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 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.
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.