United States v. Theoharis

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) UNITED STATES OF AMERICA, ) ) v. ) Case No. 18-mj-54 (RMM) ) SHAILLY BARNES ET AL, ) ) Defendants. ) )

MEMORANDUM OPINION AND ORDER

Defendants Shailly Barnes, Graylan S. Ellis Hagler, Jimmy Hawkins, William Lamar,

Hershey A. Mallette, Rosalyn W. Pelles, Noam Sandweiss-Back, Robert T. Stephens, and

Elizabeth Theoharis (collectively “Defendants”) were arrested while praying on the Supreme

Court plaza and charged with violating 40 U.S.C. § 6135 (“§ 6135” or “Section 6135”). See 40

U.S.C. § 6135 (2018). Section 6135 makes it unlawful “to parade, stand, or move in processions

or assemblages in the Supreme Court Building or grounds [“the Assemblages Clause”], or to

display in the Building and grounds a flag, banner or device designed or adapted to bring into

public notice a party, organization, or movement [“the Display Clause”].” Id. Defendants

Barnes, Hagler, Lamar, Mallette, Pelles, Sandweiss-Back, Stephens, and Theoharis have jointly

moved to dismiss the Information as unconstitutional. See Defs.’ Joint Mot. Dismiss (“Defs.’

Mot.”), ECF No. 108. 1 Defendant Hawkins has separately filed a Motion to Dismiss, in which

he incorporates the arguments in Defendants’ Joint Motion to Dismiss and raises a selective

prosecution claim. See generally Mot. Dismiss for Selective Prosecution and Compel Disc.

1 The Government filed a Motion in Opposition. See generally Gov’t Mot. Opp.’n Defs.’ Joint Mot. Dismiss (“Opp’n Mot.”), ECF No. 121. Defendants filed a Reply Memorandum. See generally Reply Mem. Law Supp. Defs.’ Joint Mot. Dismiss (“Defs.’ Reply”), ECF No. 122. 1 (“Hawkins Mot.”), ECF No. 109. 2 Defendants collectively argue that the charges against them

should be dismissed because: (1) § 6135 violates their First Amendment right to prayer and to all

instances of prayer in the plaza; and (2) § 6135 is unconstitutionally overbroad and vague.

Defs.’ Mot. at 5. Mr. Hawkins also separately argues that he has been subjected to selective

prosecution and asks that the Court dismiss the charges against him on that basis or,

alternatively, authorize discovery regarding selective prosecution. Hawkins Mot. The Court

DENIES the joint motion to dismiss and Mr. Hawkins’ separate motion for the reasons set forth

below. 3

BACKGROUND 4

On June 11, 2018, Defendants allegedly were among a group of demonstrators marching

on First Street, N.E., near the United States Supreme Court. See Opp’n Mot. at 1. Defendants

identify as religious individuals and leaders associated with The Poor People’s Campaign: A

National Call for Moral Revival. 5 Defs.’ Mot. at 1–2. During the march, Defendants wore

matching clothing connecting them to the Poor People’s Campaign. Opp’n Mot. at 1.

After First Street, N.E., was reopened for vehicle use at the conclusion of the march,

approximately 100 to 150 demonstrators remained on the sidewalk in front of the Supreme Court

2 The Government filed a Motion in Opposition. See generally Gov’t Mot. Opp.’n Defs.’ Mot. Dismiss (“Hawkins Opp’n”), ECF No. 121. 3 The Court announced its intention to deny both motions at a September 27, 2019 hearing. This Memorandum Opinion and Order formally resolves the pending motions and provides the rationale underlying that ruling. 4 Due to the pre-trial posture of this case, the facts have not yet been established. The background section of this opinion will rely upon the facts alleged in the Information and the parties’ briefs. 5 The Poor People’s Campaign is a bipartisan group “rooted in a moral analysis based on our deepest religious and constitutional values . . . .” Fundamental Principles, Poor People’s Campaign, https://www.poorpeoplescampaign.org/fundamental-principles/ (last visited June 7, 2019). 2 building. Id. at 2. The United States Supreme Court Police Department (“USSCPD”) surveyed

the crowd and observed the nine Defendants depart from the larger group, walk onto the lower

steps of the Supreme Court plaza, and gather in a circle near the base of the stairs of the Supreme

Court building. Id. No arguments had been scheduled before the Court on that date. Defs.’

