Justice in the Age of Abolition: On Joanna Schwartz’s “Shielded”
There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today. —Justice William O. Douglas, Terry v. Ohio (1968)
ON FEBRUARY 8, 2018, Onree Norris, a 78-year-old Black man who had lived in his home peacefully for more than 50 years, sat in his bedroom watching the news, when he heard an explosion. Getting up to see what happened, he found armed men in the hallway pointing their assault rifles at him. The men, wearing military gear, ordered him to get on the ground. Norris told them he suffered from bad knees; a man pushed Norris down to the ground and twisted his arm behind his back. Norris felt pain in his chest and had trouble breathing; he told the men that he had heart trouble. The men kept Norris on the ground; they never sought or provided him any medical care. They eventually dragged him up and led him out of the house in handcuffs.
The approximately two dozen men who raided Norris’s home were law enforcement officers attempting to execute a no-knock warrant at 305 English Road, the home of a drug dealer who had been the target of an investigation for more than two years. Norris lived about 40 yards away, at 303 English Road. The target, who was about half Norris’s age, lived in a home described in the warrant as “run-down, off-white, with cars strewn across the yard.” Norris’s home, by contrast, was “tidy and yellow, with a carefully maintained grass yard.”
These discrepancies would have been readily apparent if the officers had paid close attention. While all “members of the task force had the opportunity to review a copy of the warrant, which described the target house and its surroundings […] only one—Captain David Cody, who was leading the operation—took the time to read it. And even Captain Cody didn’t read it all the way through.”
At a briefing the morning of the raid, the officers received turn-by-turn directions to get to 305 English Road. The officers ignored these directions; “instead, an officer plugged the address into the GPS on his cell phone, and the convoy got lost.” When the officers arrived, they walked past the house described in the warrant, which was right in front of them, and proceeded to Norris’s home, which had a mailbox at the end of the driveway indicating it was the wrong address. The officers used flash grenades outside Norris’s home and smashed open all three doors: “When the officers realized they had blasted their way into the wrong house, they turned their cameras off one by one.”
It might seem that Norris had any number of ways to secure justice, but that is not the case in our legal system. Norris filed a civilian complaint against Captain Cody and the other officers, but nothing came of it. No criminal charges were brought against the officers either, so the only option for Norris was to file a civil lawsuit. If he could prove that the officers violated his constitutional rights, he could be compensated for their hurting and nearly scaring him to death—and that award, in turn, could encourage the officers to be more careful next time.
Norris had a strong case. The protections of the Fourth Amendment are at their strongest when individuals are in their homes. A search of a home without a warrant is presumptively unreasonable. Officers who execute a search warrant at the wrong home, moreover, violate the Fourth Amendment unless they have made a reasonable effort to identify and locate the home to be searched. The officers here failed, in numerous ways, to make such an effort.
None of that mattered, though. As UCLA law professor Joanna Schwartz details in her intensively researched new book Shielded: How the Police Became Untouchable, there are barriers—whether erected by the Supreme Court or by state and local governments—that “in isolation, would limit the deterrent and compensatory power of civil rights suits against law enforcement,” and that, “[i]n combination, […] have made the police all but untouchable.” It’s a lucid, compelling, and powerful narrative—backed not only by decades of research but also by the painful stories of victims of police wrongdoing: people like Alonzo Grant, who called police to break up a heated argument between his daughter and a neighbor, only for police to break his nose, give him a concussion, permanently injure his left arm, herniate a disk in his neck, and leave him suffering from anxiety and depression; and like Andrew Scott, who at 1:30 in the morning heard loud pounding on his door, grabbed a gun that he legally possessed, opened the door with the gun at his side, and got shot and killed by deputies who immediately opened fire when they glimpsed the gun.
The officers who raided Norris’s home could not be held liable, a federal court ruled, under the doctrine of qualified immunity. It is a defense—created by the Supreme Court—that shields government officials from liability for damages, even when they violate the Constitution, unless they violate “clearly established” law: “According to the Supreme Court, the law is only clearly established if a court has previously found nearly identical conduct to be unconstitutional.” This means that to overcome qualified immunity, victims of police misconduct must find binding cases in which earlier defendants were found to have violated the law in precisely the same way, which leads to absurd results.
