Police

The Case for Creating "Constitutional Small Claims Courts"

Clark Neily's excellent proposal for addressing small, but troubling politice violations of constitutional rights.

|The Volokh Conspiracy |

After over two hundred years of debate about American constitutional law, there aren't many new ideas in the field that are simultaneously good, original, and potentially useful in the real world. But Cato Institute scholar Clark Neily's proposal for "constitutional small claims courts" is one of them. Here's the problem:

A public defender pseudonymously named Don Zeko posted an infuriating thread on Twitter yesterday in which he describes confronting a police officer in the parking lot of a courthouse as the officer was in the process of citing a woman for saying the word "b*tch" in public.

The officer claimed this was disorderly conduct, a misdemeanor punishable by up to 60 days in jail. Zeko pointed out to the officer that it is, in fact, not illegal to curse in public (as a constitutional lawyer, I would add that there is a First Amendment right to do so) and that the charge would certainly be thrown out.

The officer then ordered Zeko to get in his car and drive away, and Zeko believes he would have been arrested had he stood his ground, as he later wished he had.

This may seem like a trivial incident… But there are three key points to make about this encounter.

First, this kind of thing happens all the time. Just noodle around on YouTube a bit and you'll be struck by the utter banality of it all: The casual disrespect, intimidationdeceit, manipulativeness—it's shocking how so many officers misbehave so flagrantly, even when they know they're being recorded.

Second, as discussed below, there are rarely any consequences for officers who engage in the sort of low-level harassment described by Zeko and depicted in the links above….

Third, while this sort of petty tyranny may pale in comparison to beatings and shootings, these micro-assaults on people's freedom are antithetical to liberal democracy and, in the aggregate, corrosive to the rule of law. The message is clear: "I'm a cop. If you don't want to get hurt, don't challenge me."

Unfortunately, our system is not well designed to address constitutional violations that do not produce significant physical injuries or otherwise provide the opportunity to recover substantial monetary damages…

And Neily's original solution:

[T]here's an easy, virtually off-the-shelf solution that involves nothing more than combining two utterly commonplace features of our existing system: traffic tickets and small claims court….

[I]magine a system like this: The city has a website where people can file small claims against police officers like the one described in Zeko's Twitter thread. There's one field for the officer's name and/or badge number, another for a brief description of what you claim happened, and another where you can list any injuries or damages you believe you sustained. And as with small claims court, there's a way to include any documentation you might have, including a recording of the incident, photographs of bruises or other physical injuries, witness statements, etc….

But won't officers constantly be tied up in constitutional small-claims court to the detriment of their other duties? Nope, not at all. First, as with traffic tickets, there will be a way for them to simply admit liability (or decline to contest it) and pay up….

Second, traffic courts typically schedule hearings on all of the contested citations a given police officer has issued in the past X weeks or months for the same day so the officer only has to spend one day in court testifying about those cases. We could do the same thing in constitutional small claims court: Schedule all of the contested cases against a particular officer on the same day, just like traffic court but in reverse……

And again like traffic court, there could be a set schedule of fines—or, in this case, damages awards—for particular sorts of misconduct….

Clark goes on to address a variety of possible objections, and also proposes a clever way to find the necessary funds to pay successful claimants, while simultaneously incentivizing officers to minimize these sorts of violations. As the saying goes, read the whole thing!

Even if fully implemented, this idea will not fully end police misconduct of the sort Clark describes. Far from it, most likely. But it would give victims a real shot at getting compensation, and could give police considerably stronger incentives to avoid such shenanigans.

I would like to propose two extensions of Clark's idea, which I hope he might regard as friendly amendments:

First, these constitutional small claims courts are unlikely to be effective unless the doctrine of qualified immunity is lifted as a possible defense, or at least severely limited. Currently, that defense gives misbehaving police such broad protection that they are not held liable even for such blatantly illegal acts as stealing $225,000 in private property while conducting a search, and shooting a helpless child who was lying on the ground (the officer was actually trying to shoot the family dog, who posed no threat). If this license to kill and steal applies in Clark's proposed constitutional small claims courts, they are unlikely to be effective, as officers would not be held liable for the vast bulk of the misconduct these courts are supposed to provide compensation for. Clark himself is an advocate of abolishing qualified immunity, so I suspect he would not contest this point.