Mot. at 2. Members of the public were on the plaza, and individuals with recording devices

surrounded Defendants. Id.; see also Defs.’ Mot. Ex. 3, Governmental Camera 101. Defendants

prayed together on the Supreme Court plaza. Defs.’ Mot. at 1–2. Defendants describe their

prayer as “address[ing] voter suppression, economic inequality, and persistent poverty in the

United States.” Id. at 2. While Defendants were gathered at the base, one defendant, Elizabeth

Theoharis, gave a speech through a microphone connected to a megaphone. Opp’n Mot. at 2.

She passed the microphone to others gathered around her. Id.

USSCPD blocked entry to the Court’s main door to prevent Defendants from progressing

into the building. Id. While Defendants prayed in the plaza, USSCPD Chief Jeff Smith issued

three warnings to Defendants within a ten-minute timespan. Id. With each warning, Chief Smith

notified Defendants that if they did not leave the premises, USSCPD would arrest them. Id.

After Defendants ignored the warnings, USSCPD began arresting the Defendants. Id. These

arrests drew applause from onlooking demonstrators from the sidewalk. Id. The Defendants

were arrested and charged with violating 40 U.S.C. § 6135. Id. at 3.

In an Information filed June 12, 2018, the United States charged Defendants with

violating 40 U.S.C. § 6135. See Information at 2, ECF No. 1. Defendants face a maximum fine

of up to $5,000 and a maximum sentence of up to sixty days in jail. See 18 U.S.C. § 3571(b)(6)

(2018); 40 U.S.C. § 6137(a) (2018). Defendants have been on pretrial release since their initial

appearance before this Court on June 12, 2018.

3 DISCUSSION

I. DEFENDANTS’ JOINT CONSTITUTIONAL CHALLENGE

Defendants contend that the Information should be dismissed because § 6135 violates the

First Amendment as applied to Defendants’ alleged conduct on June 11, 2018 and to all instances

of prayer on the Supreme Court plaza. Defs.’ Mot. at 5; Hawkins Mot. at 1. The statute provides

that, “[i]t is unlawful to parade, stand, or move in processions or assemblages in the Supreme

Court Building or grounds, or to display in the Building and grounds a flag, banner, or device

designed or adapted to bring into public notice a party, organization, or movement.” 40 U.S.C. §

6135 (2018). In Hodge v. Talkin, the D.C. Circuit found § 6135 constitutional as applied to the

Hodge plaintiff’s desire to picket, leaflet, and make a speech in the Supreme Court plaza. Hodge

v. Talkin, 799 F.3d 1145, 1150 (D.C. Cir. 2015). Defendants contend that their prayer is an

expressive activity that was not addressed in Hodge, and that precluding them from praying on

the Supreme Court plaza would violate the First Amendment. See Defs.’ Mot. at 5. Defendants

also assert that § 6135 is overbroad and unconstitutionally vague. See id. at 6. The United States

counters that § 6135 is a reasonable restriction on speech that is neither overbroad nor void for

vagueness. See Opp’n Mot. at 6-9. The Court concludes that § 6135 may be constitutionally

applied to Defendants’ alleged conduct at the Supreme Court on June 11, 2018, and therefore

rejects Defendants’ First Amendment challenge to the Information.

A. Section 6135 Does Not Violate the First Amendment as Applied to Defendants or Other Individuals Who Wish to Pray on the Supreme Court Plaza

1. Legal Standard Governing First Amendment Claims

The First Amendment protects the right to free speech and expression, but does not give

individuals an unfettered right to engage in expressive activity “wherever (and whenever) [they]

4 would like.” Hodge, 799 F.3d at 1157. The government may restrict speech on government

property, and the scrutiny to which those restrictions will be subjected turns on the nature of the

forum where the speech takes place. See Minnesota Voters Alliance v. Manksy, 138 S. Ct. 1876,

1885 (2018). Restrictions on speech in public forums are scrutinized more closely than

restrictions on speech in nonpublic forums. See id. In public forums, “the government may

impose reasonable time, place, and manner restrictions on private speech, but restrictions based

on content must satisfy strict scrutiny, and those based on viewpoint are prohibited.” Id. In

nonpublic forums, the government may prohibit speech “as long as the regulation on speech is

reasonable and not an effort to suppress expression merely because public officials oppose the

speaker’s view.” Id.; see also Hodge, 799 F.3d at 1150. Thus, to determine whether a

restriction on speech violates the First Amendment, courts “proceed in three steps: first,

determining whether the First Amendment protects the speech at issue, then identifying the

nature of the forum, and finally assessing whether the [government's] justifications for restricting

…speech ‘satisfy the requisite standard.’” Mahoney v. Doe, 642 F.3d 1112, 1116 (D.C. Cir.

