1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:18,920 --> 00:00:22,880 Speaker 1: After the country saw Minneapolis police officer Derek Chauvin with 3 00:00:22,920 --> 00:00:27,120 Speaker 1: his knee on George Floyd's neck, it reinvigorated the conversation 4 00:00:27,160 --> 00:00:31,400 Speaker 1: about the defense of qualified immunity. There were congressional hearings, 5 00:00:31,680 --> 00:00:35,640 Speaker 1: but as the protests faded, proposed reforms were voted down 6 00:00:35,840 --> 00:00:39,800 Speaker 1: or abandoned, and just last month, the Supreme Court refused 7 00:00:39,800 --> 00:00:42,879 Speaker 1: to take up a challenge to qualified immunity given to 8 00:00:42,920 --> 00:00:46,199 Speaker 1: a Michigan police officer who fatally shot a man who 9 00:00:46,240 --> 00:00:50,000 Speaker 1: was investigating for traffic violations in a drive through line 10 00:00:50,080 --> 00:00:53,000 Speaker 1: at Whitecastle. My guest is u c l A law 11 00:00:53,080 --> 00:00:57,120 Speaker 1: professor Joanna Schwartz. Her new book is entitled Shielded, How 12 00:00:57,160 --> 00:01:01,160 Speaker 1: the Police Became Untouchable. Joanna, tell us what you decided 13 00:01:01,240 --> 00:01:05,120 Speaker 1: to write this book and how much research went into it. So, 14 00:01:05,520 --> 00:01:07,440 Speaker 1: I am a professor at u c l A, and 15 00:01:07,480 --> 00:01:13,160 Speaker 1: I've been studying police misconduct and civil rights litigation since 16 00:01:13,319 --> 00:01:15,840 Speaker 1: i became a law professor. It was inspired by my 17 00:01:15,880 --> 00:01:20,280 Speaker 1: own work as a civil rights attorney about twenty years ago, 18 00:01:20,880 --> 00:01:23,240 Speaker 1: and I had done a bunch of research trying to 19 00:01:23,319 --> 00:01:27,720 Speaker 1: understand what impact civil rights lawsuits actually had on police 20 00:01:27,720 --> 00:01:32,600 Speaker 1: departments and local governments, and what the legal barriers are 21 00:01:32,840 --> 00:01:35,880 Speaker 1: to release in these cases that have been created by 22 00:01:35,959 --> 00:01:40,640 Speaker 1: the Supreme Court and state and local government around the country, 23 00:01:41,040 --> 00:01:46,240 Speaker 1: often based on overblown arguments about the kinds of dangers 24 00:01:46,240 --> 00:01:49,480 Speaker 1: that um and harms that would come to us as 25 00:01:49,520 --> 00:01:51,920 Speaker 1: a society if it was too easy to get justice 26 00:01:51,920 --> 00:01:54,960 Speaker 1: in these cases. And I have been doing that research 27 00:01:55,000 --> 00:01:59,040 Speaker 1: and sharing it with my academic audience and peers. And 28 00:01:59,160 --> 00:02:05,320 Speaker 1: then George Floyd was murdered in May, and the kinds 29 00:02:05,360 --> 00:02:09,400 Speaker 1: of topics that I and other academics have been toiling 30 00:02:09,440 --> 00:02:15,080 Speaker 1: over in the shadows, things like qualified immunity and police 31 00:02:15,120 --> 00:02:19,440 Speaker 1: department budgets and who actually pays for settlements and judgments 32 00:02:19,440 --> 00:02:22,800 Speaker 1: in police misconduct cases, and what impacts do they really have, 33 00:02:22,960 --> 00:02:25,520 Speaker 1: and how can we get justice in these cases. These 34 00:02:25,560 --> 00:02:31,680 Speaker 1: conversations were now being had by government officials, by protesters, 35 00:02:31,720 --> 00:02:35,480 Speaker 1: by people sitting around kitchen tables, and I realized that 36 00:02:35,520 --> 00:02:38,760 Speaker 1: it was important, critically important, at this moment in time 37 00:02:39,720 --> 00:02:43,920 Speaker 1: to share some of this information and insight with a 38 00:02:43,960 --> 00:02:48,519 Speaker 1: broader audience and really reveal all of the different ways 39 00:02:48,600 --> 00:02:51,240 Speaker 1: in which it is so difficult to get justice in 40 00:02:51,280 --> 00:02:56,640 Speaker 1: these cases, and also to provide tangible evidence that the 41 00:02:56,880 --> 00:03:00,960 Speaker 1: kinds of fears that have motivated restrictions on the ability 42 00:03:01,040 --> 00:03:05,920 Speaker 1: to sue and get justice have really no basis in reality. 