'Shielded' author Joanna Schwartz explains why police violence goes unpunished UCLA law professor Joanna Schwartz talks about the legal protections — including qualified immunity and no-knock warrants — that have protected officers from the repercussions of abuse.


Police are 'shielded' from repercussions of their abuse. A law professor examines why

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This is FRESH AIR. I'm Terry Gross. After Minneapolis police officer Derek Chauvin murdered George Floyd, law professor Joanna Schwartz was inundated with requests from journalists and legislators who wanted to understand the limits of prosecuting police. As one of the country's leading experts on police misconduct litigation, it's a topic Schwartz has studied throughout her career. She's written a new book called "Shielded: How The Police Became Untouchable." In the book, Schwartz details the 11 legal protections that have shielded officers from repercussions of abuse and misconduct. Joanna Schwartz spoke with our guest interviewer Tonya Mosley, host of the podcast Truth Be Told. Here's Tonya.

TONYA MOSLEY, BYLINE: About 20 years ago, when Joanna Schwartz was a civil rights attorney in New York, she worked on a large class-action lawsuit against the Department of Corrections. While interviewing officers, she learned something that shocked her. The officers had no idea how many times they'd been sued. It made her wonder what difference lawsuits could make in changing police behavior if no one paid any attention to them, not even the officers being sued.

In "Shielded: How The Police Became Untouchable," Schwartz shows us how our legal system protects police, from qualified immunity to no-knock warrants. The protections date back to the establishment of law enforcement in this country. Joanna Schwartz is a professor of law at UCLA School of Law, where she teaches civil procedure and various courses on police accountability and public interest lawyering. Joanna Schwartz, welcome to FRESH AIR.

JOANNA SCHWARTZ: Thank you so much for having me.

MOSLEY: In your book, you tell the story of a 2016 deposition of an NYPD detective named Abdiel Anderson. And Anderson testified that he had no idea how many times he'd been sued. He also could not offer details about any of the 22 lawsuits that were filed against him at the time. You've encountered this early in your career. Why don't officers know this information? And what does this tell us about how the law shields them from potential consequences?

SCHWARTZ: My research suggests that in many cities across the country, there is essentially silos between the officers and the department on the one hand, and the attorneys who represent those officers and the department in civil suits on the other. The information from lawsuits goes back and forth from the city attorney's offices, but that information doesn't make its way over to the police department officers and officials. And my investigation suggests a couple reasons for that. One is that attorneys have some fear that if that information - details about prior wrongdoing - is given to the police department, that that will somehow increase legal liability for that officer or for the department if they didn't act on that information. There's also a common concern that I have seen that the information in these lawsuits is not valuable, that it is just a plaintiff trying to make a buck, and the information in those cases need not be looked at.

MOSLEY: That's one protection. You lay out almost a dozen other protections that essentially assert that police cannot effectively do their jobs and keep people safe if they must meticulously respect people's rights. And I'm just wondering, is there data that shows a significant harm to police officers if they take those extra steps?

SCHWARTZ: I'm not aware of data that supports that myth. There are very strong and powerful stories that are told about the inability to keep people safe if every I needs to be dotted and every T needs to be crossed. But those concerns, those horror stories about what our public safety system would look like with those extra procedural protections really doesn't have basis in empirical data or in reality that's experienced by the people who bring these cases and experience these harms.

MOSLEY: And an example of that is the police officer's life on the line. If they don't take quick action in an instance where they think the person that they're - say, if they're arresting someone or they're investigating something, that their lives might be in danger.

SCHWARTZ: Well, to be clear, police officers put themselves at risk all of the time. It's a dangerous profession. And I don't mean to suggest that that is untrue, but the concern that I'm pointing to is the notion that there is the risk of life lost or harm to officers at every turn. This is not research that I personally have done, but Jordan Blair Woods has looked at police department trainings when officers are being trained about traffic stops. And police officers being killed in traffic stops is exceedingly rare. But officers are trained through simulations and videos and materials that suggest that death or bodily harm is a far more likely result of a traffic stop than the reality reflects.

MOSLEY: How have police unions driven this narrative?

SCHWARTZ: Union officials have been strong advocates against reforms based on these kinds of myths. Union officials have also been very powerful proponents of protections for officers in internal police department investigations, discipline and terminations. And through law enforcement officers' bills of rights, there have been limits on transparency when officers are disciplined, limitations on records retention and various arbitration and review provisions that have been put in place through union officials' encouragement - make it difficult for law enforcement officials when they ultimately do decide to discipline or terminate an officer to make that discipline or termination stick.

