How Police Are Shielded From Lawsuits

about the defense of qualified immunity. There were congressional hearings, but as the protests faded, proposed reforms were voted down or abandoned, and just last month, the Supreme Court refused to take up a challenge to qualified immunity given to a Michigan police officer who fatally shot a man who was investigating for traffic violations in a drive through line at Whitecastle. My guest is u c l A law professor Joanna Schwartz. Her new book is entitled Shielded, How

the Police Became Untouchable. Joanna, tell us what you decided to write this book and how much research went into it. So, I am a professor at u c l A, and I've been studying police misconduct and civil rights litigation since

i became a law professor. It was inspired by my own work as a civil rights attorney about twenty years ago, and I had done a bunch of research trying to understand what impact civil rights lawsuits actually had on police departments and local governments, and what the legal barriers are to release in these cases that have been created by the Supreme Court and state and local government around the country, often based on overblown arguments about the kinds of dangers

that um and harms that would come to us as a society if it was too easy to get justice in these cases. And I have been doing that research

and sharing it with my academic audience and peers. And then George Floyd was murdered in May, and the kinds of topics that I and other academics have been toiling over in the shadows, things like qualified immunity and police department budgets and who actually pays for settlements and judgments in police misconduct cases, and what impacts do they really have,

and how can we get justice in these cases. These conversations were now being had by government officials, by protesters, by people sitting around kitchen tables, and I realized that it was important, critically important, at this moment in time to share some of this information and insight with a broader audience and really reveal all of the different ways in which it is so difficult to get justice in these cases, and also to provide tangible evidence that the

kinds of fears that have motivated restrictions on the ability to sue and get justice have really no basis in reality. So my goal with Shielded is to present this information and away from the kinds of you two eight character sound bites that information often traveled in, and to to really take the space and the time to to look at all of these barriers to relief and to really think about a meaningful path forward. Qualified immunity was created

by the Supreme Court. Explain what it is. Qualified immunity was created by the Supreme Court in nineteen sixty seven, and what they called at that time a good space immunity. If an officer thought that the constitution allowed what they were doing but they turned out to be wrong, the

Supreme Court said an officer shouldn't be held responsible. But in the Supreme Court shifted entirely what qualified immunity meant, got rid of this idea of good faith conduct and instead said that officers were entitled to qualified immunity so long as the law wasn't clearly established, even if they were acting in bad faith and then since nineteen eighty two, over the past forty years, the definition of what clearly established law is has gotten so narrow that officers can

be relieved from liability even if they've acted in bad space, even if they've violated the constitution, if simply they have the good luck to have violated a person's rights in a way that has not previously been ruled upon before in a prior court decision. And so there can be miniscule factoral differences in a prior case. A person could have in a prior case been you know, assaulted by a police dog while they were on the ground having

stopped resisting, and a court found that unconstitutional. But then that prior decision wasn't enough to clearly establish that it was unconstitutional to release a police saw that a person who was sitting down with their hands in the air. These are the kinds of factual distinctions that have been enough for court to grant officers qualified immunity. So then, in essence, qualified immunity limits the cases that can be brought in the future to those that have been brought

with almost identical facts in the past. Yes, it's a bit of a catch twenty two because the Supreme Court has said, the law is not clearly established unless you can find a prior court case where this conduct was ruled unconstitutional. But it's hard to get to that first decision if there's not a prior one. And the Supreme Court has actually made the challenge to find clearly established law even more difficult because it has told court that they don't have to rule on the constitutionality of an

officer's conduct before granting them qualified immunity. So courts are telling playtiffs in civil rights cases that they have to find a prior court decision with nearly identify fact, and then the same Supreme Court is telling lower courts that they don't have to issue decisions that decide whether the constitution was violated. One of the justifications for qualified immunity is to protect well intentioned police officers from having to

pay huge judgments and possibly being bankrupt by them. But do officers ever pay these judgments out of their own pocket? Officers very, very rarely pay anything for settlements and judgments

in police misconduct cases. This was one of the earlier studies that I did to explore qualified immunity and the justifications for the doctrine, and I looked at eighty one jurisdictions across the country over a six year period and found that ninety nine point nine eight percent of the dollars in these cases were paid by local government, not by police officers. And this was true even when officers

were disciplined, fired, criminally prosecuted. The money rarely, rarely, rarely came from officers pockets, and when it did, I've found two jurisdictions out of the one that had required officers to contribute during the six year period, the average payment was about four thousand dollars. No officer paid more than

twenty five thousand dollars. So the idea that officers are being bankrupted or threatened to be bankrupted by civil rights lawsuits is an argument that's been made by the Supreme Court, that's been made by Senators and congressmen who want to keep qualified immunity, been made by political pundit, and it simply has no basis in reality. After George Floyd, there were even protesters protesting against qualified immunity. So do you

think it's a concept that people are more aware of now? Absolutely? I think that qualified in the which was really even a fringe issue of interest for people who are legal academics interested in issues of the federal government and federal courts, and it moved from that very narrow area of interest into one that yes has taken on significant, very significant political and cultural meaning. And people in the protests following George Blood's murder were carrying handwritten science that said end

qualified immunity. I think it's a difficult legal concept to understand and to understand the intricacies of the doctrine as it functions on the ground, But I think that it's got the political failiens it has because there are these high profile cases where officers have done truly egregious things but have been shielded from responsibility because of qualified immunity doctrine.

