December 2019

December 30, 2019 2:48PM

Yes, Colorado, the Excessive Fines Clause Protects Small Businesses against Your Regulatory Death Penalty

Mrs. Soon Pak manages Dami Hospitality, LLC, a company that runs hotels and motels in Colorado. Pak is a Korean immigrant with minimal proficiency in English. She relies on third‐​party professionals to assist her in maintaining compliance with the myriad regulations that even native English speakers struggle to understand. Between 2006 and 2014, Dami’s insurance agent failed to renew the company’s worker’s compensation insurance, despite assuring Pak that Dami maintained full coverage.

In 2014, the state division of workers’ compensation gave notice that Dami’s policy had lapsed, and Pak immediately secured coverage without any employee suffering any harm. A few weeks later, the division imposed a fine of $841,200, calculated at a $25–500 daily rate that the division had allowed to accumulate for eight years before finally giving notice to the company. Put simply, the state assessed nearly a million‐​dollar fine against a small corporation—which grosses less than a quarter of the total fine—for a violation that was solved immediately after notice was received, with no actual harm done to anyone.

However one defines “excessive,” this fine is excessive compared to Dami’s violation. To frame it in the worker’s comp context, if an employee is killed on a job, his dependent receives $250,000. That means the Colorado Labor Department considers the results of Dami’s lazy insurance agent to be worse than three workplace fatalities.

Dami sought relief in the Colorado courts, arguing that the fine violated the Excessive Fines Clause of the Eighth Amendment (which the U.S. Supreme Court held just this part term applies to the states). Cato filed an amicus brief supporting Dami before the Colorado Supreme Court, arguing that the excessive fines clause applies to corporations (which the state had been denying). The Colorado Supreme Court ruled that the Excessive Fines Clause does indeed apply to corporations and that a fine that is financially ruinous may be deemed unconstitutionally excessive, but that the total fine in this case cannot be considered in the aggregate. The question, the court said, is limited to evaluating whether each individual daily fine is financially ruinous. While the decision was favorable to Dami and Mrs. Pak in part, as one justice wrote in dissent, confining the excessiveness inquiry to the daily fine ($250-$500) misses the point of the constitutional exercise.

Both Colorado and Dami were unsatisfied with the ruling and have asked the U.S. Supreme Court to step in. The state has asked the Court to review (1) whether the Excessive Fines Clause applies to corporations at all, and (2) even if it does, whether the financial ruin the fine may cause is relevant to determining its excessiveness. Dami has filed a cross‐​petition, asking the Court to take up both of those issues—to finally resolve all the issues in this expensive and time‐​consuming enforcement action—and also to look at whether the fine must be considered in the aggregate.

The Supreme Court will review at its conference next week (January 10) whether to take up this case—which it should.

December 30, 2019 1:34PM

Disputed Appointments and the Supreme Court’s Legitimacy, in 1937 and Today

Here is news you probably can’t use: a new Texas Law Review analysis by University of Chicago law professor William Baude concludes that Justice Hugo Black, who served on the Supreme Court from 1937 to 1971, was unconstitutionally appointed.

The relevant text is the Constitution’s Article I, Section 6, which says “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time.”

At the time of his appointment Black was serving as a senator from Alabama as part of a Congress that had enacted new retirement benefits for Justices, and while his backers argued that the clause did not apply to bar his nomination, Baude concludes that it probably did. One litigant before the high court challenged Black’s right to serve, but the Court chose to sidestep the merits of that claim by ruling against its standing, and the controversy died.

All of this might seem purely academic. At this remove there would be no way to unscramble the legal omelet as to Black’s jurisprudential contributions, even were there a will. (Despite an unpromising start, the Alabaman eventually showed a libertarian streak on many Bill of Rights issues.)

But the issue is not quite so remote as that, because more than a few contemporary commentators have flirted — in some cases more than flirted — with claims that the makeup of the present Supreme Court is illegitimate.

After the Senate leadership refused to hold hearings on the Supreme Court nomination of Merrick Garland, the editorial board of the New York Times repeatedly declared the seat of the late Justice Scalia to have been “stolen,” and then‐​Rep. Keith Ellison (D‑Minn.) said of eventual nominee Neil Gorsuch that “he’s not there properly.”

