concurring.
I concur fully in Judge Gibson’s opinion for us. Without disagreeing with the opinion statement that “prosecution of criminal charges ... is less than a ... vehicle for raising equal protection claims thus leaving to counsel [to develop] a method for asserting these claims”, I would add these brief comments.
On the challenge of selective prosecution, certain factors bear emphasis. First, the prosecution was not out of the blue. Indeed, it was purposefully sought for the now jurisprudentially established legitimate objective of frank civil disobedience as a means of challenging the constitutionality of a given statute, rule, regulation, or practice.
When one seeks the very prosecution which materializes it would be incongruous to hold that the government, responding in effect to such importunities, has committed some kind of constitutional violation in serving up the mechanism so deliberately sought.