Above Photo: A supporter of Jordan Neely is arrested by NYPD officers during a rally in support of Daniel Penny at Collect Pond Park on May 24, 2023 in New York City. Michael M. Santiago/Getty Images.
To understand where US law enforcement’s impunity comes from, we have to look at the historic role of police in maintaining a racial and class-based order.
The terror of police power is a recurring fact of American life, particularly in this country’s poorest communities and in communities of color. The power of officers comes not only from the strength of arms, but also from a legal system that is swift to protect its enforcers, yet slow to hold them to account. Where did this virtual immunity from prosecution come from? Has it always been this way? And if not, how has police power and impunity changed through the ages? Historian Joanna Schwartz joins The Chris Hedges report to discuss her new book, Shielded: How the Police Became Untouchable.
Joanna Schwartz is a professor of law at UCLA, where she teaches civil procedure and courses on police accountability and public interest lawyering.
The following is a rushed transcript and may contain errors. A proofread version will be made available as soon as possible.
Chris Hedges: The police in the United States through a series of Supreme Court decisions as well as policies enacted by state and city governments have become largely immune from prosecution even when they commit serious felonies such as murder. Police officers are criminally charged in less than 2% of fatal shootings and convicted in fewer than one third of those cases. When officers injure but do not kill, they are even less likely to be prosecuted. Police in America are virtually omnipotent, prosecuted in a handful of high profile cases that receive national attention, but otherwise free to engage in lawless behavior, especially in poor communities.
University of California law professor Joanna Schwartz, in her book, Shielded: How The Police Became Untouchable, details the myriad of ways the legal system has stripped the citizens of protections from police abuse. The wholesale blocking of civil rights litigation means the police are rarely held accountable for the crimes they commit. Blunting all efforts to enact meaningful police oversight, legal accountability and reform. Joining me to discuss her book, our failed justice system in police forces that function especially in poor communities as rogue militias, is Professor Joanna Schwartz. Let’s begin as you do in the book with the legal antecedents, especially Section 1983 became law in 1871. What was Section 1983? Why was it made law and how did it protect the citizenry and why and how has it been rolled back?
Joanna Schwartz: Section 1983 was first passed by Congress in 1871 following the Civil War during reconstruction when newly freed slaves, former slaves, black Americans were being tortured and killed by the newly created Ku Klux Klan and other white supremacist groups and local law enforcement and government was doing nothing to intervene if they were not themselves participating in the violence. And Congress looking at this evidence, decided that there needed to be a federal law allowing people to sue for violations of their civil constitutional rights in order to give those rights actual meaning. And so they enacted what is now known as Section 1983 for its place in the US code, but was at the time referred to as, the Ku Klux Klan Act. Very soon after Section 1983 became law, decisions by the Supreme Court and by Congress made Section 1983 and other reconstruction era acts lose much of their power.
And it was really not until 1961 when the Supreme Court first recognized that Section 1983 could be used to sue government officials, police officers in the case, which is called Monroe versus Pape, for the violations of their constitutional rights. So after 90 years in obscurity and disuse, Section 1983 was recognized by the Supreme Court as being this tool that could be used to sue for constitutional violations in 1961. But then after a sort of momentary heyday with the power and potential of 1983, the statute has lost progressively its power and it’s lost its power through Supreme Court decisions primarily that have cut away at the ability to sue in a variety of different ways that I outlined in the book that begin at the very initial stage of trying to find a lawyer through pleading a complaint with the court through proving a constitutional violation, qualified immunity, holding local governments responsible and beyond.
Chris Hedges: So this 1961 decision opened as you write in the book, a kind of flood of lawsuits. I remember talking with the civil rights attorney, Lynne Stewart, and she said this was a kind of golden era in the judiciary where citizens really had the capacity to hold government agencies including police accountable, and that it was essentially that surge in suits that produced the backlash. And including in that backlash as you write in the book or accompanying that backlash was a kind of mythology. Can you explain how that worked?
