United States v. Mumphrey (193 F. Supp. 3d 1040, 2016)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO COMPEL

EDWARD M. CHEN, United States District Judge

In this collection of cases, a group of individuals, all of whom are African American and all who are being prosecuted for relatively low level drug trafficking in the Tenderloin under a program entitled Operation Safe Schools (“OSS”) (collectively, “Defendants”), contend their arrests and prosecution were based on racially selective actions taken by local and federal law enforcement. The issue currently before the Court is not whether racially selective actions were in fact taken, but whether Defendants are entitled to discovery to substantiate their claims of selective enforcement and prosecution.

After reviewing extensive briefing, the Court concludes that the record presented by the parties in connection with this motion contains substantial evidence sugges-five of racially selective enforcement by the San Francisco Police Department (“SFPD”) and other federal law enforcement in connection with the conduct of OSS; that evidence is countered by a conspicuously meager rebuttal by the government. Accordingly, the Court concludes Defendants have made sufficient showing entitling them to discovery with respect to the claim of selective enforcement. However, the Court holds that, at least at this juncture, Defendants are not entitled to discovery with respect to their claim of selective prosecution; Defendants’ motion to compel discovery is thus GRANTED in part and DENIED in part.

I. BACKGROUND

The above-referenced cases arise in the context of Operation Safe Schools (“OSS”). OSS was a program jointly undertaken by the U.S. Attorney’s Office (“USAO”), the Drug Enforcement Administration (“DEA”), and the San Francisco Police Department (“SFPD”). See United States v. Anthony, No. CR-15-0005 EMC (Docket No. 11-2) (Phillips (FPD) Decl., Ex. C) (USAO press release, dated 12/9/2013) (USA Haag stating that she has “ ‘directed my office to work with the DEA and the [SFPD] to aggressively prosecute drug trafficking in areas around Tenderloin schools’ ”). The purpose of OSS “was to aggressively prosecute drug dealers around schools and playgrounds in the Tenderloin district.” Docket No. 51-5 (Ha-sib (USAO) Deck ¶ 3).

1 Two “sweeps” were done pursuant- to OSS: one in late 2013 (August to November) and a second in late 2014 (October to December). See Defs.’ Ex. 3 (Cruz-Laueiri-ca (FPD) Decl., Att. A) (spreadsheet of OSS cases). For the first sweep, 20 “buy/ walk” operations were conducted. Fourteen out of the 20 individuals were prosecuted. See Docket No. 146-3 (Doráis (DEA) Decl. ¶ 4). For the second sweep, 23 operations were conducted, and all 23 individuals were prosecuted. .See Docket No. 146-3 (Atakora (DEA) Decl. ¶ 1). Altogether (ie., for both sweeps), 37 individuals were prosecuted, more specifically, for violations of 21 U.S.C. §§ 841 and 860. All 37 individuals are African American.

Currently pending before the Court is a joint motion filed by 12 of the individuals who were targeted, arrested, and prosecuted pursuant to OSS. For convenience, these individuals shall hereinafter be referred to collectively as “Defendants.” Defendants seek leave to serve discovery related to two different, but related theories: (1) that law enforcement targeted persons for arrest based on their race (ie., selective enforcement) and (2) that the prosecutors prosecuted the persons based on their race (ie., selective prosecution). As indicated by the above, the Court hereby GRANTS in part and DENIES in part Defendants’ motion,to compel.

II. ARMSTRONG

The parties agree that United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), provides the governing standard for Defendants’ selective prosecution claim. As for the selective enforcement claim, the parties also agree that Armstrong provides at least some general guidance, although Defendants assert that Armstrong is not completely controlling given that some of its analysis was specific to the role of-a prosecutor which is distinct from the role of law enforcement. Given the significance of Armstrong, the Court provides a brief synopsis as to the holding therein.

In Armstrong, the defendants were indicted on drug and firearm offenses. They alleged that they were selected for prosecution because of their race (African American) and thus moved for discovery or for dismissal of the indictment. See id. at 458-59, 116 S.Ct. 1480.

In support of their motion, [the defendants] offered only an affidavit by a “Paralegal Specialist,” employed by the Office of the Federal Public Defender representing one of the [defendants]. The only allegation in the affidavit was that, in every one of the 24 § 841 or § 846 [i.e., drug] cases closed by the office during 1991 [ie., the year before the defendants were indicted], the defendant was black. Accompanying the affidavit was a “study” listing the 24 defendants, their race, whether they were prosecuted for dealing cocaine as well as crack, and the status of each case.

Id. at 459, 116 S.Ct. 1480.

The district court ordered the government to provide discovery. Subsequently, the government moved for reconsideration of the discovery order and submitted evidence for the court’s consideration, including (1) affidavits from the federal and local agents participating in the case, which stated that “race played no role in their investigation”;- (2) an affidavit from an AUSA who stated that the decision to prosecute met the general criteria for prosecution because, of, e.g., the amount of cocaine base involved, the criminal histories of the defendants, the strength of the evidence, etc.; and (3) sections of a DEA report which concluded that “ large-scale, interstate tracking networks controlled by Jamaicans, Haitians, and Black street gangs dominate the manufacture and distribution of crack.’ ” Id. at 460, 116 S.Ct. 1480.

In turn, the defendants provided additional information to the district court, including (1) an affidavit from one of defense counsel, stating that “an intake coordinator at a drug treatment center had told her that there are ‘an equal number of Caucasian users and dealers to minority users and dealers’ ”; (2) an affidavit from another criminal defense attorney, stating that “in his experience many nonblacks are prosecuted in state court for crack offenses”; and (3) a newspaper article “reporting that federal ‘crack criminals... are being punished far more severely than if they had been caught with powder cocaine, and almost every single one of them is black.’ ” Id. at 460-61, 116 S.Ct. 1480.

The district court denied the government’s motion for reconsideration and then, when the government stated it would not comply with the discovery order, dismissed the case. See id. at 461, 116 S.Ct. 1480.

The specific issue as presented to the Supreme Court was what showing was necessary “for a defendant to be entitled to discovery on a claim that the prosecuting attorney singled him out for prosecution on the basis- of his race.” Id. at 458, 116 S.Ct. 1480 (emphasis added). However, before addressing this issue, the Supreme Court addressed the requirements for a selective prosecution claim. The Court explained first that there is a presumption that the prosecuting attorney has properly discharged his or her official duties and not violated equal protection. This presumption arises from the broad discretion a prosecutor is given in enforcing the criminal laws. See id. at 464-65, 116 S.Ct. 1480 (noting, e.g., that, “[i]n the ordinary case, ‘so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion’ ”). “[T]o dispel that presumption..., a criminal defendant must present ‘clear evidence to the contrary.’ ” Id. at 465, 116 S.Ct. 1480. More specifically, the defendant must present clear evidence of discriminatory effect and discriminatory purpose. See id.

