Joshua B. Hoe interviews Joanna Schwartz about her book “Shielded: How the Police Became Untouchable”
Full Episode
My Guest – Joanna Schwartz
Joanna Schwartz is a professor of law at UCLA, where she teaches civil procedure and courses on police accountability and public interest lawyering. Her research has been quoted and cited by United States Supreme Court Justice Sonia Sotomayor and more than two dozen state supreme courts, federal circuit courts, and federal district courts. Today we will be discussing her book, “Shielded, How the Police Became Untouchable”
Watch the Interview with Joanna Schwartz on our YouTube Channel
You can watch Episode 140 Joanna Schwartz – Qualified Immunity on your YouTube channel
Notes from Episode 140 – Qualified Immunity
The books that Joanna Schwartz recommended included:
Corrections in Ink by Keri Blakinger
Charged by Emily Bazelon
His Name is George Floyd by Robert Samuels and Toluse Olurunnipa
Full Transcript
Josh Hoe
Hello and welcome to Episode 140 of the Decarceration Nation podcast, a podcast about radically reimagining America’s criminal justice system.
I’m Josh Hoe, and among other things, I’m formerly incarcerated; a freelance writer; a criminal justice reform advocate; a policy analyst; and the author of the book Writing Your Own Best Story: Addiction and Living Hope.
Today’s episode is my interview with Joanna Schwartz about her book Shielded: How the Police Became Untouchable. Joanna Schwartz is a professor of law at UCLA where she teaches civil procedure and courses on police accountability and public interest lawyering. Her research has been quoted and cited by United States Supreme Court Justice Sonia Sotomayor, and in more than two dozen State Supreme Court, Federal Circuit Court and Federal District Court decisions. Today we’ll be discussing her book Shielded: How the Police Became Untouchable. Welcome, Joanna Schwartz.
Joanna Schwartz
Thank you so much for having me.
Josh Hoe
Well, I always ask the same first question. It’s kind of like the comic book origin story questions. I don’t know if you’re gonna think of yourself as a villain or a hero. But how did you get from wherever you started in life, to becoming a law professor and writing about police accountability?
Joanna Schwartz
Well, I definitely will, given those options, choose a hero’s story here. I decided to go to law school when I was working in the Bronx at an alternatives to prison program. They’re working with first-time felony offenders and advocating before judges to get those first-time felony offenders, who were usually teenagers, into a program instead of going to prison, and [I’m] seeing the courthouse and I’m really seeing the injustices of the criminal justice system and the numbers of black men, black and brown men just funneling into the courthouses with their crying families in the audiences day after day after day. [It] made a huge impression on me and made me want to be a public defender. But I went to law school. And while I was in law school I started doing civil rights work, I was actually working in a legal clinic at school on behalf of a couple of different women who had been raped in federal prisons by officers and, and that experience working with them on those cases really built in me a strong interest in doing plaintiff-side work representing people in these civil suits. So I graduated law school, I clerked for a couple of judges, I ended up working at a small civil rights firm in New York City. And doing that work, I started asking questions about how the system actually worked, why it was so difficult to get justice in civil rights cases. And why these cases didn’t seem to be having as much of an impact as I thought they should be having. And so then I became a law professor. And then I’ve spent really the past 15 years or so researching how civil rights litigation works on the ground, research that’s really formed the cornerstone of my book Shielded, which I began to write in late 2020, following the murder of George Floyd, when all of a sudden people became really interested in these arcane things like qualified immunity, which I had been studying for years. And I wanted to write the book to be able to explain how difficult it is to get relief, even when your rights have been violated in the system, and to try to explain it in a way that people who don’t read law review articles for fun on the weekends would find compelling and interesting and understandable.
Josh Hoe
I’ve definitely seen you on certain podcasts, on television, on all kinds of things talking about the book. So you probably get asked all the questions I’m going to ask you probably like 400,000 times, but before we get too deep in the weeds – and we will be discussing some pretty heavy stuff – I’ve also been trying to get to know my guests a little bit more. And so one of the ways I do that is by asking if they have any hobbies. Do you have any hobbies?
Joanna Schwartz
It’s a great question. It’s probably the hardest question that you’re going to ask me during the course of this conversation. You know, I have two teenage kids and I have a dog, and a lot of my life when I’m not thinking about civil rights litigation and police accountability, I’m spending time with my kids and my husband and my dog. My son’s a baseball player. And going to his high school games is one of the high points of my week whenever that happens, and if I can’t watch him playing baseball, watching the good old LA Dodgers play is a second-best favorite for me.
Josh Hoe
Now, it sounds like you originally, am I right that you’re originally not from New York and you just were there for school.
Joanna Schwartz
I grew up, I grew up in Washington DC, actually, within the bounds of DC. And then went to college and law school in New England, based in New York for about 10 years on and off between college and law school.
Josh Hoe
I was gonna say as someone – I was born in New York myself – there is sort of a fraught history obviously, between the Dodgers, so that you live in California and are rooting for the Dodgers. I thought I’d at least ask but it sounds like you’ve got a get out of baseball jail free.
Joanna Schwartz
It’s a really good point. And actually where I worked in the Bronx in the court, the courthouse was a couple of blocks from 100th and 61st, and Grand Concourse, which is where Yankee Stadium is. So Yankee Stadium was like my back door. And, you know, I when I was in New York, I liked the Yankees before I moved to LA and learned better the Dodgers were there.
Josh Hoe
A problem for me is my family were Brooklyn Dodgers fans. So they hate the Yankees. And they can’t root for the Los Angeles Dodgers. So I had to become a Mets fan. So that’s basically what was left to me at the time. There’s been some suffering as a result of that over the years.
