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

Pennsylvania state troopers deploy in Baltimore, Md, on May 1, 2015, following the release of a report on the death of Freddie Gray. Gray, 25, died April 19, 2015 from a severe spinal cord injury he received while in police custody.
Win McNamee
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Pennsylvania state troopers deploy in Baltimore, Md, on May 1, 2015, following the release of a report on the death of Freddie Gray. Gray, 25, died April 19, 2015 from a severe spinal cord injury he received while in police custody.

About 20 years ago, when UCLA law professor 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.

As it turns out, the situation was not uncommon. Oftentimes, Schwartz says, "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."

Schwartz describes "silos" that exist between police departments and the attorneys who represent offices in civil suits. She says attorneys sometimes withhold information from police departments because they're afraid that details of prior wrongdoing will create increased legal liability. Other times, the information isn't passed on because attorneys assume the details aren't valuable — "that it is just a plaintiff trying to make a buck," Schwartz says.

In her new book, Shielded: How the Police Became Untouchable, Schwartz examines the legal protections — including qualified immunity and no-knock warrants — that have protected officers from the repercussions of abuse. She makes the case that true reform will require local police departments to gather and analyze information about the lawsuits brought against them — and to assume the cost of any settlements.

When local governments require police departments to pay settlements against their officers, it can create a financial incentive for reform: "If departments knew that they would have extra resources if they decreased the size of settlements and judgments in these cases, they might have an incentive to take better care and account of what their officers are doing," she says.

Interview highlights

<em>Shielded</em>, by Joanna Schwartz
/ Penguin Random House
Penguin Random House
Shielded, by Joanna Schwartz

On the origins of policing differing by location in the U.S.

You might imagine that policing in the United States has a single origin story, but there's actually multiple origin stories based on geography. In the South, policing was really an outgrowth of slave patrols, ... 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.

On policing in the North

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.

On how the Fourth Amendment is used as a shield for officers

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.

On how the officer's race is often inconsequential in abuse cases

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.

On rethinking — rather than defunding — the police

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. ...

I do think that there are important ways to 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. Let's try to make these changes and see how our system can improve.

Audio interview produced and edited by: Sam Briger and Joel Wolfram.

Audio interview adapted to by: Bridget Bentz, Molly Seavy-Nesper and Meghan Sullivan.

Copyright 2023 Fresh Air. To see more, visit Fresh Air.

Tonya Mosley is the LA-based co-host of Here & Now, a midday radio show co-produced by NPR and WBUR. She's also the host of the podcast Truth Be Told.