Book review: "Shielded" is an "engaging and enraging" examination of police immunity from suit

Schuldt

If you're reading this blog, you are very likely concerned about justice in Wisconsin, the country, and across the world. But you're probably also pretty busy. How do you choose which books about the justice system to read during your limited free time?

In a new series of posts, Wisconsin Justice Initiative founder and former executive director Gretchen Schuldt will help you out. An avid reader, she returns to the blog with book reviews so you can decide what's of interest to you and worth your time.

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Shielded: How the Police Became Untouchable, by Joanna Schwartz. Viking, 291 pages, 2023.

The U.S. Supreme Court first made it possible for individuals to successfully sue over constitutional rights violations.

It’s been walking that decision back ever since.

The precedent was set in 1971’s Bivens v. Six Unknown Named Agents. The court, in a 6-3 decision, said individuals could sue federal agents for damages related to Fourth Amendment violations. 

These days, thanks to subsequent court decisions, Bivens is so diminished that justice is unattainable for most people.

Schwartz’s book is an engaging and enraging examination of the court’s jurisprudence and other factors responsible for this sorry state of affairs. Take, for example, the court’s decisions creating and expanding “qualified immunity,” a pulled-it-out-of-the-air doctrine that gives legal immunity to government officials, including law enforcement, as long as even the most egregious constitutional violations do not violate “clearly established law.” This new standard applies, the justices said in 1982’s Harlow v Fitzgerald, even if the officials’ actions were not taken in good faith.

Schwartz provides a number of examples of the ridiculous ways courts gradually stretched the qualified immunity doctrine to give cover to action a five-year-old child would know is wrong. In one of them, Baxter v. Bracey, an appeals court held that officers were entitled to qualified immunity because there wasn’t an earlier case clearly stating that it was unconstitutional for an officer to set a police dog on a burglary suspect who surrendered and was sitting with his hands up. A prior court had said it was unconstitutional for an officer to release a police dog on a suspect who had surrendered and was lying down, Schwartz writes, but the appeals court said that case did not clearly show that turning a police dog loose on a suspect sitting, hands up, was unconstitutional. The Supreme Court in 2020 declined to hear an appeal of the Bracey decision.

Then there’s the outcome of the 1978 Supreme Court decision in Monell v. Department of Social Services holding that municipalities can be sued for civil rights violations only if the conduct was due to the government’s policies, procedures, or customs. The court later said the need for better training, supervision, hiring practices or discipline had to be so obvious that a government’s failure to correct the deficiencies amounted to “deliberate indifference” to citizens’ rights.

That led to the court ruling in 2011 in Connick v. Thompson that a prosecutor’s office could not be held liable when a district attorney withheld from a defendant blood work information that could have cleared the man. That led to his wrongful convictions for robbery and murder; he spent 14 years on death row before the information was found and he was exonerated. It turned out that hiding the report wasn’t a one-off. The prosecutor had a history of not turning over important evidence to defendants or their lawyers. 

But, Justice Clarence Thomas wrote for the 5-4 majority, none of the previous violations “involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence of any kind.” 

Schwartz’s takedowns of relevant justice-denying court decisions are convincing, but her analysis goes well beyond that. She tackles, among other things, the difficulty of finding lawyers willing to accept civil rights cases, unrepresentative federal juries, police departments’ failure to discipline rogue and brutal officers, municipal and law enforcement failures to learn from the suits filed against them, the questionable statistics used to justify police immunity, and the political pressure on local judges to not rule in ways that antagonize local political powers. 

Schwartz’s writing is compelling and accessible. Shielded is for anyone interested in justice and the David v. Goliath issues so often involved in getting it.​

​Shielded author Joanna Schwartz is a professor at UCLA law school, teaching classes on police accountability, civil procedure, and public interest lawyering. Her research and writing have been cited in numerous media publications and court decisions.