Joanna Schwartz
I don’t know, I think you can, I think you can join the Dodgers.
Josh Hoe
I’m actually a transplanted Rangers fan because I actually had, after a while I switched, because I lived in Texas for a while, and I had season tickets. So since then, I’ve been a Rangers fan. That’s also been a pretty brutal experience. With a few exceptions, the two times that they were – this is getting way too deep in the weeds – but the two times that they were in the World Series, one was when I just got arrested and was in jail/prison. So you know, it wasn’t exactly high times all the way around after all the years of suffering, but then they lost. So whatever.
Joanna Schwartz
Well, I have, I have a tie-in for you, which is that I’ve learned from my son’s baseball coach that when you play baseball, and also when you watch baseball, you have to get accustomed to losing often, right? And striking out often. And there’s no other place where you strike out as much as with civil rights, litigation, and trying to litigate your constitutional rights.
Josh Hoe
Very nice. Getting us back on track here. So anyway, your book Shielded represents a result of a lot of research. Can you talk about the process of preparing to write the book and kind of how you went about the research process? Before we talk about specifics?
Joanna Schwartz
Yeah, and a lot of the research is research that I had done before I started writing this book and work that I had published in various law review articles, not all of it, but a lot of it. And really, I started this research with questions. You know, some people when they think about doing empirical research they find data and they think, what can I ask, how can I parse this data to get to an interesting answer? I worked the other way around, I have a question about how things work. How am I going to prove this? How am I going to get the answer to this? And it really started, the very first question that I asked empirically, as a researcher, was something that I was thinking about, as a young civil rights lawyer practicing in New York City. I was working on a class action against New York City’s Department of Corrections for abuses on Rikers Island, that many people have heard of because . . .
Josh Hoe
There’s still a lot of abuses.
Joanna Schwartz
There’s been decades and decades worth of litigation, which tells you, just tells you something to begin with, about how challenging it is to change these kinds of systems through litigation or any other means. But I was working on this case, I was deposing meaning, you know, questioning under oath, these officers who had been involved in beating up our clients, and I was preparing by looking through their personnel folders. And I was really surprised to see there was nothing about their litigation history in their personnel folders. When I deposed them, they didn’t know anything about their litigation history, they didn’t necessarily know if they’d been sued, what the claims were, what the resolution was, how much was paid. And it wasn’t just them, it was their supervisors, also all the way up to the Associate Wardens. And this really stuck with me, because if I was working my tail off on these cases, and our clients were investing a lot of risk and time litigating these cases themselves, and nobody in the Department of Corrections knew anything about them, what, what were we all doing and what was the problem? So the first question that I researched, the first question that I asked when I got to UCLA, as a researcher was, whether and how often and how police departments gather and analyze information from lawsuits brought against them, you know, in other words, Was what these officers were doing on Rikers, that I deposed from Rikers, were they lying to me? Were they? Or was this something unique to New York? Or was this a broader phenomenon? And that was the first question that I asked doing a lot of interviews. You know, as soon as you ask a question and start studying it, you start to think about more things. And more questions come up. And, really, each research project I’ve done has prompted other questions that I’ve aimed to answer, and I’ve done it through, I’ve gotten to these answers through interviews, through public records requests from dozens, hundreds of agencies. I have looked at dockets like court filings in almost 1200 cases across five federal districts. I’ve done qualitative interviews with lawyers. And I’ve looked at hundreds of police manuals and training materials. And so each of those different kinds of studies have been the different methodologies, have really been prompted by the question, what information you need to answer the question.
Josh Hoe
To me, when I think about police, I think that if someone has the ability to use deadly force, they should be held to a pretty high standard for using deadly force or force at all, really. It’s not that I inherently think police don’t have value or anything like that. I just think that you know, as they say, in Spider-Man, with great power comes great responsibility. But that’s not really the way the courts look at it at all. Can you kind of foreground the history and specifics of what you mean by the police becoming untouchable? I don’t think they were ever particularly touchable. But, you know, let’s start getting into that.
Joanna Schwartz
Yeah, absolutely. And I think that in our history, there’s been, you know, shifting understandings of how much power they should have, how much oversight there should be. And in 1961, the Supreme Court first recognized that police officers and other government officials could be sued in federal court for constitutional violations. And this was a case called Monroe versus Pape that I talk about a lot in the book. It was in the midst of the Civil Rights Movement, as there was increasing focus on the need for federal oversight and the need for federal protection, and against a backdrop of decades of police and other government violence, and harm, that had really just been allowed to go unremedied in the States, particularly in the south. And so you say, I don’t know if the police ever were anything but untouchable. But at that moment in 1961, the Supreme Court said, there needs to be, we recognize that there is this ability to sue government officials. And when you hear or read the Supreme Court talking in those early decisions about the need for compensation and the need for accountability, it sounds like a system where police are not above the law. But as I described in the book, in the decades following 1961, the Supreme Court and state and local governments and newspaper reporters and scholars all began telling this story about the horrors that would result if it were too easy to sue in these cases, and they said courthouses would be overflowing with frivolous cases and officers would be bankrupted. And no one would agree to serve as an officer under these conditions or be a valiant and strong officer under these conditions. And so we wouldn’t have a dedicated police force and then we would have chaos.
Josh Hoe
The pre-Ferguson, Ferguson Effect, right?
