The new legal standards forged by these three courts of appeals [discussed in this prior post] make it markedly easier for criminal defendants to obtain discovery in support of racially selective law enforcement claims, which in turn makes it possible for defendants to win motions to dismiss on the merits.

The lower discovery standard also supports a lower merits standard for motions to dismiss for racially selective law enforcement than the standard set in Armstrong.  Under Armstrong, a defendant must provide “clear evidence” of discriminatory effect and discriminatory intent to prevail on a selective prosecution claim on the merits.  Armstrong, 517 U.S. at 465.  As Sellers notes, the Supreme Court explicitly rested that merits standard on “the presumption that prosecutors ‘properly discharged their official duties.’” Sellers, 2018 WL 4956959 at *6 (quoting Armstrong, 517 U.S. at 464).  Courts have made clear that such a presumption simply does not apply in the selective law enforcement context.  See, e.g., Davis, 793 F.3d at 721; Washington, 869 F.3d at 220–21; Sellers, 2018 WL 4956959 at *6.  Accordingly, there is no basis for applying the “clear evidence” standard to a motion to dismiss for selective law enforcement.  Instead, courts should apply the ordinary preponderance of the evidence standard.

In our Motions to Dismiss, the FCJC asked the district court judges to apply a preponderance of the evidence standard rather than a clear evidence standard.  See, e.g., Defendants’ Amended Reply in Support of Motion to Dismiss for Racially Selective Law Enforcement at 2­–4, United States v. Brown, 12-CR-632 (N.D. Ill. Nov. 6, 2017) (Dkt. No. 630).  Although the only judge to issue a merits ruling rejected our proposed lower standard, see Brown, 299 F. Supp. 3d at 995–97, Sellers supports the FCJC’s position that the standard for obtaining dismissal based on a selective enforcement claim must be less onerous than the merits standard for a selective prosecution claim.

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