There is a simple fix for the problem: a state or local government that establishes constitutional small claims courts can also mandate (in the same legislation) that the defense of qualified immunity does not apply to claims filed there, or at least should be given a narrow scope. Even if qualified immunity persists in more high-stakes cases, it is implausible to argue that officers must have it in small claims cases, where all they stand to suffer is a modest financial loss.

My second extension is to apply the constitutional small claims concept to other government employees who often violate constitutional rights in small, but painful ways: regulators, CBP and ICE agents (they also get away with far more serious abuses, of course), CPS/child welfare agencies, public school administrators, and others.  It may be that different agencies will require somewhat differently structured small claims systems. But the basic idea is broadly applicable.

Others may well have their own ideas on how Clark Neily's idea can be extended and improved. For the moment, I will end by applauding him for this valuable contribution to the debate over how to remedy constitutional rights violations.

 

 

 

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  1. I think that SCOTUS considers immunity a “superConstitutional” right, akin to abortion, and thus, States would be powerless to nullify it. And there has to be a way to deal with nuisance suits [ACLU, anyone]; loser pays, e.g.

    1. Loser pays would solve soooo many problems. Consider the common complaint that poor people (aka minorities) can get a fair deal, that they are over-charged and over-sentenced. If defendants have a good case, and loser pays means ALL costs, then any lawyer who takes the case and wins is guaranteed payment, regardless of his client’s ability to pay. Well, unless it’s poor vs poor, but those aren’t the problem; it’s MegaCorp against the poor, or Big Brother against the poor, usually in the shape of po-po.

      This small claims idea is useless. Loser pays would do everything — cops want to contest a constitutional claim and drive the cost up, they will just owe that much more in the end. Cops who violate the constitution (or procedures, policy, etc) too often, and cost their departments too much in court costs, will be a lot less likely to be defended by the government or union, and eventually be fired or put on a desk job.

      Loser pays probably scares governments too damned much to ever be implemented.

      1. No. There already is fee-shifting in these cases. Police don’t care because insurers or taxpayers are the ones paying.
        Meanwhile, QI means that most of the time people challenging the police lose, so all you’re doing is adding insult to injury.

        (To be clear, loser pays may be a good idea, but it has nothing to do with the issue being discussed.)

        1. Every description of qualified immunity suggests it is a one-shot use, and after that, no officer can use it for that particular violation.

          If the violations for small claims court are as pervasive as the YouTube argument suggests, QI defense would be few and far between, and as such, no statistical issue of concern.

          1. Every description of it *I’ve* heard suggests that “that particular violation” can, in practice, be defined so narrowly as to distinguish facially identical offenses. Though, yes, in theory running enough cases through such a court would seem to whittle away at the defense.

            In theory. In practice, I suspect the Court would invent some new doctrine to revive it.

          2. Only if the court rules that the conduct was in violation of the Constitution.

            Take the case of the $200k theft during an illegal search. The court in that case ruled that there was no “clearly established law” on point and dismissed. They never reached the merits of whether the theft of money during a search was unconstitutional, so the next time it happens, there will still be no “clearly established law” on point. And even if they had, if the next officer stole $190k, he could argue there was no clearly established law that $190k was a violation of rights.

      2. No, loser pays is a horrible idea because it means that no one could ever sue the rich for fear of having to pay for their 20 expensive lawyers. It would be a standard tactic to always spend more than your opponent could ever afford to pay.

    2. No, it doesn’t. Qualified immunity is a common law doctrine. Congress could, of course, abrogate it.

      1. Wikipedia says “The modern test for qualified immunity was established in Harlow v. Fitzgerald [1982].”

        Before that, it was case by case: “the U.S. Supreme Court granted immunity to government officials only if (1) the official believed in good faith that his conduct was lawful and (2) the conduct was objectively reasonable.”

