Holding Police Accountable: Joanna Schwartz
March 23rd, 2023
“No one is immune from police violence.”
Joanna Schwartz is a professor of law at UCLA, where she teaches civil procedure and courses on police accountability. Her new book is Shielded: How the Police Became Untouchable. We discuss the multiple levels of protection for police offers and how local and state laws can break us out of the qualified immunity maze.
There is a broad systemic problem with holding police accountable when they abuse their power or violate the law. The Supreme Court and state and local governments have created interlocking layers of shields for law enforcement officers. Qualified immunities have become so strong that officers are protected even if they have acted in bad faith, so long as they have not broken a law. Indemnification is also an important part of the shield, which results in officers virtually never paying. Police accountability can improve and we should all be invested in making it work better.
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Credits:
Host: Mila Atmos
Guest: Joanna Schwartz
Executive Producer: Mila Atmos
Producers: Zack Travis and Sara Burningham
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Joanna Schwartz Transcript
Mila Atmos: [00:00:05] Welcome to Future Hindsight, a podcast that takes big ideas about civic life and democracy and turns them into action items for you and me. I'm Mila Atmos.
In America, we're all too accustomed to violent police misconduct each time, yet another egregious event cycles through the media. We follow the well-trodden path of outrage and the calls of something must be done. After Tyre Nicholson's fatal beating by police captured on cameras, we are asking yet again, what can we do to stop this?
Today's guest has a really fascinating take on how we might actually hold police accountable. Joanna Schwartz is a professor of law at UCLA, where she teaches civil procedure and courses on police accountability and public interest lawyering. Her writing, commentary and research about police misconduct, qualified immunity, indemnification, and local government budgeting have been published widely, including in The New York Times, The Washington Post, The Wall Street Journal, NPR, and elsewhere. Her book Shielded: How the Police Became Untouchable is out now.
Welcome to Future Hindsight. Thank you for joining us.
Joanna Schwartz: [00:01:22] Thank you so much for having me.
Mila Atmos: [00:01:25] So I thought, why don't we start with you? How did you come to do this work?
Joanna Schwartz: [00:01:30] Well, I graduated law school more than two decades ago with a real interest in the criminal justice system and in trying to make the system fairer and representing people whose rights had been violated. And I started work at a civil rights firm in New York City that brought lawsuits against the New York City Police Department and Department of Corrections and a variety of other local agencies. And while I was in those first years of practice, there were a lot of questions that I started asking about what impact these cases were actually having on the police officers and the departments that we were suing. One of those questions came about when we were involved in a large class action against the New York City Department of Corrections,
and I was interviewing officers who had used force against our clients and asking them about their litigation history. And they reported that they did not know whether they'd been sued, how often they'd been sued, what the allegations were in the claims, what were the outcomes of the cases. And then when we interviewed the highers up in the agency, they also said they didn't know. This struck me as really surprising. If the goal of these suits is to make a difference and prevent something similar from happening in the future, how could they not even know about these cases? So these and other questions really attached themselves to me while I was a litigator and once I joined UCLA Law school and became an academic and researcher, I decided to empirically examine these questions. I've spent my past 15 years looking at the realities of civil rights litigation and publishing my findings in academic journals. But after George Floyd's murder in 2020, I decided that it was really important to get this information out to a general audience to describe all of these barriers to relief and to show how they fit together to create a real, impenetrable set of barriers for people whose rights have been violated.
Mila Atmos: [00:03:38] Right. Well, your book is really, really informative in this way, and I thought I wanted to talk to you because people feel so helpless about this. And on this show, we really aim to counter a helplessness with the information you need to become empowered. But we can't be empowered without understanding the problem. So how did the police become untouchable or, even to back up one more step, when you say the police are untouchable, what do you mean by that?