Joanna Schwartz
Right. And that’s a story that has been told in many different forms. And it’s been used in a variety of different ways primarily by the Supreme Court, but by other actors also, to chip away at that power and the power of being [able] to sue, the power to seek justice in these cases. And they’ve done it in a variety of ways. I don’t need to go into each one, not right at this moment. All right. So enough talking for me. That was the moment; if there was a moment of sort of the high point of civil rights protections, I would place it in the early 60s.
Josh Hoe
So to foreground this a little bit more, I think there’s really two things that people really want to understand [about] how this all works. They need to understand these two things first: One is what you were just talking about a second ago, which is Section 1983 cases. And the second one is qualified immunity. So can you explain a little more specifically, what Section 1983 cases are and how they function to provide a potential remedy for police abuses?
Joanna Schwartz
Yes. So Monroe vs Pape, which I was just referring to, this 1961 case is referred to as a Section 1983 case. And Section 1983 refers to the place in the United States Code Book, where there is a statute, it was originally not called Section 1983. It was originally called the Ku Klux Klan Act, and it was enacted in 1871, in reconstruction following the Civil War, at a time when the Ku Klux Klan was newly formed, and the Klan and other white supremacist groups were torturing and killing Black Americans and local law enforcement and government officials were either participating in the violence or standing idly by and so in 1871, Congress enacted the Ku Klux Klan Act, codified, located as called Section 1983, to provide a way for people to bring a lawsuit against a government – well against a person – who had violated their constitutional or civil rights in 1961. And in the subsequent years, what section 1983 has been understood to allow is for people to bring a lawsuit against a government officer or a local government for the violation of their constitutional rights, and any number of them – or you know, multiple of them together – and to seek damages, meaning money, or some sort of forward-looking what’s called injunctive relief, which can be a claim to change a police policy or practice or the way that they do their investigations or something like that.
Josh Hoe
And the second concept, it’s kind of the antagonist in this, is qualified immunity. We hear the term a lot, but how would you define it? And how does it play into these cases?
Joanna Schwartz
Qualified immunity is a protection for officers, police officers, and other government officials that was created by the Supreme Court in 1967. So that’s six years after Monroe vs. Pape. And it was first described by the Supreme Court as a good faith defense, meaning if an officer violated the Constitution, but they were acting in good faith, they will be protected from money damages; it has nothing to do with criminal prosecutions. It actually has nothing to do with these claims for injunctive relief, it’s just about money damages. And that was a case, by the way in 1967, where the officer had arrested people under a statute that was later found unconstitutional. So the officer could say, I thought I was enforcing the law, that law became bad law. But I was acting in good faith. In 1982, though, the Supreme Court completely redefined what qualified immunity requires, and said that it is no longer this subjective good faith idea. It’s instead a protection that officers get unless they’ve violated what the court calls clearly established law. That’s an objective standard. So an officer could be acting in bad faith, so long as they didn’t violate clearly established law. And as the years have passed, and the Supreme Court has gotten more and more conservative, the definition of clearly established law has gotten narrower and narrower and narrower. Until today what the Supreme Court has instructed is that except in the most egregious cases, where what the court calls obvious constitutional violations, which they have interpreted very narrowly. A person who’s suing an officer has to show, has to come forward with a court decision holding unconstitutional nearly identical conduct. And it’s not enough, the Supreme Court has really clearly said it’s not enough to say that an officer has violated a general legal principle, it’s not enough to say that an officer violated, used excessive force, it’s not enough to say that an officer used force against a suspect who had surrendered even though that’s a general legal principle, because it’s not particularized to the facts of the case, you need an off a prior case holding unconstitutional where an officer used a similar type of force under similar circumstances, and the hairsplitting can get extreme in these cases.
Josh Hoe
There’s a bunch of examples in the book. I don’t know if you want to talk about any particular example, but some of them are pretty egregious here.
Joanna Schwartz
Give me a break, right? So I’ll tell you about two very quickly. One, one was a case brought by a man named Alexander Baxter, who had been suspected of burglary in a home, he had burgled the home. Officers found him, he surrendered, he sat down with his hands in the air. And they nevertheless released a police dog on him who beat him and attacked him under his arm. He brought a lawsuit. But his case was dismissed on qualified immunity, even though it’s generally recognized, and officers are trained about the fact that you cannot use force against a suspect who surrendered. In addition, there was a court decision from that very same Court that said it was unconstitutional to release a police dog on a person who had surrendered by lying down. But the Sixth Circuit, which is the court of appeals that was hearing the case, said there were enough factual distinctions between the case with the person lying down and the person sitting up with their hands in the air and surrender, that the law was not clearly established. And one other example, I have to mention the case called Jessop versus City of Fresno, which is a case where an officer was executing a search warrant on a house and helped himself to a quarter of a million dollars in cash and rare coins that he did not put in the evidence register and just kept for himself. When the officer was sued, he got qualified immunity too and the court agreed that this was not good behavior. This was improper and perhaps illegal. But there was not a prior court decision that had put that officer on notice that had clearly established that what he had done was wrong.
Josh Hoe
The officer had no way to know that stealing a bunch of stuff from people was just – no way. How would the officer know that?
Joanna Schwartz
How would they know? How would they know?
Josh Hoe
So you know that these are just a few of the examples, you know, of how they started to narrow this. Often people just assume that the law is easy to access, like, well, the law says just get a lawyer, et cetera, et cetera, et cetera. But what people don’t understand, and I’ve been through the process, I know this, that hiring an attorney can cost many 1000s of dollars, and most Americans have a hard time putting their hands on $500. At the core of a lot of the ability to use Section 1983 successfully is actually having a civil rights attorney that will take the case, but it’s actually pretty hard to ensure that attorneys have a method of recovering fees in Section 93 cases, is that correct? Am I getting that?
