On Joanna Schwartz’s Shielded: How the Police Became Untouchable

Guest Blogger

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

Richard H. Fallon, Jr.

            Over the past ten years, no one has produced more important work concerning constitutional tort litigation than Joanna Schwartz.  Schwartz’s greatest contributions have come from her empirical research into constitutional tort suits involving the police.  A main focus of her work has involved qualified immunity.  Qualified immunity doctrine, which is entirely judge-made, has rested on the premise that tort judgments against government officials would be paid by the officials themselves.  If so, we might need to worry that public servants might be chilled from conscientious discharge of their duties by fears of incurring personal liability for transgressing uncertain constitutional lines.  Through imaginative and painstaking investigation, Schwartz has shown that police forces, at least, overwhelmingly indemnify their officers and that officers pay substantially less than 1% of the tort judgments and settlements arising from alleged police misconduct.  This is a startling discovery.

            Digging behind and beyond the façade of personal official liability in police misconduct cases, Schwartz has also looked at how constitutional tort litigation affects police departments.  In doing so, she has echoed the findings of others that doctrine crafted by the Supreme Court in interpreting 42 U.S.C. section 1983 makes it nearly impossible to hold police departments directly liable for their officers’ torts.  A number of academic commentators have criticized the Court’s relevant rulings, in part based on speculation that municipal liability would create powerful incentives for police departments to hire, train, and supervise their officers in ways that would diminish constitutional violations.  But Schwartz’s extraordinary research has again demanded a rethinking of plausible-seeming premises.  Even now, departments can occasionally – even if infrequently – be sued successfully, and, as noted above, they mostly indemnify their officers when the officers are held “individually” liable.  According to Schwartz’s research, however, many departments do little to keep track of which officers are sued repeatedly and which are not.  Moreover, it is at best doubtful, as an empirical matter, that even successful constitutional tort actions cause police departments to learn the lessons that commentators have broadly assumed that financial liability would teach.  Among other reasons, Schwartz has established, tort judgments based on police misconduct are mostly absorbed by municipalities or insurance companies in ways that shield police departments from any resulting financial pinch.  It is one small measure of the significance of Schwartz’s work on qualified immunity and police liability for constitutional torts that the 2022 Supplement to Hart & Wechsler’s The Federal Courts and the Federal System (7^th ed. 2015) not only cites, but also discusses, no fewer than seven of her articles in its sections dealing with qualified immunity and constitutional tort litigation under 42 U.S.C. section 1983.

            Building on the work that she had done previously, Schwartz has now published Shielded: How the Police Became Untouchable (2023).  That book, which is wonderfully written to reach a broad public as well as a scholarly audience, constitutes an important, timely contribution to debates about policing practices, police misconduct, systemic bias, justice for victims of police misconduct, and the proper role of the courts in effecting needed reforms.  As recent events have reminded us once more, these are matters of grave importance to which thoughtful attention is urgently needed.  Schwartz’s book answers to the need.

            In its overall thrust, Shielded constitutes a blistering condemnation of the criminal justice system as viewed from the perspective afforded by a systematic, nearly comprehensive study of constitutional tort litigation against the police.  It calls the Supreme Court on the carpet for myriad mistakes involving its shaping of a multitude of doctrines beyond qualified immunity.  Among the doctrines with which Schwartz finds fault are those that define invasive police practices as substantively reasonable under the Fourth Amendment; establish often-insurmountable pre-discovery pleading requirements for constitutional tort plaintiffs; and construe a statute authorizing attorneys’ fees for successful section 1983 plaintiffs in ways that create disincentives for lawyers to bring constitutional tort cases.   Shielded is also highly critical of police and police departments, and the cultures that frequently prevail within them, and depicts them as desperately needful of reform.  In addition, Schwartz directs criticisms at many lower court judges, whom she views as hostile to civil rights plaintiffs, and even at juries.  Juries, she writes, are often selected from pools in which minority groups are underrepresented and tend to hold disproportionally favorable views of the police.

