IN 'l`l~'ll§ COURT OF COMMON PLEAS lN THE STATE OF DELAWARE
lN AND FOR KENT COUNTY
STATE OF DELAWARE

)
) Case No.: 1203000747
V- )
)
JAI~~II' U. ISSA, )
Defelidarit. )
Samuel L. Guy, Esquire Zachary George, Esquire
P.O. Box 25464 Deptlty Attorney General
Wilrniiigton, DH 19899 Departinerit of justice
Attorney for the Defendant 102 West Water Street
Dover, DE 19901
Attorney for the State

Stibinitted: April 3, 2014
Decided: l\/_[ay S, 2014

DECISION ()N DEFENDANT’S MOTION 'I`O DISMISS F()R SELECTIVE
PR()SECUTION AND DEFENDANT’S MOTI()N 'I`() ALL()W PRE-TRIAL
I)ISCOVERY IN ADVANCE OF MOTION IN LIMINE

Deferidant, Dr. Jahi U. Issa, was originally cliarged with disorderly conduct
pursuant to ll Del. C. § l301(l)(e), offensive touching of a law enforcement officer
pursuant to ll Del. C. § 601(:».1)(1) and (c), and resisting arrest pursuant to ll Del. C, §

l257(b). The charge of disorderly conduct has previously been dismissed by the Court.

'l`iieretore, the two charges remaining against the defendant are offensive touching of a
law enl'orcerneiit officer and resisting arrest. The defendant has filed a motion to disiniss
for selective prosecution, or in the alternative, to allow pre-trial discovery in advance of a
motion in limine The Court has obtained a proffer of evidence from the defendant in
support of his claim of selective prosecution and has received a submission from the State
in opposition to the claim. This opinion constitutes the Court’s decision on the
defendant’s motions The defendant’s motion to dismiss for selective prosecution and his

motion to allow pre-trial discovery in advance of a motion in limine are denied.

LEGAL STANDARD

A selective prosecution claim is not a defense on the rnerits of the case, but ratlier,
asserts that the prosecutor has brought the charge(s) for reasons not allowed by the
Constitution. Unil'ed Sz‘ares v. Armstrong, 517 U.S. 456, 463 (1996). The standard of
proof is a "deniandiiig one" because there is a presurnptioii of regularity that supports
prosecutorial decisions Ici'. "[I]n the absence of clear evidence to the contrary, courts
presume that [prosecutors] have properly discharged their official duties." Id. at 464
(qtioting Um'ted Stal'es v. Chein. Fou,=icil., ]rzc., 272 U.S. l, 14-45 (1926)) (internal
quotation inarks omitted). I~Iowever, prosecutorial discretion is subject to constitutional
constraint A.riiz.s'li'orzg, 517 U.S. at 464. The decision to prosecute may not be
"deliberately based upon an unjustifiable standard such as . . . the exercise of protected . .
. constitutional rights." Wayte v. U'rzi'ied Sla'l'es, 470 U.S. 598, 608 (1985) (citation

omitted) (iiiternal quotation marks ornitted). in order to dispel the presumption that

supports prosecutorial discretion, a defendant must present "clear evidence" to the
contrary. Arnisfrong, 517 U.S. at 465.

To establish entitlement to discovery on a claim of selective prosecution, the
defendant must "prodtice some [credible] evidence that similarly situated defendants . . .
could have been prosecuted, but were not . . . ." Arrii.s'tr‘oizg, 517 U.S. at 469. The burden
on the defendant upon requesting discovery on such a claim is a lesser burden than
requesting dismissal of the case based on such a claim. However, some credible evidence
must be produced in order to obtain discovery.

In order to prove a claim of selective prosecution, the defendant must establish
two elements: "(l) the policy to prosecute or enforce the law had a discriiniiiatory effect
and (2) it was motivated by a discriminatory purpose." Drwnniond v. Slale, 909 A.2d
594, 2006 WL 2842732, at ’*‘2 (Del. Oct. 5, 2006) (TABLE) (citing Arrnsl'roag, 5l7 U.S.
at 465). "'l`o show discriminatory effect, the defendant must show that a similarly
situated person . . . could have been arrested for the same offense for which the defendant
was arrested, but was iiot." let In order to show discriminatory purpose, "the defendant
rnust demonstrate that intent to discriminate was a rnotivating factor in the decision to
enforce the criminal law against the defendant." Ia'. (citations omitted) (internal

quotation inarks omitted).