Joanna Schwartz
You’re getting it, you get 100 on the exam, you’re exactly right. And this is, you don’t think of there being a lack of lawyers. I mean, that is not a common claim to be making in our society. But there’s a lack of lawyers who are willing to bring civil rights cases. And as you say, it comes down to the way in which lawyers are paid. Most people who have been abused by the police don’t have 1000s of dollars to pay a lawyer. And so they enter into what’s called a contingency fee arrangement, which means that the lawyer gets nothing if the person loses their case. And if they win, the lawyer gets a portion, usually a third of any recovery. And what lawyers who I’ve interviewed – and I’ve this experience myself as a lawyer – say is that these cases are riskier than the average personal injury case or medical malpractice case, they’re riskier, they’re more expensive to bring, they’re more complicated. Getting past a barrier, like qualified immunity, takes a lot more time than it takes to bring a personal injury case to trial. And juries are often prejudiced against people who’ve previously had interaction with the criminal justice system in the past. You know, depending on where you are in the country, you know, people who are homeless, people of color, people who are LGBTQ, people who are immigrants, all groups of people who are disproportionately likely to be subjected to police abuse may not be the perfect victim in the eyes of the jury. And so for all of those reasons, even people who’ve had their rights violated can have a hard time finding a jury. I mean, excuse me, finding a lawyer.
Josh Hoe
And in order to be successful, people or attorneys at least need to know what actually happened. This is also bound up in discovery. Can you talk about this and how cases like Ashcroft v. Iqbal have constrained the ability of attorneys to even get the information they need to win these kinds of questions?
Joanna Schwartz
Yeah. So the Supreme Court, again, in their fear that frivolous cases will flood the courts, civil rights cases, and other cases, the Supreme Court created a heightened standard in 2007 and again in 2009, for what a person who is bringing a lawsuit needs to know about their case before they can move forward in litigation. And the court calls this a plausible pleading standard in a complaint, which is the first filing that goes to the court. And to the other side, the Supreme Court said you have to have enough facts in your complaint to establish a plausible entitlement to relief, which means in the court’s view, you have to have facts that support your claim before you can move forward. The irony here and the challenge is that often people don’t know exactly what happened. And that’s why they need to file the lawsuit so that they can get discovery and demand information from the other side.
Josh Hoe
And just to be clear, in a lot of these cases, the police intentionally don’t share the information for a number of reasons, usually, because they say that it’s part of an investigation or something like that. Is that right?
Joanna Schwartz
Exactly, exactly right. And sometimes people know what’s happened to them, if you were stopped and frisked on the street or wrongfully arrested or you know, it happened to you and you were there, you witnessed it. You might not have a problem pleading out, you’re explaining what happened in your complaint. But as I talked about in the book, when a person has a loved one who has died in police custody, for example, they may not know anything about what happened to their loved one. And I tell the story of a woman named Vicki Timpa in Dallas, whose son died in police custody, and the department wouldn’t tell her anything about what happened. They wouldn’t give her the body camera footage that they had. So she had to explain in her complaint: I don’t know the names of the officers. I don’t know exactly what happened. But I think my son’s rights were violated. And then the city of Dallas moved to dismiss that complaint saying it was not plausible because it didn’t have the detail that was necessary to put them on notice of what she was claiming when they had all the evidence that would give them exactly the notice they needed. But they were not required under Texas law to turn that over.
Josh Hoe
And another area where the courts over the last decades, as you said they’ve become more conservative, have narrowed things is the rollback of the notion of the right to privacy, which also factors into this a lot. How much privacy do people actually have? And how does this play into these kinds of cases? I guess that’s a broader question that I really meant to ask, but I think you could probably navigate.
Joanna Schwartz
Well, Yeah, I mean, the way in which the Supreme Court has interpreted the Constitution and the protections within the Constitution over the past several decades has, and particularly in recent years, has had a lot of really troubling implications for civil liberties. I talk in the book, I focus a lot in the book on the Fourth Amendment to the Constitution, or to the Bill of Rights, which is the protection against unreasonable searches and seizures. And that is the focus of the book because my book really does focus on policing and police misconduct cases. And the Fourth Amendment is often the set of constitutional protections that a person in bringing a section 1983 case says have been violated. And as I talked about in the book, one of the places, one of the strongest privacy protections for the Supreme Court and our nation’s strongest understanding of privacy protections are in the home, and a lot of justices across the ideological spectrum, have written lofty opinions talking about the importance of privacy, the importance of a home, that protections of that home and what you do in that home, that those protections are included in the Fourth Amendment’s prohibition of unreasonable searches and seizures. But beginning in the 60s, this is a common theme in the book and in our civil rights protections in the 60s, motivated by the need to, you know, enhance public safety and give officers discretion, that privacy of the home has really been chipped away at significantly, and now there’s a warrant requirement in the Fourth Amendment about the need for a warrant before you search or seize someone, but there are now so many exceptions to that warrant requirement that, you know, the exceptions have essentially swallowed the rule. And anytime that an officer has a reasonable suspicion that, you know, they need to enter without a warrant, they need to enter without first announcing and knocking their presence. You know, the police really have the power and discretion to do that.