43 00:03:06,280 --> 00:03:09,679 Speaker 1: So my goal with Shielded is to present this information 44 00:03:10,200 --> 00:03:14,680 Speaker 1: and away from the kinds of you two eight character 45 00:03:15,080 --> 00:03:19,240 Speaker 1: sound bites that information often traveled in, and to to 46 00:03:19,320 --> 00:03:22,079 Speaker 1: really take the space and the time to to look 47 00:03:22,120 --> 00:03:24,360 Speaker 1: at all of these barriers to relief and to really 48 00:03:24,400 --> 00:03:28,679 Speaker 1: think about a meaningful path forward. Qualified immunity was created 49 00:03:28,720 --> 00:03:33,320 Speaker 1: by the Supreme Court. Explain what it is. Qualified immunity 50 00:03:33,639 --> 00:03:37,600 Speaker 1: was created by the Supreme Court in nineteen sixty seven, 51 00:03:37,960 --> 00:03:41,080 Speaker 1: and what they called at that time a good space immunity. 52 00:03:41,520 --> 00:03:44,840 Speaker 1: If an officer thought that the constitution allowed what they 53 00:03:44,840 --> 00:03:47,080 Speaker 1: were doing but they turned out to be wrong, the 54 00:03:47,120 --> 00:03:51,240 Speaker 1: Supreme Court said an officer shouldn't be held responsible. But 55 00:03:51,640 --> 00:03:56,040 Speaker 1: in the Supreme Court shifted entirely what qualified immunity meant, 56 00:03:56,080 --> 00:03:59,520 Speaker 1: got rid of this idea of good faith conduct and 57 00:03:59,560 --> 00:04:03,040 Speaker 1: instead said that officers were entitled to qualified immunity so 58 00:04:03,080 --> 00:04:06,000 Speaker 1: long as the law wasn't clearly established, even if they 59 00:04:06,040 --> 00:04:09,960 Speaker 1: were acting in bad faith and then since nineteen eighty two, 60 00:04:10,120 --> 00:04:13,920 Speaker 1: over the past forty years, the definition of what clearly 61 00:04:14,000 --> 00:04:18,640 Speaker 1: established law is has gotten so narrow that officers can 62 00:04:18,720 --> 00:04:22,440 Speaker 1: be relieved from liability even if they've acted in bad space, 63 00:04:22,600 --> 00:04:26,560 Speaker 1: even if they've violated the constitution, if simply they have 64 00:04:26,720 --> 00:04:30,200 Speaker 1: the good luck to have violated a person's rights in 65 00:04:30,240 --> 00:04:34,600 Speaker 1: a way that has not previously been ruled upon before 66 00:04:34,800 --> 00:04:38,320 Speaker 1: in a prior court decision. And so there can be 67 00:04:38,520 --> 00:04:43,320 Speaker 1: miniscule factoral differences in a prior case. A person could 68 00:04:43,480 --> 00:04:46,320 Speaker 1: have in a prior case been you know, assaulted by 69 00:04:46,400 --> 00:04:49,520 Speaker 1: a police dog while they were on the ground having 70 00:04:49,839 --> 00:04:54,000 Speaker 1: stopped resisting, and a court found that unconstitutional. But then 71 00:04:54,279 --> 00:04:57,919 Speaker 1: that prior decision wasn't enough to clearly establish that it 72 00:04:57,960 --> 00:05:00,640 Speaker 1: was unconstitutional to release a police saw that a person 73 00:05:00,680 --> 00:05:03,240 Speaker 1: who was sitting down with their hands in the air. 74 00:05:03,640 --> 00:05:06,280 Speaker 1: These are the kinds of factual distinctions that have been 75 00:05:06,400 --> 00:05:10,720 Speaker 1: enough for court to grant officers qualified immunity. So then, 76 00:05:10,760 --> 00:05:14,919 Speaker 1: in essence, qualified immunity limits the cases that can be 77 00:05:15,000 --> 00:05:17,719 Speaker 1: brought in the future to those that have been brought 78 00:05:17,800 --> 00:05:21,599 Speaker 1: with almost identical facts in the past. Yes, it's a 79 00:05:21,640 --> 00:05:25,320 Speaker 1: bit of a catch twenty two because the Supreme Court 80 00:05:25,360 --> 00:05:28,320 Speaker 1: has said, the law is not clearly established unless you 81 00:05:28,400 --> 00:05:32,200 Speaker 1: can find a prior court case where this conduct was 82 00:05:32,320 --> 00:05:36,480 Speaker 1: ruled unconstitutional. But it's hard to get to that first 83 00:05:36,760 --> 00:05:40,200 Speaker 1: decision if there's not a prior one. And the Supreme 84 00:05:40,200 --> 00:05:43,000 Speaker 1: Court has actually made the challenge to find clearly established 85 00:05:43,080 --> 00:05:46,760 Speaker 1: law even more difficult because it has told court that 86 00:05:46,839 --> 00:05:50,320 Speaker 1: they don't have to rule on the constitutionality of an 87 00:05:50,320 --> 00:05:54,280 Speaker 1: officer's conduct before granting them qualified immunity. So courts are 88 00:05:54,320 --> 00:05:57,560 Speaker 1: telling playtiffs in civil rights cases that they have to 89 00:05:57,600 --> 00:06:00,840 Speaker 1: find a prior court decision with nearly identify fact, and 90 00:06:00,880 --> 00:06:04,640 Speaker 1: then the same Supreme Court is telling lower courts that 91 00:06:04,720 --> 00:06:08,560 Speaker 1: they don't have to issue decisions that decide whether the 92 00:06:08,600 --> 00:06:14,160 Speaker 1: constitution was violated. One of the justifications for qualified immunity 93 00:06:14,200 --> 00:06:18,039 Speaker 1: is to protect well intentioned police officers from having to 94 00:06:18,080 --> 00:06:23,200 Speaker 1: pay huge judgments and possibly being bankrupt by them. But 95 00:06:23,440 --> 00:06:28,000 Speaker 1: do officers ever pay these judgments out of their own pocket? 