Joanna Schwartz is a Professor of Law at the UCLA School of Law. She teaches Civil Procedure and a variety of courses on police accountability and public interest lawyering and is one of the country’s leading experts on police misconduct litigation. She spoke with SSRN about her research findings on police indemnification practices and qualified immunity and how these subjects fit into a broader civil rights ecosystem.
Q: A lot of your work centers around topics like police misconduct, qualified immunity, indemnification, local government budgeting, and so on. How did your education and early career experience lead you into this kind of work?
A: Most of the questions that I tackle as a scholar first came to me when I was in practice, working for a small civil rights firm in New York City that represented a lot of people who had been abused by police. I also was one of the attorneys for a big class action against New York City Department of Corrections. As I was working on those cases, I began to think about what impact they had. How are the victories actually impacting people and law enforcement agencies on the ground? Those are the kinds of questions that I asked as a young lawyer but didn’t have anywhere near the time to answer during practice.
When I came to UCLA, I had a chance to do my own research. Each of those questions, as I’ve answered them, has prompted a new set of questions, and here I am 15 years later, still asking and answering those questions prompted by my practice.
Q: What continues to drive your passion for the research topics you study?
A: There are a few things that drive my passion. Certainly, getting to know the people involved in these cases, the lawyers bringing these cases, and the challenges that they are facing is inspiring to me. The desire to tell those stories, to try to understand how things happen the way that they do is inspiring. Watching and listening to lawyers who are maneuvering around the system is inspiring.
There’s a separate inspiration, which is a lot of my work has aimed to take seriously and test assumptions that the Supreme Court and other courts make about civil rights litigation. In my view, many of those assumptions are ill founded or based on myths that have very little relationship to reality. So, another half of my inspiration is some maybe overly optimistic view that correcting those perceptions can also correct misunderstandings and what I can see as errors in the law.
Q: Your highest downloaded paper on SSRN is called “Police Indemnification” and was posted on SSRN in 2013. It shares results from your national study of police indemnification practices in 44 of the largest law enforcement agencies across the country, and 37 mid-sized and small agencies. To start, how would you explain what police indemnification is to someone who knows nothing about it? And how did you collect the data for this study?
A: The impetus for this study was a question about who pays when there are successful police misconduct suits: who is actually paying the settlements and judgments in these cases? That’s a question directly inspired by a client that I had while in practice who wanted to know the answer to that very question about his case. When a police officer made a settlement offer, he wanted to know where that money was coming from. That was a question that hadn’t come to my mind until he asked it.
Then, once I became a law professor and had the luxury of trying to answer these questions, I submitted public records requests to simply find out how often police officers pay settlements and judgments entered against them. What I found was that police officers virtually never paid, that 99.98% of the dollars came from local governments or insurers. The reason that police officers very rarely pay is what’s called indemnification. There are state and local laws and promises sometimes written into union agreements that when officers are sued, they will be provided a lawyer and any settlement or judgment entered will be paid for by the government. That is an indemnification agreement.
There are exceptions in those agreements. They often don’t cover bad faith conduct or sometimes when punitive damages are awarded or if an officer is off duty. But part of what I found surprising was that even when there were those exceptions, officers still didn’t pay. There’s a variety of explanations for that, but that was the key finding of the study.
Q: Was that a result that surprised you at that time?
A: My expectation was that officers very rarely paid and were usually indemnified, but I did not expect to see findings as stark as what I ultimately found. To find that they paid less than 0.02% of the dollars paid in these cases was a shock to me.
Q: Going off of the work that you did for that paper, as well as for other studies, articles, etc. I’d love to talk about your book “Shielded: How the Police Became Untouchable,” (published in 2023). How did this book build on your earlier studies and bring together the different concepts that you focus on in your research and teaching?
A: My aim with “Shielded” was to translate law review articles and some of these complex legal topics to an audience that is not interested in reading articles with hundreds of footnotes but simply wants to understand how these legal concepts work. The goal is to explain how all of these different shields – or protections – fit together. Often, when there is an exploration of one of these protections, like qualified immunity, it’s treated [as if] it’s operating on its own, when in fact, it’s part of a broader system.
In the book, I have a chapter dedicated to each of the multiple different shields: challenges of finding a lawyer and of pleading a complaint, including enough facts in your case that you can move forward, qualified immunity and the Constitution, and indemnification. My goal is to show how they fit together to a lay audience [and] to accomplish that by telling a number of different stories of people whose lives have been tangibly affected by these various shields.
