Law and Order

In Shielded: How the Police Became Untouchable, Joanna Schwartz details the difficulty of holding cops accountable.

joanna schwartz, shielded, how the police became untouchable, nonfiction
Katherine Shapiro

No-knock warrants may be one of the worst tools ever handed to American police. With them, an officer can enter any premises to search for evidence without letting the people inside know in advance. A tremendous amount can go wrong. Joanna Schwartz’s comprehensive book Shielded: How the Police Became Untouchable starts with an account of one such no-knock warrant—none of the officers dispatched had read the warrant all the way through, and they ignored directions from the briefing. After going to the wrong house, they forced the 78-year-old Black man who lived there to the ground and handcuffed him.

As Schwartz ably relates, police work involves an intricate set of procedural tools that can be wielded against unsuspecting people by officers who don’t know how to interpret the law. But while bad policing gets the lion’s share of attention, there are other enforcement arms with problems. In Shielded, Schwartz takes a different tack, cannily arguing that not only are criminal laws unjustly enforced, but also that the civil-litigation system, which is separate, has erected an array of obstacles that prevent both victims, disproportionately Black and brown, and their families from achieving the justice they are due.

There are three ways, Schwartz explains, that those who’ve been injured or had a loved one killed by the police can receive redress: criminal prosecution, internal-affairs investigations, and civil rights lawsuits. Success is rare with the first two, and the third proves miserly in its justice as well.

Even the U.S. Supreme Court itself, in an earlier incarnation, has recognized the potential deterrent effects of litigation on officers who need to make judgment calls about whether an action is lawful. Yet—disturbingly—civil cases prove no easier to win than criminal ones. This is despite the lower standard of proof a plaintiff’s lawyer must meet when bringing a Section 1983 lawsuit. (Section 1983 is the federal law that gives people the right to sue for civil rights violations such as excessive force.)

Schwartz breaks “the system” down into the cogs that keep it running: the qualified-immunity defense, lawyers, judges, juries, and so forth. By scrutinizing the typical behaviors that constitute each piece of the legal machinery, she reveals how unfair the hurdles are for plaintiffs in civil rights cases.

Her arguments are made richer by Shielded’s methodical account of social contingencies that are too often ignored in legal accounts. Schwartz observes, for instance, that the jury-selection process favors empaneling jurors so privileged they can’t understand or imagine that when a Black man runs from the police, he is running from an aggressive source of humiliation and pain as well as from the terror borne of past encounters, not only his own but those of his community. While pointing out that diverse juries make better decisions, she considers not only the legal barriers in place but also the social dynamics. The conversations in a jury room—or more baldly, the uncomfortable friction between the majority of the panel and a juror who sees from the point of view of a plaintiff for whom the system has not worked—matter to the dispensation of a fair outcome.

Schwartz’s critique of the U.S. Supreme Court–created defense of qualified immunity is dexterous. Such a defense requires the plaintiff’s lawyers to prove that an officer violated “clearly established law” if they are to recover damages for their clients. (Officers sometimes don’t know what’s a clear violation; even lawyers can’t always predict how the court will interpret the events in question.) This is more of a gimme, but Schwartz also takes on less-common arguments about policing here. Even when they go well, potential civil lawsuits don’t deter police brutality or excessive-force claims because the officers don’t wind up footing the bill personally on the rare damages award.

The book’s kitchen-sink approach does result in a bit of mushiness here and there. The purpose of a civil lawsuit, after all, is distinct from that of a criminal charge. The former is brought to quantify and compensate for losses caused by a social wrong, and yes also, as Schwartz asserts, to deter and punish bad actors. But damages can’t substitute wholesale for problems in the criminal justice system. Whether or not the officer pays the award in a civil suit, then, is something of a red herring, despite its importance to Schwartz. The average officer’s salary is not high enough to compensate for losses, or a life. If a lawyer can’t collect an amount—even if it’s been awarded—the victory becomes a matter of shallow symbolism.

Still, many of Schwartz’s insights shine, building to a powerful crescendo. She is keenly aware that in our society, money talks. Requiring officers, she argues, to face financial risk could mitigate some of the gross inequity.

More than that, she understands the obstacle course that legal machinery erects and its consequences on victims’ real lives, as well as the effect of this lack of clarity on a public whose awareness seems, one minute, to peak into a clarity that the system must be changed, only to fall, in the next, to a morass of bigotry and blind support for the status quo.•




Anita Felicelli, Alta Journal’s California Book Club editor, is the author of the novel Chimerica and Love Songs for a Lost Continent, a short story collection.
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