Joanna Schwartz's "Shielded: How the Police Became Untouchable"

An important and compelling new book on qualified immunity and other obstacles to holding law enforcement officers accountable for rights violations.

The last few years have seen increased attention to the ways that qualified immunity and other legal doctrines and structural features of the criminal justice system protect law enforcement officers who violate citizens' rights, often even those who have engaged in very egregious abuses. UCLA law Professor Joanna Schwartz is probably the nation's leading expert on this subject and her new book Shielded: How the Police Became Untouchable is must reading for those interested in the topic. Here is the publisher's description:

In recent years, the high-profile murders of George Floyd, Breonna Taylor, and so many others have brought much-needed attention to the pervasiveness of police misconduct. Yet it remains nearly impossible to hold police accountable for abuses of power—the decisions of the Supreme Court, state and local governments, and policy makers have, over decades, made the police all but untouchable.

In Shielded, University of California, Los Angeles, law professor Joanna Schwartz exposes the myriad ways in which our legal system protects police at all costs, with insightful analyses about subjects ranging from qualified immunity to no-knock warrants. The product of more than two decades of advocacy and research, Shielded is a timely and necessary investigation into why civil rights litigation so rarely leads to justice or prevents future police misconduct. Weaving powerful true stories of people seeking restitution for violated rights, cutting across race, gender, criminal history, tax bracket, and zip code, Schwartz paints a compelling picture of the human cost of our failing criminal justice system, bringing clarity to a problem that is widely known but little understood. Shielded is a masterful work of immediate and enduring consequence, revealing what tragically familiar calls for "justice" truly entail.

The Balkinization website recently posted a symposium on the book, with commentary by eight prominent legal scholars, and Schwartz's response to their comments and criticisms.

Schwartz's book comes at a time when reform efforts have largely gone stagnant. In the aftermath of the death of George Floyd at the hands of abusive police in 2020, there was hope that qualified immunity might be abolished by the Supreme Court or through legislation. But, while some progress was made in a few states, it has stalled as public attention moved on to other issues, and rising crime rates make it politically more difficult to curb police in any way. Most states still have broad QI doctrines.

There is a similar story at the Supreme Court. While the Court has denied law enforcement officers quality immunity in a few extreme cases, there does not seem to be a majority of justices willing to abolish this judicially created doctrine entirely, or even to severely restrict it. The unusual coalition of justices Sonia Sotomayor and Clarence Thomas does support major constraints on QI. But, so far at least, they have not found  the three additional votes they need to make it happen. Some other observers are more optimistic about the Supreme Court on this issue, than I am. Time will tell.

Curbing police abuses is an issue that unites most progressives and libertarians, and even some conservatives. But it is hard to accomplish because of a combination of long-entrenched judicial precedent, structural flaws in the legal system ( (many of them brilliantly dissected in Schwartz's book), powerful interest groups, and rising public fears of crime.

Hopefully, Shielded will help rekindle interest in these important issues. It could even give a boost to otherwise stalled reform efforts.

Comments

[Olney]

I am baffled by the following claim, because trial judges deny cops qualified immunity every day, and many denials are not even appealed by the cop who loses on the issue of qualified immunity. The publisher mistakenly claims: “it remains nearly impossible to hold police accountable for abuses of power—the decisions of the Supreme Court, state and local governments, and policy makers have, over decades, made the police all but untouchable.” I know some very real injuries are left unremedied due to qualified immunity, but the defense of qualified immunity is not even raised in a majority of lawsuits against the police, as the criminal-justice reformer Marc Levin observed in the Washington Post. And once raised, it is rejected quite often.

[JCSchwartzProf]

It is true, as Marc Levin noted in WaPo (relying on my research, which I discuss throughout the book), that few cases are dismissed on qualified immunity. I explain why that is the case in Shielded, and why qualified immunity is still a destructive doctrine despite that fact. I additionally describe multiple other protections that fit together in a variety of complex ways to deny people relief. I hope you’ll take a look at Shielded and see for yourself. Joanna Schwartz

[Greg J]

How about judges?

How about prosecutors? Especially the ones who trample the rights of crime victims by choosing NOT to prosecute cases for political reasons?

What's that? Non-criminals aren't important to you?

[Krychek_2]

Absent a smoking-gun email that says "this is being done for political purposes", I don't see how you could prove that a particular decision to prosecute or not prosecute was political. A prosecutor will always be able to claim that a decision was made based on a belief that the evidence was or was not strong enough to go forward, or it's a matter of resource allocation and this particular crime was lower priority, or juries in this jurisdiction simply don't convict for that particular crime. There's always going to be a non-political reason (excuse) for whatever decision the prosecutor makes.

[LawTalkingGuy]

The better explanation is that all prosecutions are political. It’s an inherently political act. Prosecutors are either elected or appointed by elected officials. Prosecution is an exercise of executive power (a type of political power) to enforce laws passed using legislative power (a type of political power exercised by elected politicians) by bringing a case in front of people exercising judicial power (a third type of political power exercised by elected officials or individuals appointed by elected officials).

It’s politics all the way down.

“ A prosecutor will always be able to claim that a decision was made based on a belief that the evidence was or was not strong enough to go forward, or it’s a matter of resource allocation and this particular crime was lower priority, or juries in this jurisdiction simply don’t convict for that particular crime. ”

These are all political choices! Beliefs about how people act and resource allocation decisions are inherently political.

Now it’s true that decisions don’t necessarily map onto popular conceptions of partisan politics. But that doesn’t mean decisions are non-political.

[David Nieporent]

That's an overly reductionist view of the word "political."