Here, the same federal court that granted the officers who invaded Norris’s home qualified immunity had previously ruled that it was unconstitutional for an officer who executed a search warrant at the wrong home to hold the occupants at gunpoint. That should have been enough for Norris to overcome qualified immunity, but it wasn’t, due to a technicality. The prior ruling was “unpublished”—it could be found online through legal databases but was not to be found in books compiling court decisions—and therefore not binding.
As if this were not absurd enough, in a twist that might be too much for Kafka, “[t]he court declined to publish its decision in Norris’s case as well; so if, in the future, officers hold the wrong person at gunpoint after executing a search warrant at the wrong house, the law still won’t be ‘clearly established’ and those officers can receive qualified immunity too.”
Norris’s story illustrates the malfeasance protected by qualified immunity, a once obscure legal doctrine that has garnered much public attention in the last several years. But Schwartz concludes that ending it would not “usher in a golden age of police accountability.” That’s because, as she details, there are myriad other ways that the Supreme Court has undermined the potential power of civil rights lawsuits—everything from strict pleading requirements and no-knock warrants to the limited availability of attorney fees and injunctive relief. Accordingly, while “[e]liminating qualified immunity would help us move toward a system where people whose constitutional rights have been violated are better able to seek justice through the courts,” Schwartz concludes, “we won’t be able to assure that those people are compensated for their losses—or that those suits can deter future misconduct—unless and until we address the web of other shields that make it difficult for plaintiffs to succeed in these cases.”
The need for reforms beyond qualified immunity is made clear through the story of James Campbell. A Marine Corps veteran, Campbell worked for a school district as its transportation and security advisor; he was “responsible for making sure that thousands of children traveled safely to and from school in the district’s more than 150 buses.” As part of his training, Campbell had graduated from the police academy just two years earlier.
On June 14, 2002, Campbell parked in front of a friend’s house. When he got out of the car, Officer Frank Miller, gun drawn, ordered him to get on the ground. Miller was looking for a Black man with braids who had fled a robbery. Although Campbell is Black, “he had an Afro, not braids. He was not running. He was not out of breath. He had just gotten out of his car.”
Campbell’s friend, Kimo Parham, ran out of the house to see Campbell, handcuffed, being patted down by Miller. The following unfolded:
Two more officers—Scott Wolfe and Andrew Lamle—arrived on the scene. Officer Wolfe told Officer Miller that Campbell did not meet the description of the suspect they were looking for because he did not have braids. Another officer, Kevin Duley—who had been the officer pursuing the suspect—came to the scene and confirmed that Campbell was not the person they were looking for.
This detention should have ended at once, but instead it continued and escalated. Miller kept Campbell in handcuffs; Lamle patted Campbell down again; Wolfe asked Campbell why he was so dressed up and accused him of being a drug dealer; and the officers scoffed at Campbell when he told them he was a Marine who had served in Somalia. Then, Wolfe walked down the driveway and claimed he found a bag containing marijuana. Miller told Campbell he was under arrest for possession of marijuana, took him to the home’s unfenced backyard, and proceeded to conduct a strip search. Shockingly, “Parham, his young children, his neighbors, and anyone curious about what police cars were doing could see” Miller examining Campbell’s private areas. Afterward, Campbell was uncuffed, issued a summons, and told he was free to leave. Charges were never brought.
Campbell filed a complaint with the civilian oversight board, but it was closed without any action taken against the officers. Campbell filed a civil rights lawsuit, seeking damages for the fear, degradation, and humiliation he experienced, as well as a court order prohibiting the Indianapolis Police Department from conducting strip searches in public. Indianapolis had a policy of strip-searching all arrestees, and officers regularly strip-searched arrestees in public, because the jails were so overcrowded. Indeed, Miller had strip-searched 20 to 30 people in public in the two years since he had joined the force.
