In Shielded, Joanna Schwartz Dissects Policing’s Legal Environment

Did you know that 99.98 percent of the money awarded to victims in police civil rights violation cases is indemnified—paid from the public’s funds, not from those of any cop? 

Well, now you do know it, and you know it thanks to UCLA law professor Joanna Schwartz, who for over a decade has produced innovative, meticulous scholarship that harvests, then dissects, the details of policing’s legal landscape. 

Professor Schwartz has written authoritatively about—among other topics—the role of indemnification, how police might learn from litigation, systems failures in policing, and the procedural and substantive ecosystems that confront any resident who attempts to hold the government and its agents to account for constitutional misconduct.

She has now mobilized her unique store of learning in “Shielded: How the Police Became Untouchable.”

“Shielded” focuses on one weapon in our armory: civil litigation. Do we have legal mechanisms that can make it too expensive to continue to inflict these harms? Could we build accountability that deters unnecessary violence?

The book arrives just as the shouting over police reform is rising to a crescendo. 

No one is happy; nothing much is actually happening in terms of concrete reform. Justified public frustration with police impunity after a series of horrific killings obscures the underlying realities. The police and the people in direct contact with them are drowning together in a judge-made legal swamp.

“Shielded” calmly surveys this scene, then supplies the foundation for a climb out of the morass. 

The book provides an anatomy of a policing legal environment that was confused in conception and is dysfunctional in operation. “Shielded” makes it clear that no flurry of ad hoc tweaks will extricate us from this situation. It prompts a new look at the fundamentals. 

And, for me at least, it raises new questions. I’m no expert in this field, and I can’t say whether Prof. Schwartz would agree with anything that follows. Still, her book will certainly provoke more productive thoughts from readers more acute than myself.

Accounting for Bad People or for Bad Systems? 

How do these events happen?

The first thing that strikes an amateur reader about contemporary legal architecture is the utter incoherence of its design. To begin with, there is no consensus on the basic etiology—manner of causation—of the fatal events we are trying to prevent.

The vision of safety (and its opposite) that dominates our media’s debates about policing is person-based. Good man means a good result. So, when a bad cop does a bad thing, whacking this bad cop and emptying his pockets might deter the next one. 

This version of causation is at the root of one of the judiciary’s characteristic efforts to duck unpleasant responsibilities—the doctrine of “qualified immunity”. 

The courts’ argument is that since maybe this was actually a pretty good cop confronting, on a bad day, a situation he wasn’t prepared for, it would be both unfair and bad policy to hold the poor flatfoot liable. 

Therefore, victims can’t recover in a civil suit unless they show that there was a judicial opinion available to the cop which had held that identical conduct constituted a civil rights violation.

This rationale generates decisions along the lines of, “Yes, the cop knew that shooting you in the head violates your rights, but no case told him that shooting you in the head in a bowling alley was a violation.”

In fact, I don’t think anyone actually believes in the person-based theory of causation; it is a pretense. The 99.98 percent indemnification rate in these cases constitutes a tacit—or covert—acknowledgement that every fatal case reflects system influences and conditions that bent the odds. 

If—as the qualified immunity cases hypothesize—the cop was unaware of the Constitution’s requirements, that was because the system (in its judicial and departmental incarnations) failed to educate him.

An all-star cadre of scholars including Schwartz herself, the University at Cambridge’s Lawrence Sherman, David Thacher of the University of Michigan, David Klinger of the University of Missouri at St. Louis (himself a former cop), and others, has pointed out that these events are system failures, “organizational accidents.” 

Even when you have a no-doubt-about-it bad cop like Derek Chauvin, who killed George Floyd in Minneapolis, someone hired him; someone trained him. Someone—many “someones”—supervised, acculturated, tolerated, dispatched, and accompanied him. 

The crocodile tears shed by courts and commentators over the jeopardy suffered by the lonely beat cops are supposedly prompted by solicitude for the frontline cop, but they actually serve to hide the contributions of supervisors and organizations. The “person-based” rationale protects the many other “someones” involved, even if it only protects them from exposure and embarrassment rather than civil judgments. 

Professor Schwartz’s book is at its best in explaining why an apparent means to recovery for constitutional violations by suing local governments directly—the so-called “Monell” claim—is not the sensible re-orientation toward system-based liability it might seem to be, but, rather, a notice to plaintiffs that they face a game of “heads we win; tails you lose.”

Under Monell, local governments are not liable simply because they employed the trigger-cop—as a corporation would be on a theory of respondeat superior—the cop’s violation must execute a policy statement, ordinance, regulation, or decision officially adopted or promulgated, or so regular that it is “customary.”