        Doesn’t sound like common law to me. But IANAL, and if you mean something else, please say what.

        1. The courts created it, but with respect to statute (42 usc 1983, among others), so Congress can amend the statute.

          1. I think the point is, the courts created the “right” to abortion, too.

            The question becomes, how devoted to “unqualified immunity” IS the Supreme court? Merely, “Would permit a statute to override it” devoted? Maybe, “Would require a constitutional amendment to give up on it.” devoted?

            1. If Congress amended Section 1983 to repeal the Court’s current qualified immunity jurisprudence, perhaps by replacing it with a much less deferential affirmative defense for officials, I think the Court would have to accept it because qualified immunity is essentially a statutory interpretation. Would there be other ways around that. Possibly.

              Assuming Congress doesn’t also finally amend 1983 to explicitly include federal officials when they abrogate qualified immunity, it would be interesting if the Court continued qualified immunity for Bivens claims. Bivens flows from Constitutional rights themselves on the assumption that if the rights exist there must be a remedy for their violation. But it also incorporates the same qualified immunity defenses. So if there is a statutory change for 1983 the Court’s devotion to qualified immunity would be apparent if they are unwilling to modify qualified immunity for Bivens claims.

            2. Consider what would happen if States explicitly elimination immunity for prosecutors. Do you think SCOTUS would sit by idly and allow that attack on judicial divinity supremacy to succeed?

        2. There’s a rule of statutory interpretation that says the legislature is presumed to not abrogate the common law unless it’s clear that’s what they are doing. So when the Court began interpreting Section 1983, it assumed that Congress left a common law good faith defense in place for public officials because it did not explicitly abrogate such a defense. This morphed into the qualified immunity doctrine we know and love today.

        3. It doesn’t sound like common law to you because YANAL.

    3. If states chose they could create state law claims for state constitutional violations (which are generally equal to or broader than federal constitutional protections) and the federal courts would be unable to say anything about it.

      1. this. introducing state legislation to repeal any state QI is a reasonable objective many of the readers of this blog could get accomplished. passing something through congress is more difficult, even for the conspiracy. a statute that awarded legal fees for state constitutional violatiuons could go a long way too. i think there are a couple of states that have this sort of thing.

  2. My experience with traffic court is that judges almost always believe the police and nobody else. Example: The driver was cited for following too closely. The officer admitted he was 5 cars back. The driver’s argument was that nobody could see what was happening 5 cars ahead. The judge ruled guilty “because of the cop’s years of experience”.

    I was there for blowing a red light. I had google map pictures with my position marked, testified that when I pulled out of a gas station I was so many feet from the intersection, that the light was green until I moved two lanes to the left to get out of the right-turn-only lanes, and at that point I was so many feet from the intersection, that I had measure these distances with a tape measure on the sidewalk, and that the 35 zone speed limit required a 3.2 second yellow light but it was only 3 seconds, that the city did not have the required END 35 sign so it was still a 35 mph 3.2 second zone, and I would have had to be going only ten mph to not be in the intersection on the 3.0 second yellow. The judge ruled I must be guilty because I admitted I lost sight of the green light.

    This idea of Constitutional small claims court would fall apart for the very same reason. The only way to convict a cop is with expensive lawyers and lots of time.

    1. I’ve fortunately never had a similar experience, but know many who have. I’ve heard things like “If the officer said it, it must be true,” but on the flip side, when the cops are called out for obvious lies, the judges never do what the law allows, which is to assume that everything else is a lie as well.

    2. Last time I challenged a traffic ticket the judge basically declared everyone guilty by listing off all defenses he would not accept. He ended by saying that the radar is always right because the law says so, so even if you have irrefutable proof that it was wrong you are still guilty.