Q: You’ve shared in other discussions about this book that you focused on writing about how to help people achieve some measure of justice and accountability when officers violate people’s constitutional rights and what the consequences should be for people who abuse their authority. How does this book help foster more realistic and evidence-based conversations about these ideas and how they influence police reform?
A: A lot of opposition to various accountability measures in policing relies on rhetoric that makes it sound like the sky will fall if it is made easier to sue the police – that they will be bankrupted, that no one will ever want to serve as a police officer again, that they will be chilled from taking any decisive action, for fear of all of these negative consequences. Part of the aim of the book is to show how these various shields fit together. For example, a strong, often-stated argument against qualified immunity reform, which is a legal protection that officers have, is that officers will be bankrupted if it’s easier to sue them. The fact of near universal indemnification through state and local statutes and union agreements having nothing to do with qualified immunity should ease concerns about bankrupting officers if they are made to stand suit.
The idea is that offering some sense of the reality of these barriers and how overlapping and strong they are could be a basis to reduce the strength of some of those barriers. All of the arguments in the book drawn from my research really focus on the real-life impact of these doctrines – how they actually impact people when they’re bringing cases.
Q: You mentioned a little bit about qualified immunity, and you’ve done a lot of work in your scholarship surrounding this topic. Can you talk about why qualified immunity has sparked such controversy and what your research has said about the subject?
A: I think qualified immunity has sparked so much controversy because the application of the legal rule has resulted in true miscarriages of justice. Qualified immunity is this legal protection that says that even if an officer has violated the Constitution, they are protected from being sued for damages for money, unless they violated clearly established law. What the Supreme Court has said is that clearly established law can only be found in prior court decisions with virtually identical facts.
What that has led to are cases where police officers stole a quarter of a million dollars in cash and rare coins from someone during a search but kept it for themselves, and the Ninth Circuit Court of Appeals said those officers get qualified immunity because it’s not clearly established that you can’t keep evidence after you have lawfully seized it during a search. Unfortunately, we could spend the rest of our conversation talking about examples like that that have really jaw dropping facts.
What I have done in my articles and research about qualified immunity is take the Supreme Court at its word about why we have this protection and explore whether those justifications play out on the ground. I did not aim to become a qualified immunity scholar. This was not something I had set out to do, but when I wrote the police indemnification article, … when I was thinking about the implications of those stark findings, I realized that a driving force for qualified immunity, to protect officers from financial liability, is undermined by these findings.
When I was presenting that research and talking to fellow scholars, I realized that there were other justifications for qualified immunity beyond the desire to protect officers from financial liability. I then aimed to look at other justifications for qualified immunity, including that the qualified immunity doctrine prevents insubstantial cases from going to discovery or trial. In writing my paper “How Qualified Immunity Fails,” I looked at almost 1,200 police misconduct cases to see what role qualified immunity actually plays and found that it’s not a very good tool to shield against discovery or trial in the way that it’s actually applied.
Qualified immunity has also been justified as necessary because it puts officers on notice of their wrongdoing. In another article, “Qualified Immunity’s Boldest Lie,” I looked at police trainings and policies in hundreds of California law enforcement agencies and found that police officers are not trained about the facts and the holdings of the kinds of cases that clearly establish the law, for qualified immunity purposes. So, a lot of my research around qualified immunity has been in that vein, thinking about what the justifications are for qualified immunity doctrine, this extremely powerful protection, and finding that many of those justifications have no relationship to reality.
Q: In your paper “After Qualified Immunity,” you explain that many of the views regarding qualified immunity and what would happen if it were eliminated are overblown. Your paper engages in a more nuanced analysis of what the realistic effects would be. What changes would you want to see happen by removing qualified immunity and how does that compare to your realistic predictions of the changes we could see?
A: “After Qualified Immunity” came out in February 2020, and I would say at the time, it seemed like an academic question and an academic answer. But beginning in May of 2020, with the murder of George Floyd, all of a sudden qualified immunity became a topic on the tips of protesters’ and legislators’ and reporters’ tongues. The possibility of abolishing qualified immunity gained some real salience.