96 00:06:28,480 --> 00:06:34,080 Speaker 1: Officers very, very rarely pay anything for settlements and judgments 97 00:06:34,080 --> 00:06:38,159 Speaker 1: in police misconduct cases. This was one of the earlier 98 00:06:38,200 --> 00:06:43,440 Speaker 1: studies that I did to explore qualified immunity and the 99 00:06:43,520 --> 00:06:47,120 Speaker 1: justifications for the doctrine, and I looked at eighty one 100 00:06:47,200 --> 00:06:50,400 Speaker 1: jurisdictions across the country over a six year period and 101 00:06:50,440 --> 00:06:53,640 Speaker 1: found that ninety nine point nine eight percent of the 102 00:06:53,720 --> 00:06:56,680 Speaker 1: dollars in these cases were paid by local government, not 103 00:06:56,839 --> 00:07:00,000 Speaker 1: by police officers. And this was true even when officers 104 00:07:00,360 --> 00:07:06,600 Speaker 1: were disciplined, fired, criminally prosecuted. The money rarely, rarely, rarely 105 00:07:06,720 --> 00:07:10,760 Speaker 1: came from officers pockets, and when it did, I've found 106 00:07:10,760 --> 00:07:15,000 Speaker 1: two jurisdictions out of the one that had required officers 107 00:07:15,000 --> 00:07:18,800 Speaker 1: to contribute during the six year period, the average payment 108 00:07:18,840 --> 00:07:21,800 Speaker 1: was about four thousand dollars. No officer paid more than 109 00:07:21,840 --> 00:07:25,640 Speaker 1: twenty five thousand dollars. So the idea that officers are 110 00:07:25,640 --> 00:07:30,280 Speaker 1: being bankrupted or threatened to be bankrupted by civil rights 111 00:07:30,360 --> 00:07:34,080 Speaker 1: lawsuits is an argument that's been made by the Supreme Court, 112 00:07:34,480 --> 00:07:38,120 Speaker 1: that's been made by Senators and congressmen who want to 113 00:07:38,200 --> 00:07:42,280 Speaker 1: keep qualified immunity, been made by political pundit, and it 114 00:07:42,480 --> 00:07:47,600 Speaker 1: simply has no basis in reality. After George Floyd, there 115 00:07:47,600 --> 00:07:52,920 Speaker 1: were even protesters protesting against qualified immunity. So do you 116 00:07:52,960 --> 00:07:57,960 Speaker 1: think it's a concept that people are more aware of now? Absolutely? 117 00:07:58,120 --> 00:08:02,360 Speaker 1: I think that qualified in the which was really even 118 00:08:02,400 --> 00:08:05,760 Speaker 1: a fringe issue of interest for people who are legal 119 00:08:05,800 --> 00:08:10,240 Speaker 1: academics interested in issues of the federal government and federal courts, 120 00:08:10,240 --> 00:08:14,200 Speaker 1: and it moved from that very narrow area of interest 121 00:08:14,240 --> 00:08:18,720 Speaker 1: into one that yes has taken on significant, very significant 122 00:08:18,880 --> 00:08:23,560 Speaker 1: political and cultural meaning. And people in the protests following 123 00:08:23,600 --> 00:08:28,320 Speaker 1: George Blood's murder were carrying handwritten science that said end 124 00:08:28,480 --> 00:08:32,280 Speaker 1: qualified immunity. I think it's a difficult legal concept to 125 00:08:32,400 --> 00:08:35,960 Speaker 1: understand and to understand the intricacies of the doctrine as 126 00:08:36,000 --> 00:08:38,920 Speaker 1: it functions on the ground, But I think that it's 127 00:08:38,960 --> 00:08:43,120 Speaker 1: got the political failiens it has because there are these 128 00:08:43,160 --> 00:08:47,440 Speaker 1: high profile cases where officers have done truly egregious things 129 00:08:47,679 --> 00:08:53,679 Speaker 1: but have been shielded from responsibility because of qualified immunity doctrine. 