The Untouchables and the Stakes of Abolition

Guest Blogger

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

Brandon Hasbrouck 

            Recently, a few criminal convictions of current and former police officers for the extrajudicial killings of Black men have briefly dominated the national news cycle.  Derek Chauvin's 22.5-year sentence for murdering George Floyd is currently on appeal after capturing headlines, though the concurrent federal sentence he received would render any change in the outcome of that appeal practically moot.  The other three officers who participated in Floyd's murder are also serving shorter concurrent state and federal sentences.  Ahmaud Arbery's killers—including a retired cop—received life sentences.  These convictions are laudable because they demonstrate prosecutors and jurors willing to hold killers criminally accountable, regardless of their role in law enforcement.  Yet they are not cause for unalloyed celebration; carceral solutions to the violence that mass incarceration engenders will do little to redress or prevent that violence.  And they are so notable in part because they are glaring exceptions to the trend that police in America are nearly unaccountable for the abuses they heap upon ordinary people.  This trend follows naturally from the cycles of white reaction to advances in Black civil rights in a characteristically American pattern.

            In Shielded: How the Police Became Untouchable, Joanna Schwartz provides an exactingly researched exploration of the myriad legal and political forces protecting police from accountability for violating the rights of ordinary people.  This book is the culmination of over a decade of Schwartz's legal scholarship, distilled into easily accessible prose for a mass audience outside of the academy.  Schwartz examines the legal system's ostensible primary vehicle for holding police accountable—civil rights lawsuits—and the barriers to those lawsuits.

            Schwartz manages to keep such an exhaustive review of legal and political systems fresh and engaging through her deft use of storytelling.  From the beginning of the book's introduction, Shielded draws its readers into the experiences of the victims of police abuses, their families, and their attorneys.  Each chapter but the last begins with the story of a different person who suffered at the hands of law enforcement and deals with the challenges they faced in seeking relief.  Schwartz also manages to relate these stories to each other across the years, showing how the barriers have developed and shifted.  Rather than simply introducing legal concepts as a textbook would, Shielded puts them immediately into context.  The stories follow ordinary people from a wide variety of backgrounds, amounting to something of a cross-section of the victims of police abuses.  This allows Schwartz to demonstrate both the racism inherent in American policing and how police abuses are so pervasive that they are not limited to members of marginalized groups.  Even a rich, white executive who called the police for help with a mental health crisis can find himself the victim of an extrajudicial execution.  The common threads of police behavior across the stories also give a disheartening view of how deep the rot goes within policing.  Thanks to Schwartz's skill at weaving storytelling into her account of legal and political institutions, readers not only remain engaged, but immediately understand the effect those institutions have on ordinary people's lives.

            Shielded is a wide examination of the injustices hindering civil rights litigation against police officers and municipalities, granting a full view of how these result from interlocking systems.  Schwartz best describes this pernicious web in Shielded's final chapter, where she explores the potential ramifications of various remedies.  She rightly points out how the move to end qualified immunity, while laudable, is not a magic bullet to open the courts to meritorious civil rights lawsuits—nor to the frivolous ones its opponents so frequently invoke.  Her prescription of a “yes-and” approach is better attuned to the complexities of the problem than much of the media's fixation on qualified immunity.  This discussion, however, misses one of the biggest threats to civil rights suits: the Supreme Court could simply declare that the Constitution does not protect the sorts of interests at the base of most civil rights lawsuits.  If this seems too bleak a view of the Court, consider that this is exactly what the Court did in Vega v. Tekoh, deciding that the failure to give a Miranda warning did not fall within the scope of Section 1983 because it wasn't a violation of a right “secured by the Constitution.”  Essentially, Shielded provides a comprehensive diagnosis of the problem, but ultimately takes a reformist approach whose prescription is likely to be inadequate to fully address police abuses.  While Schwartz admirably goes farther than much popular criticism of the legal and political shields police enjoy, I think she could have gone even farther.