Joanna Schwartz: [00:04:08] When people have had their rights violated, they often say that what they want is some form of justice, some reckoning and some security that something similar won't happen to someone else. And when you think about our system, there's only really three ways to achieve those kinds of goals. One is through criminal prosecution, sending a police officer to jail or prison. That happens extremely rarely. Rarely in fatal incidents of police violence. And even more rarely, when you're not talking about someone having died at the hands of police. Another alternative is internal affairs, investigations and discipline by the department. These kinds of processes are also very rare, and so most people whose rights have been violated are left with the possibility of bringing a lawsuit. And bringing a lawsuit allows them to uncover evidence that is relevant to what happened in the case. They can get money or some sort of court ordered reform. And so it actually holds a lot of promise as a tool for
compensation and deterrence. But as I talk about in the book, the Supreme Court and state and local governments have created multiple protections for law enforcement officers. And I should say they apply to other government officials as well. But those protections make it difficult to find a lawyer, begin a case, prove a constitutional violation, get some sort of justice against a police department that hired the officers involved, get forward looking relief. And then even if a person does win, the decisions by state and local governments can make it difficult for those victories to have any financial or other kind of tangible effect on police officers and departments that have done wrong.
Mila Atmos: [00:06:07] Right. So let's go over how it actually works in practice. Your book details the fascinating history of a key case and a section of the US code that I'm guessing most people have never heard of. Monroe v Pape and Section 1983. I'd love you to recap that history for us and why you chose it as your starting point.
Joanna Schwartz: [00:06:27] To understand the history of civil rights litigation in the United States, you really have to go back to 1871, to the time after the Civil War, during Reconstruction, when Congress was trying to figure out how to ensure protection of the rights of Black Americans in our country after slavery had ended. And that was the time when we had the 13th Amendment and the 14th Amendment, the 15th Amendment to the Constitution, ending slavery and involuntary servitude, and also ensuring the equal protection of the law to everyone. At the time, the Ku Klux Klan had just been formed. There were white supremacist groups around the country that were forming, and they were torturing and killing Black Americans, particularly in the South, with law enforcement and other local officials doing nothing, if not participating in the violence. And so Congress enacted what they called at the time, the Ku Klux Klan Act, and has come to be known as Section 1983, which is the place in the United States Code where the statute lives. And this Act allowed people to sue in federal court for constitutional violations. This was important because state courts were very unfriendly places for Black people. And in many states, Black people couldn't even testify. And so finding a federal court claim that people could bring to vindicate their rights was very important. That was 1871. And quickly, over the next several years, the Supreme Court interpreted the Constitution and the statute Section 1983 in ways that made it very difficult to bring claims under this statute. But then fast forward to the beginning, decades of the 20th century and the beginning civil rights movement and the Supreme Court came to
recognize the importance of a federal forum for vindicating constitutional rights. And it was in 1961 -- so 90 years after the Ku Klux Klan Act, or Section 1983, first became law -- that the Supreme Court first held that people could sue for constitutional violations in federal court under this statute. And the case where the court reached this conclusion is a case called Monroe v Pape, a case where a Black man, James Monroe, had been wrongfully identified as the person who had murdered a white man in Chicago. And a group of Chicago police officers came to his home without a warrant, broke in, got him and his wife out of bed and held them in the living room, assaulted Mr. Monroe, assaulted their children when they came to find out what was going on, then held him in custody for hours without letting him see a judge or an attorney. And the Monroes' case was brought under this statute, Section 1983, in federal court. The lower courts dismissed the case, saying you can't bring a claim under this statute, but the Supreme Court reversed and held, Yes, you can. And it was the first moment in which the Supreme Court had really recognized this right. It's an important case because it is that turning point. It's an important case also, and it travels throughout the book, in some ways because the facts of the case are so timeless. They could have happened yesterday. They did happen in 1958, and they could have happened in 1871 when the Ku Klux Klan Act was first enacted. And so I think it's a very powerful story that reflects a moment in time, but also reflects our relationship with policing and particularly Black America's relationship with policing over the many decades of its existence.
Mila Atmos: [00:10:38] Right. So how did this change over time? How did the Supreme Court kind of evolve this case or this ruling into the doctrine of qualified immunity? Because it's a little surprising.
