Balkinization: Not everything that is faced can be changed, but nothing can be changed until it is faced

Not everything that is faced can be changed, but nothing can be changed until it is faced

Guest Blogger

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

Joanna Schwartz

I am honored and thrilled that such a tremendous group of scholars commented on my book, Shielded: How the Police Became Untouchable, for the Balkinization Blog—I am indebted to Jack Balkin for hosting the wonderful symposium. Unsurprisingly, this illustrious bunch has offered a lot to chew on, in addition to much generous praise. Having basked in the latter over the past week, I want to take this opportunity to engage with a handful of their many thoughtful comments and observations.

First, some stage-setting: I argue in Shielded that a civil rights lawsuit is often the best—or only—available means of seeking some manner of justice when a person’s rights have been violated by the police. Yet, decisions by the Supreme Court have erected barriers at every stage of the litigation process that make it difficult to find an experienced civil rights lawyer, plead a plausible complaint, prove a constitutional violation, defeat qualified immunity, hold local governments liable for the acts of their officers, and obtain injunctive relief. Even when plaintiffs can overcome all of these barriers, I argue, state and local governments’ policies and practices make it difficult for court victories to impact the finances or decisionmaking of those involved.

Nancy Leong offers a terrific example of the ways in which these multiple barriers not only co-exist but interact and strengthen each other; as she explains in her contribution to the symposium and demonstrates in a forthcoming article, the dearth of experienced civil rights attorneys (the focus of Chapter 2) makes it particularly challenging for plaintiffs to succeed on their claims against local governments (the focus of Chapter 6); Monell claims are extremely difficult to plead and prove, and inexperienced civil rights lawyers are often unable successfully to navigate their complexities.

Having described what Shielded is, it is important to describe what Shielded is not. I do not endeavor in Shielded to examine, in depth, all possible sources of government accountability and oversight; I describe the limited availability of criminal prosecutions and internal police department investigations in the Introduction, but make clear that my focus in Shielded is on justice through civil lawsuits. And although I approvingly describe ways in which local governments have limited the scope of police power, I do not weigh in on the optimal role of police in our society.

Peter Schuck’s contribution to the symposium focuses on two topics he believes I should have covered in more depth. First, Schuck would have liked me to dedicate a chapter to police unions. I agree that police unions are a critically important topic in conversations about police accountability; as I note in Chapter 1 of Shielded, police unions have risen in power over the past several decades, “fueled by the familiar claims that police need maximum discretion to do their jobs, and used that power to negotiate with cities for decreased public transparency and accountability” (p.13-14), and I write in Chapter 13 that union officials have been active opponents of qualified immunity reform in recent years (p.228, 239). But it would not have made sense to dedicate a chapter of Shielded to unions for a reason Schuck recognizes; because the book is focused on civil rights litigation and its chapters, as Schuck writes, are “designed…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.” Police unions are not one such hoop; indeed, police unions’ advocacy has focused primarily on limiting accountability and transparency outside the litigation context—by limiting retention of police records and police departments’ power to investigate, discipline, and fire officers who have engaged in misconduct. Debates about whether police unions play a valuable social role or are unconstitutional, raised by Schuck in his comments, are even farther afield. There is a chapter—if not a book—to be written about these topics. But that book is not this book.

I have a similar response to Schuck’s critique of Shielded for not adequately responding to concerns about a particular kind of over-deterrence referred to as the “Ferguson effect”: the possibility that officers will engage in self-protective behavior as they, in Schuck’s words, “seek to limit their exposure to the burdens and obloquy of departmental discipline or public criticism.” I do not explore the “Ferguson effect” in Shielded because, as Schuck notes, it is a theory about the chilling effects of internal discipline and public criticism—not litigation. I do, on the other hand, spend many pages exploring fears that officers will be overdeterred if justice in civil rights suits is made too easy to obtain—including concerns that the threat of being bankrupted for split-second mistakes will discourage officers from vigorously enforcing the law or from agreeing to wear a badge or gun—and show, based in large part on research I have conducted over the past 15 years, that these fears are overblown if not downright false. Far from being chilled by the threat of litigation, most officers know little to nothing about the lawsuits filed against them; this is the subject of Chapter 12.

Brandon Hasbrouck’s response points to a different gap; my decision not to address in depth “abolition and non-reformist reforms,” perhaps in a final chapter of the book. I do offer some reform suggestions—including limiting police traffic stops—that, Hasbrouck notes, “could be categorized among the milder end of defunding the police.” But Hasbrouck is right; I do not weigh in on what form an ideal system of public safety would take. Instead, my reform recommendations focus on a particular type of back-end accountability—how to build a civil litigation system that better achieves justice for those whose rights have been violated. And at least one possible benefit of this more targeted approach is that it foregrounds potential areas of agreement among those who hold differing opinions on the ultimate question of abolition. Hasbrouck’s own reaction to Shielded is a gratifying example of this Venn diagram in action: he writes that, “if you were to offer me a choice to implement Schwartz’s entire prescription…I’d be tempted to take it” as a means of “harm reduction” until we can create “an abolition democracy.” Instead of foregrounding disagreements about the form public safety should take, I propose first trying to improve those aspects of the system those holding disparate views on abolition agree should change. We have a long way to travel on that road before we are in danger of parting ways.