The confirmation of Brett Kavanaugh to the seat vacated by Justice Anthony Kennedy brought renewed attack, with former Attorney General Eric Holder declaring that “the legitimacy of the Supreme Court can justifiably be questioned” and other high‐​profile figures taking a similar line.

Law professor Erwin Chemerinsky raised the ante with this remarkable assertion in The American Prospect: “each of the five conservative justices — Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, and Kavanaugh or someone like him (emphasis added) — came on to the Court in a manner that lacks legitimacy. … Perhaps at some point it will lead to open defiance of the Court.”

Other commentators were happy to take up the exciting theme that future Court opinions written by, or decided by the votes of, Gorsuch, Kavanaugh, and perhaps other Justices might meet with open defiance or resistance from a future Democratic president, from state officials, or from people “marching in the streets.”

“What can the Supreme Court do? Send its tiny police force to storm the White House?” wrote Mark Joseph Stern at Slate. Libertarian‐​minded law professor Ilya Somin, who does not welcome the efforts to de‐​legitimize the Court or promote defiance of its rulings, nonetheless found them worth taking seriously enough to analyze at length last year.

Baude’s research may provide a bit of reassurance in this respect. The challenge to the legitimacy of Black’s seat fizzled in part because it gained little headway with the public, but much more because the Court’s other Justices welcomed Black aboard.

Most of the scenarios in which triumphant Democrats in 2021 or 2022 defy Supreme Court rulings are difficult to reconcile with the reality that the Court’s liberal Justices have, to all appearances, been entirely content to regard Gorsuch and Kavanaugh as legitimate colleagues, and would, themselves, neither counsel nor welcome defiance of Court rulings. As I wrote last year, “the federal courts are not as polarized and tribal as much of the higher political class and punditry at nomination time.” 

Baude puts it this way at the conclusion of his article: “the real source of constitutional settlement in our system is not always judicial decision, but sometimes sheer practice.”

December 30, 2019 10:39AM

Congressional Republicans Dominate High Immigration Periods

Of all the concerns about immigration, perhaps none is more important to politicians than how immigration affects political control. In particular, many Republicans believe that immigration has clearly boosted the Democratic Party and that higher immigration will obviously doom the GOP. But historically (and recently), congressional Republicans have performed much better during periods when the immigrant share of the population is high. By contrast, Democrats dominated the low immigration periods.

GOP Almost Always Controls a House of Congress During High Immigration Periods, Rarely Controls Either House During Low Immigration Periods

The Republican Party came into existence in 1854, and while it quickly dominated, the Civil War and Reconstruction make its early history anomalous. Looking solely at the period since Reconstruction, Republicans have controlled at least one House of Congress 85 percent of years when the immigrant share of the population was greater than 10 percent, while not controlling either House 83 percent of all other years (Fig. 1). Moreover, they have controlled both houses 59 percent of the high immigration years, compared to just 7 percent of the low immigration years.

Starting this analysis earlier or later hardly changes this relationship between high immigrant shares and GOP success. From 1936 to 1994, when the immigrant population share fell below 10 percent, the GOP won a majority in House elections just twice. It had slightly better success in the Senate. In 1995, the immigrant population would again exceed 10 percent of the population, and the GOP has controlled the House or Senate 92 percent of the years since. Figure 2 shows that regardless of the period considered, Republicans outperformed Democrats when the immigrant share of the population was high.

This relationship is less dramatic for presidential elections, where the parties have basically split White House control regardless of the immigrant population. Republicans have held the White House 61 percent of years with immigrant populations greater than 10 percent, while they held it 47 percent of other years (Figure 3). In other words, the outcomes of presidential elections appear to have little relationship with immigration.

Why Republicans Succeed Despite Immigration

Explaining results in 72 elections with any simple narrative is obviously impossible. But some theories make more sense than others. To begin with, it is true that Democrats have generally benefited from the immigrant vote, so Republicans have had to win even more votes from the native‐​born population. 