MOSLEY: You assert in the book that to understand the moment we're in, we need to first look at the origins of policing in this country, and you break this up by geography. During the early days of law enforcement, what were some of the differences in policing in the South, the North, the West and the East?

SCHWARTZ: So you might think of policing - you might imagine that policing in the United States has a single origin story. But there's actually multiple origin stories based on geography. And in the South, policing was really an outgrowth of slave patrols - so immediately and initially focused on the subjugation of Black people. In the South and the Southwest, the Texas rangers were sort of the initial police law enforcement entity. And they, in their role, ended up killing thousands of Mexicans, Mexican Americans and Indigenous people. In the North, police were really modeled on the London policing apparatus. And those police officers also abused their power. But in the North, there was more focus and attention on immigrants and other members of the working class. But in each of those origin stories, subjugation and violence against disempowered groups is a constant.

MOSLEY: What were some surprises about policing in the North that you found?

SCHWARTZ: Well, I think that the expectation, certainly for those who have not researched in this area, was that the South was this place of real racial misconduct, violence, horror inflicted by the Ku Klux Klan and by law enforcement, and that the North was somehow a safer, kinder place for Black people to live. And I think that was a belief that inspired the Great Migration and inspired Black Americans to move to the North. But looking at the history of policing in the 20th century in America, you come quickly to learn that police in the North had plenty of their own problems as well, and were using unconstitutional force, arresting people and assaulting people, particularly those Black Americans who came from the South to the North.

MOSLEY: Let's take a moment for a break. We're talking with Joanna Schwartz, professor of law at UCLA School of Law, where she teaches civil procedure and a variety of courses on police accountability and public interest lawyering. She's written a new book titled "Shielded: How The Police Became Untouchable." This is FRESH AIR.


MOSLEY: This is FRESH AIR, and I'm Tonya Mosley. If you're just joining us, we're talking to Joanna Schwartz, professor of law at UCLA School of Law. She's written a new book called "Shielded: How The Police Became Untouchable." Schwartz is a graduate of Brown University and Yale Law School, and she specializes in police misconduct, prisoner rights and First Amendment litigation. And she's known as one of the country's leading experts on police misconduct litigation.

Even though most police brutality and misconduct acts are against Black and brown people, you also felt it was important to write about several cases involving people with other identities, specifically white people. There are several cases where you detail interactions with police that are pretty egregious.

SCHWARTZ: I wanted absolutely to paint a portrait of police misconduct across our country that reflected a diverse group of people, of victims. And I did that, recognizing, of course, that Black people and Indigenous people, Latino people, are disproportionately stopped and searched and assaulted and killed by police. But although they are disproportionately victims of police misconduct, there are other groups as well, people who have criminal justice histories, people who do not have homes, people who have mental health challenges, people who are LGBTQ. Of course, some of those identities are overlapping, and some of them overlap as well with racial identity. But my desire in selecting this group was to offer a portrait of misconduct that was not simply, not only fatal force against Black men, which is an enormous problem in our society, but in addition to offer other faces of police violence and misconduct.

MOSLEY: We're going to get into a few of those stories, but I think it's best we probably start this conversation with some of the beginning protections that we saw with the formation of law enforcement. And I want to start with Section 1983, the Ku Klux Klan Act of April 20, 1871. And it allows an individual to sue state government employees for civil rights violations. And you illustrate the bounds of this act through the story of James Monroe and the Chicago police. How did this act come to lay the grounding of protection for police?

SCHWARTZ: It's a long and winding story, but the statute that was originally called the Ku Klux Klan Act was an act that was passed by Congress in 1871 during Reconstruction, in the time soon after the Ku Klux Klan had been formed, was gathering strength and was terrorizing Black people around the South with local government officials either participating in the terror or standing idly by. And Congress wanted to create this statute, which would allow people to bring suits against government officials and also private individuals who had violated their civil rights. But the Supreme Court very quickly issued a series of decisions that essentially took the power away from the Ku Klux Klan Act and other Reconstruction-era statutes. And basically there was no lawsuits filed, certainly no successful lawsuits filed for the first 90 years of the Ku Klux Klan Act's existence.

But as the civil rights movement was picking up steam, the Supreme Court came to recognize that there was an important role for the federal government to play in vindicating people's constitutional rights. And so in 1961, in a case called Monroe v. Pape, the Supreme Court for the first time recognized that this statute issued first back in 1871 could be used by people to sue government officials when their constitutional rights were violated.

