Author:Neily, Clark
Position:LAW & JUSTICE

A PUBLIC DEFENDER pseudonymously named Don Zeko recently posted an infuriating thread on Twitter 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 certainly would 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 never has been berated by a heavily armed agent of the state for no good reason (I have, and it is 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 will be struck by the utter banality of it all: the casual disrespect, intimidation, deceit, manipulativeness; it is shocking how so many officers misbehave so flagrantly, even when they know they are being recorded.

Second, as discussed below, there rarely are any consequences for officers who engage in the sort of low-level harassment described by Zeko and depicted in countless video links. 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 for the public, 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. [section] 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...

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