(CN) — Two men accused of setting a police cruiser on fire during the nationwide protests that followed the 2020 killing of George Floyd will face an indictment for arson once more after a three-member panel of the Ninth Circuit on Thursday reversed a lower court’s dismissal.
“In dismissing the indictments of defendants Nathan Wilson and Christopher Beasley, the district court far overstepped its boundaries,” U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee, wrote in a concurrence to fellow Trump appointee U.S. Circuit Judge Danielle Forrest’s opinion.
Wilson and Beasley attended a George Floyd protest in Santa Monica, California, on May 31, 2020, and were filmed setting a police cruiser on fire. The video was posted on social media, which the FBI used to identify Beasley and later connected Wilson to the crime when his girlfriend reported he had set her car on fire after a fight. Both protesters had made statements online alluding to violence against the government.
The pair claimed they were unconstitutionally singled out based on the perception that they held anti-government beliefs. U.S. District Judge Fernando Olguin, a Barack Obama appointee, agreed that the two defendants met their burden to show evidence of discriminatory effect and noted in his decision that it is very rare for federal prosecutors to go after a defendant for arson alone.
The judge found the protesters were entitled to seek evidence from the government to bolster their argument that they had been targeted due to their anti-government beliefs.
Olguin dismissed the indictment after prosecutors refused his order to provide the defendants with the requested internal information about decisions to charge or not to charge people solely for arson.
On appeal, the men argued the Ninth Circuit panel lacked jurisdiction because the government wasn’t appealing a final order. The panel didn’t agree, noting that nothing in the text of the law overseeing appeals in criminal cases “indicates that appellate jurisdiction exists only for final decisions or orders.”
“This is not a close call; we have jurisdiction over this appeal,” Forrest wrote.
Forrest determined Olguin abused his discretion in determining the protesters had shown discriminatory effect and that the lower court “based its ruling on an erroneous view of the law.” The pair sought information pertaining to a control group of individuals whom the U.S. Attorney’s Office could charge for arson federally to evaluate for discriminatory effects.
Forrest noted that the lower court didn’t make any findings about the nature of the control group individuals other than the shared crime.
“The district court simply presumed, without evidence, that the comparator arsonists fell outside defendants’ defined arbitrary class of ’individuals associated with the protests who the government thought held anti-government views,'” Forrest wrote for the panel.
Bumatay agreed and further noted that the lower court’s discriminatory-purpose analysis was flawed by determining that targeting lawbreakers with anti-government views counts as an “arbitrary classification within the meaning” of due process rights.
“But targeting political violence is not arbitrary — it’s central to governance,” Bumatay wrote, adding that it has been central to the federal government since the ratification of the Constitution.
“When the federal government targets perpetrators of violence — no matter their political motivations — it acts under its constitutionally derived authority,” Bumatay wrote. “Without persuasive evidence that the government sought to suppress non-violent political speech, courts have no business meddling in the government’s charging decisions.”
U.S. District Judge James Donato of the Northern District of California, a Barack Obama appointee sitting with the panel by designation, also concurred but added federal trial judges aren’t precluded from asking the government to provide “’some response,’ short of document productions or evidentiary hearings, when the evidence before the court is ‘sufficiently disturbing.’”
While agreeing that the lower court abused its discretion, Donato noted that the facts surrounding the case — that it was the first stand-alone arson prosecution in the district since 2007 and that the defendants were prosecuted after then-President Trump and Attorney General William Barr made statements blaming protest violence on those with leftist viewpoints and threatening severe criminal penalties — could allow the protesters to renew a selective-prosecution discovery request with proper evidence.
“In these circumstances, the district court could reasonably request a word of explanation from the prosecutors,” Donato wrote.