The Absence of Police Unions and Over-Deterrence in Joanna Schwartz’s Shielded

Guest Blogger

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

Peter H. Schuck

I am delighted to have been asked to participate in an online symposium celebrating Joanna Schwartz’s new book, Shielded: How the Police Became Untouchable.  The subject is one that should command the attention of every individual in our society, whether citizen or non-citizen, admiring of police or suspicious of them, more or less likely to come in contact with police.

Schwartz’s subtitle depicts the police as “untouchable.” This is a bit hyperbolic, as even some of her case studies show.  Nevertheless, her analysis leaves no doubt that legal remedies against miscreant cops are woefully inadequate in many important respects and cases.  Most concerning, many and perhaps most deserving victims of police misconduct find that their legal remedies – particularly the 150-year old civil rights provision, 42 U.S.C. Section 1983 – are unavailing.  Many reasons for this remedial failure exist, and Schwartz analyzes nearly all of them methodically, chapter-by-chapter.  (I say “nearly all” for a particular reason: despite Schwartz’s admirably detailed analysis of each of the impediments to Section 1983 recoveries, she has almost nothing critical to say about the substantial, insidious role of police unions in blocking citizen remedies.  More on this below).

Schwartz has usefully designed her book’s chapter sequence to track and highlight the succession of discrete hoops, doctrinal and otherwise, through which the Section 1983 plaintiff must jump to gain a meaningful remedy for police misconduct.  She begins with the initial, often problematic stage of such a claim: finding a lawyer willing and qualified to take the case.  As she explains, this initial step, which is relatively unproblematic in civil cases where the expected recovery does (or does not) make the contingent fee adequate to incentivize lawyers, is very challenging in the Section 1983 context.  Some of the obstacles reflect the doctrinal impediments to recovery that are already in the statute as fairly interpreted.  Courts have invented other obstacles, some of which are noted below, out of whole cloth.  In general, Schwartz claims, lawyers who might consider taking on a Section 1983 case know that “the risks are greater and the rewards are smaller in such matters.  They know that it is more difficult in Section 1983 litigation to get the government to disclose the facts that lawyers need to build their case, “more difficult to prove a legal violation and overcome qualified immunity, more difficult to get to a jury, and more difficult to win.”[1] The barrier is particularly high, she shows, for claims under the Fourth Amendment whose ambiguity (“unreasonable searches and seizures”) has been interpreted by the courts to provide broad protections to the police.

Schwartz’s chapter on qualified immunity reveals most clearly why Section 1983 ends up protecting much police misconduct.  She explains how the doctrine has evolved since the Supreme Court limited the Section 1983 remedy against police officers to situations where defendants violated “clearly established law” in injuring a civilian.  The Court has made it very difficult for plaintiffs to satisfy this standard.  Schwartz reviews the long line of cases beginning with Harlow v. Fitzgerald[2] in which the Court has construed the “clearly established law” standard to make it almost impossible for plaintiffs to satisfy it.  Essentially, the courts have limited it to situations in which the facts surrounding the police encounter are virtually identical to ones in which past courts have upheld officer liability.  It is not enough for Section 1983 plaintiffs to show that what the officer did was very similar to what an officer did in an earlier case in which liability was imposed and upheld by the court.  Plaintiffs must also show that the operative facts – with “operative” defined quite broadly -- were almost the same.  Schwartz deems this conception of “clearly established law” to be “nonsensical and indefensible.”[3]   

The “clearly established law” requirement is by no means the only immunity-related protection that the Court has given to police defendants.  In addition, they enjoy the right of interlocutory appeal of an unfavorable ruling on the “clearly established law” ruling by the trial court, thus placing victims of police misconduct and their lawyers at yet another litigation disadvantage.  Given Schwartz’s focus on the breadth of the qualified immunity defense, then, it comes as something of a shock to learn from her that the defense actually fails in fully 91.4% of the cases she analyzed[4] – a fact that she should have revealed to the reader much earlier.   

