a presumption of regularity

that supports prosecutorial decisions. Ici'. ln order to dispel the presumption that supports

prosecutorial discretion, a defendant must present "clear evidence" to the contrary. Id. at 465.

The defendant’s proffer of evidence supporting his claim of selective prosecution has fallen well short of the evidence necessary to grant his motion to dismiss for selective prosecution. The evidence proffered does not present °°clear evidence" that the defendant was charged for an improper purpose with offensive touching of a law enforcement officer and resisting arrest. 'l`he defendant’s entire argument regarding his selective prosecution claim concentrates on his participation in a denionstration', however, the open charges against the defendant are not for the demonstration. The open charges are the result of the defendant’s conduct when he allegedly shoved Chief Downs and resisted arrest. There has been no clear evidence proffered by the defendant showing a siniilarly situated person that could have been arrested for offensive touching of a law enforcement officer or resisting arrest, but was not. Additionally, the defendant has not demonstrated that discrimination was a “motivating factor in the decision" to enforce the criminal law against the defendant. Therefore, the defendant’s motion to dismiss for selective prosecution must be denied and no evidentiary hearing is necessary.

The reinaining issue left before the Court regarding selective prosecution is whether the Court should permit and order pre-trial discovery in advance of a motion in limine for the claim of selective prosecution To establish entitlement to discovery on a claim of selective prosecution, the defendant must "produce some [_credible] evidence that siinilarly situated defendants . . . could have been prosecuted, but were not . . . ." Ariii.s'troiig, 517 U.S. at 469. The defendant must produce "some evidence" to obtain

discovery in support of such a claiin. Ici'. The burden on the defendant upon requesting

discovery on such a claim is a lesser burden than requesting dismissal of the case based on such a c1aiin. However, some credible evidence niust be produced in order to obtain discovery.

Again, for the reasons discussed, the defendaiit’s proffer of evidence to establish entitlement to discovery on his claim of selective prosecution falls short. 'l`he defendant quite simply has not proffered any evidence that siinilarly situated defendants could have been prosecuted for the same offenses for which the defendant now has pending against hiin, but were not. Tlierefore, the defendant’s motion to allow pre-trial discovery in

advance of a motion in limine for his claim of selective prosecution must also be deiiied.

CONCLUSION

The defendant’s motions to dismiss for selective prosecution, or in the alternative, to allow pre-trial discovery in advance of a motion in limine are denied. The only charges pending against the defendant in this case are for resisting arrest and offensive touching of a law enforcement ofiicer. "l`he evidence relied on by the defendant iii his proffer does not involve events of similarly situated individuals who resisted arrest or offensively touched law enforcement officers, but were not prosecuted. 'l`he defendant has failed to present the Court with °‘clear e_vidence" that the State’s decision to prosecute him for resisting arrest and offensive touching of a law enforcement officer is based on an unjustifiable standard. The defendant has likewise failed to present the Court with even “some evidence" to support a claim for discovery on the issue of selective

prosecutioii. Therefore, the defendant’s motion to dismiss for selective prosecution and

the defendant’s motion for discovery in advance of a motion in limine for the claim of

selective prosecution must be DENIED.

rr is so oiu)nnisi) this _sf'_' day QrMAY 2014.

flinn/l salazar

CHARLES W. WELCli JUDGE