Josh Hoe
Recently, there was a case just a few weeks ago, where someone – I think it was a few weeks ago – where someone, the police went to the wrong house, started to break into the house, the guy comes to his own door with a gun, and they just shoot him. I’m not saying that’s good, I’m laughing out of discomfort more than because I think it’s funny. But you know, I don’t know what’s going to happen with that case. But you give an example of the courts finding that the shooting was justified because the person was, that they were holding a gun when they were shot, even if it was never pointed at an officer. But you suggest, and I think this is interesting, that if that person had been holding a video game controller, the logic of why it was okay for the officers to do that would still hold. And this of course, immediately made me think of Tamir Rice, who was a kid who was shot holding a toy gun while playing in a playground as kids are wont to do. This seems like something that everybody should, you know, be concerned about, regardless of where you fall on the political spectrum, or whatever. But it seems like most people are okay with this. What are your thoughts on this area of what’s going on?
Joanna Schwartz
Yeah, I think that there’s at least two areas of grave concern that you’re raising in your question to me. One is that when the Supreme Court thinks about Fourth Amendment protections against unreasonable searches and seizures, you would think that if you were doing nothing wrong, holding a video game with a video console and a video controller, that you had done nothing wrong. And if someone shot you or if a police officer shot you, that would be unreasonable and a violation of your constitutional rights. But the way in which the Supreme Court thinks about it, and has instructed lower courts to think about it, the question is, whether it was reasonable for the officer to believe that you were holding a gun? And if the answer is yes, and they were reasonably in fear, for their life, or for the safety and lives of those in the surroundings, then they are justified in their decision to shoot. I think that this in and of itself, should be a focus of real concern. And in my view, if a person who has a video game controller in their hand is shot by the police, their rights have been violated, and they and their family deserve compensation and some recognition of this life lost, without any cause whatsoever. The other thing that your question makes me think about, and I think that this is hugely important and worth paying a lot of attention to, is that as the Second Amendment protections get bigger and bigger – the ability to carry a gun at any time, whether registered or not, in some parts, that comes into conflict with the Supreme Court’s assertion that police can use excessive force against or excuse me, can use force, and it’s not excessive against anyone who they reasonably believe to be a threat. So you put those two things together. And you will have people who are lawfully possessing guns being killed because police say that they perceived them to be a threat, they objectively reasonably thought that they were a threat. And it’s hard to imagine that there won’t be all sorts of implicit biases that go into play when officers are deciding who is a threat and who isn’t. If a white man goes into Costco with an AR-15 and a black man goes into Costco with an AR-15, are the police going to see those two men as an equal threat? And I really don’t, I was gonna say, time will tell, I don’t want time to tell because, you know, I think that we’re gonna see a lot of really horrifying outcomes.
Josh Hoe
Yeah. And then we kind of get back to qualified immunity stuff. And you’ve talked about this a little bit already. What are some of the ways in which this doctrine has evolved to make it nearly impossible to hold specific officers responsible? I think when we get kind of this part of the book, you highlight the case of Harlow versus Fitzgerald.
Joanna Schwartz
Yeah. So Harlow versus Fitzgerald is this case in 1982, where the Supreme Court said, we’re no longer going to look at whether an officer acted in good faith. Instead, the question will be whether the officer violated clearly-established law. And that’s the term that has then been interpreted more and more and more narrowly. I think one thing to note about this is the whole reason that the Supreme Court made this shift from good faith, good faith defense to violation of clearly-established law, was that the court wanted cases to be dismissed quicker. If you have a subjective standard, like whether the officer was acting in good faith, it might require getting through depositions, or even through trial to really understand the good or bad faith of the officer. But if you’re looking at this question of whether the law was clearly established, you could decide that issue even sooner, or at least that’s what the judges and the justices thought. In reality, this clearly-established law standard has really had, I think, horrifying effects in not decreasing the, or not increasing the speed with which these issues are decided or streamlining litigation. In fact, what I’ve found is that that defense, the clearly-established standard, makes these cases longer and more expensive to litigate. And they really have no relationship to reality, and how we think of distinguishing strong from weak cases. it shouldn’t be simply because an officer has the good fortune to do something in a way that hasn’t precisely happened before, that they should escape liability. But that’s, in fact, what actually happens.
Josh Hoe
As we turn toward why the world works this way, I found the quote from the Douglas dissent in the Terry versus Ohio case that you included, there do seem to be powerful hydraulic forces that make the courts more likely to water down constitutional guarantees that give the police the upper hand. Is this hydraulic pressure related to the political climate of tough-on-crime? Is it related to, what do you think causes this kind of you I have? Another way I could ask this is to say, it seems to me that, you know, they’re, you know, there’s a doctrine called finality. That bothers me quite a bit, which takes the idea that jury decisions are more important than actual innocence in a lot of cases. And that really bothers me, because they’re saying it’s more important for the judge to give the jury the right to be wrong than it is to actually give people who are factually innocent relief. And I feel like this is very similar to that. And I wonder what it is that makes courts come to the conclusion that you know, protecting against like the bothering police or bothering police departments is more important than protecting constitutional rights. It seems like their whole job is to protect constitutional rights. As a judge. It’s just very strange to me that we’ve gotten to this point you there’s a kind of a rambling question, but I think an important one.