Although Brandon Hasbrouck seems willing to adopt my proposals as a means of interim harm reduction, Katherine Mims Crocker wonders just how much my proposed reforms could realistically accomplish. Crocker writes, “[t]he problems the book identifies…seem so lengthy and large that readers may walk away wondering to what extent even the most modest parts of [my] proposals…provide a realistic path forward.” Crocker’s right to raise this question—as she recognizes, I don’t promise that the proposals in the last chapter will “get us the system of accountability we need”; only that “they will get us closer.” But just how much closer will we get? How much farther will we need to go? Although I would like to be able to offer definitive answers to what Crocker describes as the “intractable questions surrounding how to repair our broken constitutional-enforcement regime,” it seems to me that the best we can do is take a few steps forward and, from that new vantage point, take stock of how our modified system works and determine what subsequent steps we should take.

Yet perhaps even my incrementalism is a pipe dream. Crocker writes, “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 there’s a problem (or even more problems) worth fixing is far easier than getting them to agree on a solution (let alone many solutions) for doing so.” This is where Aziz Huq and Richard Fallon engage—the extent to which my proposed reforms are achievable and, specifically, whether Shielded can move them forward.

Both Fallon and Huq note that the data, arguments, and proposals offered in Shielded will necessarily be interpreted through the lens of decisionmakers’ experiences, beliefs, and politics. As Richard Fallon explains it, judges necessarily rely on “empirical assumptions and beliefs” when crafting constitutional doctrines, and often do—and must—decide cases with imperfect information. And, Fallon observes, “especially in the absence of reliable empirical information, judges’ and Justices’ ideological orientations and general world views are overwhelmingly likely to color their perceptions” and decisions. Similarly, Huq argues, “false beliefs do not stand on their own; they are interleaved into larger structures of belief, confirmation, and true evidence.”

I agree. As I observe in my chapter about judges; “Beyond which president nominated them, or where in the country they sit, or their gender or race, what judges believe about the way the world works may influence how they rule in Section 1983 cases…Different judges can reach different conclusions about the implications that can reasonably be drawn from the same facts, and those differences in perspective can lead one judge to grant a summary judgment motion that another judge would deny.” (p. 122). The same is true for legislators, and for jurors; as I explain in my chapter about juries, research has shown that the people can look at the same video of a police chase and reach starkly different conclusions about what they saw. For these reasons, I am in wholehearted agreement with Fallon that “it matters greatly who the Justices are.”

Huq pushes further, wondering if I’m engaging in lazy or magical thinking by hoping or expecting “that change will flow from some sudden enlightenment on the Justices’ part.” I’m not; I have no hope or expectation that reading Shielded will, in an instant, transform the worldviews of Justices who currently endorse broad immunities, limited constitutional protections, and minimal government transparency and oversight. Indeed, my final chapter focuses far more on reforms that can might be made at the state and local level in the face of Supreme Court and congressional inaction; and the importance of seating judges, politicians, and juries whose ideological orientations might make them more sympathetic to those whose rights have been violated and more skeptical of baseless claims that officers will be bankrupted for split-second mistakes without qualified immunity to protect them.

But if it’s magical thinking to believe or hope that Shielded might move the needle in some important ways, then I’m guilty as charged. I stand by the hope that, as Fred Smith put it, Shielded might be “in the right place at the right time” to nudge public opinion because, Smith generously writes, it describes wide-ranging “doctrines and institutional factors that collectively impede constitutional accountability”; “humanizes these barriers to accountability,” and makes this information and these stories “accessible to non-legal experts.” And I stand by my hope and even belief that Shielded can shape some open-minded judges’, legislators’, and local government officials’ thinking. Indeed, it already has; I recently learned that Shielded influenced a state legislator’s views about a pending police reform bill.

I begin Shielded with a quote by James Baldwin that sets out what I consider the danger of the current state of affairs: “Ignorance, allied with power, is the most ferocious enemy justice can have.” I end my reflections about this tremendously thoughtful and engaging collection of essays with another, that encapsulates my ambitions for the book: “Not everything that is faced can be changed, but nothing can be changed until it is faced.”

Joanna C. Schwartz is Professor of Law at UCLA School of Law. You can reach her by e-mail at schwartz@law.ucla.edu.

Posted 9:30 AM by Guest Blogger [link]