I also think that the idea of qualified immunity, this idea that officers are essentially immune or mostly immune from responsibility for their misconduct, is a concept that has taken hold, and whether or not people understand the intricacies of the legal doctrine, the underlying notion that police officers can be above the law is something that people have really come to focus on and reject as a concept. In your book, you give many, many examples of cases where there's police misconduct.

Give us one example, the one that strikes you most. That's a hard question, because in my book I aimed to tell the story of people whose rights have been violated and looked for cases that I just couldn't stop thinking about. If there was a case I couldn't stop thinking about, that was the one that I had to

put in the book. But I think that, Um, there's a case about a man named Rob Lee's who was panhandling in Orlando and ended up having a good Samaritan offer to buy him a sandwich and something to drink and then basically left him to pay the bill. He didn't have the money, so he told the restaurant, you know, I'll wash dishes for you. They said they're not interested. Then he said, well, you better call the police because

I don't have the money. And the police came and an officer ended up sort of pushing him into his police car. Um and then Rob was put in a holding pen in handcuffs, and after he had been sort of knocking on the door to to get some attention, that officer came in and need him in the gut so hard that he ended up needing emergency surgery to

remove his spleen. This officer was actually charged with a crime and sent to jail, and the case went to a jury, and the jury ended up finding that this officer had violated his constitutional rights but awarded him zero nothing in damages for a kick so hard that he lost his spleen and he's had to carry the burden of the resulting medical harms on his own. It has

absolutely dramatically impacted his life. When I've talked to him recently, he's unable to hold down a job, he has massive medical bills, his other organs are breaking down because of this injury that he suffered. And a jury, which you know, often we think about runaway juries, you know, awarding huge damages. Um, we hear lots of stories, you know that sort of suggests that juries are are all too eager to award

money to plaintiffs. In this case, the jury wasn't unsympathetic to Rob Lee's even though they believed they ruled that his rights had been violated. And the best information we have is that they knew that he was an alcoholic. They knew that he drank too much, and the jury didn't want to give more money to support his habits.

Bringing a lawsuit is not as easy as it may seem to people, and you found that less than one percent of people who believe their rights have been violated by police ever file a lawsuit, and the most challenging step turns out to be finding a lawyer. So I think that many people will be surprised by this idea that it's hard to find a lawyer, because there's all sorts of coverage or suggestion that lawyers are a dime a dozen and they're all too eager to bring these

kinds of cases. But in many parts of the country, it is very difficult to find a lawyer, particularly a skilled lawyer, in civil rights litigation, and part of it has to do with the challenges of bringing these cases.

It is hard to prove a constitutional violation, hard to get over qualified immunity, hard to prove a local government is responsible, hard to convince a jury that their clients who may have had you know, prior arrests or other involved men with the criminal justice system, are worthy of a substantial settlement or judgment in these cases. And lawyers are in these cases generally paid on contingency, meaning they get a portion of a settlement if the plaintiff wins,

then they get nothing if they lose. And lawyers deciding whether to take these cases are often considering whether they should take a police misconduct case or let's say, a medical malpractice case or a personal injury case. So I've spoken to dozens of lawyers about their case selection decisions in civil rights cases, and many have said that bringing these other kinds of civil cases are far less risky,

far easier to make a living with. And so the people who bring civil rights cases are people who are truly dedicated to the cause, or are people who are trying out bringing civil rights cases, you know, for the first time or newly. And what lawyers will tell you is it's very difficult to make a living. So people either dig in and decide to commit themselves to civil ice litigation, or they decided to move on to other

easier areas of work. And what that means is that in many parts of the country it is difficult to find a lawyer. I tell the story of a person who's who was really brutally harmed in up state New York and there were no lawyers. Lawyers in New York City were busy enough with their own cases, and they're really work lawyers in the community who were skilled to

to bring these cases. That ended up being a lawyer from San Francisco who blue to New York and ended up taking this case for years um to ultimately get justice in the case. One lawyer told you, it sounds crass, but we say, well, is there blood on the street, because if there isn't, why are we doing it? Yes, I mean that it does sound crass, but there's also a lot of sense in that crassness, because lawyers aren't paid unless they win, and then are they paid a

portion of any settlement that they get. And this is a place where the Supreme Court is really responsible for this kind of crass judgments that lawyers need to make, because Congress in a second seventy six created the rights for plainett lawyers and civil rights cases to get their reasonable fees when they bring a successful case. And they did that precisely so that lawyers did not have to make that kind of craft decisions, so they weren't limited

to a contingency the arrangement. But in a series of decisions, the Supreme Court has interpreted that right to reasonable attorney spees in such a way that it's essentially returned us to a contingency these system for civil rights cases, which ends up meaning that civil rights cases involving protection of constitutional rights and have really been reduced to the same kind of financial calculations as a lawyer deciding whether to take an auto accident case or a medical malpractice case.

