Plaintiffs

Index of References to Records Requested under FOIA Request

Louis Flores v. United States Department of Justice

Case No. : 15-CV-2627 (JG)(RLM)

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01

Direct quote from article :

See Cristian Farias,

#BlackLivesMatter Activists
in St. Louis Charged With
Disturbance On Federal
Property, The Huffington
Post (Aug. 10, 2015),
http://www.huffingtonpost.
com/
entry/blacklivesmatters-st-
louis-charges_
55c93a8de4b0f1cbf1e61b8
a.

#BlackLivesMatter activists DeRay Mckesson, Johnetta Elzie, along

with others who staged a sit-in at the federal courthouse in St.
Louis on Monday, were charged with disturbance on federal
property, according to a copy of a summons obtained by The
Huffington Post.
The charge is contained in a section of the Code of Federal
Regulations that governs the maintenance of federal buildings and
other property. It prohibits exhibiting disorderly conduct that
unreasonably obstructs the usual use of entrances, foyers, lobbies,
corridors, offices, elevators, stairways, or parking lots.
It wasn't clear if all 57 protesters who were arrested were charged
under the same law. Many had been processed and released by
Monday evening.
The charge is considered a petty offense -- which still can lead to a
criminal record. Thousands of such cases are adjudicated quietly in
federal courts across the country, often by the mere payment of a
fine.
But the adjudication of federal petty offenses has been criticized for
not affording defendants the constitutional protections associated
with more serious criminal charges -- such as the right to an
attorney for poor defendants or the right to a jury trial.
As drafted, the Federal Rules of Criminal Procedure, which control
in these cases, are rife with caveats to move these cases through the
system more quickly.
According to the local rules of the Eastern District of Missouri, the
federal courthouse where the protests took place, activists could
choose to pay the forfeiture of collateral -- a glorified term for the
payment of a fine, after which the case ostensibly goes away. But
the rules are unclear if doing so would amount to a guilty plea,
which may have adverse consequences because it would remain on
the defendants record.
Or they could fight the charges in court, for which they would need
to be represented by an attorney. If they lose, the maximum penalty
activists face is 30 days in jail, a fine, or both.

Plaintiffs Discovery Demand : (A). Please produce the

federal law enforcement policy that allows activists to be
arrested and charged with a crime, when activists are
peacefully engaged in a political protest.
Plaintiffs Note : This contradicts President Obamas remarks,
delivered on Nov. 24, 2014, following the decision by a St.
Louis County grand jury not to file criminal charges against a
police officer in the shooting death of Michael Brown.

Page 1 of 13

Plaintiffs Index of References to Records Requested under FOIA Request

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02

After a St. Louis County grand jury voted not to file charges
against a police officer in the shooting death of Michael
Brown, President Obama delivered remarks, calling for
protesters to engage in peaceful protests, adding, in part :

See Barack Obama,

President Obama Delivers a
Statement on the Ferguson
Grand Jurys Decision, White
House (Nov. 24, 2014),
https://www.whitehouse.g
ov/blog/2014/11/24/presi
dent-obama-delivers-
statement-ferguson-grand-
jurys-decision.

I also appeal to the law enforcement officials in Ferguson and the

region to show care and restraint in managing peaceful protests
that may occur.

Plaintiffs Discovery Demand : (A). President Obama said

that peaceful protests may occur. Please produce the DOJ
guidelines that allow for activists to take part in peaceful
protests that may occur.
Plaintiffs Note : The President ordered law enforcement to
show care and restraint in managing peaceful protests.
Where are orders like these incorporated in the DOJs
guidelines that govern the prosecution of activists ?
03

After protesters working in solidarity with Ferguson activists

interrupted an Atlanta speech by then-U.S. Attorney General
Eric Holder, the nations top federal prosecutor said, in part, :