            Amid her astute discussion of currently-advanced remedies, Schwartz makes no mention of abolition.  Some of what she describes could be categorized among the milder end of defunding police, but she makes no mention of wholesale replacing unjust institutions with life- and liberty-affirming ones.  This is somewhat surprising, as she does make it clear that she is aware of the racism inherent to American policing through its origins in slave patrols.  No reformist program, no matter how comprehensive, can eliminate the through-line of injustice and racism that origin endowed to American policing.  Police are trained by police, supervised by police, and encouraged to stand in solidarity with other police.  Even before they reach the academy, police have well-developed views on policing thanks to a constant stream of copaganda in our media.  Schwartz writes with clear awareness of the intransigence of police attitudes and practices, but does not explore the distinct possibility that policing itself is unreformable.

            The root of this, perhaps, is an unstated optimism.  Schwartz frequently points out that civil rights lawsuits do not have the deterrent power their critics and the courts allege.  Police officers seldom have any personal responsibility for paying judgments and settlements, often do not even know the content of allegations against them, and make little change in their behavior, even when they are sued repeatedly for the same transgressions.  Police departments do not bear the cost of decisions in their budgets, nor do they often have any mechanism in place for tracking patterns within suits to allow them to institute reforms.  Even if every plaintiff with a meritorious civil rights claim prevailed, officers and departments who are insulated from consequences or even knowledge of these outcomes simply cannot be expected to change.  Yet Schwartz operates on the assumption that somehow, if the barriers to success could be removed and police and their departments made aware of the patterns of harm they create, those patterns might change.  Perhaps this assumption is correct—after all, we've never tried a legal system that actually makes police face consequences for the abuses they heap upon ordinary people.  I remain skeptical of that possibility.  The foundational racism and oppression built into policing in America is simply too powerful for me to believe it can be changed by accountability and knowledge alone. 

            And yet, if you were to offer me a choice to implement Schwartz's entire prescription, with a guarantee that the Supreme Court and legislatures would erect no further barriers while also failing to improve the problems of policing in any other way for the next two decades, I'd be tempted to take it.  I fear that we are, relatively speaking, early yet in the struggle against police abuses.  American capitalism thrives on perpetuating systems that keep workers desperate.  The antidemocratic conservative legal and political project is organized, well-funded, and in a position of structural advantage.  Those forces are committed to maintaining our police state.  Creating a just society—an abolition democracy—will require a decades-long struggle as we create new institutions to replace our unjust ones.  In the meantime, Schwartz's prescription is worth enacting as a means of harm reduction.

            But I want more.  The Black community demands more if we are to live as full citizens of a democracy; if we are to have equal justice under law.   We want the justice that Korryn Gaines, Breonna Taylor, Tyre Nichols, Patrick Harmon, Marcus-David Peters, Atatiana Jefferson, Julian Lewis, Walter Wallace, Jayland Walker, and Keenan Anderson didn't get—a society where we can live in peace.  We say their names to remind us that the system is working the way it was designed.  And Black movement leaders have been telling us this.  Angela Davis taught us that the prisons exist to protect white supremacy.  James Baldwin taught us that police treat Black neighborhoods as if they were an occupying army in enemy territory.  The Black Panther Party saw its purpose as primarily one of self-defense and called for the end of carceral violence and the creation of life-affirming institutions even in mass incarceration's earliest stages.  Black people continue to be dehumanized, terrorized, and murdered under laws written and interpreted almost exclusively—past and present—by white men.  While we suffer greatly and visibly from these laws, we “are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.”

            Shielded surveys a wide range of legal and political problems, analyzes them thoroughly within their broader context, and proposes necessary—but not sufficient—remedies to ameliorate those problems.  We must first understand injustice before we can successfully oppose it, and Shielded is a succinct and thorough examination of the injustices shielding police from accountability for civil rights violations.  Yet its remedial section falls short.  The book is, perhaps, a chapter too short.  With a full exploration of abolition and non-reformist reforms, perhaps, Schwartz could give the same robust treatment to solutions as she does to problems.  Even without that exploration, Shielded is essential reading for those concerned about holding police accountable.  It is a valuable contribution to civic education about the scope of police abuses and judicial abdication, which is sorely needed in a society that promises us that the police officer is our friend. We can embrace its proposals for reform while preparing for the harder work of reconstruction, but we should not consider the project complete until a just life- and liberty-affirming society exists for all.