      Traffic court is a revenue machine. It has nothing to do with public safety. This is the only country that ruthlessly extorts money from its citizens via traffic enforcement. As a result Americans are among the worst drivers in the world because we drive according to the signs, not the conditions. We’re so focused on obeying traffic signs to avoid getting pulled over that we ignore the snow or ice or whatever else is on the road.

      1. This is the only country that ruthlessly extorts money from its citizens via traffic enforcement.

        I mean, that’s loony.

        1. Loony because it’s true and a terrible policy? Or because you know of other countries doing the same?

          I’d exclude directly corrupt countries low enforcement, like India, who use traffic law as the excuse to extract a protection fee regardless of any illegality, though that may be what you had in mind.

  3. I guess one unintended result of this would be no one in their right mind would ever, ever, ever want to work for the government under a regime like this.

    1. The only people who would be hamstrung by this are serial abusers; cops, mostly, some bureaucrats, and all full of themselves, who think they are God’s gift to morality.

      The easiest way for other people to avoid being taken to Constitutional small claims court is to apologize profusely as soon as they are called out. Librarian who won’t rent a meeting room to the KKK — as soon as the KKK points out her error, if she admitted her error and rented it out in spite of her disgust, I bet she’d never be taken to court, or if she was, the Judge would dismiss the charges or reduce damages to a minimum because she corrected herself pronto.

      Hell, that’s all most people want: politeness. Cops could learn a lot by being called to Constitutional small claims court and hearing other cases.

    2. Who said anything about unintended?

      Seriously, I don’t think this would drive out ordinary more-or-less decent officers and officials, anymore than traffic court deters people from driving.

      1. Either no one will want to do an already thankless job (which is fine by me). Or we will just have to pay more in taxes because the only people insane enough to take the job and end up in constitutional small claims court several days a month will demand extremely high compensation.

        The one error I think everyone has here is assuming the process will be used in good faith. Every single crank, unemployed loser, and guy with beef on his shoulder is going to abuse the heck out of this system. Maybe not a bad thing if it means less overall government goons. But maybe will be if we have to pay a ton of money to find someone to do necessary government jobs.

        1. There is such a thing as the vexatious litigant, which easily addresses serial abuse.

          If you’re concerned about many people at small scale, add a $10 increment per case beyond the first, so the filing fee is 0, 10, 20, 30… which is refunded after winning.

    3. And yet, customer service reps are not held to this standard by statute but are routinely held to it by company policy – and there is no shortage of customer service reps in the hiring lines.

      Your claims that “no one in their right mind would ever, ever, ever want to work for … under a regime like this” is belied by the evidence.

      1. Are you seriously comparing customer service reps to say police officers? Really? How are they even remotely analogous? Logic is not your strong suit I take it…

    4. You don’t want to work for the government unless you can violate the Constitution?

      Gee. Maybe we don’t mind.

  4. One question, and one point:

    Question: Is there any reason to believe a constitutional small claims court wouldn’t be any more pro-police than the entire rest of the judiciary?

    Point: Next time a conservative complains about liberal judicial activism, please feel free to point out that qualified immunity was a fairly breathtaking bit of conservative judicial activism.

    1. Is it? I’ve heard that argument regarding marijuana scheduling as well, and I haven’t seen any real effort from the Democrats to repeal that. Do you see all 4 liberal judges consistently voting in the dissent to undo qualified immunity?

      1. My experience has been, what the Democrats are theoretically good on, (From a libertarian standpoint, of course.) they don’t really care about, and what they’re bad on from that same stand point they’re fanatically devoted to.

        The same is true to a limited extent about the Republicans, but minus the fanaticism; They seem to be content accomplishing little and raking in graft. The Democrats are willing to take serious damage to accomplish their horrific ends.

        1. I think that’s largely right, although I think some of it is due less to dedication, but to competing goals. While the Democrats (theoretically) are okay with personal moral choices that don’t affect anyone else, they also like to ban things that are unhealthy. That’s their nanny state desire coming in. That’s why they so ardently fight for motorcycle helmets, soda and trans fat bans, cigarette bans, and so forth. Marijuana falls into that category, which is why they claim to support legalization but don’t really take any steps to further that.