See Holly Yan and Catherine

E. Shoichet, Ferguson fallout
: Protesters interrupt
Holders speech, CNN (Dec.
What we saw there was a genuine expression of concern and
2, 2015),
involvement. And it is through that level of involvement, that level
of concern and I hope a level of perseverance and commitment, that http://www.cnn.com/2014
/12/01/us/ferguson-up-to-
change ultimately will come.
speed/.
The activists were escorted out of the church, where Attorney
General Holder was delivering his remarks.
Plaintiffs Discovery Demand : (A). Please produce the
federal law enforcement policy that allows activists to be
escorted away from a protest instead of being arrested or
charged with a crime.
Plaintiffs Note : Reforms, the goals of social movements, only
come about through the work of activists, though that work
may sometimes be politically embarrassing and unpopular to
powerholders. If activists have a recognized role to push the
government for reforms, then how is that reflected in DOJ
guidelines for prosecuting activists ?

04

President Barack Obama scolded a protester named Jennicet

Gutirrez, saying, Shame on you for creating an interruption
during his gathering at the White House, and President Obama
had the protester escorted out of the White House when the
protester would not stop heckling the president.
Plaintiffs Discovery Demand : (A). Please produce the
federal law enforcement policy that allows activists to be
escorted away from a protest instead of being arrested or
charged with a crime.

Page 2 of 13

See Kevin Liptak, Obama

shuts down White House
heckler : Youre in my house
!, CNN (June 25, 2015),
http://www.cnn.com/2015
/06/24/politics/obama-
heckler-white-house-lgbt/

Plaintiffs Index of References to Records Requested under FOIA Request

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05

On P. 23, there is a reference to the Myers memo (email) on

how to charge activists, particularly, Lt. Daniel Choi, federally
with crimes in connection with his activism. This document is
discoverable, because it is the subject of one of the requests
made in the FOIA Request. This document contains legal
analysis.

See James E. Pietrangelo, II,

Amicus Curaie Breif of James
E. Pietrangelo, II, Document
Number 30 in DOJs
Response to FOIA Request.

Also on P. 23, there is a reference to Capt. Guddemis

November 22 email.
Finally, it is noted that Assistant U.S. Attorney Angela George
may have been involved in advance targeting of Lt. Choi.
Plaintiffs Discovery Demand : (A). Please produce the
Myers memo (email). (B). Please produce any other legal
analysis that applies to the DOJs prosecution of activists,
particularly, Lt. Choi. (C). Plaintiff demands that DOJ disclose
whether Assistant U.S. Attorney George was involved in
creating the legal opinions related to the arrests and
prosecution of activists, including, but not limited to, Lt. Choi.
(D). Please produce missing pp. 19, 22, and 24, as these
missing pages may refer to further information about the legal
analysis behind the arrest and/or prosecution of activists.
06

On P. 5, Governments Exhibits 24 and 25 are mentioned.

Governments Exhibit 25 in particular relates to the proper
charge to apply to activists, including to Lt. Daniel Choi.
Collectively, the e-mails reveal information about
anticipated demonstration activities and an effort to receive
legal guidance, ensuring the defendant was properly charged.
These documents are discoverable, because they answer a
request made in the FOIA Request.
Plaintiffs Discovery Demand : (A). Please produce
Governments Exhibits 24 and 25.

07

On pp. 27-28, the Government makes the case that in respect

of cases with selective-prosecution claims, the Government
uses costs as a reason to perhaps discontinue prosecutions,
because if discovery is allowed to move forward, the
Government may be forced to disclose the Governments
prosecutorial strategy.
Plaintiffs Discovery Demand : (A) Please produce the DOJs
guidelines for prosecuting activists.

Page 3 of 13

See Angela S. George,

Governments Motion to
Quash Subpoenas on Behalf
of United States Department
of the Interior and the
United States Park Police,
Document Number 28 in
DOJs Response to FOIA
Request.
See Mary B. McCord,
Governments Opposition to
Petition for Write of
Mandamus to United States
District Court, Document
Number 39 in DOJs
Response to FOIA Request.

