Anti-Gun activist breaks Gun Free Zone Law - Page 7

KyJim · October 10, 2014, 08:11 PM

Okay, I just happen to have something on equal protection in criminal prosecutions. But no, I don't have anything regarding equal protection specifically related to the Second Amendment.

A claim of selective prosecution is rooted in the Fifth Amendment right of equal protection made applicable to states through the Fourteenth Amendment. See Oyler v. Boles, 368 U.S. 448, 82 (1962); 21A Am.Jur.2d Criminal Law § 983 (1998). The prosecutor has broad discretion in deciding whom to prosecute. Wayte v. United States, 470 U.S. 598, 607 (1985); United States v. White, 972 F.2d 16, 18 (2nd Cir.1992). This discretion is subject to constitutional restrictions on prosecutions on the basis of race, religion, or some other arbitrary classification based on the exercise of protected rights. Wayte, 470 U.S. at 608; Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); see also 21A Am.Jur.2d Criminal Law § 983 (1998).

A person claiming selective prosecution must show both that the prosecutor had a discriminatory purpose and the prosecution had a discriminatory effect. United States v. Armstrong, 517 U.S. 456, 465 (1996). There is a presumption of regularity given prosecutorial decisions which must be overcome by clear and convincing evidence of both discriminatory effect and discriminatory purpose. Armstrong, 517 U.S. at 465.

In order to show discriminatory effect, a defendant must show that similarly situated individuals of a different classification were not prosecuted. Armstrong, 517 U.S. at 465; United States v. Jones, 159 F.3d 969, 977 (6th Cir.1998). In proving discriminatory purpose, it is not enough to show a prosecutor was aware of the consequences. One must prove the decision to prosecute was made “because of,” and not just “in spite of,” adverse consequences on an identifiable group. Wayte, 470 U.S. at 610.

October 10, 2014, 08:11 PM	#151
KyJim Senior Member Join Date: July 26, 2005 Location: The Bluegrass Posts: 9,142	Okay, I just happen to have something on equal protection in criminal prosecutions. But no, I don't have anything regarding equal protection specifically related to the Second Amendment. A claim of selective prosecution is rooted in the Fifth Amendment right of equal protection made applicable to states through the Fourteenth Amendment. See Oyler v. Boles, 368 U.S. 448, 82 (1962); 21A Am.Jur.2d Criminal Law § 983 (1998). The prosecutor has broad discretion in deciding whom to prosecute. Wayte v. United States, 470 U.S. 598, 607 (1985); United States v. White, 972 F.2d 16, 18 (2nd Cir.1992). This discretion is subject to constitutional restrictions on prosecutions on the basis of race, religion, or some other arbitrary classification based on the exercise of protected rights. Wayte, 470 U.S. at 608; Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); see also 21A Am.Jur.2d Criminal Law § 983 (1998). A person claiming selective prosecution must show both that the prosecutor had a discriminatory purpose and the prosecution had a discriminatory effect. United States v. Armstrong, 517 U.S. 456, 465 (1996). There is a presumption of regularity given prosecutorial decisions which must be overcome by clear and convincing evidence of both discriminatory effect and discriminatory purpose. Armstrong, 517 U.S. at 465. In order to show discriminatory effect, a defendant must show that similarly situated individuals of a different classification were not prosecuted. Armstrong, 517 U.S. at 465; United States v. Jones, 159 F.3d 969, 977 (6th Cir.1998). In proving discriminatory purpose, it is not enough to show a prosecutor was aware of the consequences. One must prove the decision to prosecute was made “because of,” and not just “in spite of,” adverse consequences on an identifiable group. Wayte, 470 U.S. at 610.