Police: Not Just Above the Law, but Hiding Behind It

BOOK REVIEW: 'Shielded: How the Police Became Untouchable' | By Joanna Schwartz | Publisher, 2023 | Nonfiction, politics | Available at The Seattle Public Library

by Dave Gamrath

(This article was originally published on Real Change and has been reprinted under an agreement.)

Anger around the 2020 murder of George Floyd by a Minneapolis police officer seemed to finally generate demands for changes in American policing, but over the past three years, not much really changed. Stories of police abuse keep coming. Why is this?

In Shielded: How the Police Became Untouchable, UCLA law professor Joanna Schwartz explains the multitude of barriers that have prevented necessary police reform from happening.

Schwartz shows how the U.S. justice system offers three paths forward regarding police abuse, none of which are easy.

Option one involves criminal prosecution of officers, which is exceedingly rare. Police are convicted in less than 1% of fatal shootings.

Option two involves police internal affairs departments investigating officer misconduct, but again, allegations are rarely sustained.

Option three is removing the many "shields" that protect police from lawsuits. Schwartz provides extensive data showing claims about the need for legal protections for police are exaggerated and often simply false. Schwartz states, "I wrote Shielded to set the record straight."

Schwartz provides a history of policing in America and explains how current policing grew out of slave patrols. Throughout U.S. history, "Racist policing has been a constant." People of Color "have been disproportionate targets of police violence and abuse." The "war on drugs" and "tough on crime" policies discriminated against Communities of Color. "There may be bad apples, but they often come from rotten trees," and American courts have prevented these rotten trees from being uprooted.

Schwartz uses stories of outrageous police abuses of innocent citizens to provide clear examples of just how unjust the legal system remains. There are multiple incidents of people being shot with their hands in the air, of no-knock entries into private homes, of public strip searches without reasonable cause, and of police severely beating, tasing, and arresting citizens without cause.

One officer, Schwartz details, killed three men (all with their hands up when shot) over a five-month period, and for this, received a promotion. For these examples and many more, Schwartz details how the legal system shielded police from any punishment and prevented any meaningful changes in how policing is conducted in America.

The U.S. Supreme Court has erected many law enforcement shields, including limiting the scope of citizen constitutional protections, the ability to sue local governments for the conduct of their officers, the power to get court orders requiring departments to change their behavior, and the ability to recover attorney fees.

In combination, these shields basically make the police "untouchable."

Qualified immunity, created "out of thin air" by the court, is the best-known shield that protects officers from being sued for monetary damages, no matter what they've done. Even if violent police actions went "far beyond the pale" and violated the victims' constitutional rights, excessive force claims are dismissed because of qualified immunity.

Finding a civil rights attorney willing to take a police abuse case is an enormous challenge. Even if they win, often lawyers don't get fully paid. Typically, lawyers only take these cases out of principle, "And principles don't pay the bills." This lack of profitability has led to "less than 1 percent of people who believe that their rights have been violated by the police ever filing a lawsuit." Schwartz also explains how the discovery process is severely restricted to protect police and how judges often allowed police to refuse to release important incriminating details, such as body camera footage. What evidence judges admit tends to favor police and disfavor plaintiffs.

The Fourth Amendment of the Constitution states "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Yet police can stop and frisk citizens at almost any time, using trivial excuses such as loitering. Similar weak laws allow the stopping of cars for no legitimate reason. This leeway has allowed millions of Americans to be unjustly stopped each year.

Judges have tremendous discretion, and their views and decisions can vary widely, often leading to different rulings based on the same facts. Federal juries are constituted in a way "that people inclined to see the world from the perspective of plaintiffs in civil rights cases are excluded from jury pools at several points in the process." Careful efforts are put into jury selection to "exclude people of color, poor people, people with criminal records, and people who have had negative experiences with the police — people who might find it easier to see the world from the perspective of plaintiffs." As a result, plaintiffs in these cases win only 1% of the time.

State and local laws and policies protect officers so that they rarely have to personally pay anything, even for repeated egregious violations. Schwartz writes that "the threat of officers' personal financial liability is pure myth." In an extensive study she conducted, she found that in larger cities, "officers were made to contribute just 0.02 percent" of the $735 million in judgments against them.

At times, plaintiffs seek to use a lawsuit to force policy changes within a police department, so that similar abuses do not occur in the future. Unfortunately, those changes rarely happen.

Ironically, officers often don't "know even the most basic information about prior lawsuits brought against them," and lawsuit findings rarely make it into officers' personnel files and play no role in performance evaluations. For this reason, the same officers tend to show up again and again in lawsuits. One NYC officer has been sued "more than forty times."

Schwartz closes with suggested changes to the system, including ending qualified immunity for police officers and holding cities legally responsible for constitutional violations by their officers. To ensure people are compensated when their rights are violated, "most of the money must come from local government budgets or insurance and not from the bank accounts of individual officers." Local governments need to "pressure police department officials to learn from the lawsuits filed against them and their officers."

We need more civil rights attorneys, more balanced representation on juries, the end of police stops for minor violations and increases in the use of unarmed officials responding to people having a mental health crisis. Congress could step in and pass new laws overriding Supreme Court shields. A 2020 bill enacted in Colorado is the new "gold standard," taking steps down these paths. Other states need to follow suit.

Schwartz writes that "overblown fears about bankrupt officers and frivolous lawsuits filling the courts must no longer distract us" from making long overdue changes to policing in America.

I'm not holding my breath.

Dave Gamrath is a contributing writer for Real Change and a longtime community activist who founded InspireSeattle.org and serves on multiple regional boards and committees.

📸 Featured Image: Illustration by Asher Weisenburger.