After you know, the George Floyd case and a lot of the other cases that we've heard about are in people seeing police differently. But yet you write that plaintiffs sometimes win big in police misconduct trials, but they lose it trial more often than they win. Is that because there's still this idea of police being beyond reproach. Yeah, there certainly is more skepticism about police and policing since George Floyd murder. And you know, that shift I think

has has been happening over a longer stretch of time. Um. You know, as you know, as the killings, particularly as black men over the past decade decade and a half, has been more often captured on video and have has gone viral and have really attracted public attention. But even with all of that focus, Um, for many Americans, Uh, police are among the most respected UM and trusted professions. Uh,

but there is also diversity of opinion on that point. Um, Black Americans have a much more skeptical view of police than white Americans and it and it breaks down on other lines as well. But juries, as I argue in the book, are selected in ways that systematically, at many points in the process remove people who are more skeptical of the police and are more likely to believe a plaintiffs perspective up from the jury pool and from the jury itself. Um. You know, people who have felony convictions

are cannot serve in federal juries. Uh. So that in it of itself has a significant racial disparity. And then you have to think about the jury selection process. Jury questionnaires in in a significant part of the federal districts are only sent to registered voters UM states. Various states have have sent them also to everyone with a identification card,

people who are getting unemployment benefits. But the federal system, all that need be done is to submit those jury forms to UM registered voters, which again has a racially disparate impact. And then you know, people need to return them and show up to the UM to the appointment to to sit on a jury. Again, there's been studies that show that the way in which these juries are

configured UM have racially disparate impact UM. And then once they're actually sitting, jurors can be excused if they've ever had a negative interaction with law enforcement UM, so that you end up rob leases jury who awarded him nothing after he'd been kicked so hard in the stomach that he lost his pleen was all white and uh, all people who had had who had never had a negative interaction with the police. We hear a lot about the settlements in high profile cases million to settle the George

Floyd case. I'm just gonna go through a few twelve million dollars settlement in the Brianna Taylor case, six point four million in the Freddie Gray case, six million in the Eric Garner case. Are those then exceptions, The cases that we know about and that we have heard about do settle for astronomical sums. And I do think that the threat of those kinds of cases going to trial, particularly with the public attention to the leads local governments

to make settlement offers that really are significant. But there are more than a thousand people who are killed by police every year, and there are hundreds of thousands of people who have been assaulted or searched or surveilled in ways that may violate their constitutional rights. And when you look at the settlement values in these cases, they often are much lower or their cases in which the plaintiff

loses all together. Um. There's a case that that I talked about in the book, brought by a man named Robbie Tolan, who was a minor league baseball player who was shot in front of his home by a white police officer, an African American man, and he had been on the ground and uh when he was shot. And the case after years of back and forth, with the family needing to sell their home in order to pay a lawyer to continue fighting their case. On the eve of trial, that's a case that settled for a hundred

thousand dollars and Robbie Tolin's baseball career is over. Um, he is lucky to have survived. He still has the bullet lodged in his body. But that is a case that has not gotten the attention. I don't think that it should have. And the settlement amount in that case really barely reflects the degree of harm. That he and his family suffered. In my view, do you see any

changes ahead in the qualified immunity doctrine. Congress could do something to qualified immunity if it wanted to, and it sort of flirted with the possibility of doing so in the aftermath of George Floyd's murder but ended up doing nothing. And some states have passed statutes. Colorado has created a right to do under state law without the protections of qualified immunity, and there's other states that have passed similar

laws or are looking at them. But the same kinds of arguments about officers being bankrupted for reasonable mistakes is rhetoric that has made these kinds of laws difficult to pass and has led to their failure in some state legislatures. I do think that states are probably a more viable alternative to Congress at this point. The other part of what I tried to get across in Shielded is that qualified immunity is not the only barrier to release, although

it has gotten the most attention in recent years. Other challenges like finding a lawyer, drafting a complaint, proving a constitutional violation, proving the city's responsibility are other barriers that are equally challenging to overcome, and part of my goal with the book is to reveal all of these various shields, not just qualified immunity, that make it so difficult to

get justice in these cases. Uh. And in the end of the book, I offer some suggestions for ways that local government and even people sitting on juries and voting for their local representatives and try to shift some of these systems to remove some of these shields that are currently in place. Thanks so much for being on the show, Joanna. That's u c l A Law professor Joanna Schwartz. Her

new book is Shielded, How the Police Became Untouchable. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news by listening to our Bloomberg Law podcast wherever you get your favorite podcasts. I'm June Grosso and you're listening to Bloomberg