130 00:08:54,040 --> 00:08:57,920 Speaker 1: I also think that the idea of qualified immunity, this 131 00:08:58,080 --> 00:09:05,120 Speaker 1: idea that officers are essentially immune or mostly immune from 132 00:09:05,160 --> 00:09:11,320 Speaker 1: responsibility for their misconduct, is a concept that has taken hold, 133 00:09:11,520 --> 00:09:14,319 Speaker 1: and whether or not people understand the intricacies of the 134 00:09:14,440 --> 00:09:18,400 Speaker 1: legal doctrine, the underlying notion that police officers can be 135 00:09:18,480 --> 00:09:21,679 Speaker 1: above the law is something that people have really come 136 00:09:21,800 --> 00:09:27,320 Speaker 1: to focus on and reject as a concept. In your book, 137 00:09:27,320 --> 00:09:32,920 Speaker 1: you give many, many examples of cases where there's police misconduct. 138 00:09:33,400 --> 00:09:37,360 Speaker 1: Give us one example, the one that strikes you most. 139 00:09:37,880 --> 00:09:42,560 Speaker 1: That's a hard question, because in my book I aimed 140 00:09:42,600 --> 00:09:45,440 Speaker 1: to tell the story of people whose rights have been 141 00:09:45,520 --> 00:09:49,680 Speaker 1: violated and looked for cases that I just couldn't stop 142 00:09:49,760 --> 00:09:51,720 Speaker 1: thinking about. If there was a case I couldn't stop 143 00:09:51,760 --> 00:09:54,560 Speaker 1: thinking about, that was the one that I had to 144 00:09:54,600 --> 00:09:58,760 Speaker 1: put in the book. But I think that, Um, there's 145 00:09:58,800 --> 00:10:03,320 Speaker 1: a case about a man named Rob Lee's who was 146 00:10:03,360 --> 00:10:08,600 Speaker 1: panhandling in Orlando and ended up having a good Samaritan 147 00:10:08,720 --> 00:10:11,240 Speaker 1: offer to buy him a sandwich and something to drink 148 00:10:11,600 --> 00:10:14,480 Speaker 1: and then basically left him to pay the bill. He 149 00:10:14,520 --> 00:10:18,280 Speaker 1: didn't have the money, so he told the restaurant, you know, 150 00:10:18,280 --> 00:10:20,760 Speaker 1: I'll wash dishes for you. They said they're not interested. 151 00:10:20,800 --> 00:10:22,400 Speaker 1: Then he said, well, you better call the police because 152 00:10:22,480 --> 00:10:25,440 Speaker 1: I don't have the money. And the police came and 153 00:10:25,480 --> 00:10:28,520 Speaker 1: an officer ended up sort of pushing him into his 154 00:10:28,559 --> 00:10:31,920 Speaker 1: police car. Um and then Rob was put in a 155 00:10:31,920 --> 00:10:35,640 Speaker 1: holding pen in handcuffs, and after he had been sort 156 00:10:35,640 --> 00:10:38,280 Speaker 1: of knocking on the door to to get some attention, 157 00:10:38,600 --> 00:10:42,120 Speaker 1: that officer came in and need him in the gut 158 00:10:42,400 --> 00:10:46,600 Speaker 1: so hard that he ended up needing emergency surgery to 159 00:10:46,880 --> 00:10:51,680 Speaker 1: remove his spleen. This officer was actually charged with a 160 00:10:51,760 --> 00:10:56,280 Speaker 1: crime and sent to jail, and the case went to 161 00:10:57,080 --> 00:10:59,800 Speaker 1: a jury, and the jury ended up finding that this 162 00:11:00,040 --> 00:11:04,080 Speaker 1: officer had violated his constitutional rights but awarded him zero 163 00:11:04,480 --> 00:11:07,640 Speaker 1: nothing in damages for a kick so hard that he 164 00:11:07,720 --> 00:11:10,679 Speaker 1: lost his spleen and he's had to carry the burden 165 00:11:11,000 --> 00:11:15,120 Speaker 1: of the resulting medical harms on his own. It has 166 00:11:15,160 --> 00:11:19,240 Speaker 1: absolutely dramatically impacted his life. When I've talked to him recently, 167 00:11:19,559 --> 00:11:23,160 Speaker 1: he's unable to hold down a job, he has massive 168 00:11:23,160 --> 00:11:26,680 Speaker 1: medical bills, his other organs are breaking down because of 169 00:11:26,720 --> 00:11:31,920 Speaker 1: this injury that he suffered. And a jury, which you know, 170 00:11:32,000 --> 00:11:37,000 Speaker 1: often we think about runaway juries, you know, awarding huge damages. Um, 171 00:11:37,200 --> 00:11:39,559 Speaker 1: we hear lots of stories, you know that sort of 172 00:11:39,720 --> 00:11:43,040 Speaker 1: suggests that juries are are all too eager to award 173 00:11:43,120 --> 00:11:47,000 Speaker 1: money to plaintiffs. In this case, the jury wasn't unsympathetic 174 00:11:47,120 --> 00:11:50,840 Speaker 1: to Rob Lee's even though they believed they ruled that 175 00:11:50,920 --> 00:11:53,600 Speaker 1: his rights had been violated. And the best information we 176 00:11:53,679 --> 00:11:56,160 Speaker 1: have is that they knew that he was an alcoholic. 177 00:11:56,240 --> 00:11:58,559 Speaker 1: They knew that he drank too much, and the jury 178 00:11:58,559 --> 00:12:02,600 Speaker 1: didn't want to give more money to support his habits. 