University of California Los Angeles law professor and civil rights attorney Joanna Schwartz has spent most of her legal career studying the ways in which our legal system weighs heavily in favor of the police and against parties who seek redress in the courts for police misconduct. She sets forth the results of her extensive research, investigations and personal experiences in her new book: Shielded – How the Police Became Untouchable (Viking Press, 2023).
Schwartz has also written an essay entitled “How the Supreme Court Protects Police Officers — It’s Almost Impossible to Hold Them to Account” for the January 31, 2023, edition of The Atlantic magazine, which summarizes the main points of the book.
Our legal system operates on the premise that citizens can only sue the government in certain cases. For example, judges have absolute immunity. You cannot sue the judge if you feel that he or she made a bad decision in your case.
In other instances, government workers like police officers can be sued, but on a limited basis. The doctrine is called qualified immunity and balances two important interests — the need to hold police accountable when they exercise power irresponsibly, weighed against a shield to protect them from harassment, distraction and liability when they properly perform their duties.
But the defense of qualified immunity should not protect police officers when they violate the rights of citizens. The problem is that through a complicated set of United States Supreme Court decisions that interpret the 1871 Civil Rights Act, courts have held that it must be shown that police violated a clearly established statutory or constitutional rights before victims can recover. Therein lies the quirk in the law that makes recovery often difficult and what Schwartz explains.
Take the case of Rob Liese, a homeless man living in Orlando, Florida. Liese is the first to admit that he had an alcohol problem and a criminal record. He was panhandling back in 2014 when a stranger offered to buy him a sandwich and a drink. Thinking it was his lucky day, Liese joined the stranger in a local pub, running up a $60 tab. When the stranger absconded, Liese realized that he had been had. He immediately admitted to the bar owner that he had no money and volunteered to wash dishes, clean toilets or anything to make up for the tab. The owner was not sympathetic.
When the police arrived, an admittedly drunk and now handcuffed Liese did not move as fast as the officer wanted when getting into the police car. The officer kicked him in the stomach. At the station things did not get better. The same officer kneed him in the gut. The pain was so great, Leise passed out. When he woke up, he was in the hospital being prepared for emergency surgery. Doctors had to remove his spleen, leaving him with 42 staples in his chest and belly, a 13-day stay in the hospital, a $85,000 hospital bill and lifelong health issues.
With his criminal record and miserable financial status, it was difficult for Liese, as with most low income or formerly incarcerated persons, to find a lawyer to represent him. He finally succeeded and after years of litigation, a federal court jury awarded him zero damages. His lawyer later heard through the grapevine that jurors were reportedly reluctant to award Liese money because they thought he would spend whatever he received on alcohol.
There is the story of James Campbell. A native of Indianapolis, Campbell was a model employee of the city school district. A former U.S. Marine, the well-dressed Campbell was meeting a friend for a night at a jazz concert. A local police officer mistook Campbell, who had a short Afro, for a robber sporting braids who was fleeing the scene of a nearby establishment that had been robbed. Campbell was forced on the ground. The police officer then just happened to find a bag of marijuana on the ground near Campbell, who had no record of drug use. He was then strip searched in plain view of onlookers. The search included an examination of his anal cavity. Campbell was never charged with a crime. After years of litigation, he did ultimately reach a settlement of his claims, but more important than money, he got a commitment that Indianapolis police would no longer strip search individuals in public.
After reading Schwartz’s accounts of the city of Vallejo, California, I’ve made a mental note never to go there. During an eight month period in 2012, the Vallejo police accounted for one-third of the people killed in the city that year. During a five-month period in 2012, Vallejo police officer Sean Kenney killed three individuals while attempted to affect an arrest. All three apparently had their hands in the air when they were shot.
These are just a few of the heart-wrenching stories of victims of police misconduct and how our legal system can effectively prevent recovery or drag out the process for years so that plaintiffs sometimes give up or run out of money to fund the litigation. Unfortunately, for every large settlement we read about, like the $27 million settlement in the George Floyd case, there are hundreds of victims who recover little or nothing.
Aggrieved claimants face such problems as the inability to find a lawyer to take their case — especially in small towns or rural communities; finding a lawyer who has the knowledge and expertise to effectively pursue the litigation; unsympathetic and pro police judges and jurors, especially in federal courts; and a conservative United States Supreme Court.
The sad part is that when awards are made to victims, the offending police officers rarely if ever make any financial contribution to the money paid out or suffer any repercussions for their acts. Schwartz cites many examples of officers who have caused death and irreparable harm to individuals who not only remain on the police force but receive promotions.
In most cases, the monies paid to victims are paid by cities. The result is that huge sums of money go out of municipal coffers that could otherwise be used for the benefit of those most likely to be victims of police misconduct — minorities, the poor and homeless and senior citizens. Insiders News reported this week that the New York City Police Department paid out over $246.8 million for pedestrians struck by police vehicles in the last decade.
In light of the ongoing discussions in the City of Cleveland about a police review board and the consent degree from the United States District Court, regarding the Cleveland police, Shielded is a must-read for citizens who want a more in-depth understanding of the problem of police misconduct.
There’s a lot of legalese in the text of Shielded but Schwartz provides a glossary of terms and does a good job of providing explanations that makes the book readable for lawyers and non-lawyers alike. She also provides statistical data and well-researched footnotes as verifications for her arguments.
The bottom line is that governments must find a way to get rid of the rogue cops; better train their police; and among other things, make sure that every police officer has a body cam and uses it correctly. There are a lot of excellent police officers who do a great job. And then there are the likes of those in Memphis who killed Tyre Nichols.
With a conservative Supreme Court, conservative state legislators, and lots of citizens who feel “this will never happen to me,” police reform and reform of qualified immunity is difficult. No one wants to defund the police. We just want the police to do their jobs, not abuse the rights of citizens and give plaintiffs a fair shot when they file suit.
Bad policing, combined with a legal system that seems to be set up injured parties for defeat, leads to people taking to the streets rather than to the ballot box and the courthouse to redress their grievances.
Ignorance, allied with power, is the most ferocious enemy justice can have. —James Baldwin
C. Ellen Connally is a retired judge of the Cleveland Municipal Court. From 2010 to 2014 she served as the President of the Cuyahoga County Council. An avid reader and student of American history, she serves on the Board of the Ohio History Connection, is currently vice president of the Cuyahoga County Soldiers and Sailors Monument Commission and president of the Cleveland Civil War Round Table. She holds degrees from BGSU, CSU and is all but dissertation for a PhD from the University of Akron.