Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: After the country saw Minneapolis police officer Derek Chauvin with
Speaker 1: his knee on George Floyd's neck, it reinvigorated the conversation
Speaker 1: about the defense of qualified immunity. There were congressional hearings,
Speaker 1: but as the protests faded, proposed reforms were voted down
Speaker 1: or abandoned, and just last month, the Supreme Court refused
Speaker 1: to take up a challenge to qualified immunity given to
Speaker 1: a Michigan police officer who fatally shot a man who
Speaker 1: was investigating for traffic violations in a drive through line
Speaker 1: at Whitecastle. My guest is u c l A law
Speaker 1: professor Joanna Schwartz. Her new book is entitled Shielded, How
Speaker 1: the Police Became Untouchable. Joanna, tell us what you decided
Speaker 1: to write this book and how much research went into it. So,
Speaker 1: I am a professor at u c l A, and
Speaker 1: I've been studying police misconduct and civil rights litigation since
Speaker 1: i became a law professor. It was inspired by my
Speaker 1: own work as a civil rights attorney about twenty years ago,
Speaker 1: and I had done a bunch of research trying to
Speaker 1: understand what impact civil rights lawsuits actually had on police
Speaker 1: departments and local governments, and what the legal barriers are
Speaker 1: to release in these cases that have been created by
Speaker 1: the Supreme Court and state and local government around the country,
Speaker 1: often based on overblown arguments about the kinds of dangers
Speaker 1: that um and harms that would come to us as
Speaker 1: a society if it was too easy to get justice
Speaker 1: in these cases. And I have been doing that research
Speaker 1: and sharing it with my academic audience and peers. And
Speaker 1: then George Floyd was murdered in May, and the kinds
Speaker 1: of topics that I and other academics have been toiling
Speaker 1: over in the shadows, things like qualified immunity and police
Speaker 1: department budgets and who actually pays for settlements and judgments
Speaker 1: in police misconduct cases, and what impacts do they really have,
Speaker 1: and how can we get justice in these cases. These
Speaker 1: conversations were now being had by government officials, by protesters,
Speaker 1: by people sitting around kitchen tables, and I realized that
Speaker 1: it was important, critically important, at this moment in time
Speaker 1: to share some of this information and insight with a
Speaker 1: broader audience and really reveal all of the different ways
Speaker 1: in which it is so difficult to get justice in
Speaker 1: these cases, and also to provide tangible evidence that the
Speaker 1: kinds of fears that have motivated restrictions on the ability
Speaker 1: to sue and get justice have really no basis in reality.
Speaker 1: So my goal with Shielded is to present this information
Speaker 1: and away from the kinds of you two eight character
Speaker 1: sound bites that information often traveled in, and to to
Speaker 1: really take the space and the time to to look
Speaker 1: at all of these barriers to relief and to really
Speaker 1: think about a meaningful path forward. Qualified immunity was created
Speaker 1: by the Supreme Court. Explain what it is. Qualified immunity
Speaker 1: was created by the Supreme Court in nineteen sixty seven,
Speaker 1: and what they called at that time a good space immunity.
Speaker 1: If an officer thought that the constitution allowed what they
Speaker 1: were doing but they turned out to be wrong, the
Speaker 1: Supreme Court said an officer shouldn't be held responsible. But
Speaker 1: in the Supreme Court shifted entirely what qualified immunity meant,
Speaker 1: got rid of this idea of good faith conduct and
Speaker 1: instead said that officers were entitled to qualified immunity so
Speaker 1: long as the law wasn't clearly established, even if they
Speaker 1: were acting in bad faith and then since nineteen eighty two,
Speaker 1: over the past forty years, the definition of what clearly
Speaker 1: established law is has gotten so narrow that officers can
Speaker 1: be relieved from liability even if they've acted in bad space,
Speaker 1: even if they've violated the constitution, if simply they have
Speaker 1: the good luck to have violated a person's rights in
Speaker 1: a way that has not previously been ruled upon before
Speaker 1: in a prior court decision. And so there can be
Speaker 1: miniscule factoral differences in a prior case. A person could
Speaker 1: have in a prior case been you know, assaulted by
Speaker 1: a police dog while they were on the ground having
Speaker 1: stopped resisting, and a court found that unconstitutional. But then
Speaker 1: that prior decision wasn't enough to clearly establish that it
Speaker 1: was unconstitutional to release a police saw that a person
Speaker 1: who was sitting down with their hands in the air.