Joanna Schwartz: [00:10:53] When the Supreme Court decided Monroe versus Pape. And if you read the decisions that came soon thereafter, the Supreme Court talks about the importance of having this right, this ability to sue in federal court as a means of compensation and deterrence and a way of vindicating constitutional rights. But after Section 1983 was recognized in this way in Monroe versus Pape, there was a lot of concern that the doors of the courthouses would be opened too wide, that courthouses would be filled with frivolous lawsuits, and officers and other government officials would be bankrupted for mistakes that they made on the job. And those are concerns that you could read in the newspapers or hear government officials describing. They soon became concerns that Supreme Court justices shared. And it was only six years after
Monroe versus Pape was decided in 1967, when the Supreme Court first announced that there was a protection for officers called qualified immunity. At the time, qualified immunity was described by the Supreme Court as a good faith immunity. It came out in a case where officers had arrested actually a bunch of ministers who were in a segregated coffee shop in the south. And the Supreme Court gave the officer what they called qualified immunity because the officer thought that he was enforcing the law, and the law was later found to be unconstitutional. And at the time, the Supreme Court said we don't want officers either fearing that they're going to be sued and personally responsible for paying settlements and judgments on the one hand, or if they don't act, charged with dereliction of duty. We want to give them some breathing room so that they can enforce the law. But that interest in protecting officers has continued over the years to get stronger and stronger and stronger and qualified immunities. Protections have gotten stronger and stronger and stronger so that today officers are protected even if they've acted in bad faith, so long as they haven't violated what the court calls clearly established law. And that has come to mean that a person whose rights have been violated has to find a prior court opinion with nearly identical facts holding that that conduct was unconstitutional in order to escape qualified immunities protections.
Mila Atmos: [00:13:29] Right. I think this is the part where it feels like when I was reading your book that you were walking in circles and in a maze and we couldn't get out because there was no way to find that case on the books, even though it may have - - and and does in all probability exist in real life. Like it happened, but for some reason or another, it's not a decided case. People settled, or whatnot. So this shielding of the police, this impenetrable barrier to accountability is, you argue, actually made up of a bunch of layered and overlapping things. Is qualified immunity the biggest component of that shield?
Joanna Schwartz: [00:14:08] For those listeners who have been involved in or listened to conversations about police reform since the murder of George Floyd in May 2020, it may seem like qualified immunity is the only protection for officers in these cases. And part of the reason I wrote this book was to make clear that qualified immunity is just one piece of many. It's very difficult to figure out which is the biggest barrier to relief. I actually think that the challenges of finding a lawyer in these cases, finding experienced civil rights counsel who could navigate through qualified immunity better is probably the biggest barrier that many people face because surprisingly, outside of the large cities
and outside of the large cities in the north or the cities of the Great Migration, it's very hard to find civil rights attorneys who are experienced, who are willing to take these cases. And part of that is because of the way that they're compensated and not compensated for their work. So if I had a magic wand, I think that I probably would start there at the very beginning and try to find ways to make lawyers and more robust group of lawyers willing to take these cases. And once they did, I think that their advocacy could help weaken the strength of qualified immunity in some of these other barriers to relief.
Mila Atmos: [00:15:38] Right. Well, you also mentioned a lot about how these lawyers don't get paid, even if they do win. But all in all, it's to say that this is an interlocking architecture. You can't pull one thing out and say this is the biggest component. But suffice to say that qualified immunity is not the only thing. Your chapter on suing cities, I think, really illustrates how completely officers are protected. The chapter on Vallejo, I was like, oh my God, the scales fell off my eyes! But can you talk about maybe Monell versus Department of Social Services? Because I think that illustrates very well how this works.
Joanna Schwartz: [00:16:16] When we talk about qualified immunity and all of the conversation about qualified immunity, we're only talking about claims against individual officers. But as many people who study police believe and probably as many people who think about policing and police misconduct recognize the problem is not about bad apples. The problem is not just about bad officers. There is a broader systemic problem in many, many departments. And in fact, the lawyers in Monroe v Pape, who brought that first case, really wanted to sue the city of Chicago. They were most interested in suing the city because the city has the resources to satisfy settlements and judgments. But also, even more importantly, the city has the ability to change training, management, supervision and the culture of the department. And so bringing cases against local governments is a very important part of the initial goals of civil rights litigation and I think the goals of many people who bring these cases. When the court decided Monroe versus Pape in 1961, they said the city of Chicago could not be a defendant in the case. But in 1978, in a case called Monell, the Supreme Court changed its tune on that point and did say, "yes, local governments can be sued," but it's not a kind of direct or vicarious liability. If you are hit by a delivery truck, you are not going to sue the individual driver. You'll sue the company, right, because they are the ones with
the resources. And there's something called vicarious liability, which means the company would be directly liable. Well, the Supreme Court said there's no direct or vicarious liability for a government. Instead to prove a government liable under Section 1983, you have to show that that government had a policy or a practice or custom that caused the constitutional violation. And there's rarely an unlawful policy on the books. In the Monell case, there actually was. It was a case against a New York City agency that required pregnant women to take unpaid leave. And the Supreme Court said that's an unconstitutional policy. But there's very rarely unconstitutional policies that say you must strip search people, or you must use excessive force. Instead, people have to show practices or customs throughout the department that led to a violation. And the Supreme Court has interpreted that in a very narrow way to require that there be prior proof of unconstitutional conduct, not only unconstitutional conduct, but similar unconstitutional conduct that put policy makers on notice of the need for better training or supervision. And what that standard has left us with are departments that can be extremely dysfunctional. The Vallejo Police Department is an abomination by all outward signs, and yet courts have not been able to find that there is an unlawful custom or practice in Vallejo, despite all of the evidence of widespread and systemic misconduct there.