Plaintiffs Index of References to Records Requested under FOIA Request

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08

On p. 2, Lt. Daniel Choi wrote about the White House culture

of animus against protesters generally.

See Lt. Daniel Choi,

Lieutenant Chois Motion for
Substitute Service of
Subpoenas and Discovery
Conference Upon Receipt of
Privileged Materials,
Document Number 24 in
DOJs Response to FOIA
Request.

Plaintiffs Discovery Demand : (A). Please produce

guidelines that show that DOJs powers to prosecute activists
cannot be biased, given activists actions that may embarrass
the administration.

09

Ryan Grim, Washington Bureau Chief for The Huffington Post,

said during a panel discussion on MSNBC, that the DOJ was
using :
their prosecutorial power in a vengeful kind of way against
reporters and sources that embarrass the administration, not those
who compromise national security.

Plaintiffs Discovery Demand : (A). Please produce

guidelines that show that DOJs powers to prosecute activists
cannot be biased, given activists actions that may embarrass
the administration.
Plaintiffs Note : If, in the face of embarrassing or unpopular
speech from journalists, who are protected by the First
Amendment, the DOJ retaliates against such journalists, then,
in the face of embarrassing or unpopular speech from activists,
who are also protected by the First Amendment, the DOJ may
also be retaliating against activists, as well, under the same
pattern of misconduct.

Page 4 of 13

See Noah Rothman, MSNBCs

Chris Hayes: Where Are
Subpoenas Of New York
Times For Publishing Pro-
Obama Leaks?, Mediaite
(May 30, 2013),
http://www.mediaite.com/
tv/msnbcs-chris-hayes-
where-are-subpoenas-of-
new-york-times-for-
publishing-pro-obama-
leaks/.

Plaintiffs Index of References to Records Requested under FOIA Request

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10

On p. 143, the MIT report described the DOJs relationship

with the various U.S. Attorneys Offices thusly :

See Harold Abelson et al.,

Report to the President :
MIT and the Prosecution of
Aaron Swartz,
Massachusetts Institute of
Technology (July 26, 2013),
http://swartz-
report.mit.edu/docs/report
-to-the-president.pdf.

To a significant extent, the U.S. Attorneys and their AUSAs function

autonomously from the DOJ. The interaction between the U.S.
Attorneys Offices and the DOJ is complex. For example, for most
matters, Trial Attorneys from DOJ must be invited by the U.S.
Attorney in order to prosecute or assist in the prosecution of a
crime in his district, otherwise they will not be allowed by the
district court to participate in the court proceedings. Also, the use
of some criminal statutes to prosecute a defendant, such as the
Racketeer Influenced and Corrupt Organizations (RICO) Act, and
the use of some prosecution and investigative techniques, such as
grants of immunity or wiretaps, by a U.S. Attorney or AUSA must be
approved by the appropriate Assistant Attorney General or Division
within the DOJ. However, as a general matter, the following can be
said : U.S. Attorneys and their AUSAs have primary responsibility
for enforcing the federal criminal statutes within their districts, and
do so without direct supervision or permission from the Attorney
General or the DOJ.
Because the DOJ has responsibility for the entire United States, it
sees similar types of criminal cases on a more regular basis than
does a typical U.S. Attorneys Office. That is one of the reasons why
its divisions are themselves divided into sections and units: each of
these smaller subdivisions has an expertise in a particular area of
the law. In addition to being available to prosecute cases across the
country that are within their particular specialties, the attorneys
within these subdivisions are available for consultation with
AUSAs in the various districts.

Plaintiffs Discovery Demand : (A). Please produce

guidelines, if any, where the USAO must seek approval by DOJ
to prosecute activists. (B). Please produce any agency law or
binding DOJ legal opinions provided by the DOJ to the USAOs
or local or state law enforcement that governs the prosecution
of activists.
11

On p. 152, the MIT report indicated :

The power and discretion as to whether or not to prosecute a
person who is suspected of committing a crime is vested entirely
with Department of Justice, subject only to the limiting powers of
the grand jury and the courts.