2011) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 797 (1985)).

2. Hodge v. Talkin

The Court’s analysis of Defendants’ First Amendment claims must begin with the D.C.

Circuit’s holding in Hodge v. Talkin, given the overlap between the issues addressed in Hodge

and the arguments Defendants raise here. In Hodge, a student who had previously been arrested

for violating § 6135 sought to return to the Court to picket, distribute leaflets, and make political

speeches on the Supreme Court plaza. 799 F.3d at 1154. Mr. Hodge argued that § 6135 violated

his First Amendment rights to expression and was unconstitutionally overbroad and vague. See

id. When reviewing Mr. Hodge’s challenge to the statute’s restriction of his First Amendment

5 rights, the Court declined to classify Mr. Hodge’s constitutional claims as a purely facial or as

applied challenge, and instead “examine[d] the validity of the statute’s application to . . . [the

Supreme Court] plaza—looking beyond the plaintiff’s particular conduct when assessing the

statute’s fit.” Id. at 1156-57.

Hodge upheld the constitutionality of § 6135, rejecting Mr. Hodge’s assertion that the

statute was “unconstitutional in all its applications in the Supreme Court plaza.” Hodge, 799

F.3d at 1157. First, the D.C. Circuit determined that the Supreme Court plaza is a nonpublic

forum, after reviewing its structural design, its public accessibility, and the importance of

maintaining “the Court’s central purpose, the administration of justice to all who seek it.” Id. at

1158–62. As such, the First Amendment allows the government to implement “reasonable

restrictions on speech [at the plaza] as long as it refrains from suppressing particular

viewpoints.” Id. at 1150. Applying that test, the D.C. Circuit determined that § 6135 reasonably

relates to the government’s interests in “preserving decorum in the area of a courthouse and in

assuring the appearance (and actuality) of a judiciary uninfluenced by public opinion and

pressure.” Id. It further held that § 6135 is neither overbroad nor vague, in part because the

statute applies only to expressive conduct intended to attract attention. See id. at 1168.

3. Section 6135 Does Not Unreasonably Restrict Defendants’ First Amendment Expression

Given that Defendants’ prayer is clearly a form of expression protected by the First

Amendment, and that Hodge establishes that the Supreme Court plaza is a nonpublic forum, the

Court’s analysis of this constitutional challenge turns on a single issue: whether § 6135 is an

unreasonable regulation of Defendants’ protected speech. The government may permissibly

restrict any speech in nonpublic forums provided that the restriction is reasonable and not an

effort to suppress the speaker’s speech due to disagreement with the speaker’s view. See Hodge,

6 799 F.3d at 1158 (quoting Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679

(1992)). The reasonableness test evaluates whether the restrictions on speech “are reasonable in

light of the government’s interest in preserving the property for its intended purposes.” Id. at

1162 (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)). The

restrictions need not be narrowly tailored to further the government’s asserted interest, and

consequently “need not be the most reasonable or the only reasonable limitation” that would

effectuate that interest. Id. at 1165 (citing Cornelius v. NAACP Legal Def. and Educ. Fund., 473

U.S. 788, 808 (1985)).

Here, the identified government interests are the same as those at issue in Hodge: i.e.

“interests in maintaining order and decorum at the Supreme Court and in avoiding the impression

that popular opinion and public pressure affect the Court’s deliberations.” Hodge, 799 F.3d at

1165. The public prayer with which Defendants have been charged was a demonstration

designed to bring attention to political, social, and religious issues. See Defs.’ Mot. at 6. At least

one Defendant allegedly spoke using a megaphone, and Defendants allegedly passed around a

microphone, made speeches, and were observed by a crowd that gathered near the plaza. See

Opp’n Mot. at 2. Thus, although Defendants contend that they did not leaflet or carry large

signs, their charged conduct is a demonstration that would (and did) draw attention. Restricting

such displays “promotes a setting of decorum and order at the Supreme Court,” as the D.C.

Circuit recognized in Hodge. Hodge, 799 F.3d at 1165. Further, prohibiting demonstrations that

draw attention to social, political, or religious issues reasonably advances the government’s

interest in protecting the integrity of the judicial process against the appearance that the Supreme

Court’s decision-making process can be influenced by public or political pressure. See id. at

1166.