“Having reviewed the requirements to prove a selective-prosecution claim, [the Court] turn[ed] to the showing necessary to obtain discovery in support of such a claim.” Id. at 468, 116 S.Ct. 1480. According to the Court, “[t]he justifications for a rigorous standard for the elements of a selective prosecution claim.. .require a correspondingly rigorous standard for discovery in aid of such a claim,” especially as discovery “will divert prosecutors’ resources” and “may disclose the Govem-merit’s prosecutorial strategy.” Id. It distilled the showing required for discovery as follows: there must be “ ‘some evidence tending to show the existence of the essential elements of the [selective prosecution] defense,’ discriminatory effect and discriminatory intent.” Id. (emphasis added).

For purposes of the case at hand, the Supreme Court only had to consider “what evidence constitutes ‘some evidence tending to show the existence’ of the discriminatory effect element.” Id. at 469, 116 S.Ct. 1480. “The Court of Appeals [had] held that a defendant may establish a col-orable basis for discriminatory effect without evidence that the Government has failed to prosecute others who are similarly situated to the defendant.” Id. The Supreme Court concluded that the appellate court was “mistaken in this view.” Id. It held that there must be “some evidence that similarly situated defendants of other races could have been prosecuted, but were not,” ie., “some evidence of differential treatment of similarly situated members of other races or protected classes.” Id at 469-70, 116 S.Ct. 1480.

The Supreme Court indicated that a similarly situated requirement was necessary in part because one could not assume, as the appellate court did below, that “ ‘people of all races commit all types of crimes”—ie., as opposed to “the premise that any type of crime is the exclusive province of any particular racial or ethnic group.’ ” Id. (emphasis added). The Court noted that not only was there no authority cited for the appellate court’s assumption but also that assumption “seems contradicted by the most recent statistics of the United States Sentencing Commission,” which showed, e.g., that “[m]ore than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black, 93.4% of convicted LSD dealers were white, and 91% of those convicted for pornography or prostitution were white.” Id.

In response to the concern that the similarly situated requirement would pose an evidentiary obstacle to a defendant, the Supreme Court stated as follows:

In the present case, if the claim of selective prosecution were well founded, it should not have been an insuperable task to prove that persons of other races were being treated differently than respondents. For example, respondents could have investigated whether similarly situated persons of other races were prosecuted by the State of California and were known to federal law enforcement officers, but were not prosecuted in federal court.

Id. at 470, 116 S.Ct. 1480.

Ultimately, the Supreme Court held that, in the case under consideration, the defendants had not satisfied the requirement of “some evidence” of discriminatory effect. Defendants’ “study” (ie., that, in every one of the 24 § 841 or § 846 cases closed by the FPD during 1991, the defendant was black)

failed to identify individuals who were not black and could have been prosecuted for the offenses for which responds were charged, but were not so prosecut-ed_The newspaper article, which discussed the discriminatory effect of the federal drug sentencing laws, was not relevant to an allegation of discrimination in decisions to prosecute. [The] affidavits, which recounted one attorney’s conversation with a drug treatment center employee and the experience of another attorney defending drug prosecutions in state court, recounted hearsay and reported personal conclusions based on anecdotal evidence.

Id.

After Armstrong, the Supreme Court issued another opinion on selective prosecution. See United States v. Bass, 536 U.S. 862, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002) (per curiam). The opinion—very brief— addressed a contention made by a defendant that the government had decided to seek the death penalty against him because of his race. The defendant sought dismissal 'based on this claim or, in the alternative, discovery about the government’s capital charging practices. See id. at 862-63, 122 S.Ct. 2389. The Supreme Court concluded that the defendant had failed to “make a ‘credible showing that ‘similarly situated individuals of a different race were not [charged],’” as required to demonstrate discriminatory effect. Id. at 863, 122 S.Ct. 2389.

The Sixth Circuit concluded that respondent had made such a showing based on nationwide statistics demonstrating that “the. United States charges blacks with a death-eligible offense more than twice as often as it charges white” and that the United States enters into plea bargains more frequently with whites than it does with blacks. Even assuming that the Armstrong requirement can be satisfied by a nationwide showing (as opposed to a showing regarding the record of the decisionmakers in respondent’s case), raw statistics regarding overall charges say nothing about charges brought against similarly . situated defendants ....

Id. at 863-64, 122 S.Ct. 2389 (emphásis added).

In the instant case, both parties agree that Armstrong provides the general framework for both selective prosecution and selective enforcement cláims—i.e., there must be both a discriminatory effect and a discriminatory purpose. See, e.g., United States v. Barlow, 310 F.3d 1007, 1010 (7th Cir.2002) (noting that defendant was “complain[ing] not of selective prosecution, but of racial profiling [by the DEA], a selective law enforcement tactic[,] [b]ut the same analysis governs both types of claims: a defendant seeking discovery on a selective enforcement claim must meet the same ‘ordinary equal 'protection standards’ that Armstrong outlines for selective prosecution claims”). Defendants, argue, however, that the specific discriminatory efféct analysis in Armstrong applies only to selective prosecution claims, and not selective enforcement claims, because the analysis was targeted to the special role that a prosecutor has. Defendants point out that, in United States v. Davis, 793 F.3d 712 (7th Cir.2015) (en banc), the Seventh Circuit, sitting en banc, acknowledged the distinction between selective enforcement and selective prosecution and found the rationale of Armstrong does not apply with full force where prose-cutorial discretion is not involved.

In Davis, there were seven African American defendants who were charged “with several federal offenses arising from a plan to rob a stash house, where the defendants believed they would find drugs and money.” Davis, 793 F.3d at 714. The defendants argued that “the prosecutor, the FBI, and the ATF engaged in racial discrimination” by proceeding against them. Id. In support of their claim of discrimination, the defendants informed the district court that, “since 2006[,] the United States Attorney for the Northern District of Illinois has prosecuted 20 stash-house stings, and that of the defendants in these cases 75 were black and 19 white.” Id. at 715 (adding that “13 of the 19 white defendants were Hispanic”). The district court permitted discovery because “‘the overwhelming majority of the defendants named [were] individuals of color.” Id. at 719.

The Seventh Circuit disagreed with the district court, stating that its decision was

inconsistent with Armstrong. The record in Armstrong showed that every defendant in every crack-cocaine prosecution filed by a particular United States Attorney’s office and assigned to the public defender was black. If, as the Supreme Court held, that evidencé did not justify discovery into the way the prosecutor selected cases, then proof that in the Northern District of Illinois three-quarters of the defendants in stash-house cases have been black does not suffice.