Speaker 1: These are the kinds of factual distinctions that have been
Speaker 1: enough for court to grant officers qualified immunity. So then,
Speaker 1: in essence, qualified immunity limits the cases that can be
Speaker 1: brought in the future to those that have been brought
Speaker 1: with almost identical facts in the past. Yes, it's a
Speaker 1: bit of a catch twenty two because the Supreme Court
Speaker 1: has said, the law is not clearly established unless you
Speaker 1: can find a prior court case where this conduct was
Speaker 1: ruled unconstitutional. But it's hard to get to that first
Speaker 1: decision if there's not a prior one. And the Supreme
Speaker 1: Court has actually made the challenge to find clearly established
Speaker 1: law even more difficult because it has told court that
Speaker 1: they don't have to rule on the constitutionality of an
Speaker 1: officer's conduct before granting them qualified immunity. So courts are
Speaker 1: telling playtiffs in civil rights cases that they have to
Speaker 1: find a prior court decision with nearly identify fact, and
Speaker 1: then the same Supreme Court is telling lower courts that
Speaker 1: they don't have to issue decisions that decide whether the
Speaker 1: constitution was violated. One of the justifications for qualified immunity
Speaker 1: is to protect well intentioned police officers from having to
Speaker 1: pay huge judgments and possibly being bankrupt by them. But
Speaker 1: do officers ever pay these judgments out of their own pocket?
Speaker 1: Officers very, very rarely pay anything for settlements and judgments
Speaker 1: in police misconduct cases. This was one of the earlier
Speaker 1: studies that I did to explore qualified immunity and the
Speaker 1: justifications for the doctrine, and I looked at eighty one
Speaker 1: jurisdictions across the country over a six year period and
Speaker 1: found that ninety nine point nine eight percent of the
Speaker 1: dollars in these cases were paid by local government, not
Speaker 1: by police officers. And this was true even when officers
Speaker 1: were disciplined, fired, criminally prosecuted. The money rarely, rarely, rarely
Speaker 1: came from officers pockets, and when it did, I've found
Speaker 1: two jurisdictions out of the one that had required officers
Speaker 1: to contribute during the six year period, the average payment
Speaker 1: was about four thousand dollars. No officer paid more than
Speaker 1: twenty five thousand dollars. So the idea that officers are
Speaker 1: being bankrupted or threatened to be bankrupted by civil rights
Speaker 1: lawsuits is an argument that's been made by the Supreme Court,
Speaker 1: that's been made by Senators and congressmen who want to
Speaker 1: keep qualified immunity, been made by political pundit, and it
Speaker 1: simply has no basis in reality. After George Floyd, there
Speaker 1: were even protesters protesting against qualified immunity. So do you
Speaker 1: think it's a concept that people are more aware of now? Absolutely?
Speaker 1: I think that qualified in the which was really even
Speaker 1: a fringe issue of interest for people who are legal
Speaker 1: academics interested in issues of the federal government and federal courts,
Speaker 1: and it moved from that very narrow area of interest
Speaker 1: into one that yes has taken on significant, very significant
Speaker 1: political and cultural meaning. And people in the protests following
Speaker 1: George Blood's murder were carrying handwritten science that said end
Speaker 1: qualified immunity. I think it's a difficult legal concept to
Speaker 1: understand and to understand the intricacies of the doctrine as
Speaker 1: it functions on the ground, But I think that it's
Speaker 1: got the political failiens it has because there are these
Speaker 1: high profile cases where officers have done truly egregious things
Speaker 1: but have been shielded from responsibility because of qualified immunity doctrine.
Speaker 1: I also think that the idea of qualified immunity, this
Speaker 1: idea that officers are essentially immune or mostly immune from
Speaker 1: responsibility for their misconduct, is a concept that has taken hold,
Speaker 1: and whether or not people understand the intricacies of the
Speaker 1: legal doctrine, the underlying notion that police officers can be
Speaker 1: above the law is something that people have really come
Speaker 1: to focus on and reject as a concept. In your book,
Speaker 1: you give many, many examples of cases where there's police misconduct.
Speaker 1: Give us one example, the one that strikes you most.