It is likely that backlash against immigrants can explain at least some of the GOP’s success. The Republican “revolution,” when the GOP took over the House in 1994 for the first time in decades, corresponded with the peak in support for immigration restriction since polling began in the 1950s, and they quickly tried to limit illegal immigration. Though support for restriction quickly dissipated and, by 2019, the public had never been more supportive of immigration, it is possible that the backlash caused a sustained political realignment (particularly in the South).

A related explanation is that high immigration periods have undermined support for key Democratic priorities (at least starting with FDR). Even if they aren’t opposed to foreigners being in the country, people appear less willing to support more expansive welfare benefits if they might benefit foreigners. For this reason, economists Paul Krugman and Vernon Briggs have contended that the New Deal and Great Society entitlement programs of FDR and LBJ might never have happened had immigration remained open. Consistent with this view, one of the first actions that the GOP took when it took over in 1995–96 was to restrict welfare, particularly to immigrants.

Perhaps the best explanation for the GOP’s continued success focuses on the fact that high immigration occurred during periods when Democrats have lacked a key Democratic constituency: unions. Like naturalized citizens, a majority of union members have backed Democrats throughout U.S. history. Beyond members’ votes, unions also fundraise, donate, and campaign for Democrats. Since 1895, Republicans have controlled at least one house of Congress 85 percent of years in which the unionization rate was below 13 percent, while they haven’t controlled either house 83 percent of all high unionization rate years (Figure 4).

Unionization spiked thanks to the Wagner Act of 1935, but while Congress never repealed it, economic factors have produced a steady decline in unionization since the 1950s. Unionization rates fell as the foreign‐​born share of the population rose, and vice versa. But the lost union members made up a much larger portion of voters than the increase in naturalized citizens, leaving Democrats worse off.

Conclusion

This brings up another important consideration in this analysis: the fact that native‐​born citizens are still 92.2 percent of U.S. voters, meaning that natives will always play a much more important role in the elections than naturalized citizens. The fact that immigrants tend to clusters in certain cities and states further dilutes their effect. Helping Democrats win California, for example, by an even larger margin than they would otherwise does little to influence the overall outcomes.

Not only are immigrant voters a small part of the electoral picture, but immigration policy is only one part of the debates in each campaign. Party success depends on many other factors, policy choices, and strategies, and it would be impossible to consider every change. History need not be destiny, but it is nonetheless evidence for the proposition that Republicans can continue to win elections even during times with many more immigrants in the country.

December 28, 2019 1:28PM

To Reduce Vaping Illness, Legalize Marijuana

States that permit recreational marijuana sales tend to have lower rates of vaping‐​related hospitalizations, according to data published by the Centers for Disease Control and Prevention (CDC). The CDC has linked vitamin E acetate, an adulterant typically reserved to the black market, to 48 of the 51 hospitalized patients it has examined. Governments have often responded to these contaminations by enacting bans on e‑cigarettes and other vaping products, but the CDC data suggest they should take the opposite approach.

From my column with Jacob Rich at rea​son​.com. 

December 23, 2019 8:54AM

Just Say No To UK-EU Tariffs

It’s hard to figure out sometimes whether Twitter reflects reality, but I’ve seen some discussion there suggesting that as part of the Brexit negotiations, the UK and the EU may be negotiating about the extent to which they will impose tariffs on each other. My measured and calm response to this is as follows: Stop it, stop it, stop it! The following is a brief elaboration of that response.

The debate over Brexit is a complex one. Oversimplifying quite a bit, from what I can tell, the majority of people in the UK hold the view that the economic integration aspect of the EU is good, but there is a sizable group that is concerned about the political integration aspect. Brexit is mainly a withdrawal from the political integration, but it necessitates a rethinking of the economic integration.

There are several key components of the economic integration: Zero tariffs on trade between the UK and EU; a common external trade policy; and regulatory alignment (also some complicated stuff about fishing rights). I want to focus here on the first one.

EU economic integration involves zero tariffs and zero quotas on all trade among EU member states. That’s the status quo. That’s where we are now. And that’s a great achievement. You don’t often see that in economic integration agreements. Tariffs are generally lowered, but not eliminated.