In other words, the plaintiffs can win only if they show that the violation was “systematic”—that is, “according to a fixed plan.”

But, in fact, these harms are never the exclusive product of a person or a system; they are almost always an emergent outcome of people in systems. Neither the person-based, micro, approach nor the system-based, macro, approach is ever an independently sufficient explanation. 

The origins of tragedies such as the death of George Floyd or Tyre Nichols are not systematic programs; they are “systemic”—products of complex systems in operation, not of a system at rest or of any one component.  Civil rights plaintiffs who must depend on that reality will lose, and, in fact, probably can’t even find lawyers to take up their losing cases. 

Restoration

And why is a plaintiff’s compensation entangled with proof of misconduct in the first place?

The police are a “residual institution.” They exist to cope with the things no other institution can handle, and they are uniquely licensed to use force, even violence, when (but only when, and to the extent that) it is necessary to protect public safety. Cops are human. Mistakes are inevitable.

There’s a traffic stop. The driver reaches under the seat for his wallet; the cop thinks he’s reaching for a gun and kills him. Criminal prosecution and departmental discipline of the cop are available. But even when you think those are precluded because the cop’s act was “reasonable” does that mean the family deserves no compensation?

The grotesque judicial contortions that Professor Schwartz anatomizes are allegedly motivated by the judges’ desire to protect taxpayer funds. But protect them from what? The answer seems to be to protect taxpayer funds from juries composed of taxpayers—to protect the taxpayers from themselves. 

A driver “reasonably” but mistakenly killed in a traffic stop dies because of his adventitious proximity to the law enforcement machinery in operation. In aggressively policed communities subordinated by race and class this vulnerability is an endemic condition of life. 

The situation resonates with that of industrial workers at the dawn of the modern industrial revolution, or the taking of property for a public purpose. 

When a utilitarian calculation of the civic good justifies taking a home by eminent domain to build a hospital, don’t we compensate for the taking? 

When the greater good of industrial production—or public order and safety—entails dangerous machines inflicting catastrophic harm on scattered, unlucky individuals, shouldn’t we be able to mobilize a streamlined restorative system analogous to Workers’ Compensation? 

Why do we construct an elaborate obstacle course requiring that the harmed community members and the authorities do battle against each other? Why rub salt in wounds? Why not design a compensation system that communicates care and elevates restoration?

Prosecution and punitive damages for misconduct can express aspirations, and may bolster deterrence. There is such a thing as imposing “just deserts” and asserting the value of the people harmed.  But these are separate issues. Let them stay separate. Compensation is an emergency.

When an industry comes to regard compensation claims as overhead, it sets about finding ways to reduce the overhead by cultivating “cultures of safety.” Steps devoted to reducing worker injury and reducing overhead were consistent with each other if not identical. Steps to reduce criminal justice harms could advance in the same way.

Learning

A question for local governments viewing things through the existing lens is “Do we take steps to prevent harms, or do we accept that the harms will happen at the same rate, and take steps to prevent losing lawsuits and paying for the damage?” 

The contest here can seem to be one between the public’s safety and the officials’ impunity, and “Shielded” provides plenty of evidence showing that for now impunity is winning.

But Prof. Schwartz points out that even the current litigation landscape provides opportunities for learning from errors that we neglect. Data could be collected on the macro level and shared; tragedies could be scrutinized on the micro level; sentinel event reviews could reveal the organizational bridge between the two. 

Often, a frontline cop can be “set up to fail:” left with three bad choices. He can choose the least bad, and be protected, having made a “reasonable” choice. That “reasonable” choice might still kill a civilian victim whose actual contribution to the event—no matter what the cop reasonably perceived—was simply to be present. 

We could learn how the cop and the victim were placed in their situations—how the “lawful but awful” event came about, and how to avoid the next one.

We could aim for a civilian compensation system that would return discipline to its logical location as an operator/system dialogue, and allow the harmed individual prompt restoration. The system’s interests in handling rule violators could be aligned with the public’s in cutting repetitions when it is the number of events, not the won/loss ratio in litigation spurred by those events, that shapes the overhead.

If it were in my power to assign a book rather than recommend it, I would assign “Shielded: How the Police Became Untouchable” to the antagonists on both sides of our “Back the Blue” versus “Defund the Police” debates and the reporters who cover them. In the end, learning is our way out of our situation and this book is a great place to start. 

The only way we can get out of this mess is together, and if we do succeed in getting out, I think we will look back on “Shielded” as a landmark on our journey.  

“Shielded: How The Police Became Untouchable” was released on Feb 14, 2023. 

James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes comments from readers.