Speaker 1: That's a hard question, because in my book I aimed
Speaker 1: to tell the story of people whose rights have been
Speaker 1: violated and looked for cases that I just couldn't stop
Speaker 1: thinking about. If there was a case I couldn't stop
Speaker 1: thinking about, that was the one that I had to
Speaker 1: put in the book. But I think that, Um, there's
Speaker 1: a case about a man named Rob Lee's who was
Speaker 1: panhandling in Orlando and ended up having a good Samaritan
Speaker 1: offer to buy him a sandwich and something to drink
Speaker 1: and then basically left him to pay the bill. He
Speaker 1: didn't have the money, so he told the restaurant, you know,
Speaker 1: I'll wash dishes for you. They said they're not interested.
Speaker 1: Then he said, well, you better call the police because
Speaker 1: I don't have the money. And the police came and
Speaker 1: an officer ended up sort of pushing him into his
Speaker 1: police car. Um and then Rob was put in a
Speaker 1: holding pen in handcuffs, and after he had been sort
Speaker 1: of knocking on the door to to get some attention,
Speaker 1: that officer came in and need him in the gut
Speaker 1: so hard that he ended up needing emergency surgery to
Speaker 1: remove his spleen. This officer was actually charged with a
Speaker 1: crime and sent to jail, and the case went to
Speaker 1: a jury, and the jury ended up finding that this
Speaker 1: officer had violated his constitutional rights but awarded him zero
Speaker 1: nothing in damages for a kick so hard that he
Speaker 1: lost his spleen and he's had to carry the burden
Speaker 1: of the resulting medical harms on his own. It has
Speaker 1: absolutely dramatically impacted his life. When I've talked to him recently,
Speaker 1: he's unable to hold down a job, he has massive
Speaker 1: medical bills, his other organs are breaking down because of
Speaker 1: this injury that he suffered. And a jury, which you know,
Speaker 1: often we think about runaway juries, you know, awarding huge damages. Um,
Speaker 1: we hear lots of stories, you know that sort of
Speaker 1: suggests that juries are are all too eager to award
Speaker 1: money to plaintiffs. In this case, the jury wasn't unsympathetic
Speaker 1: to Rob Lee's even though they believed they ruled that
Speaker 1: his rights had been violated. And the best information we
Speaker 1: have is that they knew that he was an alcoholic.
Speaker 1: They knew that he drank too much, and the jury
Speaker 1: didn't want to give more money to support his habits.
Speaker 1: Bringing a lawsuit is not as easy as it may
Speaker 1: seem to people, and you found that less than one
Speaker 1: percent of people who believe their rights have been violated
Speaker 1: by police ever file a lawsuit, and the most challenging
Speaker 1: step turns out to be finding a lawyer. So I
Speaker 1: think that many people will be surprised by this idea
Speaker 1: that it's hard to find a lawyer, because there's all
Speaker 1: sorts of coverage or suggestion that lawyers are a dime
Speaker 1: a dozen and they're all too eager to bring these
Speaker 1: kinds of cases. But in many parts of the country,
Speaker 1: it is very difficult to find a lawyer, particularly a
Speaker 1: skilled lawyer, in civil rights litigation, and part of it
Speaker 1: has to do with the challenges of bringing these cases.
Speaker 1: It is hard to prove a constitutional violation, hard to
Speaker 1: get over qualified immunity, hard to prove a local government
Speaker 1: is responsible, hard to convince a jury that their clients
Speaker 1: who may have had you know, prior arrests or other
Speaker 1: involved men with the criminal justice system, are worthy of
Speaker 1: a substantial settlement or judgment in these cases. And lawyers
Speaker 1: are in these cases generally paid on contingency, meaning they
Speaker 1: get a portion of a settlement if the plaintiff wins,
Speaker 1: then they get nothing if they lose. And lawyers deciding
Speaker 1: whether to take these cases are often considering whether they
Speaker 1: should take a police misconduct case or let's say, a
Speaker 1: medical malpractice case or a personal injury case. So I've
Speaker 1: spoken to dozens of lawyers about their case selection decisions
Speaker 1: in civil rights cases, and many have said that bringing
Speaker 1: these other kinds of civil cases are far less risky,
Speaker 1: far easier to make a living with. And so the
Speaker 1: people who bring civil rights cases are people who are
Speaker 1: truly dedicated to the cause, or are people who are
Speaker 1: trying out bringing civil rights cases, you know, for the
Speaker 1: first time or newly. And what lawyers will tell you
Speaker 1: is it's very difficult to make a living. So people