Mila Atmos: [00:19:44] We are taking a quick break to share about a podcast called Mindshift that you might want to check out. When we come back, we'll have more with Joanna Schwartz on the tools available to hold police accountable and what tools we can push for at the state and local level to get past the qualified immunity maze.
But first. Do you ever wonder how we can better prepare our kids for the future? Do you believe that education can be more than just memorizing facts and taking tests? Then you won't want to miss Mindshift, the podcast that explores the future of learning and how we raise our kids. Whether you are a parent, educator, or just someone who is curious about how to improve education for all learners, check out Mindshift. Each episode is packed with practical tips and expert insights about how to better show up for young people in the classroom and beyond. Hosts Kara Newhouse and Nimah Gobir dive into topics like the role of AI in schools, how to build belonging, what restorative justice looks like in action, and so much more. And the best part? You'll hear directly from educators and researchers who are doing groundbreaking work in the field of
education. Listen and subscribe to Mindshift wherever you get your podcasts or visit kqed.org/mindshift.
And now let's return to my conversation with Joanna Schwartz.
In terms of police departments where there's really this widespread misconduct, this is where the Department of Justice can step in, right, with pattern and practice investigations. And one of the most well-known investigations is in Ferguson in the wake of the killing of Michael Brown. Can you talk about how that worked?
Joanna Schwartz: [00:21:34] Absolutely. And the Department of Justice does play a really important role in the oversight of law enforcement agencies across the country. And when they do their investigations, they are investigating some of these larger systemic issues. The Department of Justice got that power in a bill that Congress enacted, really in response to the beating of Rodney King in the early 1990s. And that was another watershed moment, like the murder of George Floyd, like the killing of Tyree Nichols that brought the public's attention together and said, we must do something. And that is what Congress ended up doing. Interestingly, part of what Congress was trying to fix in giving the Department of Justice that power was a different Supreme Court case, a case called City of Los Angeles versus Lyons, which held that individual people can't seek forward-looking relief called injunctions, orders that police change their policies unless that person can show that they themselves will have their constitutional rights violated in a similar way. Again, that was a case where Adolph Lyons was put into a chokehold after he was stopped for a traffic violation in Los Angeles and he wanted to prevent chokeholds from happening in the future. Well, the Supreme Court said you can't bring that case. You can seek damages, but you can't seek forward-looking relief unless you yourself can prove that you will be pulled over again and you will be put in a chokehold again, something that hopefully no one will be able to prove. Right. And so Congress following that decision and then following the beating of Rodney King, gave the Department of Justice the power to do those kinds of investigations, seeking forward-looking relief without having to go through that standard that the Supreme Court had set in Lyons. And the Department of Justice has used that power. It shifts depending on which president is in office and what their commitment is to civil rights. But there have been dozens of investigations by the Department of Justice into Ferguson, Chicago, New Orleans, many, many cities large and small across
the country. And they've done very important work to set standards and expectations about what use of force policies should look like, what civilian complaint processes should look like, supervision, discipline, and and many other areas as well. So they've done very important work. But the Supreme Court's decision has meant that individuals bringing these cases can't do that work. We're limited to the Department of Justice's power to do this work. And as wonderful a job as they have done, they don't have the resources to investigate all of the departments that have issues. So in my ideal world, if I had that magic wand at hand, I would allow people to be able to bring those claims seeking forward looking relief without having to get the Department of Justice involved.
