Title: Shielded: How the Police Became Untouchable
Author: Joanna Schwartz
Completed: May 2024 (Full list of books)
Overview: This was a somewhat depressing read. I think most people understand that police violate people’s civil rights often and the reasons for that can be debated. Having read news articles about civil rights cases being won, I assumed it was common for some kind of amends to be made (not always, but certainly often). This book shows how untrue that narrative is and all the steps one must go through before the police department ever has consequences, even when everyone agrees rights were violated. It clarifies many aspects of our legal system that have always been murky to me and is worth reading by anyone interested in better understanding how we got to the point where police in this country are untouchable.
Many of these topics also came up in a recent 5-4 Podcast.
Highlights:
- we must foreground the realities of civil rights litigation when we do. Myths about the dangers of making it too easy to sue police have made a mess of our system. A shared understanding of how officers are shielded from the consequences of their actions, and how those shields leave many victims without a meaningful remedy, must fuel a reimagining of what it means to hold government accountable and what it means to protect and serve.
- In the summer of 1919, after a seventeen-year-old Black boy’s raft veered into the “whites only” part of Lake Michigan, a white beachgoer pelted him with rocks until he fell off his raft and drowned. Chicago erupted into violence, with Black people suffering the lion’s share of injuries and death. When the Chicago Commission on Race Relations investigated the Chicago riot, they found Black people’s distrust of the police was widespread and well earned; as Maclay Hoyne, Cook County state’s attorney, testified before the commission, police had “shut their eyes to offenses committed by white men while they were very vigorous in getting all the colored men they could get.”
- the Wickersham Commission, to examine the impact of Prohibition on police tactics. Two years later, the commission issued a report called Lawlessness in Law Enforcement that concluded, based on evidence from more than a dozen cities across the country, that “the third degree—that is, the use of physical brutality, or other forms of cruelty, to obtain involuntary confessions or admissions—is widespread.”
- The Court has justified limitations on Mapp and Miranda in the same way it has justified limitations on Monroe—with concerns that police cannot effectively do their jobs and keep people safe if they must meticulously respect people’s rights.
- Congress imagined that through the fee-shifting provision in Section 1988, attorneys would be encouraged to bring Section 1983 cases on behalf of plaintiffs acting as “private attorneys general” to vindicate constitutional rights. But, as a result of the Supreme Court’s decisions interpreting Section 1988, attorneys who represent successful plaintiffs are often paid for only a fraction of their time. And if they lose—which happens more often in civil rights cases than in other types of cases—they will be paid nothing at all.
- As Justice Kennedy explained, “Litigation, though necessary to ensure that officials comply with the law, exacts heavy costs in terms of efficiency and expenditure of valuable time and resources that might otherwise be directed to the proper execution of the work of the Government.” In other words, it was more important to protect Ashcroft and Mueller’s time than it was to investigate Iqbal’s allegations that they had violated the Constitution.
- There are other civil rights cases that challenge local governments’ conduct—claims, for example, that a police department does not properly train or supervise its officers. A plaintiff will not likely have any evidence about officials’ intentions or local governments’ inner workings until they get to discovery. The heightened pleading requirement puts these civil rights plaintiffs in a bind: they are only allowed discovery if their complaints include evidence supporting their claims, but they need the tools of discovery to access that evidence.
- Deputy Sylvester pounded on the door so loudly that the neighbor in apartment 115 came out to ask what the commotion was all about. When another deputy explained that they were looking for the owner of the motorcycle, the neighbor said the owner lived in a different building in the apartment complex. A few seconds later, Deputy Sylvester saw the door of apartment 114 opening, glimpsed a gun, and started shooting.
- After the Supreme Court’s 1985 decision in Garner, departments adopted its rule prohibiting deadly force against a person fleeing arrest who was not a threat, and studies found a 16 percent reduction nationwide in fatal police shootings. More recently, Seattle and San Francisco have adopted standards less flexible than Graham and have reported a significant reduction in the number of force incidents without a decrease in officer or community safety.
- “You shoot me, paralyze me, put me in a nursing home, ruin everything, and I can’t get no type of compensation?” Leaning back in bed, David Collie said, “This ain’t justice.”
- Pierson v. Ray, got to the Supreme Court in 1967, Chief Justice Earl Warren, writing for the Court, held that the officers had good-faith immunity under Mississippi law because they thought the arrests were proper, and that that immunity should apply to the Section 1983 claim as well. Chief Justice Warren explained that this qualified immunity from suit was necessary because, otherwise, officers could be held liable when they mistakenly believed the law authorized an arrest.
- In Baxter v. Bracey, an appeals court granted qualified immunity to officers who released their police dog on a burglary suspect who had surrendered and was sitting down with his hands up. Although a prior court decision had held that it was unconstitutional to release a police dog on a suspect who had surrendered and was lying down, the court in Alexander Baxter’s case granted qualified immunity to the officers because, it held, the prior decision did not clearly establish the unconstitutionality of the officers’ decision to release a police dog on a person who was seated with his hands in the air.