MOSLEY: Can you briefly tell us some of the details of James Monroe's case with the Chicago police?

SCHWARTZ: James Monroe and his wife Flossie and their children were asleep in their Chicago home on an October night in 1958 when Frank Pape, who was a Chicago police detective, who was infamous in Chicago for killing lots of people and sometimes taking photographs of himself next to the bodies of the people he had killed, and a bunch of other Chicago officers barged into the home of the Monroes. And they were there because a white woman had picked James Monroe's photo out of a lineup and identified him as the person who had killed her husband. As it turns out, James Monroe had nothing to do with this man's death. In fact, it was his wife and her lover who had him killed as a way to try to collect on his insurance money.

But Frank Pape and the other officers, with this information, but without a warrant, burst into the Monroes' home, dragged James and Flossie out of bed, without clothes on, had them in the living room, were assaulting Mr. Monroe. Frank Pape was questioning him in a very aggressive way about this murder, yelling odious racial slurs all the while. And the other officers were assaulting the Monroes' children as they came into the living room to try to figure out what was going on. The officers arrested James Monroe, brought him down to the station, held him for hours without getting to speak to a lawyer or a judge and finally released him when the woman could not pick him out of a lineup. And he found his way - the Monroes found their way to an attorney at the ACLU who agreed to bring a case on their behalf.

MOSLEY: What ultimately came of those officers or happened to that specific officer?

SCHWARTZ: After the Supreme Court ruled that James Monroe could proceed with this lawsuit, the court sent the case back to trial, and the Monroes actually won a trial in front of an all-white jury. They found that Frank Pape and other officers had violated his constitutional rights and awarded him money. It was $8,000 against the lead detective and the remainder against some other officers. And soon after the Supreme Court issued its decision in Monroe v. Pape, Frank Pape left the Chicago Police Department, ran security at a local racetrack, then came back to the Chicago Police Department four years later with a ton of criticism and protest by the Black community and those particularly living in the Monroes' neighborhood. The case of Monroe v. Pape was an extremely important one in the history of civil rights litigation. But even in this initial case, you can glean the fact that success in a civil rights lawsuit does not always have powerful consequences on those officers, even when they are found to have violated the Constitution.

MOSLEY: What I find really interesting as well about Section 1983 is the interpretation of it, how it has evolved over time. Can you describe how the need for legal precedent strengthens the shield, the protections for police, even when there is something that is, on the face of it, looks to be a protection for citizens in the ability to be able to sue, over time, it becomes a shield for officers?

SCHWARTZ: I think that the best illustration of that aspect of civil rights litigation is the Supreme Court's interpretation of the Constitution. And I focus in the book on the Fourth Amendment, which protects against unreasonable searches and seizures. It is often the basis for civil rights claims against law enforcement officers. It covers claims of unlawful arrest, unlawful searches, as well as the use of force. If you think of the phrase unreasonable searches and seizures and what you think that might mean - certainly, when I listen to that phrase and think about what it might mean, I think about the perspective of the individual. If I was sitting in my living room doing nothing wrong and police officers barged into my home and shot me, I would think that that was patently unreasonable. I had done nothing wrong.

But the way in which the Supreme Court interprets reasonableness under the Fourth Amendment is focused far more on what the police officer was thinking at the time, whether it was reasonable for them to search, arrest or use force. And the Supreme Court, in multiple opinions, has authorized, allowed, condoned officers to use force or arrest or search someone who has done nothing wrong. So long as they thought that what they were doing was reasonable in the moment, that officer has not violated the Constitution.

GROSS: We're listening to the conversation. Guest interviewer Tonya Mosley recorded with law professor Joanna Schwartz about her new book "Shielded: How The Police Became Untouchable." We'll hear more of their interview after a break. And TV critic David Bianculli will review "History Of The World: Part II," the Hulu series that's a sequel to the 1981 Mel Brooks film "History Of The World: Part I." Brooks is an executive producer and a writer of the new series. I'm Terry Gross, and this is FRESH AIR.


GROSS: This is FRESH AIR. I am Terry Gross. Let's get back to the interview guest interviewer Tonya Mosley recorded with Joanna Schwartz about her new book, "Shielded: How The Police Became Untouchable." It's about the legal protections that have shielded officers from repercussions of abuse and misconduct. Schwartz is an expert on police misconduct litigation and is a professor at UCLA School of Law, where she teaches civil procedure and various courses on police accountability and public interest lawyering.