Plaintiffs Discovery Demand : (A). Please produce the DOJ

guidelines that document the DOJs discretion to prosecute
activists.
Plaintiffs Note : The courts have jurisdiction on matters that
may limit when or how the DOJ can have discretion. Plaintiff
asserts that the courts have similar discretion over when or
how to compel the DOJ to disclose the laws or guidelines that
govern the DOJs discretionary powers.
Page 5 of 13

See Harold Abelson et al.,

Report to the President :
MIT and the Prosecution of
Aaron Swartz,
Massachusetts Institute of
Technology (July 26, 2013),
http://swartz-
report.mit.edu/docs/report
-to-the-president.pdf.

Plaintiffs Index of References to Records Requested under FOIA Request

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12

Before the DOJ published its guidelines for investigating and

possibly prosecuting journalists, in spite of their First
Amendment protections for a free press and for free speech,
the DOJ acknowledged it had guidelines to follow.

See Sari Horwitz, Under

sweeping subpoenas, Justice
Department obtained AP
phone records in leak
investigation, The
Washington Post, (May 13,
2013)
http://www.washingtonpos
t.com/ world/national-
security/under-sweeping-
subpoenas-justice-
department-obtained-ap-
phone-records-in-leak-
investigation/2013/05/13/
11d1bb82-bc11-11e2-89c9-
3be8095fe767_story.html.

In a report about the DOJ obtaining the phone records of The

Associated Press, The Washington Post reported, in part :
Justice Department guidelines require that subpoenas of records
from news organizations must be approved personally by the
attorney general.

Plaintiffs Discovery Demand : (A). Please produce

comparable guidelines for activists.

13

Even though the activities of journalists are protected by the

First Amendment, the government still investigated and
prosecuted journalists in accordance with guidelines that
governed those prosecutions. The DOJ later updated and
made public those guidelines. However, the public does not
know what guides the DOJ in the prosecution of activists,
whose activities are also protected by the First Amendment.
Plaintiffs Discovery Demand : (A). Please produce
guidelines that inform how the DOJ can investigate and
prosecute journalists, even though activities of protesters are
protected by the First Amendment.

14

The FBI once sent an anonymous letter to the Rev. Dr. Martin
Luther King, Jr., with the intention to drive him to commit
suicide.
Plaintiffs Note : The Government has no credibility in this
Court on matters of how it treats activists.

15

Page 6 of 13

Even lawyers for activists dont know what guides the DOJs
policies for choosing to prosecute activists, or not. Ann Wilcox,
a National Lawyers Guild attorney representing climate
activists, said that ultimately, "we don't know for sure why
some cases are dropped and some are processed."

See Charlie Savage, Attorney

General Signs New Rules to
Limit Access to Journalists
Records, N.Y. Times (Feb.
21, 2014),
http://www.nytimes.com/2
014/ 02/22/us/attorney-
general-signs-new-rules-to-
limit-access-to-journalists-
records.html.
See Beverly Gage, What an
Uncensored Letter to M.L.K.
Reveals, N.Y. Times (Nov.
11, 2014),
http://www.nytimes.com/2
014/11/16/magazine/what
-an-uncensored-letter-to-
mlk-reveals.html

See Corbin Hiar, After

Protest-Related Charges
Dropped, More
Confrontation Likely,
Climate Activists Say, The
Huffington Post (May 13,
Plaintiffs Discovery Demand : (A). Please produce what
guides the DOJ to prosecute some activists for protests, but not 2011),
http://www.huffingtonpost.
all.
com/2011/ 05/13/blair-
mountain-department-
interior-charges-climate-
activists_n_861549.html

Plaintiffs Index of References to Records Requested under FOIA Request

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16

From a report in The Anti Media :

17

The DOJ reportedly bans racial profiling, and yet the DOJ still
surveils #BlackLivesMatter activists.

