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.