Shielded: How the Police Became Unaccountable by Joanna Schwartz (2023: Viking Press, 308 pp., $30 HB)
As Donald Trump laid out his fascistoid law and order platform last month, he vowed to bring back stop-and-frisk, railed against "radical Marxist prosecutors," warned of civil rights investigations of "radical leftist prosecutors" for alleged race-based policing, and promised the death penalty for drug dealers, among other fearsome fulminations. But the first bullet point of his manifesto regarded cops: Not only would he fund record hiring levels; he would also "increase vital liability protection for America's law enforcement."
With that pledge, the not-yet-indicted former president played to longstanding but unproven concerns that citizens' ability to seek civil redress for police mistreatment under civil rights laws would force police officers into bankruptcy if they were found liable for heat-of-the-moment lapses. Equally to be feared -- and equally unproven -- is the notion that being able to hold police liable will inhibit them from fully exercising their crime-fighting powers and protecting public safety.
Not to worry, officer! As UCLA law professor Joanna Schwarz makes clear in Shielded, her new book on (the lack of) police accountability, cops get away with murder. And rape. And torture. And beatings. And various other forms of street-tough thuggery. Schwartz has spent years researching how our legal system protects police at all costs through the accretion over decades of Supreme Court decisions interpreted by a non-representative federal bench with cases tried by juries filled with people who have never had a bad encounter with police. (In federal civil cases, felons cannot be jurors, and the voir dire process eliminates potential jurors with negative perceptions of law enforcement.)
Over the course of decades, the Supreme Court first opened the door to civil rights litigation to address police violation of constitutional rights, then, in case after case, effectively pushed it back until it is now barely open a crack. It is no accident that this has occurred under a Supreme Court that has been sliding to the right for the last 50 years and is now the most reactionary court in a century. One technique is to require plaintiffs to show sufficient evidence of patterns of police misconduct before they are allowed to undertake discovery, the process by which both sides in a case are allowed to see and seek relevant evidence. In the case of rogue police departments, this would be records of officer infractions, incident reports, and the like. But under current Supreme Court precedent, federal judges summarily dismiss cases before discovery because plaintiffs have not produced the evidence they have not yet been allowed to seek. That's a hell of a Catch-22.
Another huge hurdle in front of people seeking redress for police misconduct is qualified immunity, a notion constructed out of thin air by the Supreme Court in 1967 and turned into another Catch-22 by the Supreme Court in 1982. Qualified immunity is a defense to civil rights claims that is granted if the law the cop violated is not "clearly established," and if qualified immunity applies, plaintiffs cannot collect monetary damages. Under the 1982 decision, the federal courts find that qualified immunity applies unless the plaintiff can show a previous case with the exact same facts has been decided in federal court.
But Schwartz shows that the Supreme Court is only one of the "shields" protecting police. At the institutional level, police Internal Affairs bureaus generally do not punish nor track misbehavior. At the municipal level, budgets anticipate having to pay out damages for police behavior, with the taxpayers—not the miscreant officers—paying up. At the state level, legislators pass laws that further protect police. And there are more obstacles that Schwartz elucidates, from the makeup of the federal judiciary and federal juries to financial disincentives for attorneys to spend their careers litigating civil rights cases where they could spend thousands of hours preparing cases only to have them settled and end up being paid a pittance for their efforts.
This is not a book about the war on drugs, but the war on drugs is implicated throughout. Many, many of the encounters between police and citizens that result in civil rights violation complaints arise from the prosecution of the drug war, and many, many of the victims are drug users or suspected drug users.
Schwartz lucidly and cogently explores the mountain of obstacles people seeking justice for police mistreatment face, as well as the obstacles facing people who want to remake the system into something nearer to common notions of justice. Given the current makeup of the Supreme Court and the stalemated state of play in Congress, relief is unlikely to come from the federal government. The problem seems intractable.
But Schwartz sees opportunities for positive change at the state and local levels, and she cites Colorado's 2020 passage of a bill ending qualified immunity, requiring officers found to have operated in bad faith to pay something out of their own pockets (as opposed to being indemnified by the city or state, which pays the judgement), and allows plaintiff attorneys to recover their fees when they prevail.
This is an important, eye-opening work. If you are concerned about who will guard us from the guardians (and how), it is indispensable.
Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.
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