Normally, a trade negotiation would take place between countries who impose tariffs on each other, and they haggle over how much to bring them down. But the UK and EU are in a different situation, with a different starting point. There are no tariffs, so there should be nothing to haggle about it.

What this means is that when the UK and EU start negotiating their new economic relationship, they don’t have to haggle about tariffs. They can declare at the outset that tariffs (and quotas) will stay at zero, and they can move on to other things.

Now, there are some tariff‐​related issues they do have to talk about: Rules of origin (which products qualify as products of the UK or the EU and therefore benefit from the zero tariffs) and trade remedies (anti‐​dumping, countervailing duties, safeguards). I favor loose rules of origin and no trade remedies, but I acknowledge that these are hard issues and there is no way to avoid discussing them in the negotiations.

But with regard to ordinary tariffs, there is nothing to talk about. The current situation is great. Don’t mess with it!

I’ve heard two specific arguments for bringing up the possibility of ordinary tariffs in the UK-EU negotiations. First, the EU might want tariffs on agriculture, for instance if the UK deregulates food safety (e.g. the famous chlorinated chickens). But tariffs here make no sense. If the EU is concerned about imported UK products based on food safety issues, it can adjust its own regulations accordingly. Trying to set a tariff that accounts for the regulatory differences would be an ineffective approach.

The second argument is that the UK’s new regulatory approach (whatever it may be) could lead to trade barriers, and tariff‐​free trade is a “bargaining chip” the EU can use as part of the negotiations on regulation. (This could go in the other direction as well). In my view, this is a dangerous tactic. The idea seems to be that the other side will be more afraid of losing tariff‐​free trade than you are, and thus will cave to your demands on other issues. But there is a big risk that by putting tariffs on the table, you don’t achieve your other goals and you just end up with tariffs.

As hinted at in the previous two paragraphs, the really difficult issue is going to be regulation. As things stand now, the EU involves significant mutual recognition and some harmonization related to goods and services regulation, creating a “single market” for goods and many services. How do the two sides move to a new economic relationship that preserves as much of that as possible? There are no easy answers.

But on tariffs, there is an easy answer: Stay away from the tariff haggling, and move directly to the real issues that need to be negotiated.

December 21, 2019 9:22AM

The Autobahn to Car Consumer Hell Is Paved with the Best Intentions

After bailing out two of the “Big 3” Detroit automakers, President Obama called in his markers during the summer of 2011. That’s when his administration announced an agreement with major car manufacturers to increase federal fuel economy standards to 54.5 miles per gallon (MPG) by 2025.

At the time, fleet averages (including cars and light‐​duty trucks) were about 27 MPG; doubling that figure in 14 years was a tall order requiring technological breakthroughs that might or might not happen.

Accordingly, the 2011 agreement included an escape hatch. The plan stipulated for a “mid‐​term review” process, by which regulatory agencies could revisit their fuel efficiency targets and change course if necessary.

Under the agreement’s terms, the mid‐​term review was due by April of 2018. All the parties to the original accord understood that the mid‐​term review would entail a process that unfolded up to the 2018 deadline in order to best inform the final decision with the latest data.

If Hillary Clinton had won in 2016, the process would have occurred as initially expected. But then Trump won, and the Obama administration scrambled to finish a mid‐​term review during the outgoing president’s lame‐​duck session.

After a six‐​week rulemaking conducted with breakneck speed, Obama’s agencies completed their mid‐​term review with only eight days to spare before Trump occupied the White House. To no one’s surprise, the Obama administration affirmed its original 54.5 MPG (by 2025) target.

About a month after President Trump took office, his administration announced it would reconsider Obama’s lame‐​duck determination. Ultimately, the Trump administration proposed to freeze the fuel efficiency standards at their 2021 targets through 2025. That proposal, however, has yet to be finalized. When it is made final, it will be challenged in court by progressive state attorneys general and environmental groups.