Joanna Schwartz: Absolutely, and I should say that the evidence definitely shows that the number of claims that were filed under Section 1983 increased dramatically after 1961 as well, you would expect because it was the first time the Supreme Court said you could sue under this statute. But the claims that were alleged, the story that was told about the effect of these claims really does take mythological proportions. The story goes that courthouses were overflowing or threatened to be overflowing with frivolous lawsuits, that these lawsuits were bankrupting or would bankrupt officers who were simply doing their job in good faith and that all of these lawsuits would discourage people from taking on the job of a police officer or from aggressively enforcing their duties as a police officer and without a robust police force that we as a society would descend into chaos. And truly you can see versions of that story or pieces of that story told by courts, by journalists and by politicians in the years after Monroe versus Pape was decided.
Chris Hedges: One of the effects was that states passed laws, cities passed laws where they obliged local governments to pay damage awards and lawsuits against police officers. Can you explain that process and what effect it had on police misconduct and what happened when line items and the budgets for damages exceeded the amount set aside for damages?
Joanna Schwartz: So in the seventies and eighties, particularly, I should say sixties, seventies and early eighties, states and localities across the country enacted what are called indemnification statutes. And indemnification is an idea that we see in private industry all of the time. If there’s a truck driver from a company, the truck hits you, you would want to sue not the driver themselves, but the company that hired them. The idea being that the driver probably isn’t going to have the resources to pay that settlement or judgment, and it’s really the work of the truck owner or the truck company that should be held responsible. This is the same idea that states and local governments had when they created these indemnification statutes which provide that when an officer is sued, they will be given a lawyer free of charge and that settlements and judgments against them will be paid by the local government or by their insurer instead of by the officer themselves.
And these indemnification provisions vary. There’s usually some exceptions to the kinds of things that the city agrees to cover and the coverage is limited to conduct taken in the course and scope of employment. Although when I have researched settlements and judgements and police misconduct suits across the country, what I found was, that virtually all of the money comes from the local governments and from insurers. I found in 81 jurisdictions, a six-year period, 99.98% of those dollars came from the local governments and their insurers. And notably it does not come from the police department’s funds. I did a follow-up study where I looked to see what financial impact these settlements and judgements had on the police departments. And what I found was often the money may come technically from the police department’s budget, but that money was already budgeted to the police department from the central budgeting process.
And when departments went over budget, when they spent more money than expected on lawsuits, the extra money came not from the police department. They weren’t required to cut back on overtime or equipment or anything like that. Instead, the money was taken from other parts of the central budget. And what I found when I looked into how this practice worked in Chicago was that the excess money ends up coming from portions of the budget that were earmarked to go to those least politically powerful people within the community. There was a city attorney for the city of Chicago who said when payouts went up in lawsuits, led paint testing went down. And so the very communities that are disproportionately the subjects of police surveillance, searches and violence are also the ones who have their budgets and the parts of the budgets earmarked toward them stripped away to satisfy settlements and judgements in cases alleging police misconduct against people within their very communities.
Chris Hedges: And in cases like Chicago where you had Burge and that torture center, that sort of clandestine torture center, we’re talking about millions of dollars.
Joanna Schwartz: Absolutely. I mean, in the last 10 years, I think Chicago paid half a billion dollars in settlements and judgements and they pay an extra many millions of dollars toward private attorneys that they use to defend their lawyers or excuse me, their officers in some of these cases. And as I describe in the book, there are many instances of cases where the Chicago police officers had extreme egregious allegations against them. Many millions of dollars were spent defending these cases only to lose at trial and have to spend many millions of dollars more. And the police department is playing with house money in these situations. They suffer no consequences of spending extreme amounts of money to fight these cases instead of what would be better for the community as a whole, which would be to resolve these cases, to satisfy the demands of people who have righteous claims and then to work to prevent these things from happening again in the future.
Chris Hedges: Can you talk about the role of prosecutors and internal affairs divisions and both these two institutions you write in the book really serve as a way to protect police from legal accountability?