Despite this compelling evidence, the court ruled against Campbell’s request for an injunction, because he could not prove he would be harmed in the same way again. Indeed, as the appellate court reasoned in upholding the trial judge’s ruling, because Campbell had never been arrested for marijuana and because he testified that he never used drugs, it was unlikely he would be arrested for drug possession and strip-searched again. Thus, while Campbell could seek damages to compensate him for having his rights violated, he could not seek to end the strip-search policy, because he couldn’t show that the police were likely to violate his rights again, arresting and strip-searching him in public under the policy.
Schwartz’s argument is woven around numerous accounts of people, like Onree Norris, James Campbell, and Andrew Scott, who have been denied their constitutional rights but left without the ability to receive compensation for the harm they suffered or prevent similar conduct in the future, because of obstacles that have been erected to undermine accountability. But she does much more than simply catalog, analyze, and discredit these obstacles. She digs into the history of the debate regarding the power to sue government officials and especially the police, because she finds that only by understanding how that debate “has been waged in the Supreme Court, in federal and state legislatures, and within public discourse over the past century and a half will it become clear why the power to sue government has waxed and waned, [and] why there are so many limits on the right to sue today.”
The waxing and waning of the power to sue the government that Schwartz describes is a constant throughout our history. As she puts it,
Periodically over the past 150 years, courts and legislatures have made it easier to bring lawsuits against police and other government officials, in recognition that such suits are critically important tools for accountability and justice. But each time the judicial and legislative scaffolding behind the right to sue has been strengthened, it has thereafter been whittled away.
She traces the pattern back to the very beginning, when Congress passed and the states ratified the Reconstruction Amendments. Ratified in 1868, the 14th Amendment responded to the legal repression and racial violence that Black Americans experienced after the Civil War. It promised equal justice, but it would be substantially undermined within just a few years. The Civil Rights Act of 1871 and other legal battles to protect every American’s constitutional rights came because “Black people across the South were being tortured and killed by the newly formed Ku Klux Klan and other white supremacist groups, and local law enforcement officials were either participating in the violence or standing idly by.” Andrew Scott and some other victims in Schwartz’s book are white, because no boundary of class or race completely protects against police violence. And yet, the legal struggles around police violence and excessive use of force are deeply embedded in the history of movements fighting for racial justice in the States.
In assessing the arguments against accountability, Schwartz finds that restrictions on the right to sue police “have been justified by concerns about the havoc civil rights lawsuits would cause if they were too easy to bring.” She boils the argument down to this:
Courthouses would be overwhelmed. Lawyers would file frivolous cases and win money that their clients didn’t deserve. Well-intentioned officers would be bankrupted for split-second mistakes. Faced with these threats, no one in their right mind would agree to become a police officer. And, without a dedicated police force, the very fabric of our society would come unwound.
Schwartz thoroughly refutes this proverbial “parade of horribles,” which she demonstrates consists of claims that are unsupported by facts, wildly exaggerated, and, sometimes, simply false.
Indeed, in the face of the stories Schwartz tells, and her analysis of the ways in which accountability has been undermined, one is left with simple questions. How could allowing Norris to sue for damages, when his constitutional rights have been violated, encourage frivolous cases? How could letting Campbell secure a court order against a policy that sanctions humiliating, unconstitutional conduct threaten public safety? Why shouldn’t we prevent what happened to Norris and Campbell from recurring? Ultimately, isn’t an unaccountable police force likely to unweave the fabric of our society?
In the late evening of March 18, 2018, Sacramento police shot and killed Stephon Clark, an unarmed Black man, in his grandmother’s backyard. Clark was 22 years old and the father of two young boys.
Police responded to a call about someone breaking into cars in a residential neighborhood. Officers reported to the scene and located Clark, who generally matched the caller’s description. They yelled at Clark to “stop” and “show his hands,” and they chased Clark to his grandmother’s backyard. Peering around a corner, the officers yelled at Clark to show his hands. Claiming that Clark was armed and coming toward them, one officer yelled, “Gun, gun, gun,” and both officers immediately opened fire, shooting 20 rounds in a matter of about five seconds. Police conducted an exhaustive search but found no gun; only a cell phone was found near Clark’s body. They also found none of the tools that were observed on the person breaking windows.