7 Defendants contend that their prayer demonstration was similar to activities that have

been allowed to occur on the plaza, and thus cannot plausibly have threatened the decorum,

order, or integrity of the Supreme Court. See Defs.’ Mot. at 8-9. Even assuming that Defendants

have accurately identified similarities between their alleged conduct and other events on the

plaza, that proves only that Defendants’ alleged conduct implicates the concerns underlying §

6135 to a lesser degree than other types of demonstrations. That does not render § 6135

unconstitutional, however, because “the validity of a regulation depends on the relation it bears

to the overall problem the government seeks to correct, not on the extent to which it furthers the

government’s interest in an individual case.” Hodge, 799 F.3d at 1167 (citing Ward v. Rock

Against Racism, 491 U.S. 781, 801 (1989)). Indeed, Congress “may reach beyond what is

strictly necessary to vindicate [the cited government] interests,” where, as here, it regulates

speech in a nonpublic forum. Id. at 1165.

Defendants also suggest that their expressive activity should be afforded special

protection because it involves prayer. See Defs.’ Mot. at 5, 8-9. However, the degree of scrutiny

applied to restraints on speech turns on the nature of the forum where the speech occurs, not the

form of or motivation underlying the expression. See generally Henderson v. Kennedy, 253 F.3d

12, 19 (D.C. Cir. 2001) (declining to apply heightened scrutiny to a claim that implicated both

the Free Exercise clause and the Free Speech clause of the First Amendment). If § 6135

expressly singled out prayer as a prohibited form of expression but allowed purely secular

speeches or similar expressive activities, it arguably might be an improper content—or

viewpoint—based restraint or implicate the Free Exercise clause. However, § 6135 is content-

neutral and only prohibits prayer to the extent that some forms of prayer fall within the scope of

the assemblies, processions, and similar expressive activity that § 6135 reaches. In sum, there is

8 a sufficient connection between the two government goals at issue and § 6135’s prohibition of

demonstrations (including prayer demonstrations) to satisfy First Amendment scrutiny.

Defendants’ characterization of § 6135 as a viewpoint based restriction of prayer is

misplaced. See Defs.’ Reply at 2. On its face, the statute does not distinguish between the

content of or viewpoint reflected in the prohibited demonstration or other expressive activity.

See Hodge, 799 F.3d at 1170 (describing the statute as “viewpoint-neutral”). The fact that law

enforcement applies a viewpoint-neutral law to conduct designed to convey specific messages

regarding poverty, social justice, and political issues does not transform that law into a restriction

of a specific viewpoint for purposes of First Amendment analysis. Defendants’ assertion that

other individuals have prayed, given speeches, or demonstrated on the plaza, even if true, does

not support an inference that applying § 6135 to Defendants targets them for their viewpoint.

Such an argument is better suited to a selective enforcement claim, which the Court will review

infra. 6

4. Section 6135 is Not Overly Broad

Defendants also assert that § 6135 is overbroad, contending that it “‘fails to draw

reasonably clear lines’ between the kinds of conduct that are ‘criminal and those that are not.’”

Defs.’ Mot. at 8 (quoting Smith v. Goguen, 415 U.S. 566, 574 (1974)). As was true in Hodge,

Defendants’ overbreadth arguments are not meaningfully distinguishable from their challenge to

the reasonableness of § 6135. To the extent that Defendants contend that the statute is overbroad

because it chills speech similar to their prayer demonstration, the overbreadth analysis merges

6 In Hodge, the plaintiff relied on prior demonstrations or speeches to support an argument that the Supreme Court plaza was a public forum. However, the D.C. Circuit rejected that assertion. See Hodge, 799 F.3d at 1161–62 (concluding that exceptions to the enforcement of the statute did not make the Supreme Court plaza a public forum). Defendants do not directly raise that argument here, and Hodge would foreclose that argument if they had done so. 9 with the assessment of the reasonableness of the restraint on speech. See Hodge, 799 F.3d at

1171 (concluding that overbreadth challenge was “analytically identical” to plaintiff’s challenge

to the reasonableness of the restriction on his speech and declining to separately evaluate the

issue). To the extent that Defendants contend that the statute is overbroad because it cannot be

applied to anyone who prays in the plaza, that argument also duplicates their challenge to the

reasonableness of the restraint on speech and requires no further analysis. See id. (concluding

that Hodge’s assertion “that § 6135 cannot be applied to anyone, including himself, in the

Supreme Court plaza because it curtails too much speech” appears to raise an overbreadth claim

but overlaps with the evaluation of the reasonableness of the restriction on speech). As

explained above, § 6135’s prohibitions reasonably further the asserted government interests, and

it is constitutionally permissible for the statute to prohibit more conduct than is strictly necessary

to further those interests.

