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.