Balkinization: A Comment on Shielded: How the Police Become Untouchable

A Comment on Shielded: How the Police Become Untouchable

Guest Blogger

For the Balkinization symposium on Joanna Schwartz, Shielded: How the Police Became Untouchable (Viking, 2023).

Aziz Z. Huq

Over the past decades, Prof. Joanna Schwartz has written an illuminating series of law-review articles on the litigation and financial dimensions of civil rights litigation. Drawing on qualitative, quantitative, and doctrinal analysis, Schwartz has cast new light on case selection, barriers to litigation, how payments are made, and what consequence payments have to subsequent behavior. Her exemplary body of work demonstrates the importance of a multidisciplinary approach, sustaining a single, cohesive research agenda, and resisting the assumption that insight emerges only from recondite econometric sophistication applied to staggeringly large data sets. Any serious scholar grappling today with the mechanics of civil liability for governmental torts needs to attend closely to her work.

Her new book, Shielded: How the Police Became Untouchable, does not endeavor to break new ground in relation to these articles. Instead, it distils much of the material to be found into her articles into a form readily digestible by lay (non-academic) readers. Modestly, Schwartz aims less to showcase her own research as to offer those lay readers an anatomy of the doctrinal and practical barriers hindering constitutional tort actions for damages or for injunctions against police. These range from the rigors of plausibility pleading to the difficulties of translating court judgments into durable behavioral change on the part of institutions. Shielded is hence a work of translation—taking up an element of the policing puzzle that might be missed by law audience—and no less valuable for it.

The reason for investing into translation is started early in Shielded, and then reiterated: Starting in the 1960s, Schwartz observes, federal judges have made empirical claims about the volume and negative costs (i.e., externalities) of civil-rights litigation. Judge T. Emmet Claire, for example, complained in 1968 of an “increasingly large volume” of Section 1983 actions (p.38). A decade later, Chief Justice Burger complained of the “torrent” of suits against cities (p.200). Yet the volume of Section 1983 suits has not risen, as Schwartz explains, out of step with secular trends in federal-court case-loads (p.38). Repeatedly, Schwartz shows, judges have tempered the force of liability out of a concern for the financial consequences on officers—even though officers are almost always indemnified, while information about information is selectively shared with jurors to create a mirage of individual defendants’ exposure to liability (p.83). Shielded hence offers itself quite consciously as an antidote to what James Baldwin (in a passage Schwartz deploys as an epigraph) described as “[i]gnorance, allied with power” working as “the most ferocious enemy justice can have.”

Schwartz is plainly correct that empirically erroneous representations offer a foundation for the judicially glaciation of federal-court accountability for police violence. But it does not follow from this that a mere correction of those errors, however lucid, will have a material effect on the availability of remedies for the constitutional wrongs of police. A false belief can play several different roles in sustaining malign social arrangements. They can hence stand in quite different relationships to the data immediately available for popular consumption. The pseudo-scientific theories of race and gender differences can be deployed to ‘explain’ manifest disparities (“X lives in these rundown neighborhoods because they are lazy”) in ways that track, and hence operate as substitutes for, depassé theological accounts (“X are doomed as the Children of Ham …”). Or they can be threaded into the social mechanisms that create, and then reproduce, these disparities (“We don’t extend mortgage credit to X because it is not the most efficient deployment of resources.”). Empirical claims about the vulnerability of certain groups, and their heightened need for protection, can even be a foundation for policies that devastate those groups. (Claudio Sant’s history of the 1830 Indian Removal Act comes to mind here). The point to underscore across these examples is that false beliefs do not stand on their own; they are interleaved into larger structures of belief, confirmation, and true evidence. It is only once integrated into these larger epistemic networks that they can play a sustaining role in respect to malign social stratifications.

Even as Shielded recounts the false premises of plausibility pleading, qualified immunity, limits to municipal liability, and the like, it offers no account of how it is that judges come to hold their beliefs, or of the larger ideological matrix in which they rest. Nor does it explain why judges continue to hold the beliefs that Schwartz shows to be false despite the availability of empirical studies—including those by Schwartz herself—demonstrating their fallacy. Why, one might hence ask, was this book necessary given that Schwartz has documented powerfully the errors animating several key doctrines across several well-received academic publications in prestigious journals? Why have the Justices and judges who remain avid advocates of qualified immunity—many of whom make ostentatious displays of learning, frequently of a historical bent, beyond text and precedent—not updated their beliefs? And why should a popular book change their minds?

Yet for better or worse, Shielded offers no account of what might be called the ‘political epistemology’ of police untouchability. It offers no explanation of why fallacies come to take hold. It does not concern itself with why it is that judges such as Claire or Burger come to believe them firmly in the apparent absence of any confirmatory evidence. Nor does it address the ways in which either the partisan reflux of judicial appointments perhaps, or instead maybe the institutional socialization of the federal bench creates an environment in which lies about police violence can thrive. It is therefore difficult to discern whether and how Schwarz thinks that this book will move the needle when her own (very fine) articles have not done so.

There are moments at which Schwartz comes close to indulging in an uncharacteristically lazy assumption that change will flow from some sudden enlightenment on the Justices’ part (p.86). Such magical thinking is so pervasive even in the legal academy’s soi-disant peaks that Schwartz can be forgiven for slipping into a hackneyed (and uncharacteristically unsupported) trope. Rather, I think the project of Shielded is best understood as an effort to end-run the Justices, and as an effort to seed change in the broader public domain on the assumption (perhaps false) that the bench cannot cling like drowned sailors to Gericault’s Medusa, to comfortingly paranoic fantasies in the face of public opposition.

In any event, Shielded deserves a wide public readership given this ambition. I certainly hope it changes the tenor of public conversation about policing. One of the lessons of the Black Lives Matter (BLM) movement and its immediate effects, however, has been the durable strength of reactive forces even in supposedly liberal, pro-reform jurisdictions. Whether and how Shielded can break through the enduring crust of false beliefs remains to be seen. I hope for the best, but wonder whether Schwartz’s keen insights alone can move the needle.

Aziz Z. Huq is the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago School of Law. You can reach him by e-mail at huq@uchicago.edu.

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