179 00:12:02,640 --> 00:12:05,760 Speaker 1: Bringing a lawsuit is not as easy as it may 180 00:12:05,800 --> 00:12:08,680 Speaker 1: seem to people, and you found that less than one 181 00:12:08,720 --> 00:12:11,840 Speaker 1: percent of people who believe their rights have been violated 182 00:12:11,840 --> 00:12:16,280 Speaker 1: by police ever file a lawsuit, and the most challenging 183 00:12:16,400 --> 00:12:20,520 Speaker 1: step turns out to be finding a lawyer. So I 184 00:12:20,559 --> 00:12:23,720 Speaker 1: think that many people will be surprised by this idea 185 00:12:23,760 --> 00:12:25,920 Speaker 1: that it's hard to find a lawyer, because there's all 186 00:12:25,960 --> 00:12:29,520 Speaker 1: sorts of coverage or suggestion that lawyers are a dime 187 00:12:29,520 --> 00:12:31,520 Speaker 1: a dozen and they're all too eager to bring these 188 00:12:31,640 --> 00:12:35,200 Speaker 1: kinds of cases. But in many parts of the country, 189 00:12:35,320 --> 00:12:38,080 Speaker 1: it is very difficult to find a lawyer, particularly a 190 00:12:38,080 --> 00:12:41,280 Speaker 1: skilled lawyer, in civil rights litigation, and part of it 191 00:12:41,320 --> 00:12:44,400 Speaker 1: has to do with the challenges of bringing these cases. 192 00:12:44,600 --> 00:12:48,120 Speaker 1: It is hard to prove a constitutional violation, hard to 193 00:12:48,120 --> 00:12:51,760 Speaker 1: get over qualified immunity, hard to prove a local government 194 00:12:51,840 --> 00:12:56,199 Speaker 1: is responsible, hard to convince a jury that their clients 195 00:12:56,240 --> 00:12:59,600 Speaker 1: who may have had you know, prior arrests or other 196 00:12:59,640 --> 00:13:03,280 Speaker 1: involved men with the criminal justice system, are worthy of 197 00:13:03,360 --> 00:13:07,720 Speaker 1: a substantial settlement or judgment in these cases. And lawyers 198 00:13:07,840 --> 00:13:12,559 Speaker 1: are in these cases generally paid on contingency, meaning they 199 00:13:12,600 --> 00:13:15,480 Speaker 1: get a portion of a settlement if the plaintiff wins, 200 00:13:15,480 --> 00:13:18,560 Speaker 1: then they get nothing if they lose. And lawyers deciding 201 00:13:18,559 --> 00:13:21,120 Speaker 1: whether to take these cases are often considering whether they 202 00:13:21,120 --> 00:13:24,080 Speaker 1: should take a police misconduct case or let's say, a 203 00:13:24,120 --> 00:13:27,000 Speaker 1: medical malpractice case or a personal injury case. So I've 204 00:13:27,000 --> 00:13:30,720 Speaker 1: spoken to dozens of lawyers about their case selection decisions 205 00:13:30,800 --> 00:13:34,120 Speaker 1: in civil rights cases, and many have said that bringing 206 00:13:34,120 --> 00:13:37,680 Speaker 1: these other kinds of civil cases are far less risky, 207 00:13:37,840 --> 00:13:40,480 Speaker 1: far easier to make a living with. And so the 208 00:13:40,520 --> 00:13:43,640 Speaker 1: people who bring civil rights cases are people who are 209 00:13:44,000 --> 00:13:48,120 Speaker 1: truly dedicated to the cause, or are people who are 210 00:13:48,440 --> 00:13:51,520 Speaker 1: trying out bringing civil rights cases, you know, for the 211 00:13:51,559 --> 00:13:54,920 Speaker 1: first time or newly. And what lawyers will tell you 212 00:13:55,000 --> 00:13:57,160 Speaker 1: is it's very difficult to make a living. So people 213 00:13:57,200 --> 00:13:59,959 Speaker 1: either dig in and decide to commit themselves to civil 214 00:14:00,000 --> 00:14:02,720 Speaker 1: ice litigation, or they decided to move on to other 215 00:14:03,200 --> 00:14:06,240 Speaker 1: easier areas of work. And what that means is that 216 00:14:06,280 --> 00:14:08,720 Speaker 1: in many parts of the country it is difficult to 217 00:14:08,720 --> 00:14:11,360 Speaker 1: find a lawyer. I tell the story of a person 218 00:14:11,400 --> 00:14:15,719 Speaker 1: who's who was really brutally harmed in up state New 219 00:14:15,800 --> 00:14:19,960 Speaker 1: York and there were no lawyers. Lawyers in New York 220 00:14:20,000 --> 00:14:23,400 Speaker 1: City were busy enough with their own cases, and they're 221 00:14:23,400 --> 00:14:27,560 Speaker 1: really work lawyers in the community who were skilled to 222 00:14:27,560 --> 00:14:29,960 Speaker 1: to bring these cases. That ended up being a lawyer 223 00:14:30,040 --> 00:14:34,360 Speaker 1: from San Francisco who blue to New York and ended 224 00:14:34,440 --> 00:14:38,840 Speaker 1: up taking this case for years um to ultimately get 225 00:14:38,880 --> 00:14:42,600 Speaker 1: justice in the case. One lawyer told you, it sounds crass, 226 00:14:42,680 --> 00:14:45,600 Speaker 1: but we say, well, is there blood on the street, 227 00:14:45,760 --> 00:14:49,080 Speaker 1: because if there isn't, why are we doing it? Yes, 228 00:14:49,160 --> 00:14:52,280 Speaker 1: I mean that it does sound crass, but there's also 229 00:14:52,760 --> 00:14:57,520 Speaker 1: a lot of sense in that crassness, because lawyers aren't 230 00:14:57,600 --> 00:15:00,440 Speaker 1: paid unless they win, and then are they paid a 231 00:15:00,520 --> 00:15:03,920 Speaker 1: portion of any settlement that they get. And this is 232 00:15:03,960 --> 00:15:08,200 Speaker 1: a place where the Supreme Court is really responsible for 233 00:15:08,360 --> 00:15:12,160 Speaker 1: this kind of crass judgments that lawyers need to make, 234 00:15:12,600 --> 00:15:16,360 Speaker 1: because Congress in a second seventy six created the rights 235 00:15:16,480 --> 00:15:19,800 Speaker 1: for plainett lawyers and civil rights cases to get their 236 00:15:19,800 --> 00:15:23,800 Speaker 1: reasonable fees when they bring a successful case. And they 237 00:15:23,880 --> 00:15:27,360 Speaker 1: did that precisely so that lawyers did not have to 238 00:15:27,400 --> 00:15:29,960 Speaker 1: make that kind of craft decisions, so they weren't limited 239 00:15:30,000 --> 00:15:33,720 Speaker 1: to a contingency the arrangement. But in a series of decisions, 240 00:15:33,760 --> 00:15:38,280 Speaker 1: the Supreme Court has interpreted that right to reasonable attorney 241 00:15:38,320 --> 00:15:41,640 Speaker 1: spees in such a way that it's essentially returned us 242 00:15:41,760 --> 00:15:45,320 Speaker 1: to a contingency these system for civil rights cases, which 243 00:15:45,360 --> 00:15:48,320 Speaker 1: ends up meaning that civil rights cases involving protection of 244 00:15:48,400 --> 00:15:52,400 Speaker 1: constitutional rights and have really been reduced to the same 245 00:15:52,520 --> 00:15:56,320 Speaker 1: kind of financial calculations as a lawyer deciding whether to 246 00:15:56,440 --> 00:16:00,000 Speaker 1: take an auto accident case or a medical malpractice case. 247 00:16:01,360 --> 00:16:04,520 Speaker 1: After you know, the George Floyd case and a lot 248 00:16:04,560 --> 00:16:07,920 Speaker 1: of the other cases that we've heard about are in 249 00:16:08,040 --> 00:16:14,240 Speaker 1: people seeing police differently. But yet you write that plaintiffs 250 00:16:14,280 --> 00:16:18,360 Speaker 1: sometimes win big in police misconduct trials, but they lose 251 00:16:18,400 --> 00:16:21,800 Speaker 1: it trial more often than they win. Is that because 252 00:16:21,840 --> 00:16:28,120 Speaker 1: there's still this idea of police being beyond reproach. Yeah, 253 00:16:28,720 --> 00:16:35,080 Speaker 1: there certainly is more skepticism about police and policing since 254 00:16:35,320 --> 00:16:39,520 Speaker 1: George Floyd murder. And you know, that shift I think 255 00:16:39,560 --> 00:16:43,200 Speaker 1: has has been happening over a longer stretch of time. Um. 256 00:16:44,120 --> 00:16:48,400 Speaker 1: You know, as you know, as the killings, particularly as 257 00:16:48,440 --> 00:16:52,320 Speaker 1: black men over the past decade decade and a half, 258 00:16:52,360 --> 00:16:55,080 Speaker 1: has been more often captured on video and have has 259 00:16:55,120 --> 00:17:00,320 Speaker 1: gone viral and have really attracted public attention. But even 260 00:17:00,360 --> 00:17:05,199 Speaker 1: with all of that focus, Um, for many Americans, Uh, 261 00:17:05,600 --> 00:17:15,880 Speaker 1: police are among the most respected UM and trusted professions. Uh, 262 00:17:15,920 --> 00:17:20,879 Speaker 1: but there is also diversity of opinion on that point. Um, 263 00:17:21,240 --> 00:17:24,880 Speaker 1: Black Americans have a much more skeptical view of police 264 00:17:24,920 --> 00:17:27,480 Speaker 1: than white Americans and it and it breaks down on 265 00:17:27,560 --> 00:17:32,040 Speaker 1: other lines as well. But juries, as I argue in 266 00:17:32,119 --> 00:17:37,359 Speaker 1: the book, are selected in ways that systematically, at many 267 00:17:37,359 --> 00:17:42,280 Speaker 1: points in the process remove people who are more skeptical 268 00:17:42,760 --> 00:17:46,639 Speaker 1: of the police and