          However, some unhealthy behaviors, like homosexual male sex, are so destructive to Western society and our moral fiber that they’ll ardently support that, the unhealthiness aside.

          1. I’m a Democrat. I, and most Democrats I know, oppose bans on soda, trans fats or cigarettes, so I really don’t know what you’re talking about. Motorcycle helmet laws seem to have broad support across the political spectrum.

      2. Sotomayor has been the most consistent on this point, at least when it comes to saying the Court should stop summarily reversing appeals courts who don’t find qualified immunity. I know Thomas has recently questioned the doctrine, but he also wrote Connick v. Thompson which was one of the worst qualified immunity decisions ever. So I won’t hold my breath on his coming around anytime soon.

        1. Connick v Thompson (aside from having the best Kagan quote ever) was about respondeat superior liability, not merely qualified (absolute) immunity for the individual prosecutorial misconduct, so I don’t think we can read that far into it for Justice Thomas opinion on qualified immunity itself.

          He may consistently believe that the individual bad actor should have no immunity whatsoever while rejecting any theory of liability for the incompetent supervisors of those bad actors. Of course that leaves open the perverse circumstance where the prosecutor isn’t liable because he incompetently believes in good faith that he can cheat, and his supervisor isn’t liable for intentionally leaving him in ignorance because it benefits him too. But that’s another hill to climb if we get there – right now no government agent is ever* liable.

          *some exceptions apply

          1. That’s a good point. I should have been more careful when pointing to Thompson. I guess it just sticks out in the mind as showing the lengths certain justices will go to shield unconstitutional conduct from liability, whether individuals or a municipality. Overturning a jury verdict that was upheld by the Fifth Circuit is quite an aggressive move.

      3. At the moment, congressional action repealing qualified immunity is a political nonstarter, so there’s no reason for Democrats to waste time on it. But the fact that there’s no serious move to undo it doesn’t change the central point that the original decision creating qualified immunity was a massive bit of conservative judicial activism. The Supreme Court basically re-wrote the statute to achieve the desired result.

        1. What’s your point? Blame conservatives? Blame Trump? Who fucking cares who created qualified immunity? The only question that matters is how do we kill the abomination.

        2. When you bleat “Conservatives did it! Conservatives did it!” you sound like a whiny leftist version of lc or some other conservative sheep that shits all over this forum.

          1. My point was not so much that conservatives did it, as that the same conservatives did it who routinely scream bloody murder when liberals do the same thing. I was directing my comments to the fact that on this issue conservatives are hypocrites, not that they are bad people in general

            1. Why do you say that “conservatives” did it? Wouldn’t it be just as accurate to say that “Democrats” did it?

              Carrying forward political adjectives from a century (or more) ago often don’t carry forward meaningfully. For the same reason you could rightfully say that Republicans added liability for abuses by state actors, while Democrats voted to immunize the nascent KKK. It’s true, but disingenuous when used as the basis of an argument about the parties of today.

              From a purely philosophical perspective (liberal = change, conservative = remain the same) then it was the liberal expansion of qualified immunity beyond any historical defenses that led to the abuses. Recall that at the founding an agent of the state could be (often privately) prosecuted for assault and abduction, and could present a duly issued warrant as an affirmative defense, “Yes I did abduct him, and had to thrash him in doing so, but a Judge warranted it based on probable cause to believe he had committed a crime, and here’s the singed proof.”

              If you’re trying to argue it was the philosophical conservatives that insisted qualified immunity remained unless explicitly overruled that would be right, but it was the liberals who extended it far beyond any historical power it once had.

              1. Liberal and conservative are politics brands; don’t pretend ignorance about what they mean these days.

              2. I’m not quite sure I buy your delineation of philosophy liberal = change, conservative = remain the same

                It seems to me when it comes to qualified immunity, it is liberal = qualified immunity, conservative = case by case. Isn’t this a more relevant description?