Joanna Schwartz: Yeah, in the introduction I talk about the fact that if you are trying to seek justice following a right’s violation, there are really three paths. And I focus in the book on civil lawsuits, lawsuits seeking money damages or other kinds of forward-looking relief. And in part I focus on that because the other two paths which are criminal prosecution and internal affairs, investigations and discipline are so dysfunctional. As you mentioned previously, officers are very rarely criminally prosecuted, rare when they kill people, but far rarer when they use force or other kinds of misconduct that don’t result in death. And internal affairs investigations are also extremely difficult to have brought and successful. When the Department of Justice has looked at police department internal affairs investigations across the country, it’s found that police investigators don’t use the basic crime fighting tools that they would use if they were trying to solve criminal cases.
They don’t interrogate officers, who offer virtually verbatim statements to their fellow officers about what’s happened. They don’t interview all of the witnesses to the event. And for these and other reasons, officers are rarely disciplined or terminated. In addition, law enforcement unions have worked with passion to create law enforcement officers bills of rights that create a great deal of protection for those officers in the disciplinary process and the ability to appeal and arbitrate decisions that are against those officers. So even in the rare instances in which officers are disciplined or terminated, those decisions are often overruled or overturned through that arbitration process.
Chris Hedges: Can you explain qualified immunity and how it works?
Joanna Schwartz: Qualified immunity, which has been in the news a great deal, although it’s a term that remains elusive to many, perhaps because it is so nonsensical, it is a defense that was created by the Supreme Court in 1967. So six years after Monroe versus Pape was decided. And at the time it was described as a good faith defense for officers who had violated the Constitution but who had acted in good faith, thought that they were following the law. That standard for qualified immunity shifted dramatically in 1982 when the Supreme Court said, forget about officer’s subjective intent that will take too long to resolve.
The question is whether officers violated clearly established law. And the Supreme Court’s descriptions and definitions of clearly established law have gotten more and more constrained over the years fueled by these myths about the dangers of making it too easy to sue so that today officers are protected by qualified immunity from damages, awards in civil cases, unless there is a prior court decision holding unconstitutional, nearly identical facts, it’s not enough to find a prior case that offers a general principle like that an officer can’t use force against a suspect who is surrendered. You have to find a prior case in which an officer uses a similar type of force against a person who has surrendered and demonstrated that they’ve surrendered in a factually similar way.
Chris Hedges: Public attorneys are provided for people convicted of a serious crime who can’t afford one, but they’re not provided for those whose constitutional rights have been violated by a police officer. How has this barrier benefited police?
Joanna Schwartz: Well, it’s very difficult to bring a civil rights lawsuit without a lawyer. People do it and do it regularly, but when you think about trying to overcome a defense like qualified immunity, it’d be very hard to do that without the assistance of a lawyer. And the Supreme Court has made it more difficult for people whose rights have been violated to find lawyers. The Supreme Court has done this through a series of decisions that limit the ability of lawyers to get paid in these cases. Congress in 1976 created a statute which is called Section 1988, which gives prevailing plaintiffs the ability to get their reasonable attorney’s fees. And Congress wanted to enact the statute to make sure that there were enough financial incentives for lawyers to bring cases alleging constitutional violations, even in cases that didn’t have enormous damages awards from which a plaintiff’s attorney could take their cut.
But the Supreme Court has interpreted Section 1988 to allow that when settling a case, a defendant can offer and a plaintiff can agree to waive that entitlement to attorney’s fees and most cases that are successful settle, which ends up meaning that the sort of contingency fee relationship where lawyers are only expecting to get a portion of their client’s recovery is how lawyers are assessing the risks and benefits of taking these kinds of cases. And so cases involving people who have been killed by police, high profile cases that are expected to garner a significant amount in terms of a settlement are cases that are going to be… They’re people who are going to be able to find representation, but cases involving constitutional violations that don’t result in death or other high damages kinds of harms, even if they’re serious constitutional violations and people who are not going to be sympathetic to a judge or jury for any number of reasons are going to have a really difficult time finding lawyers.
And the problem is not only that those clients will not be able to find lawyers, but my research and interviews with lawyers suggests that the challenges of bringing these cases and the ways in which the Supreme Court has interpreted the ability of lawyers to get paid in these cases has led to lawyers deciding not to bring any civil rights cases at all and focus instead on criminal defense cases or personal injury cases, medical malpractice cases where they have an easier time making a living.
Chris Hedges: Well, you write that the lawyers are reluctant to take cases and these are your words, unless the victims are, likable, credible, and articulate, and that criteria often cancels out the marginalized. Can you talk about that?