Id. at 719-20.

But the Seventh Circuit then went on to note that the matter before it was not “that simple” because Armstrong was a pure selective prosecution case. Id. at 720.

The Supreme Court [noted] that federal prosecutors deserve a strong presumption of honest and constitutional behavior, which cannot be overcome simply by a racial disproportion in the outcome, for disparate impact differs from discriminatory intent. The Justices also noted that there are good reasons why the Judicial Branch should not attempt to supervise how the Executive Branch exercises prosecutorial discretion. In order to give a measure of protection (and confidentiality) to the Executive Branch’s deliberative processes, which are covered by strong privileges, the Court in Armstrong insisted that the defendant produce evidence that persons of a different race, but otherwise comparable in criminal behavior, were presented to the United States Attorney for prosecution, but that prosecution was declined.

Id.

The Seventh Circuit then noted that the case before it was not really a selective prosecution case but rather a selective enforcement case—“the defendant’s principal targets are the ATF and the FBI.” Id. But

[a]gents of the ATF and FBI are not protected by a powerful privilege or covered by a presumption of constitutional behavior. Unlike prosecutors, agents regularly testify in criminal cases, and their credibility may be relentlessly attacked by defense counsel. They also may have to testify in pretrial proceedings, such as hearings on motions to suppress evidence, and again their honesty is open to challenge. Statements that agents make in affidavits for search or arrest warrants may be contested, and the court may need their testimony to decide whether if shorn of untruthful statements the affidavits would have established probable cause. Before holding hearings (or civil trials) district judges regularly, and properly, allow discovery into nonprivileged aspects of what agents have said or done. In sum, the sort of considerations that led to the outcome in Armstrong do not apply to a contention that agents of the FBI or ATF engaged in racial discrimination when selecting targets for sting operations, or when deciding which suspects to refer for prosecution.

Id. at 720-21. But see United States v. Alcaraz-Arellano, 441 F.3d 1252, 1264 (10th Cir.2006) (stating that “[similar caution is required in reviewing a claim of selective law enforcement”).

Although the Court agrees with the reasoning in Davis, it need not resolve this issue whether Armstrong applies with full force to claims of selective enforcement. The Court finds that, even assuming it does, Defendants have satisfied Armstrong in respect to their claim of selective enforcement.

III. RECORD EVIDENCE

Both parties have provided evidence in conjunction with the pending motion. The primary evidence is briefly outlined below.

A. Defendants’ Evidence

• The fact that all 37 OSS defendants are African American.

• Charging data (between January 1, 2013, and February. 28, 2015) from the San Francisco Superior Court, more specifically, with respect to drug-trafficking crimes in the Tenderloin. See Mot. at 20. The data reflected that 61.4% of those arrested and charged were African American, 24.7% were Latino, and 10.7% were white. See Mot. at 21; see also 2d Phillips (FPD) Deck, Ex. M (Beckett Rpt. at 7). Defendants’ expert, Dr. Beckett, concluded that, based on a comparison of the charging data to the OSS results (where all persons charged were African American), there was a Z score of 4.75. A Z score of 4.75 is highly significant. See Amram (FPD) Reply Deck, Att. A (Supp. Beckett Rpt. at Ex. 05248-49). As Defendants explain, and the government does not dispute, a Z score is used to measure the statistical signifi-canee of an observed difference. “Z ■scores with -an absolute value of 2 or more are considered statistically significant, meaning that the observed difference is very unlikely to be the result of chance.” Mot. at 14 n.24.

• A survey administered to active drug users accessing services at the Tenderloin Needle Exchange site of the San Francisco AIDS Foundation’s Needle Exchange Program. The survey commenced in August 2015, see Defs.’ Ex. 41 (2d Phillips Deck, Ex. M) (Beckett Expert Report at 5), and was conducted on seven consecutive weeks. See Mot. at 14. “In the survey, respondents were asked to recall up to six recent drug transactions that took place in the Tenderloin neighborhood and to identify the race/ethnicity of the person from whom they obtained the drugs.” Mot. at 14. The data from the survey reflected as follows: 56% of the Tenderloin drug transactions involved African American drug sellers; 20% involved Latino drug sellers; and 16.8% involved white drug sellers. See Mot. at 14. Similar to above Defendants’ expert, Dr. Beckett, concluded that, based on a comparison of the survey results to the OSS results, there was a Z score of 5.23. See Amram (FPD) Reply Deck, Att. A (Supp. Beckett Rpt. at Ex. 05248-49).

• Declarations from six persons who work in the Tenderloin. See Defs.’ Ex. 25 (Martinez Dec!.); Defs.’ Ex. 26 (Sandoval Deck); Defs.’ Ex. 27 (Brown Deck); Defs.’ Ex. 28 (Allen Deck); Defs.’ Ex. 32 (Hartón Deck); Defs.’ Ex. 36 (Leslie Deck). The declarations generally indicate that there is a significant presence of non-African American drug dealers in the Tenderloin, particularly in certain locations within the Tenderloin. See, e.g., Defs.’ Ex. 32 (Harkin Deck ¶6) .(Program Manager for GLIDE Health Services HIV and Hepatitis C programs, stating that “I have found that drug dealers of the same ethnic group tend to work the same areas of the Tenderloin[;] [f]or example, most recently,. Leavenworth has Honduran and Mexican drug dealers, Golden Gate Avenue has Whites and African Americans above Jones Street and just African Americans at Jones Street and below,- and Hyde Street has Mexicans regularly dealing drugs there”).

• SFPD incident reports, some of which indicate SFPD “awareness of the presence, behavior, and specific geographic locations frequented by Hispanic/Latino dealers” in the Tenderloin. Mot. at 22 (giving six incident reports as examples). See, e.g., Koeninger (FPD) Deck, Att. D at Ex. 00773 (SFPD incident report, dated April 2013 and authored by Officer G. Darcy) (stating that “I have participated in hundreds of buys busts and surveillance in this area” and that “I know that many of the drug dealers in the Hyde Street area are of Honduran descent”); Koeninger (FPD) Deck, Att. D at Ex. 00736 (SFPD incident report, dated April 2015 and authored by Officer D. Casey) (stating that, “[biased off prior arrests and contacts, I know that the corner of Eddy Street and Hyde Street is primarily controlled by Honduran national drug dealers”).