Speaker 1: either dig in and decide to commit themselves to civil
Speaker 1: ice litigation, or they decided to move on to other
Speaker 1: easier areas of work. And what that means is that
Speaker 1: in many parts of the country it is difficult to
Speaker 1: find a lawyer. I tell the story of a person
Speaker 1: who's who was really brutally harmed in up state New
Speaker 1: York and there were no lawyers. Lawyers in New York
Speaker 1: City were busy enough with their own cases, and they're
Speaker 1: really work lawyers in the community who were skilled to
Speaker 1: to bring these cases. That ended up being a lawyer
Speaker 1: from San Francisco who blue to New York and ended
Speaker 1: up taking this case for years um to ultimately get
Speaker 1: justice in the case. One lawyer told you, it sounds crass,
Speaker 1: but we say, well, is there blood on the street,
Speaker 1: because if there isn't, why are we doing it? Yes,
Speaker 1: I mean that it does sound crass, but there's also
Speaker 1: a lot of sense in that crassness, because lawyers aren't
Speaker 1: paid unless they win, and then are they paid a
Speaker 1: portion of any settlement that they get. And this is
Speaker 1: a place where the Supreme Court is really responsible for
Speaker 1: this kind of crass judgments that lawyers need to make,
Speaker 1: because Congress in a second seventy six created the rights
Speaker 1: for plainett lawyers and civil rights cases to get their
Speaker 1: reasonable fees when they bring a successful case. And they
Speaker 1: did that precisely so that lawyers did not have to
Speaker 1: make that kind of craft decisions, so they weren't limited
Speaker 1: to a contingency the arrangement. But in a series of decisions,
Speaker 1: the Supreme Court has interpreted that right to reasonable attorney
Speaker 1: spees in such a way that it's essentially returned us
Speaker 1: to a contingency these system for civil rights cases, which
Speaker 1: ends up meaning that civil rights cases involving protection of
Speaker 1: constitutional rights and have really been reduced to the same
Speaker 1: kind of financial calculations as a lawyer deciding whether to
Speaker 1: take an auto accident case or a medical malpractice case.
Speaker 1: After you know, the George Floyd case and a lot
Speaker 1: of the other cases that we've heard about are in
Speaker 1: people seeing police differently. But yet you write that plaintiffs
Speaker 1: sometimes win big in police misconduct trials, but they lose
Speaker 1: it trial more often than they win. Is that because
Speaker 1: there's still this idea of police being beyond reproach. Yeah,
Speaker 1: there certainly is more skepticism about police and policing since
Speaker 1: George Floyd murder. And you know, that shift I think
Speaker 1: has has been happening over a longer stretch of time. Um.
Speaker 1: You know, as you know, as the killings, particularly as
Speaker 1: black men over the past decade decade and a half,
Speaker 1: has been more often captured on video and have has
Speaker 1: gone viral and have really attracted public attention. But even
Speaker 1: with all of that focus, Um, for many Americans, Uh,
Speaker 1: police are among the most respected UM and trusted professions. Uh,
Speaker 1: but there is also diversity of opinion on that point. Um,
Speaker 1: Black Americans have a much more skeptical view of police
Speaker 1: than white Americans and it and it breaks down on
Speaker 1: other lines as well. But juries, as I argue in
Speaker 1: the book, are selected in ways that systematically, at many
Speaker 1: points in the process remove people who are more skeptical
Speaker 1: of the police and are more likely to believe a
Speaker 1: plaintiffs perspective up from the jury pool and from the
Speaker 1: jury itself. Um. You know, people who have felony convictions
Speaker 1: are cannot serve in federal juries. Uh. So that in
Speaker 1: it of itself has a significant racial disparity. And then
Speaker 1: you have to think about the jury selection process. Jury
Speaker 1: questionnaires in in a significant part of the federal districts
Speaker 1: are only sent to registered voters UM states. Various states
Speaker 1: have have sent them also to everyone with a identification card,
Speaker 1: people who are getting unemployment benefits. But the federal system,
Speaker 1: all that need be done is to submit those jury
Speaker 1: forms to UM registered voters, which again has a racially
Speaker 1: disparate impact. And then you know, people need to return
Speaker 1: them and show up to the UM to the appointment
Speaker 1: to to sit on a jury. Again, there's been studies
Speaker 1: that show that the way in which these juries are
Speaker 1: configured UM have racially disparate impact UM. And then once
Speaker 1: they're actually sitting, jurors can be excused if they've ever