B. Section 6135 Is Not Void for Vagueness

1. Legal Standard Governing Claims that a Statute is Unconstitutionally Vague

Defendants also contend that § 6135 is unconstitutionally vague. Vague criminal laws

implicate the Fifth Amendment because “[a] conviction fails to comport with due process if the

statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of

what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory

enforcement.” Hodge, 799 F.3d at 1172 (citing United States v. Williams, 553 U.S. 285, 304

(2008)). Accordingly, the void-for-vagueness doctrine focuses on whether a statute that

criminalizes certain conduct gives “actual notice to citizens” and is written with sufficient clarity

to avoid “arbitrary enforcement.” Kolender v. Lawson, 461 U.S. 352, 358 (1983). Defendants

argue that § 6135 “‘fails to draw reasonably clear lines’ between the kinds of conduct that are

10 ‘criminal and those that are not,’” thereby creating a risk that law enforcement will arbitrarily

and selectively enforce the statute. Defs.’ Mot. at 8 (quoting Smith v. Goguen, 415 U.S. 566, 574

(1974)); see also Defs.’ Reply at 4–5.

2. Section 6135 Provides Sufficient Notice of Its Parameters and Establishes Guidelines for Its Enforcement.

To the extent that Defendants’ vagueness arguments challenge the notice provided by §

6135, Hodge forecloses the argument. The D.C. Circuit rejected the premise that § 6135’s

Assemblage Clause is so vague that it “pertains to any circumstance in which multiple persons

stand or participate in some sort of procession on the plaza, regardless of whether they are

engaged in expressive activity.” Hodge, 799 F.3d at 1172 (emphasis in original). Instead, the

clause reaches only “joint conduct that is expressive in nature and aimed to draw attention.” Id.

at 1168. Thus, there is no basis for confusion about whether an individual standing alone who

briefly bows her head in silent prayer would run the risk of prosecution. Similarly, the Display

Clause “plainly involves expressive conduct” and focuses “on conduct meant to attract

attention.” Id. That portion of the statute is not intended to criminalize behavior such as “a

single person’s mere wearing of a t-shirt containing words or symbols on the plaza—if there are

no attendant circumstances indicating her intention to draw onlookers.” Id. at 1169. Both

statutory clauses target behavior that would cause onlookers to stop and take notice of the

individuals and their cause. Id. Therefore, a citizen who wishes to pray or otherwise express

herself on the Supreme Court plaza can reasonably ascertain whether the law prohibits that

prayer or expression.

Defendants’ principal vagueness argument invokes the arbitrary enforcement prong of the

void-for-vagueness test. Defendants contend that § 6135 is so imprecise that it authorizes or

encourages law enforcement to discriminatorily choose which forms of prayer to prosecute. See

11 Defs.’ Reply at 4–5. To evaluate such a claim, courts ask whether the challenged statute

“establish[es] minimal guidelines to govern law enforcement.” Kolender, 461 U.S. at 358.

Section 6135 is not a “standardless” law. Hodge, 799 F.3d at 1172 (quoting United States

v. Williams, 553 U.S. 285, 304 (2008)). It only prohibits prayer to the extent that a group

engages in a form of prayer that is an assembly, i.e. that tends to draw attention. See generally

Hodge, 799 F.3d at 1168 (defining the scope of § 6135). Thus, law enforcement may look to

“attendant circumstances indicating [one’s] intention to draw onlookers” to determine whether a

group prayer or other expressive activity violates the law. Id. at 1169. Although that standard

may require officers to exercise judgment to determine whether a group prayer has crossed the

line between permitted and prohibited conduct, “[t]he vagueness doctrine does not require

‘perfect clarity and precise guidance.’” Metropolitan Washington Chapter v. District of

Columbia, 57 F. Supp. 3d 1, 31 (D.D.C. 2014); see also Williams, 553 U.S. at 304 (citing Ward,

491 U.S. at 794) (noting that “perfect clarity and precise guidance have never been required even

of regulations that restrict expressive activity.”).

The government’s proffer regarding Defendants’ alleged conduct illustrates the

parameters that govern prosecutions under § 6135. Defendants are not accused of simply

gathering to pray on the steps of the Supreme Court plaza. Instead, Defendants admit for

purposes of their motion to dismiss that their prayer was a demonstration intended to bring

attention to themselves and to their cause. See Defs.’ Mot. at 6. After participating in a larger

demonstration on the streets, Defendants allegedly broke away from the sidewalk, dressed in

matching t-shirts with the aim of bringing awareness to their cause. See Opp’n Mot. at 1–2.