Mila Atmos: [00:24:51] Yes, that would be nice. So these watershed moments, Rodney King, George Floyd, Tyre Nichols, sometimes there's a legislative response like you mentioned, and yet accountability still seems out of reach. One of the things I think most people really don't understand is that there are huge amounts being paid out in compensation and lawsuit settlements, and that we, the taxpayers, pay for that. But there's not matching accountability, to your point, that they don't even know that they're being sued, let alone what the settlement is. Can you talk a little bit about how indemnification works?
Joanna Schwartz: [00:25:28] Absolutely. Indemnification is a term that has gotten a lot less attention than qualified immunity, but it's very important in understanding how our system works. And again, this is this is a concept that we have in private business all the time. The idea is that if an employee causes some harm while on the job, that the employer will pick up the tab. This is an idea that we see in government liability as well. States across the country have enacted indemnification statutes that provide that when an officer has been sued that the city will provide an attorney and any settlement or judgment will be paid by the local government, not the officer themselves. And these indemnification agreements generally have limitations. It's limited to when officers are on the job, for example, or acting in the course and scope of their employment. But when I looked at settlements and judgments across the country, 81 jurisdictions, large, medium and small, over a six year period, I found that officers very, very rarely pay anything in these cases. What I found in these jurisdictions was that 99.98% of the dollars were paid by local governments, which means taxpayers or insurance companies. And 0.02% of the dollars came from individual officers. And this is true even when indemnification agreements would not have required that the officers be
indemnified. Sometimes this is true even in places that have a policy not to indemnify their officers. So regardless of variation in indemnification agreements, what I found as a practical reality is that officers virtually never pay. In the vast majority of departments, there is no tangible financial effect of settlements and judgments on the police departments. Bottom line, even when a settlement or judgment is paid from the department's budget, it it is money that has been set aside through the budgeting process. And if the police department goes above what they have budgeted for, the excess comes from city funds, not from the police department's own budget. So in all of these ways the financing and indemnification and budgeting of settlements and judgments happen in a way that really mute the financial effect of these cases on officers and departments.
Mila Atmos: [00:28:18] Essentially, there are no consequences for the police. The other thing that really struck me was how police officers and police departments are under no obligation to change their ways, even if they are being sued. You know. And some plaintiffs, as you mentioned, have sought injunctive relief that would change department policies and practices. How would that actually work? We talked about this briefly, how the DOJ can do this, but how has the Supreme Court actually made it more difficult for everyday people to seek injunctive relief against police departments?
Joanna Schwartz: [00:28:53] It's really the Supreme Court's decision in this case, city of Los Angeles versus Lyons, that has made it so difficult to get forward-looking relief. I describe in the book the story of a man named James Campbell, who lived in Indianapolis, was headed to the jazz festival, and as an African-American man, was wearing a nice outfit for going out and was picking up his friend to head out to the festival and was stopped, was accused of having marijuana. There was a baggie of marijuana down the street that he was accused of dropping. And then was strip searched in public. In front of his friend's home, in the view of his friend's 12 year old child and anyone else who happened to be in the neighborhood wondering what was going on. And James was horrified by what happened. He wanted to prevent something similar from happening again. And so he found an attorney willing to represent him. What he really wanted -- This was not about getting money. This was about making change. He wanted the Indianapolis Police Department to stop strip-searching people in public. And they had a hearing for this claim. And in the hearing, the police chief and other officials really made clear that the Indianapolis Police Department regularly strip
searched people in public, who were accused of misdemeanors. They were supposed to do it at the jail, but the jail was overcrowded. And officers had no real instructions about how to go about doing these strip searches in public. The court said "maybe this is unconstitutional. We're not saying it's not unconstitutional, but you can't get forward- looking relief prohibiting strip searches from happening in public because you, Mr. Campbell, cannot show that you will be stopped, accused of a crime and strip searched in public again." And so all that he could do was bring a claim for money damages. And after years of back and forth in court that I describe in the book, he did ultimately settle his case. And interestingly, part of the settlement was an agreement by the city that it would stop strip searching people in public. So it took years to get the relief that he ultimately really wanted in this case. It's the Supreme Court's decisions, particularly their decision in City of Los Angeles versus Lyons, that meant that he couldn't get that relief through the courts. And he managed, though, to negotiate it through a settlement with the department. And the change in policy actually stuck. It actually happened. It actually made a difference. But the Supreme Court's decisions made it impossible to seek that relief through the courts.