• Evidence related to approximately sixty non-African American drug dealers who Defendants claim are similarly situated to Defendants. See Mot. at 24 et seq. (identifying approximately forty such drug dealers); Reply at 14 et seq. (adding more comparators). Like Defendants, these sixty or so persons were arrested for committing drug-trafficking crimes in the Tenderloin within the OSS timeframe but, unlike Defendants, were not federally charged under OSS. Some of the OSS officers were involved with the arrests of some of these individuals. See Reply at 37-38. See, e.g., Koeninger (FPD) Deck, Att. A at Ex. 226-3) (SFPD incident report for Doe 6) (reflecting that the following OSS officers were involved in the arrest of Doe 6:. Officers MacDonald (involved in 21 OSS cases), Lee (involved in 21 OSS cases), Daggs (involved in 23 OSS cases), Solorzano (involved in 13 OSS cases), Pasme (involved in 9 OSS cases), and Hagan (involved in 11 OSS cases)).

• Video from one of the OSS cases (United States v. McNeal, No. CR-15-0028 EMC) showing that one officer says, “Fucking BMs” (i.e., black males) and another officer says, “Shh, hey, I’m rolling.” See Defs.’ Ex. 5 (1st Phillips-(FPD) Deck ¶¶ 3, 5). The officer who made the first statement was involved in a total of 18 OSS cases; the officer who made the . second statement was involved in a total of 11 OSS cases.

• Video from one of the OSS cases (now resolved) (United States v. Roberts, No. CR-13-0760 CRB) where the undercover informant declines to buy drugs from an Asian woman and waits to buy drugs from the defendant, an African American woman. See Mot. at 60-61; see also United States v. Anthony, No. CR-15-0005 EMC (Docket No. 11-2) (Phillips (FPD) Deck, Ex. G) (video in Roberts case).

• The USAO’s knowledge of problems with racism within the SFPD, at least prior to the second sweep in late 2014 (October to December). Defendants point to the fact that, in early 2014, the USAO indicted three SFPD officers for, inter alia, civil rights violations and, prior to trial in November 2014, racist texts were disclosed. (However, none of the officers appears to have been involved with OSS.)

• Declarations from approximately 20-25 OSS defendants (some of the defendants are moving parties, some are not) who describe how SFPD officers have treated African Americans, including but not limited to how they have paid more attention to African Americans'than'to persons of other races.

O Some of the OSS defendants talk about negative interactions with officers who were specifically involved ' with OSS—e.g., (1) Shaughn Ryan (2 OSS cases), see, e.g., Defs.’ Ex. 7 (Nash Deck); Defs.’ Ex. 9 (McNeal Deck); Defs.’ Ex. 10 (Jones Deck); Defs.’ Ex. 14 (Rouse Deck); Defs.’ Ex. 18 (Williams Deck); Defs.’ Ex. 19 (Reed Deck); Defs.’ Ex. 20 (Adams Deck); Defs.’ Ex. 21 (Reddic Deck); Defs.’ Ex. 24 (Jules Deck); Defs.’ Ex. 29 (Johnson Deck); Defs.’ Ex. 30 ■ (Cross Deck); Defs.’ Ex, 35 (Wallace Deck); (2) Darren Nocetti (29 OSS cases), see, e.g., Defs.’ Ex. 8 (Mathews Deck); Defs.’ Ex. 37 (Mackey Deck); (3) Ryan Crosby (11 OSS cases), see, e.g., Defs.’ Ex. 12 (Anthony Deck); Defs.’ Ex. 16 (White Deck); (4) D. Goff (6 OSS cases), see, e.g., Defs.’ Ex. 19 (Reed Deck); Defs.’ Ex. 34 (Jackson Deck); Defs.’ Ex. 35 (Wallace Deck); (5) Anthony Assaretto (8 OSS ■ cases), see, e.g., Defs.’ Ex. 34 (Jackson Deck ¶2); (6) Micah Hope (6 OSS cases), see, e.g., Defs.’ Ex. 20 (Adams Deck); and (7) A. Scafani (14 OSS cases), see, e.g., Defs.’ Ex. 35 (Wallace Deck). Some of these interactions, while negative, do not clearly involve race.

O According to some of the defendants, some of the OSS officers (e.g., Shaughn Ryan, Darren Nocetti, Anthony Assaretto, D. Goff, and A. Scafa-ni) have expressly made racist statements or engaged, in racist conduct. See, e.g., Defs.’ Ex. 7 (Nash Deck ¶ 5) (“On other occasions, Officer Ryan has referred to African-American females as ‘bitches’ and has made comments that women who are confidential informants for him are ‘bitches that work for me.’ ”); Defs. Ex. 9 (McNeal Deck ¶ 5) (“Officer Ryan said a comment to me like, ‘I just got married and you better be glad...or I’ll take some black pussy.’”); Defs.’ Ex. 21 (Reddic Deck ¶ 4) (“On other occasions, Officer Ryan has referred to me as a ‘bitch’ or ‘little black girl.’”); Defs.’ Ex. 37 (Mackey Deck ¶ 3) (“Shortly before my arrest in December, an SFPD officer I . .know as Darren yelled that I ‘better get [my] black ass off the block.’”); Defs.’ Ex. 34 (Jackson Deck ¶ 2) (“On one occasion, I heard Officer Assaretto call.an Africa[n]-American man ‘nigger.’”); Defs.’ Ex. 35 (Wallace Deck ¶ 7) (“In 2014, I witnessed Officers Goff, Scafani and another [SFPD] Officer harass a small group of African-American teenagers. One of the officers told the group, ‘Hands up, don’t shoot.’ The comment seemed to be intended to make fun of the Black Lives Matter movement.”).

O According to some of the female OSS defendants, some of the OSS officers have engaged in sexually inappropriate behavior with them. See Mot. at 63-67 (identifying Shaughn Ryan as a particular problem but also pointing to D. Goff and Ryan Crosby). While the incidents are clearly gender based, they are not always clearly race based.

B. Government’s Evidence

In its opposition, the government provided declarations from several USAO attorneys and two DEA • agents (both supervisors). In these declarations, the attorneys and supervisors deny they considered race or directed anyone to consider race in their management of the OSS. Below is a summary of the evidence the government submitted in support of its position. The declarations submitted by the government have been categorized by sweep.