Joanna Schwartz: Absolutely. So those quotes are from lawyers who are thinking about what clients they want to represent and they’re thinking, looking forward to how a judge who has tremendous discretion over these cases or ultimately a jury if the case gets to trial, is going to think about this client and what they deserve. And as a practical reality that may, it does for some lawyers, cut out anyone who has ever been involved in the criminal justice system before. This is not true for every jury across the country, but particularly in more conservative parts of the country.
Lawyers are concerned that jurors are not going to be sympathetic to a person who’s previously spent time in jail or prison. This may cut out people who have mental health challenges, people who are LGBTQ because of just the biases of jurors, black jurors, indigenous jurors, Latino jurors, excuse me, black plaintiffs, indigenous plaintiffs, Latino plaintiffs, homeless plaintiffs. These are all categories of people who are disproportionately the subject of police violence but may also be considered less articulate, sympathetic, et cetera to a jury. And so may have an especially difficult time finding a lawyer.
Chris Hedges: Terry versus Ohio Supreme Court decision 1968, the court rejects the notion that stops and frisks are wholly outside the protections of the Fourth Amendment, which was ratified to ensure that Congress would not send government officials inside people’s homes without a warrant or probable cause. Then Chief Justice Earl Warren rejected the notion that police needed probable cause. This case was a significant blow as you write in the book to the Fourth Amendment and the protection against intrusive police behavior, Justice William O. Douglas, who was the loan dissent in Terry wrote, “There have been powerful hydraulic pressures throughout our history that bear heavily on the court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today. Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can seize and search him in their discretion, we enter a new regime.” Talk about that ruling and what it’s meant.
Joanna Schwartz: So Terry versus Ohio was a case that assessed the power of police to stop and frisk. And that was something that even back at that time was happening all of the time. It’s certainly in the news today, but it was happening all of the time on the streets of our country. And there was an open debate about what police’s authority was to stop and frisk. It was the view of law enforcement officers that stopping and frisking was not covered, was not protected at all by the Fourth Amendment. The Fourth Amendment protects against unreasonable searches and seizures to the interpretation of law enforcement. This did not fall into either of those categories and to their opponents, to civil rights advocates like the NAACP Legal Defense Fund, stops and frisks should be treated as wholly within the Fourth Amendment, such that you, an officer would need probable cause before doing a stop or frisk.
So Justice Warren split the baby in some ways. He said that this kind of stop and frisk was covered by the Fourth Amendment, but it did not require the full protections of the Fourth Amendment. It did not require probable cause. Instead, it was only a reasonable suspicion that officers needed to have before they stopped and frisked people. And part of this justification, as Justice Douglass suggests in his dissent was related to the fact that the late sixties, it was a time of great upheaval, protests, assassinations, and the like. And so the argument was that police needed this kind of discretion and power in order to keep us all safe.
But the way in which Terry versus Ohio and the reasonable suspicion standard has come to be interpreted and understood, officers have virtually unlimited power to stop and frisk anyone under almost any circumstances. The police can have no reason or an unlawful reason, can stop someone because of their race. But so long as they can come up with a basis that is not unconstitutional after the fact, that is enough for this Supreme Court. And we’ve seen across the country millions and millions of people stopped and frisked, disproportionately people of color. And that power is really the product of the Supreme Court’s decision in Terry. And the subsequent interpretations increasingly expansive interpretations of what reasonable suspicion allows.
Chris Hedges: You point out in the book that the killings of Michael Brown, Walter Scott, Eric Garner, all began as ordinary police interactions where police were within their constitutional authority to approach, stop and engage, but it culminated with police murder.
Joanna Schwartz: Yeah. This is a point that has also been powerfully made by my UCLA colleague, Devon Carbado, who points out that, by making the power to stop and frisk as broad as it is, it ends up leading to interactions that can then ultimately culminate in the use of fatal force. Because if the officer exercises their extreme power to stop and frisk and then the person runs away, there is then the power and authority to pursue. Or if a person the appears to the view of the officer to have a weapon, this then authorizes the police under the Fourth Amendment to use fatal force against that person whether or not they actually did have a weapon in their custody. So by making it as easy as it is for officers to stop and frisk and have that initial action interaction, they also pave the way toward more violent and fatal uses of police power over those people.
