To address selective enforcement claims some federal courts apply United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), which created an intentionally strenuous discovery standard for selective prosecution (not enforcement) claims. See, e.g.,Johnson v. Holmes , 782 F. App'x 269, 276 (4th Cir. 2019) (applying Armstrong to a selective enforcement claim); United States v. Alcaraz-Arellano , 441 F.3d 1252, 1263–65 (10th Cir. 2006) (same); see alsoArmstrong , 517 U.S. at 464, 116 S.Ct. 1480 ("[T]he showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims."). To earn discovery, Armstrong requires a defendant to provide evidence of similarly situated people of other races who the State could have prosecuted but did not.
See, e.g., Chavez, 251 F.3d at 636; but see Pyke v. Cuomo, 258 F.3d 107, 108-09 (2d Cir. 2001) (declining to extend Armstrong's holding to selective enforcement claim). In those jurisdictions where there is such a requirement, claimants have used statistical proxies to account for those who are similarly situated, see, e.g., Johnson v. Holmes, 782 F. App'x 269, 282 (4th Cir. 2019) (per curiam) ("[T]he percentage of white drivers stopped and ticketed by the other officers patrolling the same locations as [the officer] serves as a proxy to show the general racial composition of drivers on the road that [the officer] could have pulled over but did not."), or named similarly situated individuals of a different race who were treated differently by law enforcement, see, e.g., Chavez, 251 F.3d at 637 (white female driver following a Latino motorist similarly situated for purposes of establishing discriminatory effect).