selective prosecution claim in Colorado

2025See People in Interest of T.B., 2016 COA 151M , ¶¶ 66-67 (stating that a decision to prosecute must not be based on an unjustifiable standard such as race, religion, or other arbitrary classification, and the mere “fact that some people escaped prosecution under a statute is not a denial of equal protection”), aff’d, 2019 CO 53 ; In re United States, 397 F.3d 274, 285 (5th Cir. 2005) (“[S]haring a charge alone does not make defendants ‘similarly situated’ for purposes of a selective prosecution claim.”).

2024“The threshold question in any equal protection challenge is whether the persons allegedly subject to disparate treatment are in fact similarly situated.” People v. Black, 915 P.2d 1257, 1260 (Colo. 1996). “[S]haring a charge alone does not make defendants ‘similarly situated’ for purposes of a selective prosecution claim.” In re United States, 397 F.3d 274, 285 (5th Cir. 2005).

2024People v. Valencia-Alvarez, 101 P.3d 1112, 1116 (Colo. App. 2004); see also Butler, 224 P.3d at 384 .

2009The division in People v. Valencia-Alvarez, 101 P.3d 1112, 1116 (Colo.App.2004), held that a defendant must provide some credible evidence tending to show the existence of both discriminatory effect and discriminatory *384 intent in order to obtain discovery on a selective prosecution claim. 1 That division relied upon federal case law, including United States v. Armstrong, 517 U.S. 456 , 116 S.Ct. 1480 , 134 L.Ed.2d 687 (1996).

2026The Court ultimately concluded that the study did not constitute some evidence to support a selective prosecution claim because it did not "identify individuals who were not Black and could have been prosecuted for the offenses for which [the defendants] were charged, but were not so prosecuted." Id. at 470 (emphasis added). ¶41 In the matter before us, as was the case with the statistical evidence presented in Armstrong , Mitchell's statistical evidence did not demonstrate that any similarly situated non-Black person escaped prosecution for felony murder.

2026Id. ; see also MacFarland , 540 P.2d at 1075 (noting that " [e]qual protection is not denied absent a showing that a prosecutor has exercised a policy of selectivity [in the enforcement of laws] based upon an unjustifiable standard such as race, religion or any other arbitrary classification") . ¶25 A selective prosecution claim asserts that a prosecutor has brought a charge against a defendant for a constitutionally forbidden reason.

2025See People in Interest of T.B., 2016 COA 151M , ¶¶ 66-67 (stating that a decision to prosecute must not be based on an unjustifiable standard such as race, religion, or other arbitrary classification, and the mere “fact that some people escaped prosecution under a statute is not a denial of equal protection”), aff’d, 2019 CO 53 ; In re United States, 397 F.3d 274, 285 (5th Cir. 2005) (“[S]haring a charge alone does not make defendants ‘similarly situated’ for purposes of a selective prosecution claim.”).

2024Rather, “defendants are similarly situated when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.” United States v. Deberry, 430 F.3d 1294, 1301 (10th Cir. 2005) (quoting United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996)). ¶ 23 “The fact that some people escaped prosecution under a statute is not a denial of equal protection unless the prosecutor’s selective enforcement of the statute was intentional or purposeful.” People in Interest of T.B., 2016 COA 151M , ¶ 67, aff’d, 2019

2026Id. ; see also MacFarland , 540 P.2d at 1075 (noting that "[e]qual protection is not denied absent a showing that a prosecutor has exercised a policy of selectivity [in the enforcement of laws] based upon an unjustifiable standard such as race, religion or any other arbitrary classification"). ¶25 A selective prosecution claim asserts that a prosecutor has brought a charge against a defendant for a constitutionally forbidden reason.

2026Id. ; see also MacFarland , 540 P.2d at 1075 (noting that " [e]qual protection is not denied absent a showing that a prosecutor has exercised a policy of selectivity [in the enforcement of laws] based upon an unjustifiable standard such as race, religion or any other arbitrary classification") . ¶25 A selective prosecution claim asserts that a prosecutor has brought a charge against a defendant for a constitutionally forbidden reason.

2024Rather, “defendants are similarly situated when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.” United States v. Deberry, 430 F.3d 1294, 1301 (10th Cir. 2005) (quoting United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996)). ¶ 23 “The fact that some people escaped prosecution under a statute is not a denial of equal protection unless the prosecutor’s selective enforcement of the statute was intentional or purposeful.” People in Interest of T.B., 2016 COA 151M , ¶ 67, aff’d, 2019

2024Rather, “defendants are similarly situated when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.” United States v. Deberry, 430 F.3d 1294, 1301 (10th Cir. 2005) (quoting United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996)). ¶ 23 “The fact that some people escaped prosecution under a statute is not a denial of equal protection unless the prosecutor’s selective enforcement of the statute was intentional or purposeful.” People in Interest of T.B., 2016 COA 151M , ¶ 67, aff’d, 2019

2024See People v. Butler, 224 P.3d 380, 384 (Colo. App. 2009).

2024People v. Valencia-Alvarez, 101 P.3d 1112, 1116 (Colo. App. 2004); see also Butler, 224 P.3d at 384 .

2024“The threshold question in any equal protection challenge is whether the persons allegedly subject to disparate treatment are in fact similarly situated.” People v. Black, 915 P.2d 1257, 1260 (Colo. 1996). “[S]haring a charge alone does not make defendants ‘similarly situated’ for purposes of a selective prosecution claim.” In re United States, 397 F.3d 274, 285 (5th Cir. 2005).

2009E.g., United States v. Huber, 404 F.3d 1047 , 1054 (8th Cir.2005); United States v. Bryant, 5 F.3d 474, 476 (10th Cir.1993); United States v. Oaks, 508 F.2d 1403, 1404-05 (9th Cir.1974).

2009E.g., United States v. Huber, 404 F.3d 1047 , 1054 (8th Cir.2005); United States v. Bryant, 5 F.3d 474, 476 (10th Cir.1993); United States v. Oaks, 508 F.2d 1403, 1404-05 (9th Cir.1974).