Mila Atmos: [00:32:06] Right. So even though he got what he wanted, it's not on the books. Right. So you can't actually refer to it because it's a part of a settlement. So in the future, if something like this were to happen again, we cannot point to this case as being injunctive relief. So you argue that tackling this problem -- untouchable police -- has to center around civil rights litigation, but you also acknowledge that civil rights litigation isn't a solution on its own. Can you help us understand what else we should or could be doing?
Joanna Schwartz: [00:32:37] Absolutely. So my book focuses on what happens when someone's constitutional rights have been violated, what kinds of remedies we have when something horrifying has occurred and the people involved are seeking justice and some assurance that something similar won't happen in the future. In an ideal world, though, there would be no constitutional violation. In an ideal world, we would never get to the point where we needed to file a civil suit. And so a true reform package needs to look not only at what I have focused on this sort of back end accountability, but also front end changes that can hopefully prevent similar things from happening before they ever do. And there are a lot of interesting reforms that are being considered by Congress. But also I think even more interestingly and more likely to gain passage,
state and local governments. Philadelphia, for example, created a policy that prohibits or discourages police officers from stopping people for low level traffic violations. We have seen over the years many fatal police shootings that begin as low level traffic violations for expired registration or for a broken tail light. In fact, Adolph Lyons was stopped for one of those very kind of traffic violations before he was put in a chokehold. If we could reduce the frequency with which officers stop people for those kinds of low level traffic violations, we may actually reduce the number of instances in which fatal force is used. There are similar bills or policies percolating that would have unarmed mental health specialists intervene when people are having mental health crises. Because this is another place where police often tragically kill people who are in mental health crisis, who are not a threat to others and could be responded to in a way that didn't involve force. If we can get that kind of policy in place in more jurisdictions, that will reduce, I believe, the kinds of incidents that we often see on the news. There are other kinds of protections as well. There are considerations about bright line rules prohibiting shooting into cars, foot pursuits, chokeholds, no knock warrants. Rules that would allow for the use of force only when necessary.
Mila Atmos: [00:35:20] What are other opportunities for local government action on police accountability?
Joanna Schwartz: [00:35:26] State and local governments have been really at the forefront of police reform over these past few years, as the Supreme Court and Congress have both really failed to take up these challenges. Colorado is a very interesting example. The bill that they passed in June of 2020 is, I think, a blueprint for other states to consider, that creates bright line rules prohibiting force under some circumstances; that creates a state law right to sue for constitutional violations of the state constitution and provides that qualified immunity is not a defense in those cases. So it's essentially a workaround of the Supreme Court's doctrine. And then, as you mentioned, it requires local governments to pay settlements and judgments on behalf of their officers, which I think is important because most officers aren't going to have the resources to pay in these cases. But if a city finds that an officer acted in bad faith, they can require the officer to pay a portion of that settlement or judgment, which is a good way, I think, to create some financial sanction for bad acting officers while also ensuring that people are compensated. And so, there are states around the country that are considering similar bills. And I think that those efforts are really important. Local
governments as well have a lot that they can do at the city council level. Cities can require their police departments to take better account of the settlements and judgments entered against them, take better account of the information in these cases to try to understand trends in these cases and to address the information that they get through better policies and trainings. There is important work that can be done to get people into local government who are focused on these issues. If state and local governments are where police reform is really happening and getting people into those positions who are thinking carefully about these ideas is very valuable. And I talk about things that even listeners can do on their own. A lot of people try to get out of jury service because they don't want the hassle. But as I spend an entire chapter in the book talking about, jurors in civil rights cases are an incredibly important part of the process. And so people can be willing to serve as jurors. And finally, for lawyers who are listening: willingness to accept some of these cases and bring civil rights cases on behalf of people whose rights have been violated is one of the most important things that can be done.
Mila Atmos: [00:38:11] Yeah. Thanks for those added tools for our Civic Action toolkit. Current discourse around police accountability falls along familiar ideological lines and political racial fault lines. Anyone who argues for police reform is accused of hating the cops or of defunding them. What's your response to that rhetoric?
