How the State Sanctions Police Violence

Americans have come to associate police killings with large financial settlements—a pitiful recompense for the loss of a loved one, but perhaps one that can allow family to pay for legal and funeral fees, access therapy, or support children who have suddenly lost a parent. In truth, such outcomes are anomalous. Because law enforcement abuse cases that go viral tend to bypass many of the traditional hurdles associated with civil rights claims, the general public has no understanding of just how difficult it is to secure restitution after an agent of the state beats, kills, humiliates, or terrorizes a civilian—even when those actions are clearly unconstitutional.

Why have the United States’ civil rights protections fallen short when it comes to victims of police brutality? In her new book Shielded: How the Police Became Untouchable, UCLA Law professor Joanna Schwartz meticulously documents how these protections were established and then eroded by the Supreme Court and local governments alike, and she lays out the enormous number of “shields” that cocoon law enforcement officials even in cases where their actions violate policy, decency, and the law. She also unravels  the pernicious web of assumptions about civil rights lawsuits, including the notions that easing some of these burdens will provoke a torrent of meritless lawsuits, and that the more marginalized a victim of police misconduct is, the less they have been “damaged” by the abuse they suffered.

Bolts recently spoke with Schwartz about the many legal mechanisms and doctrines through which the United States sanctions police violence, and why we need to look far beyond reforming qualified immunity—the doctrine that protects officers from civil suits unless it’s been clearly established by a prior court case that the actions they took were unconstitutional—if we ever want to achieve real police accountability.

Inspiration for the book arose out of Schwartz’s experiences as a civil rights lawyer seeking justice for victims of police violence and misconduct. “I was spending my life bringing these claims in part because I wanted to make a difference—and I thought that it was important to use civil litigation as a tool of accountability and deterrence,” she told Bolts. “But things I saw during my practice suggested that deterrence and accountability weren’t working the way that courts and theorists imagined that they were.” When she went into academia, she started doing research to understand why—and she wrote Shielded to share what she found.

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Section 1983 is the principal remedy by which people tend to seek restitution for police misconduct. How has its original intent been contested, expanded, and contracted over time?

The statute that people use most often to bring claims of constitutional violations against government officials was enacted by Congress during Reconstruction, as the newly formed Ku Klux Klan and other white supremacist groups were terrorizing and killing Black people—and local governments were either standing idly by or participating in the violence. This statute created a right to sue in federal court, which was considered really important at the time because in most state courts, Black people weren’t even allowed to testify. The goal was accountability and deterrence of this state-sanctioned violence.

After Section 1983 became law in 1871, and a number of other Reconstruction Era acts were passed, the Supreme Court really lessened the power of those statutes through various decisions—limiting the power of the 14^th Amendment, allowing segregation—and a newly formed Congress further eroded the protections of these laws. And we quickly came into the time, post Reconstruction, where Jim Crow laws were allowed to proliferate. It was a dark time in civil rights protections. Then as we move into the 20^th century, as there is a slowly developing civil rights movement, the Supreme Court began to shift its views about the power of the 14^th Amendment and the need for federal civil rights protections. And that culminated in 1961 in a decision called Monroe v. Pape where the Supreme Court first ruled that people could sue in federal court for violations of their constitutional rights by government actors. In that case, and then in cases soon thereafter, the Supreme Court again talked about the values of compensation and deterrence that were on the minds of congressmen who originally passed the act.

But then, after that high point, the protections of Section 1983 were again rolled back— now under different guises. The Supreme Court created qualified immunity protections, and state and local governments created additional protections for government officials.

Fast forward to May of 2020 when George Floyd was murdered—again, these conversations arose about the need for more robust civil rights enforcement, including ending qualified immunity. And again, opponents to reform raised the same kinds of concerns that had been raised in the ‘60s and back in the 1870s. And that’s essentially where we are right now, with the pendulum continuing to swing back and forth between the recognized need for police accountability on the one hand, and concerns by those opposed to reform about the dangers of “too much justice.”

After this high point with Monroe in 1961, why do you think the Supreme Court has erred so far in the direction of giving leeway to agents of the state at the expense of individual rights of civilians? 

I think the Supreme Court has repeatedly erred on the side of giving government maximum discretion and minimum accountability because the court has described that additional discretion and power as necessary to keep society safe. I don’t think there needs to be a zero-sum game here, that you need to give courts or give officers maximum discretion in order to have maximum security. We’ve seen in recent weeks, as we’ve been exploring the Scorpion unit and other elite units, that discretion given to officers does not necessarily lead to more safety. But the notion that without maximum discretion, officers won’t be able to do their jobs—and if they can’t do their jobs, society won’t be safe—is a frightening claim that I think has motivated the court. The Supreme Court in many of its recent qualified immunity decisions has talked about the importance of qualified immunity to society as a whole. And I think that’s shorthand for the notion that without protection for law enforcement, law enforcement officers won’t vigorously do their job or people will decide not to take jobs in law enforcement.