Joanna Schwartz
That is absolutely important, I think it is hugely important. And, you know, part of what I talked about in the book is the idea that this horror story about too many frivolous lawsuits and officers threatened with bankruptcy, and the threat of being sued, you know, being so powerful that people won’t do their jobs or, you know, won’t decide to be police officers. I think that part of the reason that all of these protections have become so strong and is related to Justice Douglas’ dissent in Terry is that that’s a scary story. You know, there’s a fear that chaos might result. And also, and this is more to your point about finality. I think that it is dramatically privileging and recognizing and thinking about one side of the ledger over the other, you know, if you’re thinking about the relationship between finality and justice, sure, would it be nice to do things quickly and just once and not do them again? Sure, in an ideal world, but if you’re balancing those benefits against the possibility that you might execute a factually innocent person, then it’s very hard to justify in any way, to my view, the finality, not that it’s stopped them at all. And similarly here, you know, there’s all of this focus on the need to protect officers that you don’t want to distract them or burden them. But on the other side, they’re meritorious cases, horrifying cases of constitutional violations. And I think part of the problem is, and maybe this is naive, but at least part of the problem is that the decision-makers are not thinking enough and recognizing enough about what the costs are on the other side of that ledger. And part of the reason that I wrote this book in the way I did, which is really focused on a lot of stories of people whose rights have been violated, and who then tried to seek justice in the courts, that if you defend qualified immunity, you have to defend it in my mind, in Alexander Baxter’s case, and in Jessop versus City of Fresno, and you have to appreciate what the human toll is of all of these restrictions. And like I said, it may be naive of me to say, but I think that if you see these stories, and you see these justifications for these limitations that are grounded in myth about the dangers of giving people too much justice in these cases, that perhaps they can, at least slightly recalibrate the balance.
Josh Hoe
I want to dig a little deeper into one of the things you’ve said, which is that one of the premises of this whole doctrine is that police officers would not do their work, or might change the way they do their work if they were held responsible financially, for their excesses. But as your research has shown, and I think most people intuitively know, police are almost never held responsible directly. I think one of the hopes would be that [by] bringing a 1983-style case you would maybe deter future bad police behavior. But if the police are ever held financially responsible, the first problem seems to be that, as you said, at the very beginning of this interview, a lot of times, they don’t even know that any of it happened. There can be no deterrent effect if nobody even knows what happened. It’s like the tree falling in the forest. And the second thing you say, which I think is really troubling to me, is that sometimes the funds actually come from the communities that are directly impacted by the police shootings, which is, you know, obviously, mind-blowing in a lot of other ways. Can you talk a little bit about that? I know, I didn’t ask a very direct question there.
Joanna Schwartz
I mean, I do think yes, in order for these cases to have an impact, there has to be some deterrent effect. And I think you could imagine two different paths towards deterrence. One might, one would be financial, you know, financial sanction. And the other might be, you know, some sort of internal department discipline or other kind of action taken within the department. As you said, my research has shown that officers virtually never pay anything in these cases out of their own pockets. And that has nothing to do with qualified immunity, by the way, it’s state and local policies and laws that create that financial objection.
Josh Hoe
It’s like a second level, so you’ve got qualified immunity, and then you’ve got the state shields in addition.
Joanna Schwartz
Exactly, exactly. It’s just a whole, you know, phalanx of shields. I actually think that officers should not be responsible for paying settlements and judgments in these cases, because, for the most part, officers are not going to have the money to make people whole in these cases. There are interesting ways to, to sort of create some financial sanction, like New York City sometimes requires officers to make a contribution to a settlement when an officer has violated policy. So to contribute $1,000 or $2,000, just a little thing, while still covering the vast majority of the payments in these cases. And I think that that’s a good idea and one that I would hope that more governments would think about, but ultimately, I think local governments should be picking up the tabs in these cases in order to make the plaintiffs whole. However, as you also pointed out, in your question, the way in which local governments budget for and pay police misconduct lawsuits, insulates police departments, also from the financial consequences of these cases. And that, I think, is a real problem or certainly a missed opportunity because the police departments have incentive and means to try to change their policies to prevent things from happening in the future, and creating some financial benefit of reducing lawsuits and harm of increasing lawsuits. I think it could prompt some sort of good risk-mitigating behavior. But in many places, as you say, there’s no financial consequences for the departments and the money comes from central funds. And often when the money is greater than expected than they need for payouts, it should be no surprise that the money would come from corners and crevices of the budget that are earmarked to help the least politically powerful, which as I write in the book, in Chicago, what I heard from a government attorney who represented the city of Chicago when police misconduct lawsuit payments went up, lead paint testing went down. And it was one of the most shocking things to contemplate that I have heard in a long time, for the very reason that you say, that the most disempowered in the city, who are likely disproportionately the subjects of misconduct are then footing the bill instead of the officers or the department themselves. There could also be as you know, consequences in employment for the officers who are involved in these cases. But as I said in the beginning, and as you commented, most departments don’t gather and analyze this information. I think that they should. I think that [to have] changes made, to have there be real attention paid to these lawsuits and what information comes out in these lawsuits and perhaps, to discipline officers for what happened in these lawsuits would be an important change that could improve the deterrent effect of these suits.
Josh Hoe
And we talked about shields upon shields, I think there’s also kind of shields upon shields upon shields. And what I mean by that is one possible way out of this, or one way to deal with this is for the judgments not to be monetary, but for them to be court-ordered policy changes. And you also mentioned that that’s particularly hard to do because the court kind of prefers this kind of monetary model, is that correct?