Joanna Schwartz: [00:38:32] I aim in the book to try to sidestep that debate. Not ignore it. But my goal is really to offer evidence. I am focused not on whether we should defund the police or whether we back the blue, but I'm hopeful that those on both sides of that debate can agree that there are times when police abuse their power. There are times when police violate the law. And the question is what should the consequences be? If we can agree that there should be some consequences, what should those consequences be? And how can we make the system work better for people whose rights have been violated? Eliminating qualified immunity, for example, is not a cop hating move. Eliminating qualified immunity would not bankrupt police officers for making split second decisions. It's actually a protection that police officers themselves would benefit from having go away because it undermines community confidence in police and in policing. And surveys of officers indicate that they want bad officers to be punished as well. You also mentioned race, and I start talking about race in the introduction of the book, although we haven't talked about it yet, until toward the end of our conversation. Race and racism is pervasive in policing and has been since the very
inception of police. And today, Black people, Latino people, Indigenous people are more likely than white people to be stopped, searched, arrested, assaulted and killed by the police. So it's impossible to talk about policing without thinking about issues of race. It's also, I think, important to put in the context of policing the fact that there are other groups that are disproportionately overpoliced. People with mental health crises, people who are houseless immigrants, laborers, protesters, and really any group that is marginalized by our society has also been disproportionately surveilled and policed by law enforcement. My goal in the book is to recognize those disparities, but also to paint a portrait of policing and police misconduct that makes clear that no one is immune from police violence. And I tell stories in the book of people who are Black, who are white, who are Latino, who are Indigenous. People who are rich and poor, people who have never been arrested before, people with long criminal histories, people around the country. Policing is a problem that we should all be concerned about and we should all be invested in making work better than it does. Right?
Mila Atmos: [00:41:29] Circling back to that feeling of helplessness that we started with, you offered us some concrete points of action, things we don't need a magic wand for. Do your jury duty, folks. Right. But looking into the future, what makes you hopeful?
Joanna Schwartz: [00:41:44] I think that there have been important changes, and I resist the argument that nothing has changed, that things never get better, that nothing has changed since George Floyd, that nothing has changed since Ferguson. Things have changed. And if you look at the response to the killing of Tyre Nichols by the city of Memphis, with very quick turning over of the video, very quick firing and prosecution of the officers, disbanding the Scorpion unit. These are quick actions that a decade ago, I am very confident, would not have happened with that kind of speed or decisiveness. And that is really a testament to on the ground advocacy in Memphis and around the country on these issues and a recognition that our country is not going to stand for this kind of egregious violence. In an ideal world, Tyre Nichols would never have been killed. And that could be an indication of the problem being solved. I don't actually think the problem will ever be solved. Unfortunately. But I think that it can improve. And I think that we have multiple examples of it improving. It's just that you have to recognize that change is incremental. It moves forward and backward and to the side before it moves forward again. But there are important changes that are happening, particularly on the state and local levels.
Mila Atmos: [00:43:12] Yeah, that is hopeful. Well, thank you so much for joining us on Future Hindsight. It was really a pleasure to have you on.
Joanna Schwartz: [00:43:20] Likewise. Thank you so much for having me.
Mila Atmos: [00:43:22] Joanna Schwartz is a professor of law at UCLA, where she teaches civil procedure and courses on police accountability and public interest lawyering. Her book, Shielded: How the Police Became Untouchable is out now.
Next week on Future Hindsight, following this conversation with Joanna Schwartz on police accountability or indeed the lack thereof, we are staying with the theme of criminal justice, and we're going to be finding out about the public safety, political, football of bail reform. We'll be joined by Alana Sivin. She's the New York state director for criminal justice reform at Forward.US. Alana is going to take us through some fascinating data about how New York's bail reform laws have been working out in real life.
Alana Sivin: [00:44:11] Bail reform has been an extremely successful policy that is not only good because it's the right thing to do for human beings, but it's also the right thing to do to create long term public safety.
Mila Atmos: [00:44:26] That's next time on Future Hindsight. We're also active on Twitter and would love to engage with you all there. You can follow me @MilaAtmos. That's one word, M I L A A T M O S, or follow the pod at @futur_hindsight. This episode was produced by Zack Travis and Sarah Burningham. Until next time, stay engaged.
The Democracy Group: [00:45:01] This podcast is part of the Democracy Group.