You write a lot about the animating role of myth here: the myth that people are bringing all these frivolous lawsuits, that the lawyers involved are ambulance chasers, that officers would be bankrupted without qualified immunity to protect them. Where do you think these myths arose from, and how have they contributed to actual legal precedent that shields police?

These myths have accompanied civil rights advancements from the very beginning. In 1871, as Congress is debating whether to pass the act that became Section 1983, congressmen opposed to the act were talking about the idea that this statute would turn federal courts into nickel-and-dime courts that would have to hear frivolous or petty cases instead of doing the important work that federal courts should be doing. Those kinds of ideas elaborated more in the ‘60s to include concerns that officers would be bankrupted, that frivolous cases would fill courthouses, that ambulance chasing lawyers would extract punishing settlements and judgments from local governments.

I can’t see into the minds of the Supreme Court justices or the legislators that have made these claims, so I can’t know what is motivating them. What I can say is that I’ve spent my career as an academic studying those justifications, empirically testing them and trying to measure their validity—and all available evidence suggests that they are overblown, if not downright false.

You write that the Supreme Court created a qualified immunity “out of thin air” only six years after it established the right for individuals to sue government officials. To start off, can you briefly define qualified immunity?  

As much as the phrase has been in the press, I think there’s a lot of misunderstanding about what the protection is. Qualified immunity is a protection for officers in civil cases. It doesn’t have anything to do with criminal prosecutions—it provides that officers cannot be sued for money damages, even if they have violated the Constitution, if they haven’t violated what’s called clearly established law.

And it’s not enough to find a prior court case where, for example, officers used force against a non-resisting suspect. The plaintiff has to find a prior court decision where an officer used similar force against a person who was not resisting and conducting themselves in a similar way as the case at hand. In addition, the Supreme Court has told courts that they can grant qualified immunity without ruling on whether the Constitution was violated—which makes these prior court decisions especially difficult to find.

Say that there was a new weapon that police started using, just like tasers were widely adopted at some point. Does that mean there would just be no way to overcome qualified immunity in those cases because that type of technology simply didn’t exist before?

It makes it far more difficult to clearly establish the law in those kinds of cases. What happens with new forms of force, surveillance, or other technologies that police may use? There’s conversations right now about whether police can use robots to use fatal force against people. If that technology begins to proliferate, it’s going to be operating in an area that won’t be clearly established for qualified immunity purposes for a significant amount of time.

You write that ending qualified immunity alone wouldn’t “usher in a golden age of police accountability.” Why do you think it became the solution people turned to in the wake of George Floyd’s murder? And why is ending it ultimately insufficient?

I think that qualified immunity captured public attention following the murder of George Floyd in part because the doctrine is so shocking. When people read about a case of some man who surrendered with his arms in the air and yet had a police dog released on him, and those officers are granted qualified immunity because even though it’s clearly established that you can’t use force against a person who’s not resisting, it wasn’t clearly established in those particular factual circumstances…I think it strikes people as simply an unjust doctrine and perhaps an encapsulation of all that is wrong with police accountability, in the way that George Floyd’s murder—and now Tyre Nichols’ murder—has come to be emblematic of the greater problems of police misconduct and accountability.

Qualified immunity reform should be an easy shift given all the evidence about the ill effects of the doctrine and the very little that it does to advance its policy goals. But I think that if we’re going to have a better system of police accountability, we need to do much more than that.

There are Supreme Court decisions that make it very difficult for people to find lawyers for civil rights cases, particularly outside of large cities. There are standards that make it difficult to begin a case to plead an initial complaint in a lawsuit when you don’t know all the facts underlying the case. I think that the standards for constitutional violations themselves are extremely deferential to the police and the standards for holding local governments responsible for their officers’ misconduct are as if not more difficult to meet than qualified immunity itself. So there’s a lot to change with our current system of legal accountability.

What’s so remarkable to me about the cases you feature is I hadn’t heard of any of them before. For all of the names that we do know at this point, and it’s a lot of names, there are thousands of more victims of police violence who never get any recognition. How did you choose which cases to highlight?

I wanted the cases to reflect the wide range of police misconduct that occurs and also the variation in the life circumstances of people who can have these kinds of traumatic and sometimes fatal interactions with the police. 

It was really important to me not to focus on cases that have received a lot of public attention for a couple of different reasons. The kinds of barriers that I’m talking about in the book don’t have the same power in cases that get a lot of public attention. The officers who killed Tyre Nichols were immediately fired and have been criminally charged—and I’m guessing that a civil suit brought against those officers in the city will settle for a significant amount of money without ever raising qualified immunity, or any of the other barriers I discuss. That’s what happened in the case brought by George Floyd’s family, it settled without the city ever arguing that Derek Chauvin was entitled to qualified immunity.