are more likely to believe a 269 00:17:46,920 --> 00:17:52,240 Speaker 1: plaintiffs perspective up from the jury pool and from the 270 00:17:52,320 --> 00:17:57,119 Speaker 1: jury itself. Um. You know, people who have felony convictions 271 00:17:57,119 --> 00:18:00,919 Speaker 1: are cannot serve in federal juries. Uh. So that in 272 00:18:00,960 --> 00:18:05,960 Speaker 1: it of itself has a significant racial disparity. And then 273 00:18:06,720 --> 00:18:09,800 Speaker 1: you have to think about the jury selection process. Jury 274 00:18:09,880 --> 00:18:15,280 Speaker 1: questionnaires in in a significant part of the federal districts 275 00:18:15,560 --> 00:18:20,919 Speaker 1: are only sent to registered voters UM states. Various states 276 00:18:20,960 --> 00:18:26,879 Speaker 1: have have sent them also to everyone with a identification card, 277 00:18:26,960 --> 00:18:32,400 Speaker 1: people who are getting unemployment benefits. But the federal system, 278 00:18:32,600 --> 00:18:37,640 Speaker 1: all that need be done is to submit those jury 279 00:18:37,680 --> 00:18:41,959 Speaker 1: forms to UM registered voters, which again has a racially 280 00:18:42,000 --> 00:18:44,880 Speaker 1: disparate impact. And then you know, people need to return 281 00:18:44,960 --> 00:18:50,119 Speaker 1: them and show up to the UM to the appointment 282 00:18:50,240 --> 00:18:53,960 Speaker 1: to to sit on a jury. Again, there's been studies 283 00:18:54,000 --> 00:18:56,440 Speaker 1: that show that the way in which these juries are 284 00:18:56,440 --> 00:19:02,120 Speaker 1: configured UM have racially disparate impact UM. And then once 285 00:19:02,160 --> 00:19:06,560 Speaker 1: they're actually sitting, jurors can be excused if they've ever 286 00:19:06,640 --> 00:19:10,560 Speaker 1: had a negative interaction with law enforcement UM, so that 287 00:19:10,720 --> 00:19:14,560 Speaker 1: you end up rob leases jury who awarded him nothing 288 00:19:14,640 --> 00:19:16,879 Speaker 1: after he'd been kicked so hard in the stomach that 289 00:19:16,920 --> 00:19:21,440 Speaker 1: he lost his pleen was all white and uh, all 290 00:19:21,840 --> 00:19:24,640 Speaker 1: people who had had who had never had a negative 291 00:19:24,640 --> 00:19:27,119 Speaker 1: interaction with the police. We hear a lot about the 292 00:19:27,160 --> 00:19:32,000 Speaker 1: settlements in high profile cases million to settle the George 293 00:19:32,000 --> 00:19:34,439 Speaker 1: Floyd case. I'm just gonna go through a few twelve 294 00:19:34,440 --> 00:19:37,880 Speaker 1: million dollars settlement in the Brianna Taylor case, six point 295 00:19:37,920 --> 00:19:40,520 Speaker 1: four million in the Freddie Gray case, six million in 296 00:19:40,560 --> 00:19:45,600 Speaker 1: the Eric Garner case. Are those then exceptions, The cases 297 00:19:45,640 --> 00:19:48,720 Speaker 1: that we know about and that we have heard about 298 00:19:48,800 --> 00:19:53,400 Speaker 1: do settle for astronomical sums. And I do think that 299 00:19:53,440 --> 00:19:56,760 Speaker 1: the threat of those kinds of cases going to trial, 300 00:19:57,080 --> 00:20:01,720 Speaker 1: particularly with the public attention to the leads local governments 301 00:20:01,760 --> 00:20:05,800 Speaker 1: to make settlement offers that really are significant. But there 302 00:20:05,800 --> 00:20:07,919 Speaker 1: are more than a thousand people who are killed by 303 00:20:07,960 --> 00:20:10,600 Speaker 1: police every year, and there are hundreds of thousands of 304 00:20:10,640 --> 00:20:15,879 Speaker 1: people who have been assaulted or searched or surveilled in 305 00:20:16,400 --> 00:20:20,240 Speaker 1: ways that may violate their constitutional rights. And when you 306 00:20:20,320 --> 00:20:24,760 Speaker 1: look at the settlement values in these cases, they often 307 00:20:25,000 --> 00:20:29,960 Speaker 1: are much lower or their cases in which the plaintiff 308 00:20:30,040 --> 00:20:33,199 Speaker 1: loses all together. Um. There's a case that that I 309 00:20:33,240 --> 00:20:35,880 Speaker 1: talked about in the book, brought by a man named 310 00:20:35,920 --> 00:20:41,960 Speaker 1: Robbie Tolan, who was a minor league baseball player who 311 00:20:42,119 --> 00:20:45,040 Speaker 1: was shot in front of his home by a white 312 00:20:45,040 --> 00:20:49,120 Speaker 1: police officer, an African American man, and he had been 313 00:20:49,200 --> 00:20:53,399 Speaker 1: on the ground