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.