For the first OSS sweep:

• Katie Doráis, Special Agent of the DEA. See Pl.’s Ex. 3 (Doráis (DEA) Decl.). Ms. Doráis worked on the first sweep only. Her supervisor in the DEA assigned her as the lead investigator for OSS. According to Ms. Doráis, the investigation “focused on repeat offenders and/or known drug traffickers who were selling drugs near schools in the Tenderloin.” PL’s Ex. 3 (Doráis (DEA) Decl. ¶ 2). Also according to Ms. Doráis, race was not a consideration: “At no time did I consider race during either phase of [OSS]. In addition, I was not instructed by an [AUSA] to consider race during the investigation [and] I did not direct any law enforcement officer to take race into consideration.” Pl.’s Ex. 3 (Doráis (DEA) Decl. ¶ 3). “Between August of 2013 and December of 2013 [the investigatory] team conducted twenty buy/walk Operations.” PL’s Ex. 3 (Doráis (DEA) Decl. ¶4). Ms. Doráis does not explain whether she directly supervised each team member in the field when the arrests were made or whether she delegated the arrest decision to other law enforcement officers, e.g., other DEA officers or SFPD officers. Fourteen out of the 20 persons were arrested and indicted. The remaining 6 were not prosecuted because she and the supervising ASUA (see below) concluded that the evidence was not sufficient for prosecution—i.e., the evidence was not strong enough. See PL’s Ex. 3 (Doráis (DEA) Decl. ¶ 4). Ms. Doráis does not explain why the evidence was not strong enough. In its brief, however, the government indicates that the evidence was not strong enough because “the videotape did not show the drug deal with sufficient clarity.” Opp’n at 17 n.10; see also PL’s Ex. 2 (Supp. Hasib (USAO) Decl. ¶4). The Court does not have any information about the race of the 6 persons who were not prosecuted.

• Waqar Hasib, AUSA in the USAO. There are technically two declarations from Mr. Hasib, one being submitted as a part of this motion and one that was submitted earlier in the proceedings in conjunction with a different motion. See PL’s Ex. 1 (Hasib (USAO) Decl.); PL’s Ex. 2 (Supp. Hasib (USAO) Decl.). OSS was Mr. Hasib’s idea. See PL’s Ex. 1 (Hasib (USAO) ¶ 3). According to Mr. Hasib, the purpose of OSS “was to aggressively prosecute drug dealers around schools and playgrounds in the Tenderloin district.” PL’s Ex. 1 (Hasib (USAO) Decl. ¶3). It.appears that Ms. Hasib was the attorney who primarily authorized prosecutions in the first sweep cases. See PL’s Ex. 1 (Hasib (USAO) Decl. ¶ 4). (The government did not submit any declarations from the line AUSAs who recommended prosecution to Mr. Hasib.) Mr. Hasib authorized the prosecutions based on the sufficiency of the evidence (each case included a videotaped drug deal) and did not consider race. See Pl.’s Ex. 2 (Supp. Hasib (USAO) Decl. ¶2). “Indeed, in the large majority of these cases, [he] was entirely unaware of any particular individual’s race when [he] authorized presentation to the grand jury.” PL’s Ex. 1 (Hasib (USAO) Decl. ¶4). Mr. Hasib did consider the individual’s criminal history prior to authorizing indictment because OSS was intended to “target recidivist, repeat offenders who were selling drugs near schools.” Pl.’s Ex. 1 (Hasib (USAO) Decl. ¶ 6). Mr. Hasib did decline to authorize prosecution on some of the first sweep cases and typically did so “because the video recording did not clearly identify the individual who sold drugs.” Pl.’s Ex. 2 (Supp. Hasib (USAO) Decl. ¶ 4).

For the second sweep:

• Chaiies Atakora, Special Agent of the DEA. Mr. Atakora appears to have . worked on the second sweep cases only. He was assigned to OSS by his supervisor as the Case Agent. He “coordinated the investigations, collected evidence and presented twenty[-]three cases to the [USAO], The [USAO] then presented the evidence to the grand jury which resulted in twenty[-]three indictments.” Pl.’s Ex. 3 (Atakora (DEÁ) Decl. ¶ 1). According to Mr. Atakora, the investigation focused on “repeat offenders, pri- or arrestees, and/or known narcotic dealers in the Tenderloin... that were conducting narcotic' transactions near schools.” PL’s Ex. 3 (Atakora Deck (DEA) Decl.' ¶ 2). Also according to Mr. Atakora, he “did not consider race during the investigative process, and [he is] not aware of any investigator or prosecutor considering race during [OSS].” PL’s Ex. 3 (Atakora Decl. (DEA) Decl. ¶ 2). Like Ms. Doráis, Mr. Atakora does not explain whether he directly supervised each team member in the field when the arrests were made or whether he delegated the arrest decision to other law enforcement officers, e.g., other DEA officers or SFPD officers.

• Sarah Hawkins, AUSA in the USAO. There are technically two declarations from Ms. Hawkins, one being submitted as a part of this motion and one that was submitted earlier in the proceedings in conjunction with a different motion. See PL’s Ex. 1 (Hawkins (USAO) Decl.); PL’s Ex. 2 (Supp. Hawkins (USAO) Decl.). Ms. Hawkins worked only on second sweep cases. More specifically, she worked on cases involving 12 out of the 23 persons implicated in the second sweep. See PL’s Ex. 1 (Hawkins (USAO) Decl. ¶¶ 2-3). Ms. Hawkins recommended prosecutions for these 12 people. (She did not have the authority to commence prosecutions.) See PL’s Ex. 1 (Hawkins (USAO) Decl. ¶¶ 1-3). For each of the cases, she was “provided an account of the individual’s conduct memorialized in a- [DEA] Form 6, surveillance video of drug buys taken by the [SFPD], and the criminal history of the defendant.” PL’s Ex. 1 (Hawkins (USAO) Deck ¶ 5); see also Pis.’ Ex. 2 (Supp. Hawkins (USAO) Decl. ¶ 2). She recommended prosecutions based on the sufficiency of the evidence and did not consider race. See PL’s Ex. 1 (Hawkins (USAO) Decl. ¶¶4-5). She worked on her OSS cases independent of the other line AUSA (ie., Mr. Farnham). See PL’s Ex. 1 (Hawkins (USAO) Decl. ¶ 10).

• Lloyd Farnham, AUSA in the USAO. There are technically two declarations from Mr. Farnham, one being submitted as a part of this motion and one that was submitted earlier in the proceedings in conjunction with a different motion. See PL’s Ex. 1 (Farnham (USAO) Deck); PL’s Ex. 2 (Supp. Farnham (USAO) Decl.). Like Ms. Hawkins, Mr. Farnham worked only on second sweep cases. More specifically, he worked on cases involving 11 out of the 23 persons implicated in the second sweep. See Pl.’s Ex. 1 (Farnham (USAO) Decl. ¶¶2-3). Mr. Farnham recommended prosecutions for these 11 people. (He did not have the authority to commence prosecutions.) See PL’s Ex. 1 (Farnham (USAO) Decl. ¶¶ 1-3). For each of the eases, he was “provided an account of the individual’s conduct memorialized in a [DEA] Form 6, surveillance video of drug buys taken by the [SFPD], and the criminal history of the defendant.” Pl.’s Ex. 1 (Farnham (USAO) Decl. ¶ 5); see also Pis.’ Ex. 2 (Supp. Farnham (USAO) Decl. ¶ 2). He recommended prosecutions based on the sufficiency of the evidence and did not consider race. See PL’s Ex. 1 (Farnham (USAO) Decl. 1ÍT4-5). He worked on his OSS cases independent of the other line AUSA (ie., Ms. Hawkins). See PL’s Ex. 1 (Farnham (USAO) Decl. ¶ 10).