See Claire Bernish, How the

According to the Domestic Investigations and Operations Guide, FBI and Big Oil Team Up to
Silence Environmental
which outlines the rules for sensitive investigative matters, such
Activists, The Anti Media
as those involving elected officials, journalists, or political issues
groups, prior approval is required of both the chief division counsel (May 13, 2015),
http://theantimedia.org/ho
(CDC) and special agent in charge (SAC). These officials are
w-fbi-and-big-oil-team-up-
supposed to weigh the consequences of adverse impact on civil
silence-environmental-
liberties and public confidence should such an investigation be
discovered by the public. None of the evidence suggests an attempt activists/ and Paul Lewis &
was made to contact either official pursuant to this sensitive
Adam Federman. Revealed :
investigation.
FBI violated its own rules
while spying on Keystone XL
Plaintiffs Discovery Demand : (A). If federal law
enforcement, particularly the FBI, have a guide that is sensitive opponents, The Guardian
of the adverse impact on civil liberties and public confidence, (May 12, 2015),
http://www.theguardian.co
do federal prosecutors have a similar guide ? If so, Plaintiff
m/us-
requests such guide.
news/2015/may/12/reveal
ed-fbi-spied-keystone-xl-
opponents.

Plaintiff s Discovery Demand : (A). Please produce DOJ

guidelines that explain surveillance of activists in the face of
ban on racial profiling.

Page 7 of 13

Source :

See Anna Brand and

Trymaine Lee, Justice
Department to unveil new
bans on racial profiling,
MSNBC (Dec. 8, 2014),
http://www.msnbc.com/m
snbc/justice-department-
eric-holder-new-bans-
racial-profiling and
Brandon Ellington
Patterson, Homeland
Security Is Tracking Black
Lives Matter. Is That Legal?,
Mother Jones (July 30,
2015),
http://www.motherjones.c
om/politics/2015/07/hom
eland-security-surveillance-
black-lives-matter.

Plaintiffs Index of References to Records Requested under FOIA Request

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18

Activists were arrested by U.S. Capitol Police outside the

headquarters of the Republican National Committee.
According to the article :

Source :

See AIDS/HIV : ACT UP

Rallies Against Bush at RNC
Headquarters, California
Healthline (Oct; 17; 2000),
According to Lt. Dan Nichols of the Capitol Police, the protesters
http://www.californiahealt
were to be charged with "obstruction of passage on federal
hline.org/articles/2000/10
grounds," a violation of D.C. law. They were not arrested on the
steps of the RNC because that area falls under the jurisdiction of the /17/aidshiv--act-up-rallies-
against-bush-at-rnc-
D.C. Metropolitan Police, who chose not to take action, Nichols
headquarters.
added. Capitol Police confirmed that the protestors were released
later Friday evening.
Plaintiffs Discovery Demand : (A). Please produce the
federal guideline, generally, for the arrest of activists when
local law enforcement with jurisdiction over a protest chooses
not to arrest activists. (B). Specific to this demonstration, did
the DOJ consult with the U.S. Capitol Police to provide a
binding legal opinion holding that U.S. Capital Police can make
arrests of activists when local law enforcement will not make
arrests ? If so, please produce the binding law that governs
situations such as these.

19

Page 8 of 13

After anonymous authors made highly unpopular and

completely reckless comments on a Web site, federal
prosecutors sought grand jury subpoenas to obtain online
records to determine the identity of the anonymous authors of
the comments. Such extremism is an example of the
government using its authority not in an even handed way,
creating a chilling effect on political speech.