and uh when he was shot. And 314 00:20:53,520 --> 00:20:57,720 Speaker 1: the case after years of back and forth, with the 315 00:20:57,880 --> 00:21:00,920 Speaker 1: family needing to sell their home in order to pay 316 00:21:00,920 --> 00:21:03,760 Speaker 1: a lawyer to continue fighting their case. On the eve 317 00:21:03,760 --> 00:21:06,399 Speaker 1: of trial, that's a case that settled for a hundred 318 00:21:06,400 --> 00:21:11,520 Speaker 1: thousand dollars and Robbie Tolin's baseball career is over. Um, 319 00:21:11,600 --> 00:21:14,280 Speaker 1: he is lucky to have survived. He still has the 320 00:21:14,320 --> 00:21:17,800 Speaker 1: bullet lodged in his body. But that is a case 321 00:21:17,880 --> 00:21:20,080 Speaker 1: that has not gotten the attention. I don't think that 322 00:21:20,200 --> 00:21:24,399 Speaker 1: it should have. And the settlement amount in that case 323 00:21:24,760 --> 00:21:29,840 Speaker 1: really barely reflects the degree of harm. That he and 324 00:21:29,920 --> 00:21:32,760 Speaker 1: his family suffered. In my view, do you see any 325 00:21:32,920 --> 00:21:36,639 Speaker 1: changes ahead in the qualified immunity doctrine. Congress could do 326 00:21:36,720 --> 00:21:39,760 Speaker 1: something to qualified immunity if it wanted to, and it 327 00:21:39,920 --> 00:21:43,560 Speaker 1: sort of flirted with the possibility of doing so in 328 00:21:43,600 --> 00:21:47,359 Speaker 1: the aftermath of George Floyd's murder but ended up doing nothing. 329 00:21:47,800 --> 00:21:51,240 Speaker 1: And some states have passed statutes. Colorado has created a 330 00:21:51,359 --> 00:21:54,320 Speaker 1: right to do under state law without the protections of 331 00:21:54,400 --> 00:21:58,040 Speaker 1: qualified immunity, and there's other states that have passed similar 332 00:21:58,240 --> 00:22:02,280 Speaker 1: laws or are looking at them. But the same kinds 333 00:22:02,320 --> 00:22:07,560 Speaker 1: of arguments about officers being bankrupted for reasonable mistakes is 334 00:22:07,920 --> 00:22:11,439 Speaker 1: rhetoric that has made these kinds of laws difficult to 335 00:22:11,440 --> 00:22:16,320 Speaker 1: pass and has led to their failure in some state legislatures. 336 00:22:16,480 --> 00:22:19,760 Speaker 1: I do think that states are probably a more viable 337 00:22:20,000 --> 00:22:24,000 Speaker 1: alternative to Congress at this point. The other part of 338 00:22:24,040 --> 00:22:27,320 Speaker 1: what I tried to get across in Shielded is that 339 00:22:27,440 --> 00:22:31,240 Speaker 1: qualified immunity is not the only barrier to release, although 340 00:22:31,240 --> 00:22:34,640 Speaker 1: it has gotten the most attention in recent years. Other 341 00:22:34,760 --> 00:22:38,919 Speaker 1: challenges like finding a lawyer, drafting a complaint, proving a 342 00:22:38,960 --> 00:22:44,240 Speaker 1: constitutional violation, proving the city's responsibility are other barriers that 343 00:22:44,320 --> 00:22:48,880 Speaker 1: are equally challenging to overcome, and part of my goal 344 00:22:48,960 --> 00:22:53,240 Speaker 1: with the book is to reveal all of these various shields, 345 00:22:53,280 --> 00:22:56,199 Speaker 1: not just qualified immunity, that make it so difficult to 346 00:22:56,240 --> 00:22:59,439 Speaker 1: get justice in these cases. Uh. And in the end 347 00:22:59,480 --> 00:23:04,200 Speaker 1: of the book, I offer some suggestions for ways that 348 00:23:04,760 --> 00:23:08,680 Speaker 1: local government and even people sitting on juries and voting 349 00:23:08,840 --> 00:23:14,600 Speaker 1: for their local representatives and try to shift some of 350 00:23:14,720 --> 00:23:17,680 Speaker 1: these systems to remove some of these shields that are 351 00:23:17,680 --> 00:23:20,960 Speaker 1: currently in place. Thanks so much for being on the show, Joanna. 352 00:23:21,320 --> 00:23:24,400 Speaker 1: That's u c l A Law professor Joanna Schwartz. Her 353 00:23:24,440 --> 00:23:28,920 Speaker 1: new book is Shielded, How the Police Became Untouchable. And 354 00:23:28,960 --> 00:23:31,120 Speaker 1: that's it for this edition of the Bloomberg Law Show. 355 00:23:31,400 --> 00:23:33,720 Speaker 1: Remember you can always get the latest legal news by 356 00:23:33,800 --> 00:23:36,800 Speaker 1: listening to our Bloomberg Law podcast wherever you get your 357 00:23:36,800 --> 00:23:40,440 Speaker 1: favorite podcasts. I'm June Grosso and you're listening to Bloomberg