Shielded: Right Place at the Right Time

Guest Blogger

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

Fred O. Smith, Jr.      

“[W]rong place at the wrong time.”  That’s what the Fifth Circuit Court said about David Collie after he was shot by officers who mistook him for a suspect, and wrongly suspected he had a gun. Joanna Schwartz’s book Shielded exposes readers to tragic events like Collie’s: stories of officers kneeling on suspects until they died; stories of rogue officers committing brutal acts of violence and conspiring to hide the evidence; and stories of highly invasive strip searches of innocent Americans in plain view of their neighbors.  What the cases have in common is that: (1) the offending officers and their employers could not be held accountable in federal civil suits, or (2) it was exceptionally difficult for the victims to get any measure of accountability in that forum. These barriers, Schwartz posits, mean that there are many abuses that never even make it to court in the first place.  This book is in the right place at the right time.

            For three reasons, Shielded is the right place to paint this picture and press these arguments.  First, the book provides a large enough canvas for Schwartz to show readers the vast array of doctrines and institutional factors that collectively impede constitutional accountability. On the doctrinal front, she addresses civil procedure (i.e., the plausibility requirement for complaints under Iqbal v. Ashcroft); criminal procedure (i.e., doctrines that make it easy to stop and frisk individuals); constitutional torts (i.e., doctrines that make it legally permissible to use high levels of force against individuals who oppose no objective threat); and federal courts (i.e., immunities, standing, abstention, and limits on attorney’s fees). Schwartz connects contemporary arguments in favor of some of these obstacles to Reconstruction Era rhetoric opposing Section 1983 itself.  On the institutional front, she outlines ways that it is difficult for individuals in many jurisdictions to find civil rights attorneys willing to take meritorious cases; ways that judicial appointments have historically populated federal courts with judges who are skeptical of civil rights suits; and how the federal jury selection process means that plaintiffs are less likely to face representative juries of their peers. There is value in seeing how this vast array of factors interact to obstruct civil accountability and impede the goals of Section 1983.

            Second, the book also provides a big enough canvas for Schwartz to humanize these barriers accountability, showing what it means in people’s lives when they are forced to jump over, duck under, and find ways around these barriers throughout a case.  Most chapters begin with the moment that someone was simply living their lives—hanging out on their couch, listening to music in their car, serving drinks at a bar—before encountering violence or unimaginable indignities.  And then, these Americans are left with the costs, both financial and psychological. Readers are implicitly asked to ponder who should pay for these costs.

            Third, the trade book format means that a wider array of readers will be exposed to the important picture of constitutional accountability that Schwartz pains.  The power of Shielded is that it is simultaneously accessible to non-legal experts and highly informative for legal experts.  The clear and compelling language will engage individuals across the nation who are interested in learning more about how we got to a moment in which civil justice is so elusive, and what we can do about it. 

            In addition to being the right place for these arguments, Shielded also comes at the right time. This claim may seem surprising given that the energy for change felt in the summer of 2020 has, in many ways, dissipated. Two years ago, there were still talks of a racial reckoning. Today, courses covering Black American’s contributions to the United States are being censured and censored; diversity and inclusion statements are potentially being banned; and proposals for police reform at the federal level appear doomed. However, what Shielded masterfully does is show us that America’s stark absence of constitutional accountability is not only a racial issue. Many of the victims in her accounts are white, a fact she explicitly observes when describing them. This book can actually appeal to the person who doesn’t care about racial disparities or who believes America has become too awakened to those disparities. Of the 8,229 individuals killed by police over recent years, 3,643 are non-Hispanic white individuals. All readers should care about access to justice because it could happen to any of us who is in the wrong place at the wrong time.

            Another reason this is a good time for this book is precisely because we are not in the middle of an urgent crisis scrambling for whatever reforms seem most possible in that moment.  This is a well-considered thoughtful book that could serve as a comprehensive blueprint for reform if the nation again returns to that conversation in an urgent way. As Schwartz shows, over the last century, the national mood for meaningful police reform has come in waves. In the meantime, even before the national mood shifts again, the book also provides guidance for state and local officials in places where conversations about constitutional accountability in policing are still occurring. Schwartz identifies ways that state and local officials can make decisions about indemnification and budgeting that could have a real impact in the absence of nationwide reforms. 

            Schwartz’s book, then is not only tragic, but hopeful.  While the painful stories and the fate of the victims are difficult to read, her state and local proposals are nuanced and, in some jurisdictions, still achievable. For example, Schwartz urges more state legislatures to adopt a version of a reform that enacted in Colorado. This approach creates a state law cause of action for violations of the federal and state constitutions.  Under this cause of action, governments would generally be responsible for indemnifying the unconstitutional acts of their employees. Among other benefits, this ensures victims actually get compensated.  To be sure, it is already the case, Schwartz has shown, that officers get indemnified in 99.98% of cases in which they are found liable. Formalizing an indemnification-requirement into law, however, prevents governmental lawyers from threatening not to indemnify – a threat that is sometimes used as a bargaining tool in settlement discussions. 

The other innovative feature of this cause of action is that individual governmental defendants would pay 5% of the judgment or $25,000, whichever is less. Today, when officers are held liable, Schwartz cites evidence that this is unlikely to affect their conduct, because they are not directly impacted. Having officers pay some of the judgment helps implement some degree of specific deterrence.

            At the local level, Schwartz encourages more municipalities to ensure that when judgments are paid by cities, that money comes from police budgets instead of other parts of the budget. There are two reasons for this.  The first is equity. She observes that sometimes, the money paid for judgments comes from services that would have otherwise gone to some of the most vulnerable residents in the city.  The second is deterrence.  If police departments have to pay, then policing decisions might be more responsive in the wake of settlements and findings of liability.

This book is an important must-read for individuals interested in civil accountability for officers who violate the law. The writing is elegant; the portrait of our system she paints is damning; and the solutions she provides are formidable. 

Fred O. Smith, Jr. is Charles Howard Candler Professor of Law, Emory University. You can reach him by e-mail at fred.smith@emory.edu.