MOSLEY: Joanna, I want to go back to the Fourth Amendment. So the Fourth Amendment guards against unreasonable searches and seizures without probable cause. And on its face, this amendment protects citizens from unreasonable searches by police. How did this play out in the case of Terry v. Ohio?

SCHWARTZ: Terry v. Ohio is a decision that was issued in 1968, and it is a decision that considered the authority that officers have to stop and frisk people. And at the time, in the '60s, police were and had been stopping and frisking people with no cause at all. And there was this percolating question that ultimately came to the court in this case Terry v. Ohio about what the standards were for officers, what they needed to know or believe before they had the authority to stop and frisk someone. It was law enforcement's view that the Fourth Amendment's protection against unreasonable searches and seizures didn't apply at all to these kinds of stops and frisks, that they were not seizures. And so they could be done for any reason or no reason at all.

Other groups, like the NAACP Legal Defense Fund, argued that officers needed to have probable cause, which is a much higher standard - although not a particularly high bar, but at least a probability or a substantial chance of criminal activity before they stopped and searched people. And the Supreme Court heard arguments in this case Terry v. Ohio, which was a case of an officer who had stopped and searched men who he believed were going to burgle a business and ultimately found a gun. And in this case, Terry v. Ohio, in the court's decision, they sort of tried to find a compromise between the two.

The court said the Fourth Amendment does apply. There needs to be some reason. But it's not as high as the Fourth Amendment probable cause standard that you need in order to justify a warrant or an arrest. Instead, it was enough that there would be a reasonable suspicion. So it was sort of an intermediate standard below probable cause. And the court then, over the next several years, has used that standard of reasonable suspicion to allow police to stop and search or stop and frisk people under almost any circumstances and has resulted in the massive use and disproportionate use against Black people of stops and frisks in cities across the country.

MOSLEY: Another protection that you write about is one that we've been talking about over the last few years, and that's qualified immunity. And many of us learned about qualified immunity because of the George Floyd Justice in Policing Act. And that act would have limited the ability for police to use qualified immunity as a defense. That bill did not advance. Can you define qualified immunity for us and how it's been strengthened since it was first established back in 1967?

SCHWARTZ: The Supreme Court basically created qualified immunity out of thin air in 1967. And it was in a case in which a group of Black and white ministers had traveled to the South during the civil rights era and were arrested in a segregated coffee shop. And the law under which they were arrested was later found to be unconstitutional. The Supreme Court really imported a state law defense to this federal statute, Section 1983, and said that the officer, the arresting officer, should have this qualified immunity because he was acting in good faith. He was enforcing a law in good faith that was later found to be unconstitutional. But the Supreme Court has then, over the past decades, increasingly, repeatedly strengthened the protections of qualified immunity.

A big shift in the doctrine was in 1982 when the Supreme Court said good faith doesn't matter anymore; we don't want to require that officers get deposed, questioned under oath, or have to go to trial to assess whether they were acting in good faith or bad faith; we should turn it into an objective standard, and that standard is whether the law was clearly established. So even if an officer has violated the Constitution, if the law is not clearly established, they receive qualified immunity.

MOSLEY: One thing about qualified immunity is that defenders of it argue that it protects officers in many different ways. But the - one of the big ways is financially. It prevents them from bankruptcy and protects them if they make good faith mistakes, as you're saying. What did your research find?

SCHWARTZ: My research found that officers are not threatened with bankruptcy, and the protections for officers' bank accounts has nothing to do with qualified immunity. Instead, it is the product of what are called indemnification agreements or statutes in states and local governments around the country. And these indemnification agreements provide that when an officer has been sued, any settlement or judgment against them will be paid by the local government. And when I looked at 81 jurisdictions across the country over a six-year period, I found that 99.98% of the dollars awarded to plaintiffs in these cases were paid by taxpayers or by local insurers. Officers paid 0.02% of the dollars. They - I only found payments from officers in two jurisdictions, and the average payment in those jurisdictions, in the rare events that officers were required to contribute, was $4,000, which is not the makings of a bankruptcy petition.

MOSLEY: What is the percentage of cases where people are harmed, they file a suit, it is not a high-profile case and they win? Basically, what is a winning case or an example of a winning case?

SCHWARTZ: Well, that's a hard question to answer because cases - if you think of success in these cases as going to trial - making it all the way to trial in front of a jury and winning, then it is a very small percentage of cases that get to victory in that way. There are many more cases that settle at some point during the litigation. But settlement is not always a success either. I talk in my book about a case involving a shooting of a Black man by a white police officer where the case went all the way through the litigation process - years and years spent litigating the case, the family even selling their home to try to pay for lawyers to continue representing them. And the case settled days before trial for about a hundred thousand dollars. Now, that might, in the outside records, count as a victory, but it certainly wasn't experienced as a victory for that family.