With this context in mind, let’s turn to Europe, which has more stringent fuel efficiency standards than we do. To be precise, the European Union regulates tailpipe emissions of greenhouse gases, the control of which is effectively coterminous with the regulation of fuel efficiency.

Current regulations for the EU translate to fuel efficiency standards that are roughly commensurate with what the Obama‐​era standards would have required by 2023, based on my eyeball approximation of this New York Times chart comparing the two regimes.

So, how’s that working out for Europeans?

Not well, according to last Thursday’s fascinating Big Read in the Financial Times by Peter Campbell. The sub‐​headline says it all: “rather than embrace the new technology, consumers seem more interested in larger, petrol‐​fueled cars.”

The article starts with a charming story about how the European Union’s regulatory framework affected a recent automobile purchase in Spain:

When Blas Arambilet tried to buy an electric car in April, something strange happened.

Months after ordering a white Kia e‑Niro from his local Barcelona showroom, he received a call from the dealership. Kia could not deliver the car this year, a salesman explained, because it needed to book the sale in 2020 in order to help meet tough new targets for [fuel economy].

In sum, car companies are delaying delivery of their least polluting cars, and their purpose is to game compliance with the European Union’s fuel economy regulations. Perversely, emissions‐​conscious consumers—the very buyers whom the EU’s fuel efficiency rules are supposed to favor—are the first to feel the unintended consequences.

But it’s not just environmental‐​minded buyers who stand to lose out. According to the Financial Times, sports car enthusiasts might be denied their need for speed:

[Daimler] is expected by many dealers to cut production of its most polluting models. In its crosshairs is the Mercedes AMG range, its highest specification models that have supercar acceleration and the body of a family saloon. A reduction of 75 percent in the availability of some [of these] models … is expected by several retail executives … 

More broadly, the general car‐​buying public is in for a bumpy ride. Per the FT:

“There is going to be an imbalance between what consumers want and what manufacturers want to sell them,” say Robert Forrester, chief executive of the dealership group Vertu … [V]anishingly few buyers are turning to electric cars … [they’re instead] switching to heavier sports utility vehicles.

For their part, carmakers are playing a dangerous game of chicken with regulators. The FT reports that manufacturers would be on the hook for $27 billion in fines were they to sell the same mix in 2021 as they did last year.

In an understatement, one anonymous industry insider told the newspaper that “the regulation is not aligned with what is happening in the market.”

Inconvenient delivery dates for super fuel‐​efficient cars are merely the first mile of a long and uncomfortable road trip, but what’s the destination? A dramatic and government‐​imposed scarcity of what the Financial Times calls “American‐​style SUVs”—that is, the cars that buyers want—seems likely unless either consumer preferences or EU regulators pull a u‑turn. 

Because these “American‐​style SUVs” engender higher profit margins, they are essential to many automakers’ bottom lines. To the extent manufacturers are not permitted to sell these “gas guzzlers,” there will be pileups in the sector, in the short term at the very least, as the industry is compelled to change lanes to a new business model.

The upshot is that consumers and automakers will be left in the dust if EU regulators keep their pedal to the metal with fuel efficiency requirements that remain grossly out of “alignment” with what buyers want. Could it happen here? 

December 20, 2019 4:30PM

Let’s Create Constitutional Small Claims Courts

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, particularly to anyone who’s never been berated by a heavily armed agent of the state for no good reason. (I have, and it’s scary.) 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. Once in a great while—and usually only after a recording of the incident goes viral—an officer will experience some minor internal discipline, but that is very much the exception to the rule of impunity.

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. Although the main federal civil rights law, 42 U.S.C. § 1983 (known as “Section 1983”) does not distinguish between major and minor constitutional violations—on the contrary, it provides that police and other state actors “shall be liable to the party injured” for the “deprivation of any right[]”—there are many practical limitations to bringing federal civil rights claims for relatively minor violations like the ones described by Zeko.

These include the fact that most plaintiffs’ attorneys work on a contingent‐​fee basis and are understandably reluctant to take on smaller cases with low damage awards; judges not wishing to see their dockets clogged with cases involving relatively minor transgressions by government actors; and even case‐​filing fees (currently $400 in federal court) which will often exceed the value of any possible damages award.