Chris Hedges: I teach in the New Jersey prison system through Rutgers and the college degree program, and most of my students are people of color, but very large black men say that because they’re large, and of course George Floyd, Eric Garner, were very big men, that in and of itself, just their size in the eyes of the police constitutes a threat and they have to carry themselves far more carefully on the street because they’re far more susceptible to Draconian forms of force simply because of their size.
Joanna Schwartz: Yeah, that is not a surprise to me, unfortunately. And the way in which the Supreme Court has interpreted the phrase, unreasonable searches and seizures, is not from the perspective of the person being searched and seized and whether it was unreasonable for them to be subjected to that conduct when they had done nothing wrong, but instead on whether it is reasonable in the eye of the officer in the moment without the benefits of 2020 hindsight under all of the circumstances that appear to them whether force was appropriate under those circumstances. And it is a beyond unfortunate reality that assessment of threat will in some circumstances relate to the plaintiffs, the person, the victims’ race and size.
Chris Hedges: The Supreme Court has legalized all court forms of warrantless searches. If you could explain how these warrantless searches are legally justified and what effect they’ve had on the public.
Joanna Schwartz: Well initially, the warrant requirement has been viewed as sort of a hallmark, a key of the Fourth Amendment and of constitutional protections and the need for a warrant before going into a person’s home more than anything which has been described by conservative justices as sort of the pinnacle of constitutional protections. That warrant requirement has been eaten away in part by this reasonable suspicion standard that was first articulated in Terry that we were just speaking about related to stop and frisks reasonable suspicion has come to play an important role in weakening the standards as well for not knocking and announcing presence before entering the home with a warrant and also the allowance of many exceptions to the warrant requirement so that now this notion that you have to have a warrant is being swallowed by exceptions to that rule, all of which, or most of which are justified again by the same notion that you need to give officers maximum leeway in order to protect from crime or to keep people safe.
The whole warrant requirement, the goal of having a warrant, the intent behind it was to have a neutral third party, a judge or magistrate who could sit in and deliberate about whether to allow this most extreme deprivation of privacy and liberty. But that notion and those benefits have been outweighed time and time again by this claim of the need for quick action and shutting out the ability to have that neutral third party come in to assess the circumstances.
Chris Hedges: Great. That was Professor Joanna Schwartz on her new book, Shielded: How the Police Became Untouchable. I want to thank The Real News Network and its production team, Cameron Granadino, Adam Coley, Dwayne Gladden, David Hebden, and Kayla Rivara. You can find me at chrishedges.substack.com
Speaker 4: And the Chris Hedges report gets some extra time now with a few minutes of bonus material with Chris and his guest.
Chris Hedges: So I want to ask you about the role of trial judges in litigation. That’s again, something in your book I didn’t really understand until I read what you wrote.
Joanna Schwartz: Sure. Trial judges have tremendous power and discretion throughout the litigation process and they have power over whether and how to interpret various legal doctrines that are more familiar to many, whether a constitutional right was violated, whether the officer is entitled to qualified immunity, for example. But they also have tremendous discretion and power to decide less obviously relevant things like whether a request for discovery should be granted whether the party who’s requesting the discovery needs to pay for the production of that discovery, whether experts can be allowed to testify, what the timeframe is for the jury or for a jury trial, who can sit as a juror. And at all of those stages, judges are given tremendous discretion within the rules. There is a lot of mays and cans, not wills and musts, in the legal rules. And those decisions, those very discretionary decisions are extremely difficult to appeal because on appeal courts are supposed to look to see whether the trial court abused their discretion and because their discretion is so vast, it’s very difficult to abuse.
What this ends up meaning is, how a judge sitting in your case sees the world and views the case that you have brought, it’s going to have a great impact on how strong that case ultimately is allowed to be. And I tell the story in the book of a family who were before a judge, very hostile to their case, who carved away in multiple ways at their ability to seek a remedy in the case and ultimately led them to settle on the eve of trial a claim for far less than what you might expect it would have been worth because the value of the case really had been lessened and lessened through the litigation of the claim.
