Tuesday Talk*: Petty Offenses of Constitutional Dimensions

In an interesting, if not entirely serious, proposal by Cato’s Clark Neily, there ought to be a Constitutional Small Claims Court. Sure, there are big cases with devastating damages and injuries that warrant a federal suit under §1983, but as a series of twits got Clark’s juices boiling, there are a million, a billion, trivial constitutional violations that happen and disappear for lack of anything to do about it.

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 disrespectintimidationdeceitmanipulativeness—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.

Clark calls it “infuriating,” but  then, he’s an emotional sort of guy. His point is nonetheless valid and interesting: constitutional rights are violated all the time, but fail to cause sufficient injury to make it worthy of a federal lawsuit. Why should police (or any other person acting in their official governmental capacity) be allowed to violate an individual’s constitutional rights without recourse?

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.”

Tyranny may be an apt description at times, but seems a bit overwrought for most banal violations. In much police work, the blunt use of “force,” from simple rudeness to threats of arrest or worse, is the means by which the job gets done without turning every interaction into the Lincoln-Douglas debates.

People can sometimes be oddly demanding of cops, who aren’t under a duty to explain their every command to the satisfaction of either the target of their actions or random bystanders with iPhones. Sometimes, this is a necessity to protect and serve, and sometimes it is, as Clark characterizes it, tyranny. Most of the time, it’s somewhere in between, and that leaves violations of constitutional rights with nowhere to go.

So why shouldn’t these two approaches for resolving relatively minor conflicts—traffic tickets and small claims court—work with relatively low-level police misconduct? The answer is, they would work—beautifully.

Would a constitutional small claims court work at all, no less the Trumpian “beautifully”? There are a variety of mechanical problems, from who pays for the time cops spend in small claims court to how any awards are paid. Clark offers some answers. There’s the problem of qualified immunity, as Ilya Somin notes in his “friendly amendments” to Clark’s scheme, which has to go, but should have to go in all cases even though that remains a battle to be won.

Musing like this are always fun, and occasionally produce useful ideas that eventually reach the point where actual change might work. Then again, de minimis non curat lex.

Are petty violations of constitutional rights mere trifles? Would this cause every butthurt person to run down to the local constitutional small claims court to fight it out with the cop who offended them, causing the proverbial “tidal wave” of litigation? Who would want to be a cop if this happened? What about retaliatory suits against cops because someone is pissed that they busted daddy or junior?

Clark’s point that there is no constitutional right that should be violated with impunity just because the consequential harm isn’t sufficient to get a lawyer to take the case under a contingency fee, but to think this wouldn’t give rise to massive, if beautiful, abuse seems a bit fantastical. So is a constitutional small claims court a great idea or one of those feel-good but unserious ideas that would wreak havoc?

*Tuesday Talk rules apply.

15 thoughts on “Tuesday Talk*: Petty Offenses of Constitutional Dimensions

  1. Richard Kopf

    SHG,

    Did you know that as a sovereign citizen you have no obligation to pay federal taxes? Or, I bet you didn’t know that it is quite common for the police to beam rays into the brains of our citizens to control them remotely? I also I bet you didn’t understand that the Fourth Amendment prohibits the cops from stopping you from going 95 mph in a school zone? By the way, did you know that answering a question put to a cop by a female detainee with “yes ma’am” is sexual harassment?

    Poor Clark is ignorant of the fact that many of the folks he envisions as plaintiffs in his imaginary morality plays–righting petty wrongs perpetrated by the blue men of our authoritarian state–are bat-shit crazy. And, I should add that no where in the Constitution is a citizen protected from an encounter with a rude but otherwise “by the book” cop.

    To conclude, don’t insult me, SHG, with a nasty reply or I’ll sue you in CATO’s small claims courts for the whiny!

    All the best.

    RGK

      1. Skink

        He can’t have that hat. That’s The Pope of the Internet Hat. The wearer must meet minimum qualifications, and Rich don’t.

    1. Skink

      Ripped from the pages of real files:

      “The medicine they give me makes my penis tell me to do bad things;”
      “The cop found the drugs in my brother’s pants, but I was wearing my cousin’s pants that day;”
      “I only got arrested because I banged the cop’s sister and she wasn’t very good;”
      “I was illegally removed from the public hearing because I said ‘fuckyoufuckyoufuckyou.”

  2. B. McLeod

    These courts would be great, not just for police interactions, but to contest all the goofy hat-on-a-pole measures that agencies and local governments come up with. Problem with a “Dear Colleagues” letter? Just take it to CSC court and get a nationwide injunction! Sweet!

  3. phv3773

    Perhaps a simple file of citizen complaints open to the public would serve to identify the worst offenders at minimum cost.

  4. Pedantic Grammar Police

    I haven’t been needed lately, but it appears that Beth may be on vacation today. “emotional for of guy” sb “emotional sort of guy”

    Merry Christmas Eve!

  5. Keith

    If your main worry is abuse, I wonder if a requirement of having a probable cause hearing to see if the suit should move forward, would be good enough to keep the insane people from their “beautiful” ideas?

    I’ve seen it used in our local municipal court to keep meritless harassment suits from clogging up the system.

    1. SHG Post author

      Probable cause hearings are for criminal proceedings, not civil. Even so, this would be small claims, so the trial would be the same as the hearing, which means you just doubled the problem if we add a hearing on top of a trial.

  6. Pingback: Proposal: small claims courts for police misconduct | Overlawyered

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