• Kevin Barry, AUSA in the USAO. There are technically two declarations from Mr. Barry, one being submitted as a part of this motion and one that was submitted earlier in the proceedings in conjunction with a different motion. See PL’s Ex. 1 (Barry (USAO) Decl.); PL’s Ex. 2 (Supp. Barry (USAO) Decl.)..Mr. Barry worked only on second sweep cases. More specifically, Mr. Barry approved the recommendation of prosecution for 7 out of the 23 people captured in the second sweep. See PL’s Ex. 1 (Barry (USAO) Decl. ¶¶ 2-3). Mr. Barry authorized the prosecutions based on the sufficiency of the evidence and did not consider race. In fact, he was “unaware of any individual’s race at the time [he] authorized prosecution to the grand jury, and [he] remained unaware of their race at the time the grand jury returned the indictments.” PL’s Ex. 1 (Barry (USAO) Decl. ¶ 5). Mr. Barry did consider the individual’s criminal history prior to authorizing an indictment because OSS was “targeted [at] persistent, recidivist, and repeat offenders selling drugs near schools in the Tenderloin.” PL’s Ex. 1 (Barry (USAO) DecL ¶ 7). Three of the 7 persons whom Mr. Barry authorized for prosecution were career offenders, and another 2 were likely classified as Category III. See PL’s Ex. 1 (Barry (USAO) Decl. ¶ 7). ■ ,

• Daniel Kaleba, AUSA in the USAO. There are technically two declarations from Mr. .Kaleba, one being submitted as a part of this motion and one that was submitted earlier in the proceedings in conjunction with a different motion. See PL’s Ex. 1 (Kaleba (ASAO) Decl.); PL’s Ex. 2 (Supp. Kaleba ■ (USAO) Decl.). Mr. Kaleba worked only on second sweep cases. More specifically, Mr. Kaleba approved the recommendation of prosecution for 16 out of the 23 people captured in the second sweep. See PL’s Ex: 1 (Kaleba (USAO) Decl. ¶¶ 2-3). Mr. Kaleba authorized the prosecutions based on the sufficiency of the evidence and did not consider race. In fact, he was “unaware of any individual’s race at the time [he] authorized prosecution to the grand jury, and [he] remained unaware at the time the grand jury returned its indictments.” PL’s Ex. 1 (Kaleba (USAO) Decl. ¶ 5). Mr. Kaleba did consider the individual’s criminal history prior to authorizing an indictment because OSS was “targeted [at] persistent, recidivist, and repeat offenders selling drugs near schools in the Tenderloin.” PL’s Ex. 1 (Kaleba (USAO) Decl. ¶ 6). Nine of the 16 persons whom Mr. Kaleba authorized for prosecution were career offenders. See PL’s Ex. 1 (Kaleba (USAO) Decl. ¶ 6).

Surprisingly, the government has not provided any declarations from SFPD officers or any nonsuperviso.ry DEA- agents about the actual operation of OSS. As a result, the Court has no information on the critical question as to how the targeting and amsts of the OSS defendants operated in the field. While there is evidence that high-level supervisors did not direct officers in the field to target suspects on the basis of race, the government offers no explanation as to how the highly improbable outcome that all 37 suspects were African Americans occurred, even though it appears from the record that African Americans constitute roughly 60%, not 100%, of drug trafficking in the Tenderloin. The government presented no evidence of how suspects for OSS “buys” were selected.

At the hearing, the government suggested for the first time that, as OSS operated in the Tenderloin, certain corners of the area were targeted first, which explained why all the OSS defendants are all African American—ie., those corners of the Tenderloin are dominated by African American drug dealers as opposed to, e.g., Hispanic drug dealers. But the government never presented to the Court any evidence supporting this claim. Moreover, that representation, even if true, is problematic; it does not address who made the decision as to which corners should first be targeted and why only corners dominated by African American were targeted. Nor does the representation address Defendants’ evidence showing racial patterns are not so clear as the government contends. For instance, non-African Americans were, in fact, arrested for drug offenses (by the SFPD) all over the Tenderloin—even" on corners that purportedly had-predominantly African American drug dealers; yet, no non-African American drug dealers in those areas was ever arrested.and prosecuted for a federal crime under OSS. See Sommerfeld (FPD) Decl. ¶9 & Att. C (map showing location of Tenderloin arrests with respect to San Francisco Superior Court charging data).

The fact that the government failed to present any evidence as to how OSS suspects were selected for “buys” and arrested for OSS prosecution—despite Defendants’ substantial evidence suggesting race-based enforcement—is puzzling. At the hearing, the government stated that the lack of any evidence from the SFPD was because the SFPD refused to cooperate or provide assistance. This is surprising given that SFPD officers appear routinely in federal prosecution for e.g., drug offenses, including prosecution arising out of OSS specifically. Obtaining SFPD cooperation in prosecutions where the. SFPD has been involved in investigations and arrests has never been a problem to this Court’s knowledge. It is also questionable why- the government could have not compelled at least some of the SFPD officers to cooperate since some were also cross-designated as federal agents. Furthermore, the government failed to explain why it did not secure any declarations from nonsupervisory DEA agents who were familiar with the operation in the field. Although the government indicated, at the hearing, that one of the supervisory DEA agents did actually participate in the targeting and/or arrest of some of the OSS defendants, his declaration is, notably, lacking in any detail about how the targeting and arrests actually operated in the field (e.g., how were the targeting decisions made?).

As a consequence, Defendants’ evidence of selective enforcement is left largely un-rebutted.

IV. SELECTIVE ENFORCEMENT

As stated above, Defendants seek discovery on two different theories: (1) selective enforcement and (2) selective prosecution. The Court addresses the .selective enforcement theory first.

A. Dismissal as a Remedy for Selective Enforcement

As an initial matter, the government argues that Defendants’ motion to compel discovery on the selective enforcement theory should be. denied outright because dismissal is not a remedy where a criminal defendant raises a claim of selective enforcement. The Court does not find the government’s position persuasive.

