United States of America, Plaintiff-appellee, v. Wayne Doyce Mcwilliams, Defendant-appellant 730 F.2d 1218 holds
Quote:
|
Originally Posted by The 9th circuit
The defendant has the burden of proving selective prosecution. He must demonstrate (1) that others similarly situated have not been prosecuted, and (2) that he was selected for prosecution on the basis of an impermissible ground such as race, religion or exercise of the constitutional rights. United States v. Hooton, 662 F.2d 628, 634 (9th Cir.1981), cert. denied, 455 U.S. 1004, 102 S.Ct. 1640, 71 L.Ed.2d 873 (1982); United States v. Douglass, 579 F.2d 545, 550 (9th Cir.1978).
|
How similarly must similarly situated be? Can it be anyone in possession of a high capacity magazine?
Must they then be in a protected class?
Or could one claim selective prosecution for merely NOT exercising a right, such as being a member of the media?
Could one claim it is free speech to own one of the illegal magazines, as a form of protest regarding the inaction of the government in something of a hypocritical fashion, possibly resulting in both individuals being prosecuted? (Not something I advocate or have any intention of volunteering for, it's just the example that's out there and "common knowledge" for the commenters)
Would one be able to claim selective prosecution for being in a political party not consistent with David Gregory's positions, and thus use Free Association to demonstrate a selective prosecution?
May 2, 2013, 11:29 AM
