Also known as:discriminatory enforcements · selective enforcement
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional principle that invalidates statutes or ordinances granting officials unguided discretion because such laws permit arbitrary or selective application against disfavored groups or viewpoints. The principle protects due process by demanding explicit standards that prevent enforcement from turning on an officer's personal or political judgments.
Sources & Authorities
How it applies
Common Examples
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Attorney Press Statement Challenge
Dustin Donovan, a defense lawyer, tells reporters that the prosecutor has withheld exculpatory evidence in a high-profile case. The state bar charges him under a publicity rule containing a vague safe-harbor clause allowing statements made without elaboration. Donovan shows that the bar has never pursued similar statements by prosecutors or lawyers aligned with the government, demonstrating that the rule's vagueness invites discriminatory enforcement against defense counsel.
Street Assembly Ordinance Dispute
Doris Duffy and two friends gather on a sidewalk to discuss local politics. An officer arrests them under a city ordinance that makes it criminal to assemble in a manner annoying to passersby. Duffy proves that the same officer routinely ignores identical gatherings by groups whose views align with city officials, showing the ordinance's lack of standards enables discriminatory enforcement against unpopular speakers.
Select any source to read its text and confirm it supports the definition.
Cases
Study Supplements
Coates v. City of Cincinnati402 U.S. 611 (1971)
Vagrancy Arrest Pattern
Derek Douglas, an unemployed day laborer, stands on a public corner waiting for work. Police arrest him under a vagrancy ordinance that criminalizes being abroad without visible means of support. Douglas demonstrates that officers apply the ordinance almost exclusively to poor or nonconforming individuals while leaving affluent residents undisturbed, illustrating how the statute's vagueness facilitates discriminatory enforcement.
Papachristou v. City of Jacksonville[405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).]
Newsrack Permit Decision
Demetrius Douglas seeks a permit to place newsracks on public sidewalks for his independent newspaper. The mayor denies the application under an ordinance giving unfettered discretion to approve or reject placements. Douglas shows that the mayor routinely grants permits to established dailies while denying them to critical or minority publications, revealing the ordinance's invitation to discriminatory enforcement.
City of Lakewood v. Plain Dealer Publishing Co.486 U.S. 750, 783 (1988)
Loitering Dispersal Order
Destiny Davis and several teenagers sit on a stoop after school. An officer orders them to disperse under an ordinance authorizing removal of anyone lingering without apparent purpose. Davis establishes that officers invoke the rule almost exclusively against minority youth while ignoring similar conduct by white adults, demonstrating that the vague standard permits discriminatory enforcement.
City of Chicago v. Morales527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)
Eminent Domain Targeting
Darius Dixon owns a modest home in a neighborhood targeted for redevelopment. The city initiates condemnation proceedings under a statute that allows officials to designate areas for taking when they deem the use blighted. Dixon shows that the city has applied the statute only to properties owned by lower-income or minority residents while sparing comparable properties owned by politically connected developers, exposing the law's potential for discriminatory enforcement.
City of Norwood v. Horney853 N.E.2d 1115 (Ohio 2006)
Common questions
Frequently Asked
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What constitutional clause supplies the prohibition on discriminatory enforcement?+
The Due Process Clause requires that criminal and quasi-criminal laws supply explicit standards to prevent arbitrary and discriminatory enforcement by officials. A statute that leaves enforcement decisions to an officer's unguided discretion violates this requirement.
Does an allegation of discriminatory enforcement alone justify a federal injunction against a pending state prosecution?+
No. Federal courts must abstain from enjoining ongoing state criminal cases absent extraordinary circumstances such as a pattern of bad-faith or harassing prosecutions. A single instance of selective enforcement, even if viewpoint-based, does not meet that threshold.
How does discriminatory enforcement relate to the vagueness doctrine?+
A law is unconstitutionally vague when its terms fail to give fair notice and supply no explicit standards, thereby inviting officers to enforce the statute selectively against disfavored groups. The risk of discriminatory enforcement is therefore both a consequence and an independent ground for invalidation.
Can internal police guidelines cure a facially vague ordinance that risks discriminatory enforcement?+
No. Unpublished internal instructions do not provide the public with fair notice or constrain officer discretion in any legally binding way. Only the enacted text itself can satisfy due process.
536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002)Constitutional Law
…the announce clause by dismissing complaints only against candidates who made specific announcements on disputed issues. This selective enforcement shows that the clause is not necessary to protect judicial impartiality. For these reasons, we hold that the Minnesota announce clause violates the First Amendment. The judgment of the…