First, the Court takes note that the government does not challenge dismissal as an available remedy for a selective prosecution claim—only as a remedy for a selective enforcement claim. But racial discrimination in enforcement of criminal laws is constitutionally as injurious as racial discrimination in prosecution. It is difficult to discern why selective prosecution warrants dismissal, but selective enforcement (upon which prosecution is necessarily predicated) would not. Racially selective action by law enforcement inflicts harm whether it is perpetrated by law enforcement in the streets or by a prosecutor in an office—both inflict substantial injury on the victim and society: in addition to violating the victim’s rights to equality and liberty, such discriminatory conduct impugns the integrity of the criminal justice system and compromises public confidence therein. As the Tenth Circuit explained in Al-caraz-Arellano, “‘[rjacially selective law enforcement violates this nation’s constitutional values at the most fundamental level; indeed, unequal application of criminal daw to white and black persons was one of ■the central evils addressed by the framers of the Fourteenth Amendment,’” Id. at 1263. The Seventh and Tenth Circuits have likewise held that dismissal of criminal proceedings is a proper remedy for selective enforcement. See Davis, 793 F.3d at 712 (en banc) (addressing a motion to dismiss based on selective enforcement); Alcaraz-Arellano, 441 F.3d at 1252 (same).

At the hearing, the government suggested that dismissal as a remedy for selective enforcement would be unfair to prosecutors who did not engage in discrimination. This argument is 'flawed. It ignores the fact that, in cases of selective enforcement, even if the prosecutors did not discriminate, law enforcement did, and thus there has still been a constitutional injury suffered by the victim of discrimination. The focus of the Fourteenth Amendment is not so much what is fair to prosecutors, but what, is fair for the victims of discrimination.

Second, as amicus ACLU points out in its brief, in Yick Wo, the Supreme Court found dismissal an appropriate remedy for selective enforcement. In Yick Wo, the petitioners were Chinese persons who were arrested and ultimately imprisoned for violating local ordinances regarding laundry establishments. Each ordinance provided that it was unlawful for persons to operate laundry establishments in wooden buildings without first getting the consent of the board of supervisors. See Yick Wo, 118 U.S. at 368, 6 S.Ct. 1064. The consent of the supervisors was not given to the petitioners and some 200 other Chinese persons while some 80 non-Chinese persons were “permitted to. carry on the same business under similar conditions.” Id. at 374, 6 S.Ct. 1064. The petitioners argued that their imprisonment was a violation of the Equal Protection Clause (ie., based on race). The Supreme Court agreed, holding that the administration of the ordinances was

directed so exclusively against a particular class of persons [ie., Chinese persons] as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws.... Though the law itself be fair on its face and impartial in appearance, yet, if.it is applied and administered by public authority with an evil eye and an unequal hand, so as to practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.

Id. at 373-74, 6 S.Ct. 1064 (emphasis added). The administration of the ordinances was within the province of the board of supervisors, not the local prosecutor. See id. at 374, 6 S.Ct. 1064 (stating that “[n]o reason whatever, except the will of the supervisors, is assigned why [the petitioners] should not be permitted to carry on, in the accustomed manner, their harmless and useful occupation,' on which they depend for a livelihood”). Thus, although the discrimination at issue in Yick Wo was a form of selective enforcement rather than selective prosecution, the Supreme Court ordered that the petitioners be discharged as a remedy for the equal protection violation—a remedy that is akin to a dismissal.

Third, while the government argues that in, United States v. Gomez-Lopez, 62 F.3d 304 (9th Cir.1995) (a pre-Armstrong case), the Ninth Circuit held that selective enforcement is not a ground for dismissal (in the absence of a prosecutor’s knowledge of law enforcement officers’ targeting decisions), see Opp’n at 3-6, Gomez-Lopez is inapposite. In Gomez-Lopez, the defendant brought a claim for selective prosecution, not selective enforcement. The main holding of the case was that circuit-wide discovery was not permissible when all evidence pointed to decision-making being made at the local level. See, e.g., 306-07 (stating that “the question in this case is whether the district court abused its discretion in ordering circuit-wide discovery without any indication that decision-making occurred at the circuit level”; adding that “[t]here is no evidence that the decision to prosecute [the defendant] was made by anyone other than the. USAO for the Central District”).

The government protests still that Gomez-Lopez weighs in its favor based on the following language from the opinion:

We held in United States v. Erne, 576 F.2d 212 (9th Cir.1979), that the proper focus in discriminatory prosecution cases is on the ultimate decision-maker. In Erne, we considered whether an eviden-tiary hearing was required on allegations that an Internal Revenue Service officer who referred Erne for prosecution impermissibly discriminated on the basis of Erne’s exercise of his First Amendment rights. Because the revenue officer’s recommendation for prosecution went through several internal reviews, and the United States Attorney ultimately decided whether to initiate criminal proceedings, we held that “even if [the revenue officer’s] initial role in referring the matter for prosecution involved an improper discriminatory motive, it would be insufficient to taint the entire administrative process.”

Likewise in United States v. Greene, 698 F.2d 1364 (9th Cir.1983), the defendant pursued a claim of selective prosecution based on a showing that an IRS agent referred Greene for prosecution because of an impermissible motive. Again, we held that even if the agent’s role in referring the matter for prosecution involved an improper discriminatory motive, it would be insufficient because “the ultimate decision to prosecute is several steps removed from the revenue officer.”

Gomez-Lopez, 62 F.3d at 306. However, this language simply indicates that a selective prosecution claim should focus on the acts of the prosecutor. It does not foreclose a selective enforcement claim.

Finally, while there is authority to support the government’s position—most notably, the Sixth Circuit’s decision in United States v. Nichols, 512 F.3d 789 (6th Cir.2008)—that authority is distinguishable and in any event not binding precedent on this Court. In Nichols, the defendant claimed that a police officer’s- decision to run a warrant check on him was based on his race, thus violating the Equal Protection Clause. See id. It appears that the only remedy sought by the defendant was exclusion—ie., suppression of evidence found by the police during a subsequent search of a vehicle that he was inside. The Sixth Circuit held that exclusion was not a remedy available for an equal protection violation. The Sixth Circuit also held that, in lieu of exclusion as a remedy, a person whose rights were allegedly violated could bring a civil lawsuit. See id. at 794-95. The relevant portion from Nichols is as follows:

While we, of course, agree with the general proposition that selective enforcement of the law based on a suspect’s race may violate the Fourteenth Amendment, we do not agree that the proper remedy for such violations is necessarily suppression of evidence otherwise lawfully obtained. The exclusionary rule is typically applied as a remedy for Fourth Amendment violations, which Amendment does not apply to pre-contact investigatory steps like that presented here (the decision to run a warrant check). See [United States v.] Avery, 137 F.3d [343] at 353 [ (6th Cir.1997) ] (“[A]n officer’s actions during the pre-contact stage cannot give rise to Fourth Amendment constitutional concerns because the citizen has not yet been ‘seized.’ ”). Even if the Fourth Amendment were implicated, any challenge to a search or seizure based on legitimate probable cause, but in which it is alleged the officer’s subjective motive was discriminatory, is doomed to fail. See Whren [v. United States ], 517 U.S. [806] at 813, 116 S.Ct. 1769 [135 L.Ed.2d 89 (1996)] (unanimously rejecting such a challenge and holding that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis”). Though the Court left open the door to equal protection challenges in the same context, it gave no hint as to what the appropriate remedy , would be. See ibid. Since we know from Whren that the evidence against Nichols would not be suppressed under the Fourth Amendment (even if the officers were improperly motivated by racé), we are reluctant to graft that Amendment’s traditional remedy into the equal protection context. Indeed, we are aware of no court that has ever applied the exclusionary rule for a violation of the Fourteenth Amendment’s Equal Protection Clause and we decline Nichols’s invitation to do so here. Rather, we believe the proper remedy for any alleged violation is a 42 U.S.C. § 1983 action against the offending officers. See, e.g., Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523 (6th Cir.2002) (rejecting officer’s qualified immunity defense and affirming partial summary judgment in favor of Hispanic motorists who brought equal protection challenge' under § 1983).

