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Tuesday, December 24, 2019

Constitutional small claims court

Clark Neily at the Cato Blog proposes a constitutional small-claims court for low-level constitutional violations. Neily's starting example is a cop citing a woman for disorderly conduct for saying "bitch" in public, an obvious constitutional violation, then ordering away (on the silent threat of arrest) an attorney who attempted to intervene. Neily's proposal would create a small-claims-court/traffic-court hybrid, with small-money damage awards paid from an escrow fund established by each department. Neily acknowledges the major structural departure, but says it is better than the current approach, "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."

It is an interesting idea, of a piece with other proposals to enable recovery on small violations. In my Civil Rights class, I discuss Jim Pfander's proposal to allow plaintiffs to seek only nominal damages in exchange for eliminating qualified immunity.

There are a host of details to work out, as Neily acknowledges. They begin with whether this system is in federal or state court and what that choice says about our current assumptions about the federal judiciary and civil rights. If at the state (or municipal) level, recall that municipal traffic courts have become money-making institutions for themselves, their local governments, and their police departments, creating their own constitutional violations. We might worry about recreating that system, even with the different goal of compensating citizens against governmental overreach. Finally, should it be limited to police or should it extend to other executive officials who violate rights in a small, l0w-level way, such as the staffer in the Recorder of Deeds office?

Posted by Howard Wasserman on December 24, 2019 at 11:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Right. By the same token, a constitutional small claims court wouldn’t impose discipline. The argument for a constitutional smalls claim court could be that it would have more of an impact on police behavior than a discipline-focused approach. (If you believe that complaint-driven approaches like New York’s are currently ineffective, you’d need to argue that establishing a constitutional small claims court would work better than trying to improve the effectiveness of the discipline-focused alternative.) On the other hand, if your primary concern is with redressing the citizen’s injury, why worry about where the money comes from? Payments could be made out of general funds, without the complication of trying to tie them to individual officer’s compensation. I think there needs to be clarification of what problem a small claims court is meant to address and of why something along the lines of Neily’s proposal is an especially promising solution.

Posted by: RQA | Dec 26, 2019 2:01:47 PM

Putting aside whether those systems are effective, they do not compensate the victim for the constitutional violation.

Posted by: Howard Wasserman | Dec 26, 2019 1:01:43 PM

It’s not true that the only alternative to a constitutional small claims court is to do nothing about low-level civil-rights violations. Another option is a complaint-driven police disciplinary process such as New York City’s Civilian Complaint Review Board. There may be an argument that a constitutional small claims court would usefully complement that approach, but the argument needs to be framed in those terms.

Posted by: RQA | Dec 26, 2019 10:25:46 AM

While I fully support the concept of a Constitutional Small Claims court, I have two concerns: will defendants who lose just consider the fines "the cost of doing business" and how to deal with "repeat offenders"?
A great deal of training and outreach would be required to "enlighten" public-sector employees about the consequences of losing qualified immunity.
If a particular department or agency had a string of decisions against it in such a court, would that establish "a pattern" that could then be used to escalate litigation?

Posted by: Paul Sonnenfeld | Dec 25, 2019 11:02:05 AM

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