See Ilya Somin, Department

of Justice uses grand jury
subpoena to try to unmask
anonymous blog post
commenters, The
Washington Post (June 8,
2015),
https://www.washingtonpo
Plaintiffs Discovery Demand : (A). Please produce
st.com/news/volokh-
guidelines that show that DOJs powers to investigate or
prosecute activists cannot be biased. (B). Specific to this case, conspiracy/wp/2015/06/0
8/department-of-justice-
did the DOJ consult with the USAO to provide a binding legal
opinion holding that grand jury subpoenas could be obtained ? uses-grand-jury-subpoena-
to-try-to-unmask-
If so, please produce the agency law that governs situations
anonymous-blog-post-
such as these.
commenters/.

Plaintiffs Index of References to Records Requested under FOIA Request

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20

John Sellers, one of the protesters arrested during the 2000

Republican National Convention in Philadelphia, faced a bail of
$1 million after his arrest on eight misdemeanor charges.
Other activists faced bail of between $400,000 and $500,000.
According to The New York Times, over 300 protesters were
arrested during demonstrations.

See Francis X. Clines,

Convention Demonstrators
Are Held on Very High Bail,
N.Y. Times (Aug. 5, 2000),
http://www.nytimes.com/2
000/08/05/us/convention-
demonstrators-are-held-on-
very-high-bail.html.

Plaintiffs Discovery Demand : (A). Please produce DOJ

guidelines that show that local law enforcement have the
authority to supersede the federal rights of activists to protest
by arresting activists and setting such high bails. (B). Specific
to this case, did the DOJ consult with the local law enforcement
to provide a binding legal opinion holding that bail could be
set so high ? If so, please produce the agency law that governs
situations such as these.
21

A two-day protest by housing activists that took place outside

the DOJ resulted in almost 30 arrests, including complaints by
activists that law enforcement used tasers on activists.
According to the report in Rolling Stone, it appeared that the
Federal Protective Service, part of the Department of
Homeland Security, was the law enforcement agency in charge.
Plaintiffs Discovery Demand : (A). Please produce DOJ
guidelines that show that law enforcement have the authority
to use force on activists, generally, leading up to their arrests.
(B). Please produce DOJ legal opinions or any advisory
opinions that show that law enforcement had the authority to
use force on activists, in this specific instance, leading up to
their arrests. (C). Please produce guidelines that show
whether or not activists are under attack by the DOJ. (D).
Specific to this case, please provide any agency law or binding
DOJ legal opinion that governs situations such as these.

22

The prosecution of activists has provoked public outrage and

calls for legislative reform.
Plaintiffs Discovery Demand : (A). Please produce the DOJ
guidelines for the prosecution of activists.
Plaintiffs Note : This was cited in Plaintiffs Complaint (Dkt.
No. 1 at 9).

Page 9 of 13

See John Knefel, Why Are

Homeowners Being Jailed for
Demanding Wall Street
Prosecutions?, Rolling Stone
(May 22, 2013),
http://www.rollingstone.co
m/politics/news/why-are-
homeowners-being-jailed-
for-demanding-wall-street-
prosecutions-20130522.

See Tom Risen, Barrett

Brown's Prison Time Raises
Cybersecurity, Journalism
Concerns, U.S. News &
World Report (Jan. 23,
2015),
http://www.usnews.com/n
ews/articles/2015/01/23/
barrett-browns-prison-
time-raises-cybersecurity-
journalism-concerns.

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Allegations have been made that the DOJ mounts vindictive

prosecution of activists, such as in the case of Lt. Daniel Choi.

See Scott Wooledge,

Updated: Judge Allows Lt
Dan Chois vindictive
prosecution Defense, Daily
Kos (Aug. 31, 2011),
http://www.dailykos.com/s
tory/2011/08/31/1012290
/-Updated-Judge-Allows-Lt-
Dan-Choi-s-vindictive-
prosecution-Defense ; Lou
Chibbaro Jr., Judge rules
against Choi in vindictive
prosecution claim,
Washington Blade (Oct. 17,
2011),
http://www.washingtonbla
de.com/2011/10/17/judge
-rules-against-choi-in-
vindictive-prosecution-
claim/.