Defendants allegedly carried a megaphone with a microphone attached, and at least one member

of the group gave a speech into the megaphone to a crowd of onlookers with cameras. Id. at 2.

12 Defendants characterize their behavior as “bringing attention to voter suppression, systemic

inequality, and poverty in the United States.” Defs.’ Mot at 6.

Defendants’ assertion that other demonstrations and prayers have occurred at the

Supreme Court does not prove that the statute is so vague as to invite arbitrary enforcement.

Defendants analogize their behavior on the plaza with the annual Religious Freedom Coalition’s

National Day of Prayer, a day when individuals gather to pray on the Supreme Court plaza. See

Defs.’ Reply at 8. The author of a May 2012 report from the Religious Freedom Coalition states

that a prayer group could permissibly convene on the steps of the Supreme Court plaza “as long

as the group did not constitute a ‘demonstration’” and appears to characterize “the line between”

prayer and a demonstration as “very ill defined.” Defs.’ Mot., Ex. 10, Nat’l Day of Prayer

Special Rep., ECF No. 108-10 (emphasis added). Defendants also reference protests

surrounding Justice Kavanaugh’s confirmation hearings and a handful of other alleged

demonstrations at the Supreme Court. However, there is no basis to infer that the government’s

alleged failure to arrest or prosecute people who participated in prior National Days of Prayer

results from any lack of definable statutory standards in the statute. A group prayer on the

National Day of Prayer that is designed to draw onlookers would appear to cross the line

between lawful and unlawful activity under § 6135 as interpreted by the D.C. Circuit in Hodge.

Similarly, a group of individuals protesting Justice Kavanaugh’s confirmation hypothetically

could violate § 6135 by giving loud speeches or holding large signs. If there is evidence that law

enforcement has repeatedly disregarded § 6135’s restrictions and allowed demonstrations on the

National Day of Prayer and other occasions, that may support a selective enforcement claim but

does not, standing alone, demonstrate that the statute is void for vagueness. Put differently, the

13 fact that law enforcement may periodically fail to follow the standards codified in a criminal

statute does not prove that the statute lacks any such standards.

II. MR. HAWKINS’S SELECTIVE PROSECUTION CLAIMS

Mr. Hawkins seeks to dismiss the charges he faces on the ground that he is being

selectively prosecuted. See Hawkins Mot. at 2–4. In the alternative, if the Court does not

dismiss the charges against Mr. Hawkins, he seeks discovery on the issue of selective

prosecution. See id. at 4. The United States contends that Mr. Hawkins has neither made a

prima facie showing of selective prosecution nor presented evidence sufficient to entitle him to

discovery regarding selective prosecution. See generally Hawkins Opp’n. Because Mr.

Hawkins fails to provide any evidence to support either dismissal or discovery, the Court denies

his motion.

A. Legal Standard Governing Selective Prosecution Claims

Prosecutorial decisions enjoy a “presumption of regularity” and “in the absence of clear

evidence to the contrary, courts presume that [prosecutors] have properly discharged their

official duties.” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quotation marks omitted)

(quoting United States v. Chemical Found., Inc., 272 U.S. 1, 14–15 (1926)). Nevertheless,

prosecutorial discretion is “subject to constitutional constraints.” Armstrong, 517 U.S. at 464

(quotation marks omitted) (quoting United States v. Batchelder, 442 U.S. 114, 125 (1979)).

“The Equal Protection Clause prohibits selective enforcement ‘based upon an unjustifiable

standard such as race, religion, or other arbitrary classification.’” Batchelder, 442 U.S. at 125

n.9 (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)).

To establish selective prosecution, Mr. Hawkins “must show both (1) that he was singled

out for prosecution from others similarly situated and (2) that his prosecution was motivated by a

14 discriminatory purpose.” United States v. Khanu, 664 F. Supp. 2d 28, 31 (D.D.C. 2009); accord

United States v. Mangieri, 694 F.2d 1270, 1273 (D.C. Cir. 1982); see also Armstrong, 517 U.S.

at 465 (“The claimant must demonstrate that the federal prosecutorial policy ‘had a

discriminatory effect and that it was motivated by a discriminatory purpose.’” (quoting Wayte v.