            2. Even if that is true, the Democrats have had plenty of opportunities, in Congress and the Supreme Court, to undo it over the past 50 years. At some point, you become responsible for allowing something to remain when you have the opportunity to remove it, even if we accept that you had nothing to do with creating it in the first place.

              1. Politics is the art of the possible. That aside, that Democrats haven’t fixed it hardly exonerates those who did it in the first place. “Why haven’t you cleaned up my mess yet” is hardly a winning talking point.

  5. I think this “solution” will be rendered moot by 21st century technology (cell phones and social media), an increase in the public’s awareness of police misconduct (due to the technology), and a public/political willingness to make changes in police oversight.

    Maybe some national group will be created specifically to fight police misconduct (similar to the Innocent Project or the ACLU), and offer assistance to victims.

    I’m optimistic that we are moving in the right direction – maybe not as fast as we should – but still progressively moving.

    1. I hope you’re right, but think you’re wrong – at least over a moderately short time horizon.

      There are almost no groups actually trying to fight police misconduct (Institute for Justice notwithstanding) and none who make that their focus (that have any size or effectiveness, at least).

      Even the most recent uprising focusing on police abuse was quickly co-opted to progressively more and more absurd demands (Black Lives Matter, of course).

      Politicians have plenty of institutional incentives to immunize their agents – they are their agents, after all. Even those who campaign on some form of justice for the downtrodden claim invariably (and often instantly) switch to greater empowerment of their agents. Just look at Kamala Harris as AG of California, who beyond declining to prosecute essentially any police misconduct also argued to an appellate court that her state couldn’t release people in prison early because the state needed their cheap forced labor – essentially an argument for enacting enslavement to all prison sentences (reminder that’s explicitly permitted by the 13th Amendment).

      But even if there were a real will that persisted longer than a single election cycle, there are no structural incentives to make it work. Could a billionaire fund it? Sure, but more lives would be saved with drinking water in Africa. Could the State fund it? Sure, but we have those groups already, and they rarely prosecute. Until we add at least a form of recoupment for winning a case – even if no damages because of qualified immunity – there just won’t be the structural incentives to actually make progress. Once an organization can bring suit knowing that they’ll get paid even if all they do is get the court to agree that the state actor acted unlawfully (and no dodging the question) then we can make real progress, but not before then.

      1. The other problem is that many (I’m not going to say most) victims of QI are often bad people themselves. That usually keeps the public from getting too excited about the abuses.

  6. I see a lot of problems here. People lie a lot, so giving a lottery ticket every person who is willing to make up a story defaming the police seems likely to bring out a lot of false accusations. And the problem being addressed, the abrogation of the “right” to curse in public, doesn’t strike me as all that serious. I’ll bet Prof. Somin would use his authority as an agent of the state to prevent inappropriate speech in his classroom.

    1. Well, obviously you need to couple this with mandatory badge cams, with failure to have them turned on treated as spoliation. Don’t want the court to have to assume the allegations against you are true? Keep your badge cam turned on!

      Honestly, within 10-20 years, I expect people to routinely wear recording gear anyway, due to the need to be able to prove that allegations against them are untrue.

      1. Or recording gear will be banned via some law to “protect privacy” precisely because trust in government will have greatly diminished due to pervasiveness of police dishonesty coming to light.

        1. Yeah, there’s little reason to think that advancing technology will be used to lessen the power of the state, when every example in the past went the other way.

          Remember that Tasers were positioned as a decrease in force since police would only ever use them when firing a bullet was also justified – this just let the police use slightly less force when they could have used greater force. Instead what happened is that Tasers now get used when no force at all is justified, like a guy threatening to jump off a roof, or a guy laying face down and handcuffed, squirming.

    2. An alternative would be a constitutional small fines court rather than a small claims court, but with ordinary citizens allowed to bring cases. If the officer got hit with a fine it would go to general revenue or a victims fund or something similar.

      Anyway, I hope you can see that cursing in public was just an example. I’m thinking a fine schedule something like this:

      Police- Brief stop without reasonable suspicion: $200. Surcharges: $100 for demanding ID, $200 for looking in the glove compartment or trunk, $500 for a frisk, $20/minute for taking it past 10 minutes.