There are two states, Colorado and New Mexico, that each created state rights to sue for constitutional violations without qualified immunity as a defense. So, in some places in the country, … we are in an “after qualified immunity” world. I think that the story is still being written about what the effect is of eliminating qualified immunity in those places, but we are not seeing the sky fall in the ways that opponents of qualified immunity predicted: there is not a huge influx of cases, there is not a huge increase in lawsuit payments. That is consistent with what I predicted in “After Qualified Immunity.”
I expected that it would still be hard to win cases but that the cost and complexity of bringing the cases would decrease, that maybe some lawyers would be more willing to bring more of these cases. Qualified immunity is such a complicated doctrine to overcome, and without qualified immunity, you could focus on what really should be the key issue in these cases, which is whether the Constitution was violated, whether someone’s rights were violated, as opposed to whether a prior court case had sufficiently similar facts to the case at hand. That clarity and focus can also improve police trainings and policies.
As I said in that article, I don’t think that ending qualified immunity will either cause the sky to fall or will be a silver bullet to improve police accountability, but it will make cases more straightforward and less complex to bring and will focus us on this most important question, which is, in my view, whether the Constitution has been violated.
Q: There’s a lot of your work that we didn’t get to touch on so far, so I’m curious: what papers or other research do you want to highlight as particularly interesting or timely?
A: There’s one piece that I wrote back in 2020 called “Civil Rights Ecosystems,” and it’s a piece with ideas that I return to a lot. It essentially makes the point that whether a person whose rights have been violated ever brings a case, whether that case is successful, [and] how much they recover depends significantly on where in the country the violation occurred. I say in the article you should think of a civil rights ecosystem as an interconnected combination of people, – which could be judges, lawyers, juries – legal rules, like the formal rules of qualified immunity and state laws, and practices, like how indemnification works, how negotiations and settlements work. All of those things interact, interrelate, and build on one another.
There are some parts of the country where the ecosystem is far less hospitable to bringing civil rights claims than in other places. In the article, I compare Philadelphia and Houston, which have law enforcement agencies of approximately the same size. In this study period that I looked at, there were 10 times more lawsuits filed in Philadelphia against officers and…100 times more paid to plaintiffs in civil rights cases. I don’t think that is solely attributable to Philadelphia officers being exponentially worse than Houston officers. That’s an article that I really enjoyed writing and thinking through, and I continue to think about it now, five years later.
Q: What do you think SSRN contributes to the world of modern legal research and scholarship?
A: At a [recent] conference, some colleagues and I were talking about judicial review in jeopardy and what is happening in the current moment. Someone I spoke to commented on the fact that the world is changing so rapidly in our field that… by the time an article is formally published in a journal, it may already be a year out of date. This person commented that we’re getting to a place where the key publication is posting on SSRN, because that is the first moment that you get to share your work with the broader legal community, where you’re sharing it with the world.
I use SSRN all the time, certainly to share my own ideas, but also to see what other people are working on. Given how long publication times take, and particularly in this moment where the world and the legal framework is changing so quickly, SSRN is a critically important venue to share ideas. I appreciate that it does not cost money for people to access those articles or to post them. Because of that easy access, it really is the key focal point for dissemination and sharing of ideas.
More About Joanna Schwartz
Joanna Schwartz is the Honorable Harry Pregerson Professor of Law at UCLA School of Law. She teaches Civil Procedure and a variety of courses on police accountability and public interest lawyering. She received UCLA’s Distinguished Teaching Award in 2015 and has served as Vice Dean for Faculty Development and Faculty Director of the David J. Epstein Program in Public Interest Law and Policy. Professor Schwartz is one of the country’s leading experts on police misconduct litigation and the author of “Shielded: How the Police Became Untouchable (2023).” Her writing, commentary, and research about police misconduct, qualified immunity, indemnification, and local government budgeting have been featured in The New York Times, The Washington Post, The Wall Street Journal, Forbes, CBS News, NPR, and elsewhere, and she has appeared on NPR’s Fresh Air, CBS Sunday Morning, PBS NewsHour, and ABC News, among others. She graduated from Brown University and then Yale Law School, after which she clerked for Judge Denise Cote of the Southern District of New York and Judge Harry Pregerson of the Ninth Circuit Court of Appeals. She was then associated with Emery Celli Brinckerhoff & Abady LLP, in New York City, where she specialized in police misconduct, prisoners’ rights, and First Amendment litigation.
You can see more work by Joanna Schwartz on her SSRN Author page here