So is it simply impossible to provide any recourse for citizens who experience individually minor—but in the aggregate potentially quite significant—violations of their rights by police officers? Absolutely not. In fact, there’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.

When the government catches you committing some minor infraction, do they make a federal case out of it? Not usually. Chances are, they just give you a citation, which is a written notice of the alleged infraction, together with instructions on how to challenge it and (usually) how to make it go away by simply pleading guilty (or no contest) and sending in some money.

Similarly, when someone won’t take responsibility for some relatively small injury they’ve caused you—backing up into your car in the parking lot, say, or throwing a ball through a plate‐​glass window—do you go out and hire a lawyer and insist upon a full‐​blown jury trial to sort the whole thing out?

No. If you decide to pursue the matter, chances are you do so in small claims court, where there are (usually) no lawyers, little or no discovery, and no jury. Instead, each side takes a few minutes to make their case to a judge and present whatever relevant papework they may have, such as an invoice from the repair shop, and the judge decides the case right on the spot.

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.

Without geting too bogged down in the mechanics, imagine 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 (more on that in a minute). And that may not be as far‐​fetched as it sounds, particularly when there’s a recording of the misconduct, and especially if we allow judges to assess an additional fee to officers who challenge the claim and lose, just as people who challenge a traffic ticket and lose are typically charged court costs.

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. (This will be even easier if we allow both sides to testify remotely via video chat, which we probably should given the relatively low financial stakes.)

And again like traffic court, there could be a set schedule of fines—or, in this case, damages awards—for particular sorts of misconduct. Let’s say a base‐​level award of $500 for garden‐​variety violations like threatening to cite or arrest someone for engaging in constitutionally protected speech; an additional $500 for aggravating circumstances such as engaging in deceitful or deliberately intimidating behavior during the encounter; and perhaps another $1000 for causing any physical injuries that did not require medical care. Again, the details can be hashed out later—for now, we’re thinking conceptually.

So where would the money for these damages awards come from? Arguably the most just answer is that the money should come from the officers’ own pockets, just like the money for traffic tickets and other fines and fees comes out of citizens’ pockets–including many people who can ill afford it. But let’s say we’re willing to indulge the customary double standard whereby members of law enforcement are treated much more favorably than ordinary citizens under similar circumstances. We could seek to ameliorate the supposed harshness of this new regime (though in reality there is nothing “harsh” about requiring people to internalize the costs of their own misconduct) and harness the power of loss aversion in the following way.

We provide a kind of bonus, equivalent to, say, ten percent of an officer’s current salary, and we put it in escrow at the beginning of the year. Human nature being what it is, many officers on January 1st will already be thinking about how to spend that money on Christmas presents come December. In short, they’ll have a possessive feeling towards the money in that escrow account and a strong incentive to avoid seeing it depleted.

And it is from that escrow account that awards against the officer in constitutional small claims court would be drawn. Thus, good officers who generate few if any meritorious claims in a given year will receive a nice bonus in the form of a substantially fully funded escrow account; but officers who generate lots of meritorious claims will receive little if any bonus and may even have to go into their own pockets if the money in their escrow account runs out before the end of the year. Talk about harnessing the power of incentives!

One final point. This would be a big deal—a major departure from the way we do things now, which is to collectively shrug our shoulders at the vast majority of relatively low‐​level civil‐​rights violations committed by cops hundreds, if not thousands, of times a day across the country. Is it really worth it to require cops to answer for those violations and distract them from the important and sometimes even life‐​saving duties they perform–often with great courage and personal sacrifice?

I think so. But if you’re in doubt, you might try asking two people what they think. First, ask the best cop you know–one who takes pride in his or her job and in serving the community respectfully, honorably, and with integrity–and who, deep down, probably resents the opprobrium created by cops like the one in Zeko’s Twitter thread.

Second, track down the woman whom that officer threatened with a bogus misdemeanor arrest for exercising her constitutional right to curse in public (which she probably did at a time of great personal stress and frustration). I’ll bet her answer wouldn’t surprise you, and it might even humble you.