Legal Memorandum: Establishing Selective Enforcement Claims

Issue: Under the law of the Virgin Islands, what must a plaintiff prove to establish a claim for selective enforcement of a statute?

Selective enforcement involves a higher level of scrutiny than “rational basis.”  The Virgin Islands superior court has defined “selective enforcement:”

“Selective enforcement” involves “[t]he practice of law-enforcement officers who use wide or even unfettered discretion about when and where to carry out certain laws[,]” [Black’s Law dictionary,] and can involve “facially discriminatory conduct or arbitrary decision making[,]” [Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 200 (2^nd Cir. 2014),] or “singling a person out for prosecution or punishment under a statute … because the person is a member of a protected group or because the person has exercised or is planning to exercise a constitutionally protected right.” [Black’s Law dictionary.]

Pate v. Gov’t of the V.I., No. ST-14-CV-479, 2014 V.I. LEXIS 112, 48-50 (V.I. Super. Ct. Dec. 11, 2014) (Dunston, J.).  “To establish a selective-enforcement claim, a plaintiff must demonstrate (1) that he was treated differently from other similarly situated individuals, and (2) that this selective treatment was based on an unjustifiable standard, such as race, or religion, or some other arbitrary factor, . . . or to prevent the exercise of a fundamental right.”  Dique v. N.J. State Police, 603 F.3d 181, 184 (3d Cir. 2010) (quoting Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting Holder v. City of Allentown, 987 F.2d 188, 197 (3d Cir. 1993)) (internal quotations omitted, ellipses in Dique). 

“‘[T]here is no precise formula to determine whether an individual […]