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
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“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
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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.
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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
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