The arrest of Patriot Prayer leader Joey Gibson raises an important question, What is Selective Prosecution? Selective prosecution is a practice that prosecutors in Oregon have been engaging in for many years now. Such prosecutions, like Gibson's, appear to be motivated primarily or at least in part by that person's Constitutionally protected activities. Activities like exercising one's right to peaceably assemble and exercise free speech by saying things that the speaker knows to be considered offensive by those that can hear it. The purpose of the First Amendment is to protect the right of people like Gibson to walk down the street and say things likely to piss off Antifa. That is the first prong of a selective prosecution claim. The other is that the prosecution has a discriminator effect. A discriminatory effect takes place if Gibson can show that similarly situated people are generally not prosecuted for conduct alleged that is substantially similar.
SCOTUS has upheld selective prosecution claims when it has been shown that the prosecution "had a discriminatory effect and that it was motivated by a discriminatory purpose." United States v. Armstrong, 517 U.S. 456, 465 (1996). The government acts with a discriminatory purpose when the prosecution "was based on an arbitrary classification such as race, religion, or the exercise of constitutional rights." United States v. Darif, 446 F.3d 701, 708 (7th Cir. 2006). See also United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972) in which the defendant was entitled to acquittal "if his evidence proved that the authorities purposefully discriminated against those who chose to exercise their First Amendment rights." To show discriminatory effect, Mr. Gibson must present "some evidence" that the government declined to prosecute similarly situated individuals. Armstrong, 517 U.S. at 468. The defense can do so with "a credible showing of different treatment of similarly situated persons." Id, at 470.
The discriminatory effect in this case appears on the face of the news coverage of Gibson's arrest so far. There are videos online (see below) that show the so called Cider Riot and those videos appear to depict a mutual fight between two groups. Both groups appear to be throwing things at, spitting at, and striking one another while screaming obscenities, but only one group is being criminally charged. The Antifa people that were also rioting outside that bar were similarly situated to Gibson.
This may seem shocking to those not familiar with how prosecutors operate in Oregon. In Oregon prosecutors will pick a side and do everything they can to white wash the side they label victims in a criminal case. That means that anything they did will be twisted to prove motive for the alleged crimes of the defendant. If what they did appears illegal they will give them a pass because if they charged them it would hurt their case. Then the prosecutor will twist anything that was done to Gibson and present it as proof of victimization. So, if someone stands on the street and says something they know will throw the man next to him into a fit, the prosecution will offer it as evidence of the speaker's intent and use it to gain sympathy with the jury.
The discriminatory intent in this case could not be more obvious. Prosecutors have been watching Gibson for a while now and have been hoping to find something to charge him with. When law enforcement begins investigating someone because their lawful conduct makes them want to find out if they are doing anything illegal, that is a discriminatory purpose. A purpose that is not discriminatory takes place when someone is arrested based on the evidence and then the police find out that the arrested person also exercised free speech in certain ways. In this case it appears that the police took a video, looked for anything they could use against Gibson, and arrested him along with his people.
Unfortunately for Gibson, selective prosecution is a hard claim to win in this area. Even though the law clearly prohibits prosecution based in part on lawful activities, courts are reluctant to recognize it. Prosecutors will argue that although they were aware of Gibson's speech that this prosecution is motivated entirely by the allegations against him. Judges are quick to accept this in order to avoid a situation in which notorious speakers would be free to break the law and blame their arrest on their speech. I personally lost a selective prosecution claim in federal court last year and I had a stronger argument. I was able to show that I was being investigated for running this website long before being charged, that high ranking officials were trying to build a case because of my speech, and that out of the most similarly situated people I was the only one prosecuted. Gibson will have more difficulty because court do not consider people that are treated as victims by the government as similarly situated people even if they have done substantially similar things at the same time. That is because courts consider victims in criminal cases as not being similarly situated as defendants in the case. For instance, in United States v. Taquarius Ford, No. 3:14-cr-00045-HZ (DC OR 2016). Judge Marco Hernandez refused to consider a person charged with the same crime in the same case as similarly situated because the prosecutor had since offered that person a deal to flip and become a witness. The scary thing about that is that prosecutors can defeat a selective prosecution claim by choosing to treat a similarly situated person differently after they are charged. That is why the Antifa people at the Cider Riot are not legally similar even though they appear to have done the same things in the same place at the same time.
The arrest of Joey Gibson is clearly motivated by his speech and has clearly resulted in a discriminatory effect. It is basically a green light on Gibson by law enforcement. It says that his opponents are free to do to him as they wish and if he fights back he will be arrested for anything illegal he does while they will be just fine. I can relate to Gibson. In 2012 I was stalked and harassed for my speech before being charged federally for threatening the person that had swatted my mother. Law enforcement took the position that my stalker's emotional response to my speech was understandable and therefore they would not charge her for anything she did. Then what she did was used against me as proof of her emotional distress. I was basically green lighted. I felt like if anyone did anything to me I could not fight back and going to the police would be pointless because they would just say something like, "what did you expect?" This is how law enforcement works in the state of Oregon. They observe the public, find out what most people want, and enforce the law base on that.
Lady justice is depicted wearing a blind fold and holding an equal scale. That is because justice can only be the result of weighing the evidence equally and remaining blind to everything else. Those in charge of administering justice in Oregon do the opposite by looking at everything else and then trying to find evidence.
UPDATE: Joey Gibson sued Multnomah County's new District Attorney Mike Schmidt this week saying that his protester amnesty policy (https://copblaster.com/blast/25907/mike-schmidts-amnesty-policy-shows-protests-are-working) requires that the charges against him be dismissed. He has an excellent case because he is only charged with one count of riot. Schmidt's new policy clearly states that his office will only pursue riot charges if the charge is accompanied by a second charge not on Schmidt's no prosecution list. Because Gibson is only charged with riot his case should be dismissed. According to the mainstream press Gibson's charge is based on video that shows him taunting and shoving someone. The only reason he could be charged with riot was because the riot statute defines a riot as five or more people engaged in "tumultuous and violent conduct" and he was with more than five people. Shoving someone is harassment unless the shove causes an injury or was an attempt to cause an injury, so we are not aware of any allegations against him that constitute violent conduct besides the riot charge itself. Clearly he is similarly situated to others arrested on riot charges recently that Schmidt's office is not prosecuting. Some may argue that Gibson is situated better than they are because his alleged criminal conduct consists of just taunts and a shove.