[Archibald Tuttle]

Prosecutorial immunity is a second problem beyond qualified immunity. In my opinion, many of the lawsuits dismissed because of qualified immunity should have been prosecuted as criminal cases instead. But nobody can question or challenge the decisions of a prosecutor.

In addition to lobbying to change QI, we need lobbying to convince to not be reluctant to use criminal law against police when warranted.

[SRG]

Accepting that in principle, Thomas is opposed to QI, why did he dissent - without supplying an opinion - in Taylor v Riojas?

Because the prisoner was a scumbag, the usual ratio for a Thomas dissent? Or something else?

[Gandydancer]

He isn't opposed to QI, merely in favor of applying the common law standard of the 1871 Act.

[Rev. Arthur L. Kirkland]

That Balkin blog has far fewer fireworks displays, airline seating tips, factual mistakes, and streetfights than some similar blogs (and much less bigotry), but plenty of worthwhile content.

[CJColucci]

I've found Professor Schwartz's empirical work to be interesting and stimulating, but I see a problem on QI. Prof. Schwartz opposes QI generally, for reasons I won't address (Note: I'm not defending the current state of QI doctrine, which I think has metastasized and needs to be pruned back. Though in my Circuit things aren't so bad.), but she has published a very good article (probably incorporated in her book) suggesting that eliminating it would be no big deal. The main difference would be what courts say as opposed to how they come out.
I think she's right about that. I've spent 30 years in a job where QI is, in theory, a big deal, but I can count on the fingers of one hand the number of cases where QI was even an issue, let alone a big one.* (If you subtract cases where the judge relied on QI but could just as easily come to the same result on the merits, the number is even smaller.) I have asked people in other offices, like municipal law departments, where QI is supposed to be a big deal, and their experience has been much the same as mine. But for some reason, QI is an irresistible shiny object, and I don't know why.

*Yes, I know the story about the lawyer who told his former Property professor that in 20 years of practice he had never seen a Rule Against Perpetuities problem and the professor archly replied: "I'm not surprised."

[SRG]

But for some reason, QI is an irresistible shiny object, and I don’t know why.

Because of what it signifies or symbolises - the idea that the government or its agents can do to you what it likes without recourse, opposition to which idea was at the very heart of American independence from Britain. There is a kind of cultural PTSD, therefore, on the subject.

[JasonT20]

Because of what it signifies or symbolises – the idea that the government or its agents can do to you what it likes without recourse...

Exactly. Even if QI only comes into play in court in a small fraction of cases of possible police abuse, it will always be in the back of everyone's mind. And it represents an attitude that will be pervasive beyond when it is actually used. An attitude that police officers, prosecutors, and judges shouldn't have.

I always get frustrated when I see defenders of police talk about how there are some "bad apples", but we shouldn't let that tarnish the "good" cops. That analogy is more appropriate than they are admitting, since the whole idea behind that saying is to not let a "bad apple spoil the bunch." One problem we have is that the good or even just decent cops are too often standing by and letting the bad cops go about their abuse, and, of course, the unions and other pro-law enforcement organizations work harder to make it difficult to expose the abuse than they will to protect the few good cops that speak out.

[JCSchwartzProf]

I do indeed address this research and the question you pose in Shielded and I hope you take a look. But I don’t believe, and never have believed, that qualified immunity is no big deal.

[CJColucci]

Perhaps I did not express myself clearly. I don't think you believe QI is no big deal. You've written too much about it for that to be true. But what I got from your article (if memory serves, which it rarely does at my age, it was Beyond Qualified Immunity) was that the consequences of eliminating QI were far less drastic than some QI advocates were saying. Maybe even no big deal. Mostly cases would come out about the same, but with a merits-focused rationale. (Be careful what you wish for? Courts saying clearly that you don't have the rights you think you have rather than punting with QI?) My own experience and that of other lawyers who defend public officials has been that QI was important in a very small fraction of our cases, which was consistent with your conclusions.

[JCSchwartzProf]

Fair enough! I do tease this all out in Shielded - that was one of the great benefits of writing a book, so that I could describe all the barriers to accountability, how they work, and how they fit together.

[NOVA Lawyer]

"(Be careful what you wish for? Courts saying clearly that you don’t have the rights you think you have rather than punting with QI?)"

I think that's likely preferable to paying lip service to the notion that you have the rights, but not in fact recognizing them. At least if courts have to say it, there is the chance of a more honest public debate (and judicial debate between circuits, etc.) and the opportunity to change the laws or expand constitutional rights. (Okay, the last is far fetched, especially given our current polarization.)

It's generally better if political actors have to defend the merits of their actions rather shrug their shoulders, "you know those crazy judges, but we have the right laws".

[vaadu]

How about requiring LEOs to carry something similar to malpractice insurance? Insurance would be higher or unattainable by bad cops.

The insurance industry will weed out bad cops.

Have a degree in criminal justice or psychology or law, lower premiums.

[CJColucci]

Mostly, they are indemnified by their employers. Small municipalities often purchase insurance. States and larger municipalities self-insure and pay out of tax revenues. I believe the federal government does the same. Maybe someone should study whether private insurance leads to better weeding out of bad cops.

[NOVA Lawyer]

True, but higher premiums for jurisdictions who hire under qualified LEOs or hiring those with a history of problems creates an incentive for the municipality to engage in better vetting of candidates. At the end of the day, is it better for individuals to bear the cost of municipalities' bad hires, or have those costs spread among voters who are the ones who at least have some power to change the situation?

"Maybe someone should study whether private insurance leads to better weeding out of bad cops." Absolutely. This and other proposed solutions. Because it is a problem and we need effective solutions.