Plaintiffs Discovery Demand : (A). Please produce

guidelines that prevent activists, who are subjects of DOJ
prosecution, from being selected for prosecution in a
vindictive manner. (B). Specific to this case, please provide
any agency law or binding DOJ legal opinion issued in respect
of the prosecution of Lt. Choi.
Plaintiffs Note : This case was cited in Plaintiffs Complaint
(Dkt. No. 1 at 18).

24

Allegations have been made that the DOJ mounts cases rife
with intimidation and prosecutorial overreach in respect of
activists, such as in the case of Aaron Swartz.
Plaintiffs Discovery Demand : (A). Please produce
guidelines that prevent activists, who are subjects of DOJ
prosecution, from being rife with intimidation and
prosecutorial overreach. (B). Specific to this case, please
provide any agency law or binding DOJ legal opinion issued in
respect of the prosecution of Mr. Swartz.

See Noam Cohen, A Data

Crusader, a Defendant and
Now, a Cause, N.Y. Times,
Jan. 14, 2003,
http://www.nytimes.com/2
013/01/14/
technology/aaron-swartz-a-
data-crusader-and-now-a-
cause.html.

Plaintiffs Note : This case was cited in Plaintiffs Complaint

(Dkt. No. 1 at 19).
25

Page 10 of 13

Allegations have been made that the DOJ mounts cases against See Amy Goodman & Glenn
activists by treating whistleblowing activists as terrorists, as in Greenwald, Prosecutor
the case of PFC Chelsea Manning.
Overreach Could Turn All
Whistleblowing into
Plaintiffs Discovery Demand : (A). Please produce
Treason, Democracy Now
guidelines that prevent activists, who are subjects of DOJ
(March 5, 2013),
prosecution, from being treated as terrorists. (B). Specific to
http://www.democracyno
this case, please provide any agency law or binding DOJ legal
w.org/2013/3/5/glenn_gre
opinion issued in respect of the prosecution of PFC Manning.
enwald_on_
Plaintiffs Note : This case was cited in Plaintiffs Complaint
bradley_manning_prosecuto
(Dkt. No. 1 at 20).
r.

Plaintiffs Index of References to Records Requested under FOIA Request

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26

News reports indicated that the prosecution of activists has

imposed restrictions, burdens, and interferences with First
Amendment, other Constitutional rights, civil liberties, and
other civil rights of activists. After HIV/AIDS activists were
arrested during a peaceful protest in Washington, DC, the U.S.
Attorneys Office demanded the drug-testing of activists, who
were charged with nonviolent crimes, such as civil
disobedience. The demand for drug-testing of HIV/AIDS
activists was fraught with complications, because some
activists may have had a prescription for medical marijuana or
may have had prescriptions for other medications, which
perhaps would have resulted in a false positive.

See Trenton Straube, U.S.

Attorney Requires Drug
Tests for AIDS Protesters,
POZ (Feb. 2012),
http://www.poz.com/articl
es/DC_HIV_Marijuana_401_
21944.shtml ; Martin
Austermuhle, AIDS Activist
Faces Trial After Use of
Medical Marijuana Sinks
Hopes for Dismissal of
Charges, dcist (Feb. 9,
2012),
Plaintiffs Discovery Demand : (A). Please produce DOJ
guidelines that show that people with HIV/AIDS are not forced http://dcist.com/2012/02/
aids_
to be administered drug tests as a form of harassment,
activist_faces_trial_after_usi.
retaliation, or abridgment of any of their First Amendment,
other Constitutional rights, civil liberties, and other civil rights. php.
(B). Specific to this case, please provide any agency law or
binding DOJ legal opinion issued in respect of the prosecution
of the HIV/AIDS activists in this situation.
Plaintiffs Note : This case was cited in Plaintiffs Complaint
(Dkt. No. 1 at 21).

Page 11 of 13

Source :

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27

Allegations have been made that federal prosecutors may hold

HIV/AIDS activists to a different standard, such as bringing
stricter criminal charges, than other activists, who are arrested
by local law enforcement.

