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.
Shielded's chapters are divided by topic, with all but the first and last addressing specific pieces of the legal and political apparatus and how each protects police from accountability. While qualified immunity is among the most obvious and infamous barriers to police accountability, it is the fourth such topic. Before qualified immunity can even come into play, Shielded explores the problem of finding a civil rights lawyer to represent a plaintiff, the procedural barriers on the initial complaint itself, and the limitations of constitutional law, which too often does not even recognize police abuses as rights violations. Further chapters deal with the difficulty of suing municipalities, the biases of judges, the habits of juries, the trouble of obtaining court-ordered reforms, indemnification of police officers by their employers, how cities budget for settlements, and the lack of mechanisms for police departments to learn and improve from civil rights suits. Tackling this many aspects of the problem of police unaccountability in succession serves as a thorough diagnosis of the problem. 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.