Joanna Schwartz
It is correct. Boy, this book sounds like a real drag, a lot of bad news here, but it’s true. The Supreme Court has made it very difficult to get forward-looking relief in these cases. And I have a whole chapter dedicated to this. But I think the key case, and really all that you need to know, is from a case called City of Los Angeles versus Lyons, which is a case brought in the 80s by a man named Adolph Lyons who was put in a chokehold by an LAPD officer, and wanted to get an injunction to stop the use of chokeholds in Los Angeles. And the Supreme Court said he couldn’t get that kind of relief, because he could not show a grave or immediate risk that he would be subjected to a chokehold again in the near future. And because he couldn’t show that, the Court said [that] he doesn’t have what’s called standing to seek injunctive relief. But what that ends up meaning is, it’s very difficult to get injunctive relief in police misconduct cases, when there are some kinds in fact, prison conditions cases, it can be easier to get injunctive relief, because it’s the same group of prisoners and guards who are interacting in an enclosed space, you know, who need their medication or, you know, whatever it is, so that there is some certainty that there’s going to be repeated contact between the officers and the prisoners. But in policing, it’s much harder to say, I expect that this is going to happen to me again. And that ruling has made it very difficult to get these kinds of forward-looking relief that sometimes people really want more than the money in these cases, they want something that happens to them not to happen to their loved ones or their community.
Josh Hoe
Okay, so now we’ve gone through all the dark depressing corners of all this. Let’s try another tack. Let’s assume people don’t want to throw themselves into the thicket and sue the police. Is it any easier – and I am afraid that I already know the answer – but is it any easier to sue a town or city for police?
Joanna Schwartz
The answer is no. And in fact, it can be even more challenging in some ways because although if you are a private company, and you were sued, you know you owned ABC Foods and your driver hit someone as they were crossing the street, you ABC Foods would be sued and would be responsible under this idea that’s called vicarious liability or if you want fancier words, respondeat superior liability. But when you’re talking about constitutional protections it doesn’t work that way. And the Supreme Court has said that in order to bring a claim against a local government, you have to show that the government had a policy unconstitutional on its face, which is not usually how policies are written. Or . . .
Josh Hoe
You’d like to hope they wrote it without intentionally being unconstitutional.
Joanna Schwartz
Right, and things used to be intentional, you know, written in intentionally unconstitutional ways. But they aren’t so much these days. Instead, it’s usually that there’s a custom or a practice or a failure to supervise or train. And those can be bases for local government liability. But unsurprisingly, the Supreme Court has made those standards very difficult to meet. And there are a lot of departments that are severely dysfunctional. I talk in the book about the police department in Vallejo, California, which is one of the worst that I’ve read about, where there has not been a finding that the city violated anyone’s constitutional rights, even though they’ve done some pretty extraordinary things. And that is tied to the challenges of bringing these claims against local governments.
Josh Hoe
So you’ve done all this research to explain the problems with 1983 cases and the incredibly high hurdles necessary to overcome qualified immunity. What did you learn from the process to give us some bright light? What might be a better way? And how are we going to get there?
Joanna Schwartz
Well, the last chapter does, it is called A Better Way. And I offer some what I think are concrete suggestions for how we can move forward to make the system better. I mean, I don’t claim that anything that I suggest is going to create a perfectly functional system of police accountability. But I do think that there are important things that can be done, that are being done right now to improve this system somewhat. And some of the changes that are happening around the country are dealing with what you might think of as the front end accountability, just limiting the kinds of interactions that happen between police and community members, limiting low-level traffic stops, which has been done in Philadelphia and Los Angeles and considered in other places, having mental health professionals, not police officers respond to people who are in mental health crisis. And I think that even making those two changes on their own, would have a dramatic effect if they were actually implemented and funded and followed. But I also think that a lot can happen on the back end, and I don’t have very much faith in the Supreme Court or in Congress right now to get police reforms done. But I actually think there’s a lot that can happen in state and local governments, there’s local or excuse me, state governments around the country that have considered bills that would create state law rights to sue for constitutional violations that do not have qualified immunity as a defense. And Colorado and New Mexico and New York City have passed just that kind of legislation. And actually, in an upcoming project, I and a few co-authors are going to investigate what impact those statutes have had. Not surprisingly, my prediction is that you know, courthouses are not filled with frivolous cases and officers going bankrupt and the like, that there have been incremental improvements, but important improvements to those State’s Civil Rights ecosystems. I also think that there can be ways that local governments do more to improve the deterrent effect of the suits by requiring officers to contribute to settlements and judgments, you know, at times and to a degree, that local police departments carry the costs of those lawsuits and that the department’s or outsiders, independent auditors or inspectors general be appointed to review the information in those suits, you know, with an eye toward figuring out what can be done to prevent similar suits from happening in the future. And I think that you know, I talk about those kinds of improvements. I recognize that they’re incremental, they don’t get to ultimate questions about what role police should serve in our society or whether we should have police at all. But I think, my hope is that these are sort of basic first-step ideas that people with a variety of views about what public safety should look like could get behind.
Josh Hoe
A smart person, a guy who practices before many courts, once told me that if he were writing for or arguing in front of the Supreme Court, he would definitely be writing everything he did in kind of an originalist kind of reasoning, etcetera, etcetera, etcetera. I know, given this particular issue has already been litigated to death, there’s not much you could do. But let’s assume, hypothetically, that you are having to enter a 1983 style case right now. Are there any tactics that might work, aside from just literally having the perfect set of things where the right person did the right thing? And there was a previous person who’d done the exact same thing? And is there any way to cut through any of this? Or is everyone just doomed by you know, who uses this mechanism.