See Arin Greenwood,

HIV/AIDS Activists Complain
Of Unfair Treatment By U.S.
Attorney's Office, Huffington
Post (Feb. 8, 2012),
http://www.huffingtonpost.
com/ 2012/02/08/aids-
activists-
protest_n_1263144.html ;
Brianne Carter, D.C. mayor
Vincent Gray,
councilmembers arrested :
Protesters plead not guilty,
WJLA (May 5, 2011),
http://www.wjla.com/articl
es/2011/05/d-c-mayor-
vincent-gray-
councilmembers-arrested-
protesters-to-appear-in-
court--60103.html ; Debbie
Siegelbaum, AIDS activists
allege discriminatory
treatment following Capitol
arrest, The Hill (Feb. 8,
2011),
http://thehill.com/homene
ws/house/209485-aids-
activists-allege-
discriminatory-treatment-
after-capitol-protest-arrest.

Plaintiffs Discovery Demand : (A). Please produce DOJ

guidelines that show that people with HIV/AIDS, or any class
of activists, are not treated differently, particularly harsher,
than any other class of activists. (B). Specific to this case,
please provide any agency law or binding DOJ legal opinion
issued in respect of the these cases that can explain the
difference in treatment between groups or classes of activists.
Plaintiffs Note : These cases were cited in Plaintiffs
Complaint (Dkt. No. 1 at 22).

Page 12 of 13

Plaintiffs Index of References to Records Requested under FOIA Request

Reference
Number :

Description :

28

Allegations have been made that the DOJ mounts cases against
activists with political overtones, such as during the tenure of
U.S. Attorney Patrick Fitzgerald.

29

Congress and the public are unable to determine the nature

and purpose of the prosecution of activists.

See Peter Wallsten, Activists

cry foul over FBI probe, The
Washington Post (June 13,
2011),
Plaintiffs Discovery Demand : (A). Please produce
guidelines that show that the powers of the USAOs and/or the http://articles.washingtonp
ost.com/2011-06-
DOJ to prosecute activists cannot be biased or influenced by
13/politics/
political overtones. (B). Specific to the cases of the 23
activists, who were critics of U.S. foreign policy, please provide 35235946_1_activists-cry-
stephanie-weiner-targets ;
any agency law or binding DOJ legal opinion issued in respect
Kevin Gosztola, FBI
of the prosecution of these 23 activists.
Continues to Target Activists
Plaintiffs Note : This case was cited in Plaintiffs Complaint
in Chicago and Minneapolis
(Dkt. No. 1 at 23).
(VIDEO), Firedoglake (Dec.
9, 2010),
http://my.firedoglake.com/
kgosztola/2010/12/09/fbi-
continues-to-target-
activists-in-chicago-and-
minneapolis/ ; Josh
Gerstein, After 1 year, FBI
returns property to
Minnesota anti-war activists,
Politico (Nov. 3, 2011),
http://www.politico.com/bl
ogs/joshgerstein/1111/FBI
_returns_property_to_Minne
sota_antiwar_activists.html.

Plaintiffs Discovery Demand : (A). Please produce

guidelines that show how the government balances the First
Amendment rights, other Constitutional rights, civil liberties,
and other civil rights of activists against charges that the
government brings against activists.
Plaintiffs Note : This was cited in Plaintiffs Complaint (Dkt.
No. 1 at 24).

Page 13 of 13

Source :

See Kim Zetter, Congress

Demands Justice Department
Explain Aaron Swartz
Prosecution, Wired (Jan. 29,
2013),
http://www.wired.com/thr
eatlevel/2013/01/doj-
briefing-on-aaron-swartz/ ;
Marcy Wheeler, Aaron
Swartz reveals the hypocrisy
of our Justice Department,
Salon (Jan. 15, 2013),
http://www.salon.com/201
3/01/16/aaron_swartz_rev
eals_the_hypocrisy_of_our_j
ustice_department/.