Chris Hedges: Well, you’re right. Not only do plaintiffs lose trials usually against police, but you also write that they’re often rewarded relatively little when they win. Why is that?
Joanna Schwartz: Well, it’s difficult to know always why juries award what they award or don’t award what they don’t award because juries aren’t required to explain their rationale and their rulings. But the way in which federal juries, and it’s true in many states as well, but I’m focused here on the federal system, the way that they select jury pools and jurors ends up weeding out a lot of people who would be sympathetic or more likely to be sympathetic to plaintiffs and civil rights cases. Anyone with a felony cannot serve as a federal juror. Juries are limited to people who are registered voters. In order to receive a jury questionnaire, you have to have stable housing. In order to fill the questionnaire out and return it and appear when you are called, you likely need to have the time to do all of those things, which may be more difficult with unstable employment.
And when there has been studies looking at jury pools and how they compare to the community, there is upwards of 30, 40% of black community members, Latino community members who are not allowed to serve as jurors in those cases. And then once you actually are in the jury pool, then the lawyer or judge can ask you a question about whether you’ve ever had a negative experience with a police officer and whether you can remain neutral despite those interactions. So at each of those stages, jurors who might be more likely to see the world from the perspective of the plaintiffs and civil rights cases are weeded out.
Chris Hedges: Well, I live in Princeton and I’ve done jury duty in Trenton, very poor city, and it’s filled with white suburban people, cherry hill in the area, essentially rendering judgment on poor black people they’ve already largely demonized to begin with.
Joanna Schwartz: And the goal of a jury is to have the opportunity to have your case heard before your peers, before your community. And clearly our system is not doing a good job of that.
Chris Hedges: Well, of course most of them have to plea out anyway. They’re coerced to plea out. I think less than 94% don’t get a jury trial.
Joanna Schwartz: This is a separate and important question, but the ABA has just done a report about this and about the damaging effects of really coerced plea bargaining, which I completely agree is a huge problem that we have.
Chris Hedges: I just want to close your last chapter as a better way. So let’s look at what you propose to address these injustices.
Joanna Schwartz: So I do offer a lot of different suggestions. In the last chapter of the book, they’re mainly focused on what you can think of as backend accountability, sort of what to do when police have violated people’s rights, how to make that aspect of the system better, and I should say there are a lot of important things that have been done or are being considered also at the front end of the system, ways to make it less likely that police ever come into contact with the people whose rights they ultimately violate. So cities across the country are considering ending low level traffic stops, considering getting trained mental health professionals involved to respond to people in mental health crisis and limitations on things like no knock warrants and choke holds, and all of those kinds of interactions or limitations along with more investment in other aspects of our social support system, are really important and need to be pursued.
My focus on the book and on the last chapter is really on that backend accountability. And there I think that some of the most promising work is being done by state and local governments. I don’t hold much hope in the Supreme Court or Congress taking the kind of action that we need, but there are state legislatures that are stepping up. Colorado in the weeks after George Floyd was murdered, passed a comprehensive police reform bill. Among other things, it created a state law right to sue for constitutional violations and prohibited the use of qualified immunity as a defense. This is a kind of approach that New Mexico and New York City have also adopted and that other states across the country are considering. There’s also a lot that can be done at the local level. Police departments receive a quarter to a third of many local government’s budgets, and I think more could be demanded of those police departments in exchange.
I think that police departments could be required to gather and analyze information from those lawsuits brought against them with an eye toward preventing similar events from happening in the future. I also think that the money to satisfy settlements and judgments in these cases should be taken from police departments’ budgets. They should have an incentive to reduce these costs and taking the funds out of their budgets would be one way to do that. There’s really work that can be done at every stage of government and even individuals reading the book or listening to this conversation have things that they could do, advocating for their state and local legislatures to take these actions and serving themselves as jurors, for example. I mean, this is a place where a lot of jurors have been weeded out of the pool for reasons that we’ve just described. So if you’re called to serve as a juror, don’t avoid it.
Chris Hedges: Great. That was Professor Joanna Schwartz on her new book, Shielded.