United States, 470 U.S. 598, 608 (1985))). As this inquiry asks the court to “invade a special

province of the Executive—its prosecutorial discretion . . . the standard for proving [this claim]

is particularly demanding.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 489

(1999); accord Armstrong, 517 U.S. at 463. “[I]n order to dispel the presumption that a

prosecutor has not violated equal protection, a criminal defendant must present clear evidence to

the contrary.” Armstrong, 517 U.S. at 465 (quotation marks omitted) (quoting Chemical Found.,

272 U.S. at 14–15). Thus “[t]o warrant dismissal, a defendant must present ‘clear evidence’ that

the decision to prosecute [him] had a discriminatory effect and was motivated by a

discriminatory purpose.” United States v. Palfrey, 499 F. Supp. 2d 34, 39 (D.D.C. 2007)

(quoting Armstrong, 517 U.S. at 464).

A defendant may obtain discovery in support of a selective prosecution claim by showing

“some evidence tending to show the existence of the essential elements” of the claim.

Armstrong, 517 U.S. at 468 (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.

1974)) (internal quotation marks omitted); see also Attorney Gen. of U.S. v. Irish People, Inc.,

684 F.2d 928, 932 (D.C. Cir. 1982) (noting that defendant “must offer at least a colorable claim

both that the prosecution was improperly motivated and that it was selective in the first place.”);

Khanu, 664 F. Supp. 2d at 31. This “colorable showing must be made with respect to both

prongs of the test.” Branch Ministries, Inc. v. Richardson, 970 F. Supp. 11, 16 (D.D.C. 1997)

(citing Irish People, Inc., 684 F.2d at 932).

15 B. Mr. Hawkins Has Not Made a Prima Facie Showing That He Was Selectively Prosecuted

Mr. Hawkins argues that a “multitude of similarly situated persons have engaged in the

same type of activity” and were not prosecuted under § 6135, specifically drawing comparisons

to demonstrators who protested Justice Kavanaugh’s nomination while holding signs on the

plaza and even banging on the doors of the Supreme Court building. See Hawkins Mot. at 3. “A

similarly situated offender is one outside the protected class who has committed roughly the

same crime under roughly the same circumstances but against whom the law has not been

enforced.” Khanu, 664 F. Supp. 2d at 32 (internal quotation marks omitted) (quoting United

States v. Lewis, 517 F.3d 20, 27 (1st Cir. 2008)); see also United States v. Blackley, 986 F. Supp.

616, 619 (D.D.C. 1997) (describing similarly situated individuals as those with “some degree of

commonality of conduct among the indictable group”). “[D]efendants are similarly situated

when their circumstances present no distinguishable legitimate prosecutorial factors that might

justify making different prosecutorial decisions with respect to them.” United States v. Hastings,

126 F.3d 310, 315 (4th Cir. 1997) (internal quotation marks omitted) (quoting United States v.

Olvis, 97 F.3d 739, 744 (4th Cir. 1996)), cited in Branch Ministries v. Rossotti, 211 F.3d 137,

145 (D.C. Cir. 2000). 7

Mr. Hawkins asserts that there are no legitimate prosecutorial reasons that can explain

why he was treated differently than unidentified Justice Kavanaugh demonstrators, who despite

7 Prosecutorial factors may include “the strength of the evidence against a particular defendant, the defendant’s role in the crime, whether the defendant is being prosecuted by state authorities, the defendant’s candor and willingness to plead guilty, the amount of resources required to convict a defendant, the extent of prosecutorial resources, the potential impact of a prosecution on related investigations and prosecutions, and prosecutorial priorities for addressing specific types of illegal conduct.” United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996).

16 being “louder” and “more disruptive” than him allegedly were not arrested or prosecuted in

federal court under § 6135. See Hawkins Mot. at 3. Mr. Hawkins then posits that because there

is no legitimate rationale to explain the disparate treatment, the only explanation is that the

content of his speech, an impermissible ground, motivated the decision to prosecute him. See id.

Mr. Hawkins states that as a result of the disparate treatment, he faces pretrial supervision,

possible fines, and possible incarceration, whereas other similarly situated persons do not. See

id.

Mr. Hawkins bears the burden of proving a discriminatory effect and “must show that

similarly situated individuals” were not prosecuted in federal court. Armstrong, 517 U.S. at 465.