            Nearly all of Schwartz’s arguments in Shielded impress me as forceful, though I would be the first to acknowledge that I know too little to express a confident, much less an expert, judgment on some of the issues that the book addresses.  Reflecting on the book from the perspective of a Constitutional Law and Federal Courts teacher who has long thought and sometimes written about constitutional torts doctrine, I draw three lessons for which I count myself much indebted to Schwartz’s pathbreaking scholarship, of which Shielded marks a splendid culmination.

            First, empirical assumptions and beliefs exert profound influences on the development of doctrine – centrally including by the Supreme Court – to implement the broad, often vague, language of the Constitution and of similarly broadly written statutes such as section 1983.  The Justices tend to assume, implicitly if not explicitly, that those who wrote and adopted both disputed constitutional provisions and cryptic statutes did not seek to promote any single value at the expense of all others, but instead aimed at producing real-world outcomes consistent with the dictates of good sense.  Assuming this premise, the Justices – insofar as relevant language and history leave room for judicial elaboration or construction – seek to craft good doctrinal rules, by which I mean rules that tend to produce sound and sensible real-world consequences, for the future.  Crucially, however, what will constitute a good rule for the future depends on empirical realities and incentives – including, for example, realities about how police tend to behave, about the threats they face, and about their proneness to various biases.

To be sure, some believe that concerns such as these neither justify nor excuse the Supreme Court’s development of qualified immunity doctrine under section 1983.  Qualified immunity, they argue, was not part of the common law background against which section 1983 was adopted, and it should be rejected as insupportable as a matter of statutory interpretation.  However one judges that argument, I have no doubt that the Justices generally arrive at their decisions about how to interpret legal texts and craft implementing doctrines with consequences in view.  I do not understand Schwartz as disagreeing with me on this point.  Shielded argues that the Supreme Court has frequently predicated its decisions on erroneous empirical assumptions.  Nonetheless, I do not read Shielded as questioning the need for the Court to craft doctrine in light of empirical judgments in at least some cases.

            Second, there are many situations in which the Supreme Court not only does, but probably also must, decide important cases in light of highly imperfect empirical information.  To take one example, at the time that the Court decided the leading qualified immunity case of Harlow v. Fitzgerald (1982), it had before it none of the information about the indemnification practices of various governmental bodies that Schwartz has subsequently developed.  To take another kind of example, when the Court frames substantive rules about what does and does not constitute “reasonable” police conduct, it often uses a single case as the vehicle for the elaboration of a rule to be applied to what it takes to be the run of typical cases.  In doing so, however, the Justices may frequently lack any good basis for knowing what the defining characteristics of the typical case, if there is such a thing, actually are.  Here I am reminded of the wonderful title of an informative article by Fred Schauer: “Do Cases Make Bad Law?”  I fear that using the facts of particular cases to shape doctrine for application to a broad range of other cases may lead to myopic decisionmaking, even though I have no proposal for a better approach.

            Third, especially in the absence of reliable empirical information, judges’ and Justices’ ideological orientations and general world views are overwhelmingly likely to color their perceptions of and surmises about the current state of the world and, equally important, their conjectures concerning the consequences that a proposed doctrinal rule would likely produce.  Even insofar as ostensibly factual rather than normative issues are at stake, it matters greatly who the Justices are.

            Overall, engagement with Shielded is a sobering experience in the time that we inhabit, among circumstances that can seem tragic and intractable.  In saying so, however, I hasten to distinguish between the message of the book and the reactive attitudes that it may produce in some readers.  Among Shielded’s many virtues, I admire its tone.  The book is sharply critical of many elements of constitutional tort doctrine, but it never retreats into world-weary cynicism.  Throughout, Schwartz argues earnestly that the various relevant actors in our legal system and law enforcement communities could and ought to do better.  Shielded concludes with a number of reform proposals.  Although I would have to think long and study hard before endorsing all of them, I commend the book in the warmest terms.  It is a triumph of scholarship that will help to put debates about both constitutional tort law and police reform on more solid empirical foundations.

Richard H. Fallon, Jr. is Story Professor of Law, Harvard Law School.  He can be reached at rfallon@law.harvard.edu.