      Threatening (but not doing) an arrest when no cause exists: $200. Telling someone to stop recording, stop talking, etc: $200 + $200 if backed up with a threat of arrest. $500 surcharge if victims were engaged in a legal protest.

      City Hall – Illegally hassling someone entitled to a building permit, business permit, carry permit, etc: $200 for first day of improper delay, plus $50/day after that.

      State university or public library – Viewpoint discrimination in room reservations or event scheduling, $200 plus $5/seat. Fines doubled for cancelling after previously agreeing. $50 and $1/seat surcharge per day of continued denial after being warned.

      Feels good just typing it.

      1. You misspelled alternative world.

        Who would enforce this? Nobody. The people with the last word in violence can literally do anything they want. Who will stop them?

        1. Exactly..

          With out a sufficient incentive (filer gets the money, or a large part of it) the only benefit to prosecution is a feeling of vindication, which won’t be much, and may be not better than nothing (because nothing agitates for something more).

    3. You ever hear of witnesses and body cameras?

      People lie a lot?

      This objection could also be used to eliminate small claims court. And, while we are at it, all courts altogether.

      It is the JOB of courts to decide credibility.

  7. This proposed constitutional small claims procedure sounds a lot to me like the New Jersey rules on internal affairs that are allegedly designed to force police departments to take civilian complaints “seriously.” In reality, they create a procedural minefield of “protections” for the miscreant officers that often allow them to escape the consequences of their misconduct.

  8. I wish your suggestion was available to me last year. One Sunday morning in September I stopped at well-known convenience store in the major East Coast city where I live. I parked my car and as I was walking toward the store I saw a man exposing himself and urinating on the sidewalk about 20 feet from the front of the store. There were children nearby who witnessed the same thing I did.

    A police car was parked in the handicapped space near the front door of the store. I approached the car and asked the police officer sitting inside to intervene. She ignored me. I asked again and told her all she had to do was turn her head and she would see the man in the act of urinating. This time she shrugged and said she was busy and there was nothing she could do. I got angry and asked her what could be more important than a man exposing himself to little children. When I realized that she had no intention of intervening, I went into the store.

    After a couple of minutes, the police officer followed me into the store and confronted me while I was waiting in line to make my purchase. She stood within a foot of me, angrily cursed at me, and said she could arrest me for disrespecting her. My only response was to comment on her unprofessional behavior both outside and inside the store, and to let her know that I would report her behavior to the police department. I made a point of letting her know that I was looking at her name tag and badge number (A second officer was standing beside her as she was yelling and swearing at me, but he said nothing to me. I did not get his name or badge number.)

    I reported the officer’s behavior to her district commander as well as to the police department’s internal affairs division. Both assured me that the incident would be investigated, but I later learned that no one bothered to view the videotapes and that no action was taken against the officer.

  9. One of the basic facts about our court system is that most people are shut out of it, and authorities can, as a practical matter, often act with impunity. So long as they avoid messing with rich people or people who somehow know the system, there will only occasionally be consequences.

  10. Perhaps such constitutional small claims courts could help to eliminate ridiculous qualified immunity defenses. Let’s require that every decision of such a court be published on-line in a readily searchable format and that the judges be required to rule on any constitutional defense presented even if they grant the police officer qualified immunity. This will result in a large number of rulings on specific situations, which plaintiffs or their lawyers can cite to defeat claims of qualified immunity. It won’t completely solve the problem, but it will greatly increase the number of situations declared to be constitutional violations and will thereby undermine qualified immunity, which relies on the vast number of ridiculously specific situations that can arise.

    1. It would scarcely even begin to solve the problem, because you’re confusing reason and pretext.

      The courts routinely grant unqualified immunity in cases where any cop with two firing neurons would know they weren’t supposed to do something, and didn’t need to be informed of a court ruling to realize it.