Id. at 794.

The Sixth Circuit’s holding in Nichols is not persuasive. First, Nichols did not address the remedy of dismissal; but to the extent one could infer from Nichols that dismissal of an indictment, like exclusion, would not be an appropriate remedy for selective enforcement, such a result cannot be squared with Yick Wo, where as noted above, the Supreme Court ordered the remedy of discharge; notably, the fact that a § 1983 civil lawsuit was theoretically available was not a factor.

Furthermore, in Nichols, the Sixth Circuit’s decision was based on its reluctance to graft the remedy exclusion on to the Fourteenth Amendment because of that remedy’s traditional association with the Fourth Amendment. Apart from the fact that the Fourteenth Amendment is a different constitutional source providing for different protections than the Fourth Amendment, in Nichols, “there was no intrusion at all on Nichols’s personal liberties by the initial actions of the officer [—] [tjhere was no search, no seizure.” Id. at 795. Under those circumstances, the Court appeared to view exclusion is an extreme remedy. Here, in contrast, Defendants were subject tó seizure and then referred to federal authority for prosecution for charges which entailed an enhanced mandatory minimum sentence. Unlike Nichols, the selective enforcement here did operate to inflict a substantial intrusion upon Defendants’ personal liberties.

Moreover, while the , Sixth Circuit grounded its analysis in terns of deterrence as the focus of the exclusionary rule, the remedy for a Fourteenth Amendment violation encompasses more than deterrence. Cf. Alcaraz-Arellano, 441 F.3d at 1263 (stating that “ ‘[rjacially selective law enforcement violates this nation’s constitutional values at the most fundamental level; indeed, unequal application of criminal law to white and black persons was one of the central evils addressed by the framers of the Fourteenth Amendment’ ”). While dismissal of charges brought about as a result of a constitutional violation may serve in part as a deterrent to race-based law enforcement, it is also designed in part to redress that violation. Cf. Davis v. United States, 564 U.S. 229, 236-37, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (stating that the exclusionary rule is a judicially created remedy the only purpose of which “is to deter future Fourth Amendment violations”; exclusion is not even “designed to ‘redress’ the injury occasioned by an unconstitutional search”) (emphasis added). It puts the victim where he or she could have been but for racially selective conduct of law enforcement.

Nichols’ s assumption that a Fourteenth Amendment violation can adequately be addressed through a civil lawsuit is questionable. It is not clear a civil remedy for selective enforcement leading to a prosecution is available, particularly if the defendant is convicted. See Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (stating that, if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated”); Young v. City of Peoria, No. 12-cv-1086, 2012 WL 5305336, at *5, 2012 U.S. Dist. LEXIS 153861, at *10 n. 5 (C.D.Cal. June 29, 2012) (noting that “Young may ¡not be able to bring a § 1983 claim for damages from an unlawful state conviction without first having the conviction overturned in some manner [under Heck]” and that “Young’s selective prosecution claim, if successful, would necessarily mean that his conviction was unlawful”).

Accordingly, the Court concludes, consistent with the holdings of the Seventh and Tenth Circuits, that dismissal of an indictment is a proper remedy for a selective enforcement claim if proven. Having so held, the Court must next address whether there is some evidence of discriminatory effect and then some evidence of discriminatory intent sufficient to warrant discovery.

B. Selective Enforcement—Discriminatory Effect

1. Similarly Situated Evidence Requirement

As an initial matter, the Court addresses Defendants’ contention that discriminatory effect for selective enforcement purposes can be established based simply on the fact that all 37 OSS defendants are African American—ie., there is no need to do the Armstrong similarly situated analysis. This is the approach that the Seventh Circuit adopted in Davis (discussed above).

As noted above, Davis held that, as a general matter, in a selective enforcement case, a defendant need not necessarily provide some evidence as to preferential treatment of similarly situated persons outside the protected class in order to obtain discovery. Rather, the defendant can simply rely on statistics showing, e.g., that a significant majority of persons targeted by law enforcement is made up of members of á protected class. Under Davis, Defendants have established some evidence of discriminatory effect because all 37 of those targeted and arrested under the OSS program for whom the Court has information are all African American. Defendants have submitted undisputable evidence that these numbers are highly significant as a statistical matter. The Court agrees with the approach in Davis and thus finds the statistical showing made by Defendants herein establishes discriminatory effect of selective enforcement.

2. Similarly Situated Evidence

Assuming, however, a statistical showing alone is not sufficient to show discriminatory effect under Armstrong, and that the similarly situated requirement must be shown even in a selective enforcement (as opposed to selective prosecution) case, Defendants have satisfied .that requirement. Defendants have shown some evidence that “similarly situated individuals of a different race were not [targeted]” by law enforcement. Armstrong, 517 U.S. at 465, 116 S.Ct. 1480.

To be sure, there is a threshold question of what the Armstrong Court meant by “similarly situated.” In their motion, Defendants have provided examples of how various circuit courts have defined the term. See Mot. at 72-75. See, e.g., United States v. Lewis, 517 F.3d 20, 25 (1st Cir.2008) (stating that “[a] similarly situated offender is one outside the protected class who has committed roughly the same crime under roughly the same circumstances but against whom the law has not been enforced”); United States v. Olvis, 97 F.3d 739, 744 (4th Cir.1996) (stating that “defendants are similarly situated when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them”). The Ninth Circuit has not defined “similarly situated” since Armstrong was decided. However, in a pre-Armstrong decision, the Ninth Circuit noted as follows:

The goal of identifying a similarly situated class of law breakers is to isolate the factor allegedly subject to impermissible discrimination. The similarly situated group is the control group. The control group and defendant are the same in all relevant respects, except that defendant was, for instance, exercising his first amendment rights. If all other things are equal, the prosecution of only those persons exercising their constitut