STATE’S FACTS SUPPORTING THE CI~IARGES
The Court has heard evidence supporting the open charges of offensive touching

of a law enforcement officer and resisting arrest against the defendant as follows

On l\/larch i, 2012, a demonstration group was gathering at the l\/lartin Luther
Kiiig, .h'. Student Center ("Student Center"), located on the Delaware State University
("DSU") campus in Kent County, Delaware. The Student Center is a common area
where students and other members of the DSU comrnunity normally assemble and gatlier
for various reasons A DSU law enforcerneiit officer was dispatched upon receiving a
radio call regarding a possible unapproved protest occurring at the Student Center. When
the officer arrived at the Student Center. he observed the defendant addressing a group of
about forty people The group was peaceful and was not disruptive. 'l`he officer was not
sure if the group should be considered a protest or a gathering, so he contacted his
Lieutenant back at the DSU Police Departineiit for direction. Shortly thereafter, Chief
l~iarry Downs ("Chief Downs"), who is the Chief of Police for DSU’s Police Departnieiit,
arrived at the Student Center. Chief Downs met with the law enforcement officer to
evaluate the situation Chief Downs, then, approached the defendant and notified the
defendant that he was "Chief Downs." Chief Downs advised the defendant that the group
had to disperse because it did not have a permit to demonstrate. The defendant refused.
Chief Downs next placed his hand on the defendant so as to escort him away from the
gathering. He asked the deferidaiit to come along with him so that they could discuss the
matter. 'l`he defendant responded by telling Chief Downs "I don’t care who you are" and
shoved Chief Downs away. At that point, Chief Downs decided to arrest the defendant
lie instructed the assisting law enforcement officer to place the defendant under arrest.

The assisting DSU law enforcement officer atteinpted to place handcuffs on the
defendant, but, the defendant refused to place his hands behind his back as instructed

lnstead, the defendant pulled himself away from Chief Downs and the law enforcement

oflicer. 'l`he law enforceinerit officer grabbed the defendant and started to reniove him
from the scene. As they were walking away from the scene, the defendant pulled himself
away and fell to the ground. As a result of his conduct, the defendant was charged with
the misdemeaiior offenses of offensive touching of a law enforcement officer in violation

of ll Dei’. C. § 60l(a)(l) and (c) and resisting arrest in violation of ll Dei'. C`. § l257(b).l

DEFENDANT’S PR()FFEI{

The defendant, who is blacl<, contends that he is entitled to an evidentiary hearing
on his claim of selective prosecution lie also contends that lie is entitled to discovery on
the claim of selective prosecution because he can satisfy the threshold showing that the
State has declined to prosecute siinilarly situated suspects. I~Iis argument focuses on two
events that lie contends will show that with regard to gatherings at DSU involving the
exercise of 131 Aniendrnent Constitutional rights:

(l) the law is enforced solely and exclusively against persons of the black race

and not otherwise; (2) the conditions and practices associated with gathering, to
which the law was directed, did not exist exclusively among the black members of

the DSU community; [an.d] (3) . . . that the law is applied against black members
of the DSU cominunity but not against any caucasian members of the DSU
community.

Defs.’ Br. at 3.

The first event upon which the defendant focuses is a DSU Equestriaii Team
protest that occurred prior to the defendant’s arrest. The defendant contends that during
that protest, the mostly white inembers of the DSU Equestriaii 'l`eam rode their horses

around the DSU campus. No students or factilty who were involved in the protest faced

' T lie defendant contests this version of the facts. l~lowever, the Court has found that stifficieiit
credible evidence exists to support the open charges reinaiiiiiig against the defendant

any arrest or disciplinary actions by DSU, even though horse manure was spread
throughout the DSU cainpus, leading to unsanitary conditions.