Speaker 1: had a negative interaction with law enforcement UM, so that
Speaker 1: you end up rob leases jury who awarded him nothing
Speaker 1: after he'd been kicked so hard in the stomach that
Speaker 1: he lost his pleen was all white and uh, all
Speaker 1: people who had had who had never had a negative
Speaker 1: interaction with the police. We hear a lot about the
Speaker 1: settlements in high profile cases million to settle the George
Speaker 1: Floyd case. I'm just gonna go through a few twelve
Speaker 1: million dollars settlement in the Brianna Taylor case, six point
Speaker 1: four million in the Freddie Gray case, six million in
Speaker 1: the Eric Garner case. Are those then exceptions, The cases
Speaker 1: that we know about and that we have heard about
Speaker 1: do settle for astronomical sums. And I do think that
Speaker 1: the threat of those kinds of cases going to trial,
Speaker 1: particularly with the public attention to the leads local governments
Speaker 1: to make settlement offers that really are significant. But there
Speaker 1: are more than a thousand people who are killed by
Speaker 1: police every year, and there are hundreds of thousands of
Speaker 1: people who have been assaulted or searched or surveilled in
Speaker 1: ways that may violate their constitutional rights. And when you
Speaker 1: look at the settlement values in these cases, they often
Speaker 1: are much lower or their cases in which the plaintiff
Speaker 1: loses all together. Um. There's a case that that I
Speaker 1: talked about in the book, brought by a man named
Speaker 1: Robbie Tolan, who was a minor league baseball player who
Speaker 1: was shot in front of his home by a white
Speaker 1: police officer, an African American man, and he had been
Speaker 1: on the ground and uh when he was shot. And
Speaker 1: the case after years of back and forth, with the
Speaker 1: family needing to sell their home in order to pay
Speaker 1: a lawyer to continue fighting their case. On the eve
Speaker 1: of trial, that's a case that settled for a hundred
Speaker 1: thousand dollars and Robbie Tolin's baseball career is over. Um,
Speaker 1: he is lucky to have survived. He still has the
Speaker 1: bullet lodged in his body. But that is a case
Speaker 1: that has not gotten the attention. I don't think that
Speaker 1: it should have. And the settlement amount in that case
Speaker 1: really barely reflects the degree of harm. That he and
Speaker 1: his family suffered. In my view, do you see any
Speaker 1: changes ahead in the qualified immunity doctrine. Congress could do
Speaker 1: something to qualified immunity if it wanted to, and it
Speaker 1: sort of flirted with the possibility of doing so in
Speaker 1: the aftermath of George Floyd's murder but ended up doing nothing.
Speaker 1: And some states have passed statutes. Colorado has created a
Speaker 1: right to do under state law without the protections of
Speaker 1: qualified immunity, and there's other states that have passed similar
Speaker 1: laws or are looking at them. But the same kinds
Speaker 1: of arguments about officers being bankrupted for reasonable mistakes is
Speaker 1: rhetoric that has made these kinds of laws difficult to
Speaker 1: pass and has led to their failure in some state legislatures.
Speaker 1: I do think that states are probably a more viable
Speaker 1: alternative to Congress at this point. The other part of
Speaker 1: what I tried to get across in Shielded is that
Speaker 1: qualified immunity is not the only barrier to release, although
Speaker 1: it has gotten the most attention in recent years. Other
Speaker 1: challenges like finding a lawyer, drafting a complaint, proving a
Speaker 1: constitutional violation, proving the city's responsibility are other barriers that
Speaker 1: are equally challenging to overcome, and part of my goal
Speaker 1: with the book is to reveal all of these various shields,
Speaker 1: not just qualified immunity, that make it so difficult to
Speaker 1: get justice in these cases. Uh. And in the end
Speaker 1: of the book, I offer some suggestions for ways that
Speaker 1: local government and even people sitting on juries and voting
Speaker 1: for their local representatives and try to shift some of
Speaker 1: these systems to remove some of these shields that are
Speaker 1: currently in place. Thanks so much for being on the show, Joanna.
Speaker 1: That's u c l A Law professor Joanna Schwartz. Her
Speaker 1: new book is Shielded, How the Police Became Untouchable. And
Speaker 1: that's it for this edition of the Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news by
Speaker 1: listening to our Bloomberg Law podcast wherever you get your
Speaker 1: favorite podcasts. I'm June Grosso and you're listening to Bloomberg