MOSLEY: You know, the media often reports on the race of the officers, implying many times that the officer's race impacts how they treat citizens. I'm thinking about this latest case involving Tyre Nichols. It's an example of that idea being turned on its head. You argue that the officer's race is basically inconsequential, that they're operating under a system.

SCHWARTZ: That's right. And the data that we have available suggests that people who are victims of police misconduct are disproportionately Black and Latino and Indigenous. There's not the same evidence suggesting that the race of the officer determines whether or not they use inappropriate force or engage in misconduct in other kinds of ways. And I think that that observation indicates the deeper systemic issues with police misconduct and brutality. I think at a different time in police reform conversations, it was imagined that hiring a more diverse police force would solve the problems in policing. And we can see that certainly that alone does not solve the issues, particularly because there is a deeper systemic pathology that leads to this kind of violence.

MOSLEY: Let's take a moment for a break. We're talking with Joanna Schwartz, professor of law at UCLA School of Law, where she teaches civil procedure and a variety of courses on police accountability and public interest lawyering. She's written a new book titled "Shielded: How The Police Became Untouchable." This is FRESH AIR.


MOSLEY: This is FRESH AIR, and I'm Tonya Mosley. If you're just joining us, we're talking to Joanna Schwartz, professor of law at UCLA School of Law. She's written a new book called "Shielded: How The Police Became Untouchable." Schwartz is a graduate of Brown University and Yale Law School, and she specializes in police misconduct, prisoner rights and First Amendment litigation. And she's known as one of the country's leading experts on police misconduct litigation.

You actually believe cities are where real reform can happen. I asked this question about what that could look like specifically. You've laid out some wonderful ways that municipalities throughout the country are taking this on. But some police reform advocates believe that there should be federal action to limit protections. What would city reform look like? What could that look like, in addition to some of the ways that municipalities are handling individual protections?

SCHWARTZ: I certainly think that federal reforms would be wonderful. And there are a number of federal reforms that I lay out in the book and others that have been suggested. The federal government has not taken much in the way of action as of yet, and so I do focus a lot on state and local governments. I think that there's a lot that could be done that isn't currently being done in many places to have local governments create more pressure for police departments to take account of the lawsuits brought against them and their officers by requiring, for example, that local police departments gather and analyze information about the lawsuits brought against them, perhaps report on the analyses that they have done, and implement changes that would address problems with personnel and policy as a condition of local budgeting.

There are also examples of local governments requiring police departments to pay settlements and judgments that are entered against their officers as a way of creating some financial incentive for those departments to feel the consequences. The money would still be budgeted to the police department as part of the budgeting process, but if departments knew that they would have extra resources if they decreased the size of and some judgments in these cases, they might have an incentive to take better care and account of what their officers are doing.

MOSLEY: You make a point in the book to say that this is not a book that is advocating to defund the police. You actually believe that police serve a tremendous role in our society.

SCHWARTZ: I think that police do serve an important role in our society. I think that there are a lot of good police officers out there. And my focus - and it's a place where I hope we can reach agreement - is that police do sometimes abuse their power. They do sometimes act in ways that violate the Constitution. And we should have a system that works to create accountability and justice in those circumstances. When you talk to police officers, when police officers are surveyed about this, good officers want bad officers to be punished as well. They want a fair system, but a system that actually does provide justice to victims of misconduct.

And so that is really where the aim is of my book. I do think that there are important ways to think about policing, to rethink policing - to do things like limiting traffic stops, to do things like having mental health professionals respond to people who are in mental health crises. I think that we can work to try to make all of those kinds of changes. And my hope is that we could do that without then getting into a fight about defund or abolition. But let's try to make these changes and see how our system can improve.

MOSLEY: Joanna Schwartz, thank you so much for your time and this book.

SCHWARTZ: Thank you so much for having me.

GROSS: Joanna Schwartz is the author of the new book "Shielded: How The Police Became Untouchable." She spoke with guest interviewer Tonya Mosley, host of the podcast Truth Be Told. After we take a short break, our TV critic, David Bianculli, will review the new streaming series "History Of The World: Part II," the sequel to the 1981 Mel Brooks film "History Of The World: Part I." Brooks is a writer and an executive producer of the new series. This is FRESH AIR.


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