Sadly, this is a common script in police shooting cases. The officers involved say they saw the suspect point or reach for what they thought was a gun—and the only person who can contradict their testimony has been killed. In Clark’s case, there was evidence contradicting the police account that he posed a threat when shot. For instance, the pathologist hired by the Clark family concluded that Clark was shot eight times, including six times in the back. “He was shot from the back,” the pathologist found.
Clark’s killing sparked outrage and widespread protests, as did the later decisions by the local district attorney and the state attorney general not to file criminal charges, because they accepted the officers’ claims that they feared for their lives and therefore “acted lawfully.” In the wake of the protests, Clark’s family, advocates, and activists urged legislation to address police killings in California. The year before Clark was killed, California police officers shot and killed more people than officers in any other state. According to testimony before the state’s Assembly Committee on Public Safety, “In 2017, officers killed 172 people in California, only half of whom had guns”; police killed people in California “at a rate 37 [percent] higher than the national average per capita.” Dan Walters details in a 2019 article that, “[o]f the 15 police departments with the highest per capita rates of police killings in the nation, five are in California: Bakersfield, Stockton, Long Beach, Santa Ana and San Bernardino. Police in Kern County […] killed more people per capita than in any other US county.’”
In the wake of Sacramento police officers’ shooting of Clark, public attention turned to the two California statutes that covered police use of force and were used to justify this tragic result. The first statute, enacted in 1872, provided that “a police officer may lawfully kill […] while ‘arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.’” The second statute governed the use of force by police during an arrest, allowing police to use any amount of force (including deadly force) if it was “reasonable.”
The effort to change these laws demonstrates just how difficult it is to reform police practices, because there is an unrelenting effort to prevent and undermine that change. As it stands, the system prioritizes giving police discretion in the fight against crime over holding police accountable. Former assemblymember and current California secretary of state Shirley Weber, among others, called for changes to state laws authorizing police use of deadly force. In early 2017, Weber, the ACLU, and a broad coalition of activists and advocates, including those made up of families directly impacted by police violence, introduced and sponsored AB 931. This bill would limit the use of deadly force to a last resort, when officers have no other option to protect themselves or civilians. Specifically, it provided that “a peace officer may use deadly force only when such force is necessary to prevent imminent and serious bodily injury or death to the officer or to a third party.”
According to advocates for this change, the bill could prevent needless deaths. As the author explained, the bill was “squarely in line with the best practices recognized by academics and best practices in the field.” Indeed, as Dean Erwin Chemerinsky wrote in support of the bill, in a May 2018 op-ed in the Los Angeles Times,
In 91 of the 100 largest U.S. police departments that were recently studied, jurisdictions with more restrictive use-of-force standards had the fewest officer-involved shootings per capita. Studies show that such policies are also associated with a decrease in the number of police officers killed in the line of duty.
Although the bill was clearly in the interest of public safety, police special interests vehemently campaigned against it, as they often do. The police lobby exercises great political power and influence across the nation, but particularly so in our state. According to a 2022 article by Srijita Datta, “California politicians attracted more contributions from police unions and their affiliates than any other state since 2012 with $38.5 million,” which dwarfs the next highest: “New York follows with $9.3 million over the same time period, while Texas was third at $3.1 million.”
The Peace Officers Research Association of California (PORAC)—which boasts of being “the largest law enforcement organization in California and the largest statewide association in the nation”—ran radio ads against AB 931 and urged police officers across the state to contact their elected officials to oppose the bill. PORAC has described the bill as having been introduced “on behalf of the ACLU and a coalition of anti-law-enforcement zealots.”
Lexipol, a key company that sells policies and training resources to police departments across the country and in California, used its platform to advocate against AB 931. A co-founder, Bruce Praet, published an article to Lexipol’s California customers calling AB 931 “ill-conceived and dangerous.” Specifically, he argued that adopting a “necessary” standard for the use of deadly force would unsettle legal precedent holding that officers using force “need not select the least intrusive or even most reasonable action,” which would result in “large verdicts against law enforcement officers and their agencies.”
