Policing, Stories, Problems, and Solutions

Guest Blogger

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

Katherine Mims Crocker

George Floyd, Breonna Taylor, Eric Garner, and now, Tyre Nichols.  We all know their names because of the tragic circumstances surrounding their deaths at the hands—or by the gun or under the knee—of law-enforcement officers.  There are others, too, whose names and killings have become part of our collective consciousness amid the national contestation over police reform.  I continue to believe, to quote the New York Times editorial board, that “[t]he vast majority of police officers are decent, honest men and women who do some of society’s most dangerous work.”  But as Joanna Schwartz’s incisive new monograph, Shielded, expounds in excruciating detail, the list of people who’ve suffered outrageous behavior at the hands of law-enforcement officers—and who then ran into roadblock after roadblock pursuing remedies—is considerably longer and, critically, broader than many readers may suspect.  If the list is limited to people who died, one could add Tony Timpa, Andrew Scott, and Sean Monterrosa.  If it’s not, one could add Onree Norris, James Campbell, and Rob Liese too.  All their names are worth knowing.  All their stories, worth telling.  And unfortunately, there are many more stories like theirs.

As Schwartz promises in the Introduction, readers “will learn the stories of people whose children were killed even though they posed no threat, people who themselves were shot and nearly lost their lives without justification, who were searched and humiliated without cause, who were raped by officers sworn to protect and serve—each of whom has been told by our courts and elected officials that they must shoulder the costs of the violence they suffered themselves, with no recourse from the officers or from the governments that signed their paychecks and gave them their badges and guns.”  To be sure, Schwartz explains, readers “will also learn the stories of people who managed to eke a measure of justice out of the system.”  While “some succeed,” she tells us, “the shields erected to protect police by courts and officials at every level of government make those victories fewer and further between, and harder to achieve, than they should be.”

Schwartz presents these stories with the expertise of a law professor, the effectiveness of a litigator, and the empathy of a human being.  Empathy, indeed, is a big part of her objective.  The book stresses, for instance, that Norris and Scott and Campbell were regular people doing regular things when abusive police practices tore through their lives, with the complex illogicalities of the constitutional-tort system exacerbating their initial injuries.  The book suggests that Norris and Scott and Campbell were regular people doing regular things just like you and I and Schwartz—and the people we care about—are and do.  The book consequently cautions that police violence could upend all our existences, with all the ensuing sequelae, too.

The people whose stories Schwartz recounts “are Black, brown, and white; men and women; the young and the old; the wealthy and the unhoused; people with long criminal records and people who have never received a speeding ticket; residents of big cities and small towns; people from the South, Northeast, Midwest, and West.”  Schwartz tells us about people who attend church, graduated college, and served in the military.  “[N]o one is immune,” she emphasizes: “The truth is, police violence and misconduct—and the legal barriers that have been created to protect police from accountability in the courts—can devastate anyone.” 

Of course, as Schwartz makes clear, police violence and the forces that protect its perpetrators from constitutional liability affect Black people at a disproportionate rate, and law-enforcement practices have long inflicted especial harm on members of other underrepresented and marginalized groups as well.  Thoughtful commentators could thus debate the normative aspects of Schwartz’s aperture-widening approach.  But the descriptive power of the variegated portrait she captures is beyond dispute.  Especially striking is how several stories involve the eventual victim of police misconduct starting out by seeking law-enforcement assistance.  While some people may find it hard to imagine themselves or their family and friends as, say, targets of a preplanned police raid, they may find it easier to envision themselves or those they know and love, say, dialing 9-1-1 in an emergency—and then facing catastrophic consequences.

Schwartz has written a book with the power to persuade much of the population that our present system of civil-rights litigation suffers from a plethora of problems, especially in the policing context.  These problems range from how attorneys’ fees are assessed to how plaintiffs’ complaints are evaluated to how the Fourth Amendment is interpreted; from immunity to injunctions to indemnification; from judicial subjectivity to jury selection to judgment satisfaction.  I think about constitutional remedies every day, and Schwartz’s work always teaches me new things.  Here, her writing will take non-specialists and non-attorneys on a profound journey into the rule of law, or lack thereof, too.

Shielded is a scholarly masterpiece with popular appeal.  The full extent of its success, however, depends in part on what goals Schwartz set out to achieve.  A possible problem with diagnosing so many problems is that problems beg solutions.  And here, a reader may perceive a mismatch between the ambit of the problems Schwartz identifies and the attention to the solutions she offers.  As it turns out, 12 of the book’s 13 chapters are aimed at exploring the doctrinal and practical circumstances that facilitate law-enforcement avoidance of constitutional accountability.  Only the last chapter, which comes in under 20 pages, focuses primarily on what the legal community, policymakers, and the public should do about this state of affairs.  (I say “primarily” because the preceding chapters do suggest some possible improvements.)  Part of this mismatch doubtless derives from a lack of space in this particular project.  But part seems to derive from the cross-cutting quality of Schwartz’s overarching approach. 

As everyone who watched the frustrating—and ultimately futile—attempts to enact qualified-immunity and related reforms in Congress over the last few years knows, getting a critical mass of stakeholders to agree that there’s a problem (or even many problems) worth fixing is far easier than getting them to agree on a solution (let alone many solutions) for doing so.  Schwartz is an astute observer and, at least by providing legislative testimony, an active participant in these political processes.  The book does not encourage police abolition.  Instead, many of the proposals Schwartz offers are measured and incremental—including local-government actions like “requir[ing] police departments to review all of the lawsuits brought against them and assess trends across cases,” as well as outside-government actions like more attorneys accepting more civil-rights representation.  One might suppose that having worked hard to convince a wide range of readers of the need for reforms, Schwartz has little desire to alienate her audience in selecting which ones to support.  

The problems the book identifies, however, seem so lengthy and large that readers may walk away wondering to what extent even the more modest parts of Schwartz’s proposals (like those that would not require the Supreme Court to repudiate broad swaths of precedent) provide a realistic path forward.  With rightful annoyance, Schwartz describes how her explanations of the implications of her research for qualified-immunity reform have repeatedly fallen on deaf ears in decisionmaking circles.  And while she leaves some markers for “local governments eager to advance” indemnification-related changes without “wait[ing] for their state legislatures to act,” readers may ponder how much of the political will needed for real reform exists even on the municipal level.

Don’t get me wrong: I don’t support abolishing the police either, and I’ve repeatedly urged middle-of-the-road solutions to constitutional-tort problems too.  Plus, pragmatism and patience are undervalued virtues in today’s political arena.  My skepticism, therefore, is less about the substance or scope of some of Schwartz’s proposals (although I wouldn’t endorse every detail) and more about their feasibility and force.  Schwartz declines to “promise that any one of the[] changes” she advocates—“or even all of them together—will get us the system of accountability we need.”  But, she says, “they will get us closer.”  I had hoped to find more satisfying answers to some of the intractable questions surrounding how to repair our broken constitutional-enforcement regime.  For if Schwartz doesn’t provide them, who will?

But maybe I’m looking at this all wrong.  The book’s subtitle is “How the Police Became Untouchable,” suggesting a retrospective analysis.  So maybe the last, forward-focused chapter is a bonus, the extra item in the proverbial baker’s dozen.  (It just so happens to be number 13, after all.)  Or maybe it’s a teaser, the trailer for a more reform-oriented sequel.  With Schwartz continuing to provide such imperative insights into the civil-rights landscape, one can only hope for more on the horizon.

Katherine Mims Crocker is an Associate Professor of Law at William & Mary Law School.  You can reach her by e-mail at kmcrocker@wm.edu.