Pasadena, Calif. (CN) — Federal prosecutors on Monday asked the Ninth Circuit Court of Appeals to overturn a judge's ruling dismissing an indictment against two men accused of torching a police car during the 2020 George Floyd protests as the defendants accused the government in turn of selective prosecution.
"Being a left-wing extremist doesn't give one the right to burn a police car or, for that matter, to attack people physically at a protest," Alexander Robbins, a lawyer with the U.S. attorney's office in Los Angeles, told the appellate panel. "Nor does being a right-wing extremist."
Robbins said the judge who threw out the case two years ago incorrectly inferred a discriminatory intent behind the prosecution of the two men because of a summer of 2020 memorandum from then-U.S. Attorney General William Barr instructing prosecutors to prioritize bringing charges over politically motivated violence.
That memorandum, he said, made a clear distinction between rioting and violence, which should be prosecuted, and protesting, which is protected by the First Amendment.
"It was the district court," Robbins said, "that repeatedly conflated rioting and violence with protected First Amendment activity."
U.S. District Judge Fernando Olguin, a Barack Obama appointee, had agreed with the two defendants, Nathan Wilson and Christopher Beasley, that were entitled to seek evidence from the government to support their argument that they had been singled out for prosecution because of their anti-government views.
The judge in his decision frequently referred to statements by Barr and by former President Donald Trump imploring the prosecution of people purportedly involved in criminal activity during the George Floyd protests.
In addition, Olguin observed, although there was plenty of arson in Los Angeles County, it is very rare for federal prosecutors to go after a defendant for arson alone.
The judge dismissed the indictment after the prosecutors had refused his order to provide the defendants with the requested internal information about decisions to charge or not to charge people solely for arson.
What puzzled the three-judge appellate panel at the hearing in Pasadena, California, was the appropriate control group for a comparison to show that some people were singled our for prosecution in arson cases, whereas others weren't.
"If you narrow it down to arsons that occurred in the context of a protest, how could you ever know whether prosecution was being targeted toward First Amendment activity? Because you would theoretically always have First Amendment activity at issue within that control group," U.S. Circuit Judge Danielle Forrest, a Trump appointee, wondered.
The fact that it is so difficult to come up with an appropriate comparison of rioters not getting charged for arson showed, according to Robbins, how far afield Olguin's decision was.
Whereas Forrest and U.S. Circuit Judge Patrick Bomatay, also a Trump appointee, showed some sympathy with the government's argument, U.S. District Judge James Donato, an Obama appointee who serves on the federal court in San Francisco and who sat on the appellate panel by designation, was more skeptical.
"How is a defendant, in your view, ever going to establish the grounds for a selective prosecution claim?" Donata asked. "They don't know what the U.S. attorney has declined to prosecute. That is knowledge that you need to get from the prosecutors."
Wilson and Beasley attended a George Floyd protest in Santa Monica, California, on May 31, 2020, where they were filmed setting a police car on fire in a video that was posted on social media.
The FBI identified Beasley quickly from the video, but Wilson, who was wearing sunglasses and an American flag bandana to cover his face, took longer to track down, according to the Justice Department's appeal.
Beasley, turned out to be a longtime member of the Westside Crips street gang, and shortly after the George Floyd protest, he posted a video on Twitter in which he said that the solution to cops killing Black people was "to kill cops."
Law enforcement found Wilson three months later when his girlfriend called the police because he had set her car on fire after a fight. Wilson had previously been investigated for making online threats, including a social media post that showed a picture of a rifle on a bed with the caption suggesting he had “picked up a double 40 mag so I can kill 80 liberals at a time, as long as they are lined up.”
Federal investigators also found that Wilson had made other disturbing posts, featuring military-style weapons, body armor and a reference to “boogaloo time,” which pertains to a far-right anti-government ideology.
Andrew Talai, a federal public defender representing the two men at Monday's hearing, told the panel that there had been other arson cases involving police facilities that hadn't led to federal charges, but he wasn't able to say whether these also involved protests.
But whereas the defense attorney argued that they only needed some evidence of selective prosecution to be entitled to discovery from the government to beef up their claim, the panel saw the U.S. Supreme Court guiding decision as much narrower than that.
As Judge Forrest pointed out, the Supreme Court held that the standard for arguing selective prosecution is a "demanding one," and the showing required to obtain discovery in itself should be a "significant barrier to the litigation of insubstantial claims."
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