- Defenders of qualified immunity have not been able to summon a reason why officers who violate the Constitution should be protected from liability simply because a court has not previously ruled nearly identical conduct to be unconstitutional. Instead, the strongest defenses of qualified immunity have been various predictions that the world would be worse off without it. But claims about the need for qualified immunity are unsupported by the facts on the ground.
- I studied police misconduct settlements and judgments in eighty-one jurisdictions across the country, over a six-year period, and found that officers paid just 0.02 percent of the more than $735 million that plaintiffs received. Officers in only two of the jurisdictions were required to contribute anything to settlements and judgments entered against them; their average payment was $4,194, their median payment was $2,250, and no officer paid more than $25,000. Officers do not need qualified immunity to protect them from bankruptcy when they are sued; local governments almost always pick up the tab.
- Some believe that those structural forces are part and parcel of having a law enforcement system that grew out of slave patrols, and that it is impossible to have a police apparatus that is disentangled from that racist and violent history. Others view police misconduct less through a historical lens than through an institutional one, bred in the bureaucratic crevices of individual agencies. Either way, it is common wisdom that individual acts of police misconduct can’t be wholly separated from the culture of a department or from leaders who encourage that misconduct or look the other way when it occurs. There may be bad apples, but they often come from rotten trees.
- Analysis of thousands of qualified immunity decisions revealed that judges appointed by Republican presidents are more likely to grant qualified immunity than judges appointed by Democratic presidents, and judges located in more Republican-leaning regions of the country are more likely to grant qualified immunity. Studies have also found that judges’ personal characteristics may influence their decisions: white judges grant summary judgment to defendants in employment discrimination cases more often than judges of color, and court of appeals judges with daughters are more sympathetic to female plaintiffs in employment discrimination cases than are those without.
- not all people trust the police, and the demographics of differences of opinion on this point are noteworthy. Gallup’s 2020 poll found that 82 percent of Republicans had confidence in the police, as compared with 28 percent of Democrats. Fifty-six percent of white adults expressed confidence in the police, but only 19 percent of Black adults did.
- As Supreme Court Justice Thurgood Marshall wrote in 1972, When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude . . . that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.
- In the forty-four large jurisdictions, over a six-year period, plaintiffs had received more than $735 million to resolve the police misconduct cases they’d brought. Officers were made to contribute just 0.02 percent of that $735 million. The remaining 99.98 percent of the awards came from the pockets of taxpayers, not police officers. And in the thirty-seven smaller agencies in my study, no officer contributed to any settlement or judgment in a police misconduct case—not one dime. In just two of the forty-four large agencies in my study—Cleveland and New York—could I confirm that officers had personally contributed to a settlement or judgment during the six-year study period: 34 cases (out of 6,887) in New York, and 2 (out of 35) in Cleveland. But, even in these two cities, the likelihood that an officer would be required to make a financial contribution to a settlement or judgment entered against them was remote.
- officers were more likely to be struck by lightning than pay anything from their pockets in a police misconduct case.
- In fact, the effect of ballooning police budgets on local governments’ financial stability is a far more pressing budgetary concern than are payouts in Section 1983 cases. In many cities—including Atlanta, Baltimore, Chicago, Detroit, Houston, and Los Angeles—annual police spending amounts to between one-quarter and one-third of general fund expenditures. In these same cities, settlements and judgments in police misconduct suits account for between 0.06 percent and 0.64 percent of general fund expenditures.
- During the three years of my study, the Chicago Police Department was allocated, on average, about $16.5 million per year for lawsuit payouts. During those three years, plaintiffs in police misconduct suits received more than $52 million per year. When the police department’s litigation fund ran dry—as it did in the first quarter of one of those fiscal years—the police department was not called upon to reduce spending in other areas. Instead, the city council took money from other parts of the city’s budget to make up for the shortfall, often from parts of the budget that were earmarked for the most vulnerable members of the city.
- Alan Hevesi, wrote to the police commissioner echoing Holtzman’s recommendations. Even when cases are settled, Hevesi wrote, “there is enough evidence collected to convince the City that the plaintiff has a serious case. The police department should analyze these settled claims, and take steps to review the officers’ performance and propensity to commit acts of excessive force.” NYPD officials did not take Holtzman and Hevesi up on their suggestions.
- The Supreme Court could revisit its decisions in Rizzo and Lyons, and make it easier for individuals to seek injunctive relief that would change police department policies and practices. But, given the near impossibility of that happening anytime soon, local governments should take advantage of the leverage they have to make police departments more attentive to the lawsuits brought against them. A local government can, for example, tie the money to pay settlements and judgments—as well as the defense of these cases—to their law enforcement agency’s budget.
- research showing that police misconduct lawsuits account for less than 1 percent of local governments’ budgets, while police departments eat up one-quarter to one-third of those budgets.