In the face of concerted opposition from and following a series of key amendments made to appease the police lobby, AB 931 died in the Senate.
In February 2019, during the next legislative session, Assemblymember Weber introduced AB 392. Like its predecessor, the bill sought to raise the standard for police use of deadly force. The ACLU, community groups, and impacted families sponsored this bill too, and police special interests again aggressively campaigned against it. This time, the police lobby even sponsored a bill of its own, calling for a “reasonable” standard for lethal force and requiring additional funding for police training.
In the face of law enforcement opposition, legislators amended AB 392. While the amendments were difficult to accept, and some sponsors withdrew their support, the bill would nevertheless make important strides, creating a more restrictive standard governing the use of deadly force.
In May and July, AB 392 passed both houses of the legislature, and Governor Gavin Newsom signed it into law on August 19. Newsom issued a signing statement: “AB 392 modernizes standards for use of deadly force by officers. Specifically, this bill updates the existing deadly force standards to provide that deadly force may only be used when necessary.”
Having failed through the legislative process to defeat the new necessity standard under AB 392, police special interest groups switched tactics: they engaged in a misinformation campaign, proclaiming that the bill did not do what the governor, legislature, and plain text of the law said it did.
On August 19, the same day the governor signed AB 392, the PORAC sent an email to police officers across the state, proclaiming: “The news media will get most of it wrong. Please re-assure your members that the bill still retains the ‘reasonableness’ standard.” Meanwhile, Lexipol presented an online seminar regarding the new law. The online presenter was Praet, the Lexipol co-founder, who stated:
The big question is, and I know everybody has been hearing in the media, “Oh my god, the legislature now says we can only use force when necessary.” Is that true? Simple answer: no. What is the new standard? The new standard is the exact same thing we’ve had for the last 50 years.
That October, the Commission on Peace Officer Standards and Training (POST)—the state agency established by the legislature to set training standards for law enforcement in California—caved to pressure from the police lobby, which objected to a short informational video POST created about AB 392. Police lobbyists asserted that, contrary to what the video said, AB 392 did nothing to change when deadly force could be used against fleeing persons.
POST not only depublished its video, which was already being used by police departments across the state, but then also sent a proposed revised video on AB 392 to the police lobbyists, seeking their feedback and “final approval” before officially releasing it. Only after the PORAC president gave approval did POST release the revised video.
On January 1, 2020, AB 392 took effect, but by then, the misinformation campaign had shaped how police departments trained their officers. Indeed, having adopted the view that AB 392 changed nothing, Pomona Police Department failed to update its use-of-force training to reflect any change in the law. Instead, the department continued to train officers using materials that had last been updated in 2009.
On July 31, 2020, following several shootings by Pomona police officers, the ACLU sued Pomona PD on behalf of Gente Organizada, a community coalition that became involved in police accountability because of the department’s history of violence. The lawsuit challenged the department’s failure to adhere to AB 392 and the misinformation campaign by police lobbying groups that caused it. The case settled and Pomona agreed to “[t]rain officers that AB 392 ‘create[d] a higher standard for the application of deadly force in California,’” as well as “that the law established a ‘significant change in use-of-force threshold,’ and that ‘it [wa]s the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life.’”
Schwartz’s book and its subject matter demand our collective attention: we must understand how and why there is so little accountability for police excessive force if we are ever to address it. And make no mistake: we must address it, in our nation, our state, and our cities. We grant police unparalleled powers—to stop, question, search, arrest, shoot, or kill. When they use these powers, they do so in our name and on our behalf. Although some may find it inconvenient or uncomfortable to admit, we all bear responsibility for how police exercise these extraordinary powers; we must hold both individual officers and law enforcement agencies to the highest standards of accountability.
Judged by this standard, it’s readily apparent that we are failing. There is a crisis of police violence in our country, and it disproportionately affects communities that include Black, Indigenous, and people of color—who, whether armed or unarmed, have significantly higher death rates compared with whites. The disparities are long-standing and stark, and they bespeak a callous disregard for our lives. We must decide that this is intolerable.