Joanna Schwartz
No, everyone’s not doomed. Definitely not. And, when I teach this material to my students, I can see after a couple of days, you know, a fog sort of descend over their eyes, and they start thinking about whether they should be a Trust & Estates lawyer instead, or you know, just give up entirely on civil rights litigation. And that’s the moment that I bring a civil rights attorney in to talk to students. it can be done, it is done, people do it every day, there’s victories in court and civil rights cases every day, I think that it’s much harder than it should be. But it is still doable. And I would say, if I was bringing a civil rights case today, and anticipated that qualified immunity was going to be an issue, I would, I would do a number of things in my briefs arguing against it. First, I would describe the violation as an obvious one for which no case was necessary. Or maybe I’d put that argument at the end. But then there’s a lot that can be done in framing the facts of a case. And you can frame the facts of your case, in a way obviously not whining, but framing them in a way that does sound familiar and does sound like other cases, when part one of many critiques will be dealt with. We could spend a whole day talking about critiques of qualified immunity, but one of them is that understanding whether the law is clearly established is very, very subjective in the eyes of the judge. And I think that there’s a lot that actually can be done through advocacy, and through framing and storytelling, to make cases look similar and different. So I would do a lot of research. And then I would work hard to try to frame the cases in ways that make the law sound clearly established.
Joshua Hoe
Okay, I always ask if there are any criminal justice-related books – I know you wrote one – but are there any that you like and might recommend to our listeners? Do you have any favorite books?
Joanna Schwartz
Gosh, I’m looking over at my bookshelf, you can see I have a whole bookshelf full of books that I love. And boy, you know, I’ll give you a couple of them. I mean, I think that Corrections in Ink, by Keri Blakinger, is a fabulous book that gives you a real insight about the experience of being in prison. I have not been in prison. But my sense of the book was that it was very passionately told, and wonderful to read.
Josh Hoe
We’re old friends, she’s good people.
Joanna Schwartz
She seems great, like great people. I think that I’ll give you two more. I think that Charged by Emily Bazelon is a really powerful book.
Josh Hoe
I’ll say your taste is good. Both of those people were on the podcast to talk about those books.
Joanna Schwartz
Excellent. What I love about Emily’s book is that she, I mean, I looked at her book, I tried to emulate in some ways her book because she moves through a lot of really important dense information about the prosecutorial role. But she also does it by embedding that information into stories that are so compelling and richly told that I think it’s a really important book to understand the role that prosecutors play. And then the last one I’m going to offer is a book called His Name is George Floyd. It just won the Pulitzer on Monday. And what I love about it, is that it tells the story of George Floyd’s life. And it’s not just about the criminal justice system, but the criminal justice system isn’t just about the criminal justice system. And this book talks about racism and the interaction of racism and poverty in housing and in education and in the criminal justice system. And all the while talking about George Floyd’s life and, and his death and the aftermath of his death. And I think that to the extent that we talk about structural failures in the criminal justice system, His Name is George Floyd just offers a multi-dimensional telling, in a really tangible way, around a story again, that we all know at least part of. And I think it’s an extremely powerful book.
Josh Hoe
I always ask the same last question, what did I mess up? What question should I have asked, but did not? And sometimes the answer is nothing, but it’s really just to get out things you want to talk about that I didn’t get to.
Joanna Schwartz
Boy, I think you got just about everything that I can imagine. You certainly hit all of the chapters and all of the main points.
Josh Hoe
In fairness, I didn’t hit two chapters, but . . .
Joanna Schwartz
You didn’t, I was just gonna say there are two chapters that you missed, one about judges and one about juries. And those are good, important chapters, too. But no, I think that what I like about the questions and about the conversations has made clear that this is not just about qualified immunity, and qualified immunity has taken up a great deal of airtime in our conversations about police accountability, and there’s a lot to criticize about qualified immunity. But that it’s just one piece in a much bigger puzzle. And understanding the whole puzzle, I think, really illuminates just how stacked the system is against people who are seeking justice in the courts.
Josh Hoe
Well, thanks so much for doing this. It was really great talking with you.
Joanna Schwartz
Oh, it was great. Thank you for having me.
Joshua Hoe
My pleasure. Thank you.
And now, my take.
I’ve been very annoyed by the discussion of Daniel Penny, the Marine veteran who choked Jordan Neely to death. Now, I want to be very clear that I do not have any desire for Daniel Penny or anyone else to be exposed to the horror of our justice system. And I want him to get all of the help that he needs. Too many of our veterans come back with serious problems and then end up engaging in violence. I believe 14% of our incarcerated population is made up of former veterans. Anyway, while I disagree with the likely punishment, it is critical that we continue to hold the line and say that it remains illegal for people to resort to vigilantism unless there’s an actual real and present threat to the people around them. If we were to accept that what Mr. Penny did was acceptable, in essence, anyone could justify killing anyone else simply by saying that the target uttered a threat. No matter what you think of the people involved, of mental illness or homelessness, or of people with prior records, this is a terrible precedent to set. The people who are sending millions of dollars for Mr. Penny’s defense, and suggesting that he is somehow a Good Samaritan are way off base. And what they’re suggesting is truly dangerous. That many of these same people ceaselessly call for tough-on-crime laws, harsh sentencing, and brutal incarceration should tell you everything you need to know about where these feelings are coming from. In addition, it is quite sad and kind of ridiculous to suggest that Mr. Neely’s death was justified, because he was a human being who had prior charges and arrests. [Mr. Penny] had no way of knowing that. And by all accounts, [Mr. Neely] made no actual threatening moves to attack anybody. He simply said a few things that made people feel uncomfortable. If we justified vigilantism in a case like this, we are walking back reconstruction, error retributions, and an old west mentality. There’s a lot of racism and hatred of homeless people built in here too. But for those who actually care about veterans, remember, there are a lot of veterans who are homeless. Mr. Penny could easily have been a homeless vet as well. Anyway, we need to do better and stop justifying what should not be considered justifiable.
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