In subsequent chapters, Schwartz effectively analyzes additional obstacles that make Section 1983 remedies frail reeds for civil rights plaintiffs.  For example, suits against the city that employs and supervises the police are limited by the “official policy or custom” requirement under which plaintiffs must show the city’s “deliberate indifference” to citizens’ rights.  In the Iqbal[5] and Twombly[6] cases, the Supreme Court has fashioned an additional non-statutory and highly demanding pleading standard that in principle can get cases dismissed before plaintiffs’ lawyers have even conducted discovery.  In chapters on how juries and judges decide Section 1983 disputes, Schwartz shows that relatively few cases (under 7%) go to trial, adding that “federal juries. . .disproportionately exclude people of color, poor people, people with criminal records, and people who have had negative experiences with the police.”[7] A chapter on suits seeking injunctive relief against specific policy practices shows how reluctant courts are to order structural reforms, or even to bar particular abusive police practices.  Other chapters probe the various factors that combine to weaken deterrence.  Police misconduct litigation, Schwartz maintains, sends signals that are too weak or diffuse to deter or systematically reform police abuses.  Even for those cities that must compensate victims, the damages that end up being actually paid are usually a drop in the government bucket.  The miscreant police officers “rarely pay a penny toward financial awards plaintiffs receive.”[8]  And perhaps most dismaying, she shows, little feedback and learning by the police department or individual police offenders occurs.

Schwartz’s analysis is trenchant, well-written, amply-documented, and easy to read.  I found only two flaws – but each is centrally important.  First, and in some ways most surprising given her larger argument for greater police accountability, she barely mentions the role of powerful and protective police unions, which include a substantial majority of police officers in the U.S.  Indeed, they are leading supporters of the current regime of qualified immunity under Section 1983 which is perhaps Schwartz’s main target in her book. By barely noting the leading role of police unions in defeating reform efforts and protecting even bad cops – indeed, an entire chapter should and could easily have been devoted to it -- she leaves a vast and anomalous analytical lacuna in her book.  Indeed, some commentators and scholars maintain that police unions are among the main impediments to reform and indeed are even arguably unconstitutional[9]  Other police-specific commentary calls attention to many abuses brushed aside, if not encouraged, by police unions.[10]  Not surprisingly, the police have their vigorous defenders who maintain that these criticisms are largely unwarranted.[11]  Schwartz seems blissfully unaware of this rich debate; its absence from her analysis is simply stunning and inexplicable.

A second large and related hole in Schwartz’s analysis concerns a possible perverse consequence of her remedial agenda: over-deterrence.  My first book,[12] published 40 years ago (!), analyzed legal remedies for official misconduct by police and other “street-level bureaucrats” (in Michael Lipsky’s revealing phrase).[13]  There I urged reformers to consider, among other things, the risk of a specific kind of over-deterrence of street-level police – the risk that police will use their ample discretion to engage in self-protective behavior that by minimizing their private risk of being sanctioned by their superiors or their potential victims disserves the public.  For example, police are more likely to be criticized for using excessive force, engaging in illegal entry, or otherwise abusing their powers – misconduct that their victims can identify and their departmental superiors can detect -- than they are for staying in their patrol cars or looking the other way rather than engaging in risky interactions with citizens.  Street-level police officers have many opportunities to engage in such self-protections that perversely defeats such goals.  Indeed, the more effective Schwartz’s sanctions are against the “untouchable” police (so described in her subtitle), the greater the risk of this over-deterrence.  Close analysts of police behavior have detected such withdrawal tactics in the wake of anti-police protests, terming these tactics “the Ferguson effect” and deeming them partly responsible for the rise in crime levels even prior to the pandemic, high quit rates, and difficulties in recruiting new officers.[14]  In these ways, reforms that hold police officers more personally accountable -- either directly through personal liability or indirectly through more rigorous discipline imposed by a financially accountable police department or city – will affect the balance of incentives facing them in ways that may defeat the public interest. 

Schwartz fails to even mention this problem, much less take it seriously as an issue.  To be clear, this over-deterrence risk is not that greater accountability will force individual police officers to pay substantial amounts of money to deserving claimants.  As already noted, Schwartz convincingly shows that significant financial accountability by individual cops is highly unlikely due to their limited personal wealth.  Moreover, her empirical research shows that state and local governments generally either insure or self-insure for potential judgments arising out of police misconduct.  Both optimal deterrence and compensation goals, then, favor compensating deserving plaintiffs through awards against local or state government entities, which can access the resources needed to pay the judgments and can strike a better deterrence balance through more effective training and other measures.  But the risk of perverse self-protective behavior will remain for individual officers who may seek to limit their exposure to the burdens and obloquy of departmental discipline or public criticism – precisely the kind of self-protection that their unions seek, all too successfully, to provide them.  This is a different and dangerous form of shielding that Professor Schwartz unaccountably fails to take seriously.

Peter H. Schuck is the Simeon E. Baldwin Professor of Law Emeritus at Yale Law School and Distinguished Scholar in Residence at NYU School of Law. You can reach him by e-mail at peter.schuck@nyu.edu.