In Armstrong, the Supreme Court rejected the view that a defendant could “establish a colorable

basis for discriminatory effect without evidence that the Government has failed to prosecute

others who are similarly situated to the defendant.” Id. at 469. Mr. Hawkins has failed to

provide any such evidence that the Justice Kavanaugh protesters were (1) similarly situated or

(2) not arrested or prosecuted in federal court under § 6135; instead, he offers only his

conclusory and unsupported assertion that unidentified protesters were not arrested or prosecuted

in federal court. The government refutes Mr. Hawkins’ claims, responding that similarly situated

persons, including Justice Kavanaugh protesters, have been prosecuted in federal court. See

Hawkins Opp’n at 4. As such, Mr. Hawkins fails to establish the first prong of a selective

prosecution claim.

To prove that the government acted with a discriminatory purpose, Mr. Hawkins must

show “that the selection was deliberately based upon an unjustifiable standard such as race,

religion, or other arbitrary classification, or was designed to prevent or paralyze his exercise of

constitutional rights.” Mangieri, 694 F.2d at 1273 (citations omitted). Specifically, a defendant

17 “must prove that the decisionmakers in [his] case acted with discriminatory purpose.”

McCleskey v. Kemp, 481 U.S. 279, 292 (1987). Discriminatory purpose “implies that the

decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because

of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Wayte, 470 U.S. at

610 (quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). As “direct evidence of

discrimination is rarely available, a defendant may use statistical disparities and other indirect

evidence to show bias or discriminatory motive.” Khanu, 664 F. Supp. 2d at 33 (citing Branch,

970 F. Supp. at 17). Such statistical proof “must present a ‘stark’ pattern to be accepted as the

sole proof of discriminatory intent under the Constitution.” Id. (quoting McCleskey, 481 U.S. at

293).

Here, Mr. Hawkins ascribes discriminatory intent to the government based solely on the

notion that individuals who protested Justice Kavanaugh’s confirmation were not prosecuted,

whereas he was; he assumes that this disparate treatment must have been based on the content of

his speech. See Hawkins Mot. at 3. This jump misses the mark. Mr. Hawkins fails to provide

any evidence, beyond his own speculation, that he was prosecuted because of his speech.

Therefore, Mr. Hawkins fails to establish the second prong of a selective prosecution claim.

C. Mr. Hawkins Is Not Entitled to Discovery Regarding Selective Prosecution

As an alternative, Mr. Hawkins requests that the Court order the government to provide

discovery including: (1) a list of all cases involving potential violations of § 6135 at the Supreme

Court and whether those cases were prosecuted in federal court or elsewhere; (2) the subject

matter of the speech of the persons involved in those cases; (3) a list of law enforcement

agencies involved in those cases; and (4) the criteria for deciding whether and where to prosecute

those defendants. Hawkins Mot. at 4. To obtain discovery, a defendant “must provide something

18 more than mere speculation or personal conclusions based on anecdotal evidence.” United States

v. Hsia, 24 F. Supp. 2d 33, 49 (D.D.C. 1998) (internal quotation marks omitted) (citing

Armstrong, 517 U.S. at 470), rev’d in part, appeal dismissed in part on other grounds, 176 F.3d

517 (D.C. Cir. 1999); see also Armstrong, 517 U.S. at 470 (requiring something more than

“personal conclusions based on anecdotal evidence” to merit discovery on the basis of “some

evidence”). The Court can neither dismiss a case nor order discovery for selective prosecution

based solely on unfounded speculation that Mr. Hawkins will later procure evidence of a

discriminatory effect. See Armstrong, 517 U.S. at 470 (noting that “the required threshold—a

credible showing of different treatment of similarly situated persons—adequately balances the

Government’s interest in vigorous prosecution and the defendant’s interest in avoiding selective

prosecution”); cf. United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983) (noting how

the “trial court permitted discovery” on a selective prosecution claim, “after the defendant

introduced evidence suggesting a link” between government foreign policy and individuals

exercising certain religious beliefs).

In sum, Mr. Hawkins has failed to provide sufficient evidence to present a colorable

claim of selective prosecution and is not entitled to discovery. See Blackley, 986 F. Supp. at 620

(“Because defendant has not alleged a sufficient or colorable prima facie claim of selective

prosecution, he is not entitled an evidentiary hearing or discovery”). Therefore, he also has not

met the higher clear evidence standard that would merit dismissing a case for selective

prosecution. See Armstrong, 517 U.S. at 465.

19 CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Defendants’ Motion to Dismiss

[ECF No. 108] is DENIED. Is further ORDERED that Mr. Hawkins’ Motion to Dismiss [ECF

No. 109] is also DENIED. 2019.10.24 19:02:55 -04'00' Dated: October 24, 2019 ROBIN M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE