The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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, intimidation, deceit, 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.