'l`he second event upon which the defendant focuses is the "Occupy” Delaware
demonstration that took place in Wilniiiigton, Delaware, when protestors established an
encainpiiieiit in Peter Spencer Plaza. During that protest, Wilniingtoii’s l\/Iayor made
several public statements that einpliasized that the protestors would not be forcibly
renioved, or arrested, until a favorable judgment for the city was obtained in court. 'l`he
defendant contends that the Occupy Delaware protest disrupted a sheriffs sale that was
being held by the Sheriff of New Castle County, but no one was arrested or approached
by law enforcement

'l` he defendant argues that unlike the members of the DSU Equestrian Team and
the Occupy Delaware demonstrators, he was unlawfully arrested by DSU police officers.
As a result, the defendant contends that his right to free speech under the constitution and
his right to exercise his academic freedom pursuant to his employment as a DSU
professor were violated. The defendant contends that even though other individuals were

present for the protest in which the defendant participated, he was singled out for arrest.

DISCUSSION
As discussed earlier, a selective prosecution claim is not a defense on the merits
of the case, but ratlier, asserts that the prosecutor has brought charges for reasons not
permitted by the Constitution. Um'l'ed Slates v. Ai'ni.s'trong, 517 U.S. 456, 463 (1996).
'i`he standard of proof is a "demanding one" because there is a presumption of regularity

that supports prosecutorial decisions. Ici'. ln order to dispel the presumption that supports

prosecutorial discretion, a defendant must present "clear evidence" to the contrary. Id. at
465.

The defendant’s proffer of evidence supporting his claim of selective prosecution
has fallen well short of the evidence necessary to grant his motion to dismiss for selective
prosecution. The evidence proffered does not present °°clear evidence" that the defendant
was charged for an improper purpose with offensive touching of a law enforcement
officer and resisting arrest. 'l`he defendant’s entire argument regarding his selective
prosecution claim concentrates on his participation in a denionstration', however, the open
charges against the defendant are not for the demonstration. The open charges are the
result of the defendant’s conduct when he allegedly shoved Chief Downs and resisted
arrest. There has been no clear evidence proffered by the defendant showing a siniilarly
situated person that could have been arrested for offensive touching of a law enforcement
officer or resisting arrest, but was not. Additionally, the defendant has not demonstrated
that discrimination was a “motivating factor in the decision" to enforce the criminal law
against the defendant. Therefore, the defendant’s motion to dismiss for selective
prosecution must be denied and no evidentiary hearing is necessary.

The reinaining issue left before the Court regarding selective prosecution is
whether the Court should permit and order pre-trial discovery in advance of a motion in
limine for the claim of selective prosecution To establish entitlement to discovery on a
claim of selective prosecution, the defendant must "produce some [_credible] evidence
that siinilarly situated defendants . . . could have been prosecuted, but were not . . . ."
Ariii.s'troiig, 517 U.S. at 469. The defendant must produce "some evidence" to obtain

discovery in support of such a claiin. Ici'. The burden on the defendant upon requesting

discovery on such a claim is a lesser burden than requesting dismissal of the case based
on such a c1aiin. However, some credible evidence niust be produced in order to obtain
discovery.

Again, for the reasons discussed, the defendaiit’s proffer of evidence to establish
entitlement to discovery on his claim of selective prosecution falls short. 'l`he defendant
quite simply has not proffered any evidence that siinilarly situated defendants could have
been prosecuted for the same offenses for which the defendant now has pending against
hiin, but were not. Tlierefore, the defendant’s motion to allow pre-trial discovery in

advance of a motion in limine for his claim of selective prosecution must also be deiiied.

CONCLUSION

The defendant’s motions to dismiss for selective prosecution, or in the alternative,
to allow pre-trial discovery in advance of a motion in limine are denied. The only
charges pending against the defendant in this case are for resisting arrest and offensive
touching of a law enforcement ofiicer. "l`he evidence relied on by the defendant iii his
proffer does not involve events of similarly situated individuals who resisted arrest or
offensively touched law enforcement officers, but were not prosecuted. 'l`he defendant
has failed to present the Court with °‘clear e_vidence" that the State’s decision to prosecute
him for resisting arrest and offensive touching of a law enforcement officer is based on
an unjustifiable standard. The defendant has likewise failed to present the Court with
even “some evidence" to support a claim for discovery on the issue of selective

prosecutioii. Therefore, the defendant’s motion to dismiss for selective prosecution and

the defendant’s motion for discovery in advance of a motion in limine for the claim of

selective prosecution must be DENIED.

rr is so oiu)nnisi) this _sf'_' day QrMAY 2014.

flinn/l salazar

CHARLES W. WELCli
JUDGE