      It isn’t based on the cops genuinely not being aware they’re violating somebody’s rights, it’s just an excuse on the part of judges who think cops SHOULD be able to violate rights with impunity.

      When reasons are stripped away, decisions change. When pretexts are stripped away, you simply find a new one to justify the pre-determined decision.

  11. Way back in time,cursing was illegal punishable by jail,disobeying a lawful command of an officer can get you arrested. You cannot have an empowered police force trained(training is only as good as the trainers) in the law ,and then try to look at every little issue and cry foul. Constitutionally or perhaps “Declaration of Independence ” there is a price and we all(last few lines) have agreed to the terms,The court”constitutional small claims” court should be1 year of mandatory service for all lawyers “after the bar” and should be free,with the express purpose of refining the law. All verdicts should automatically be pushed state and federal courts for review and implementation if worthy. This would give serious folks a lace to Vette a case and non serious folks would stay away because of the “inability to make a gain philosophy” who pays the salaries of these young lawyers? A pool all lawyers and states contribute to annually- it is a set salary.

    PS just because it’s on the internet obviously doesn’t mean a thing,what is the percent of violations based on population,what pool are the affected coming out of that makes them more of a target etc. How much of this is their fault vs societal situations(like cultural learning).
    The Constitution is a framework we know but as Frederic Bastiat has said in the past,law is an agreement of all parties choosing to live together in peace,(my paraphrase),how many choose to ignore or modify what peace is to claim righteousness while being totally wrong??

  12. “Others may well have their own ideas on how Clark Neily’s idea can be extended and improved.”

    Cut their balls off and if they don’t have balls then give them to the Arabs.

  13. The deeper problem is that innocent people abused by cops have an incentive to just take it, be quiet, and back down, because protesting would just paint a target on them. So legal claims against police abuse are predominantly made by unsympathetic persons in a “as well be hung for a sheep as a lamb” position.

    I don’t see a “Constitutional Small-Claims Court” doing much good against this incentive.

    What I’d like to see is some way to challenge how a police officer’s badge has become a defacto patent of nobility. Some grant of standing to challenge things like the law granting retired cops (but not us commoners) a national CCW permit, and the general practice of “We Need More Rights Than You, Citizen!

  14. How about Extreme Disrespect Protection Order (EDPO) laws, or Blue Flag Laws, where anyone can submit anonymous accusations with ex parte judicial action against law enforcement officers? No due process or union representation allowed. Police lose – I dunno, something – until they can prove they are nicer. Depolicing and retribution not allowed.

    I think they do that in big cities to some degree already – Community Police Complaint Boards.

  15. I like the idea as a way to curtail bad behavior, but there is a big difference between a police officer having to do the paper work for a ticket and one where the officer defending themselves – just like there is a lot more work for a civilian having to defend against a ticket. I think soon enough the number of complaints would go down as the officers would simply change their behavior. But then this whole process may deteriorate into a situation where every single incident becomes an opportunity for the civilian to game the system in the same way ADA can be used to force small business into compliance with nuisance laws.

  16. There are several practical problems with this idea. Others have raised some of them (for example that judges are biased in favor of believing cops — partly because the judicial system, by design, purges any judge who leans toward believing accused persons). But here are some that I’ve seen.

    1. Officers who expect to use force in controversial ways (for instance, before a demonstration) often tape over their badge numbers or have colleagues block any cameras’ view.

    2. The kind of officers who habitually use un-called-for force will not hesitate to destroy evidence, thus giving themselves impunity.

    3. Bad cops will also not stop because they lost a “small claims” case. They’ll get even. So any remedy that doesn’t at least threaten the cop’s career will be ineffective.

    My preferred solution would be to give each neighborhood its own police force, which answers — including for personnel matters, with no confidentiality — to a public “town meeting” where anyone can bring a complaint and where the local population decides what actions by their officers are or are not permissible. And I would make it mandatory that any findings against an officer be reported to the federal authority that licenses police officers, so that a justly fired officer can never be an officer anywhere again.

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