I’ve included these stories because I want people to learn about the whole range of things that can and do occur that we never hear about. James Campbell, who was on his way to the Indianapolis Jazz Festival when he was stopped and accused of possessing marijuana that he didn’t possess and then forced to lower his pants and underpants on a public street in Indianapolis—his story haunts me, and yet the stories of everyone in this book haunt me. When I tracked him down, he expressed real happiness to know that his story would be profiled and that people would come to know about it and all of the challenges that he faced getting justice in the courts.

You filed a number of public records requests trying to figure out who actually pays the bill when officers violate the law. What inspired you to follow the money and what did you find?

This is a question that was first posed to me by a client when I was in practice in New York City. Clay Tiffany was the village gadfly who was always stirring things up—he had a public access television show called “Dirge for the Charlatans” where he would tell stories about corruption in his town. One day, a Briarcliff Manor officer named Nick Tartaglione assaulted him. Tiffany started investigating Tartaglione and putting what he found on his public access television show. It ended up that Tartaglione assaulted Tiffany four times, with increasing severity—the last assault landed him in the hospital. Tartaglione—in uniform, the final time as he was beating and kicking Tiffany—said “you can’t tell lies about me on your television show.”

Tiffany sued the department and the officer for violating his rights. The village tried to distance itself from Tartaglione—they actually fired him for an unrelated issue, but he sued and managed to get his job back and $300,000 in back pay. Soon afterward, Tartaglione offered to settle just his claim with Tiffany for $200,000. Tiffany wanted to know where the money was coming from: the officer or the village.

I assumed that it must be coming from Tartaglione. After all, the village had fired him, and he’d just come into $300,000—and he’d nearly killed our client! But after the settlement had been paid, we learned that settlement had been paid by the village of Briarcliff Manor’s insurer. If Tartaglione wasn’t made to pay, it got me wondering about whether individual officers ever pay settlements and judgments and police misconduct cases. And if not, I was very curious to understand how the goals of deterrence were being met.

After I became a law professor, I sent public records requests to well over 100 large and midsize and small law enforcement agencies across the country trying to get information about how much they paid in these civil rights cases over a six-year period and how often officers had contributed. At the end of the day, I got information from 81 law enforcement agencies. What I discovered was pretty shocking to me: officers among those 81 jurisdictions in that six-year period paid .02 percent of the dollars awarded to plaintiffs in these cases. Only in two jurisdictions could I confirm that any dollars had actually changed hands between the officers and the victims in these cases. And this was true even when jury verdicts had been awarded against these officers, even when punitive damages had been awarded against these officers, which are intended to punish—and even when officers had been disciplined or fired or criminally prosecuted for their conduct.

And it’s not just that it’s coming out of police department budgets, right? That money often comes from elsewhere in the city government.

In small jurisdictions, there’s usually an outside liability insurer that pays settlements and judgments. In larger cities and counties that are self-insured, sometimes the money came from the police department’s budget, sometimes it came from the central budget, sometimes it came from some pooled budget where different agencies contributed.

Regardless of the arrangement, in the vast majority of cases, settlements and judgments in police misconduct cases did not have any financial effect on the law enforcement agency, meaning a rise in payouts did not require them to cut back on other aspects of their budget. And when there was more paid than expected, the money would come from other parts of the city’s budget—and as a practical matter, that often meant that money was coming from budget allocations earmarked to help the most marginalized in our society. A lawyer who previously worked for the city of Chicago remarked to me that when lawsuits increased against the Chicago Police Department, the money to pay those settlements and judgments came from lead paint screening for people living in public housing, which was disproportionately the same people who were being abused by the police.

You write that now, ironically, states are using their own laws and courts to sidestep the many barriers to relief in Section 1983 cases created by the Supreme Court. What are some hopeful examples?

To my mind the bill that was passed by Colorado in the summer of 2020 is in many ways a gold standard. It created a right to sue under the state constitution and provided that qualified immunity is not a defense. Additionally, it provided that if a city finds that their officer has acted in bad faith, they can require their officer to contribute up to $25,000 or 5 percent of settlement or judgment, which provides some financial sanction for the officer while still ensuring that the victim is paid. The Colorado bill and a number of other bills have done other important things, including creating bright line rules prohibiting chokeholds and no knock warrants. So there’s a lot happening at the state level.

One concern I have about state reforms is that they’re only as effective as the states that enact them, so we are going to potentially get to a place where meaningful accountability is extremely regionally variant. For that reason, I would prefer the federal government take a more robust role. But if they’re not going to, then states can and are stepping in.

This interview has been edited for length and clarity.