Book Review: Shielded How the Police Become Untouchable

Shielded 

How the Police Become Untouchable

By: Jonna Schwartz

Viking (2023)

Reviewed for Champion Magazine

by Matthew T. Mangino       

              Professor Joanna Schwartz brings the U.S. Constitution and the U.S Supreme Court’s interpretation of it, to life in “Shielded: How the Police Became Untouchable.” Through a series of stories that Schwartz warns, “you are unlikely to have heard of  . . .” she provides a handy primer on constitutional law.

            If you’re a Supreme Court junkie, you have come to the right place. Schwartz deftly burrows through high court decisions—simplifying the legalese and adding context. She provides readers with a view of the system from 30,000 feet.

            Schwartz’s most important contribution in Shielded is her examination of qualified immunity. Most readers would be surprised to learn that the U.S. Supreme Court created qualified immunity “out of thin air.”

            Although “Shielded: How the Police Became Untouchable,” published in 2023 by Viking, expands on a problem plaguing the criminal justice system right here and right now, its origins can be traced to the postbellum south.

            Qualified immunity grew out of reconstruction-era laws.  The Civil Rights Act of 1871 known at the time as the Ku Klux Klan Act –better known today as Section 1983, permitted people to sue in federal court if their constitutional rights were violated by the government or someone acting under color of law. As Schwartz noted, “Section 1983 was enacted to provide some measure of justice and accountability in the court for people whose rights have been violated.”

            The author points out; in 1967 the U.S. Supreme Court granted Mississippi police officers immunity under Section 1983 when acting in good faith.  Then in 1982, the court ruled that police should be granted immunity as long as they didn’t violate “clearly established law.” What did that mean? The court didn’t say.

            Schwartz wrote that while the court didn’t define the decision over the next 40 years, the Supreme Court “created a standard that seems virtually impossible to meet.”

            Shielded paints a vivid picture of a wide spectrum of people who have been harmed by the police and then harmed again by the courts.  Schwartz points out how easy it would have been to apply qualified immunity to the suit filed by George Floyd’s family, but for the national furor that arose out of Derek Chauvin’s murderous conduct.

            The stories of Onree Norris, James Monroe, Alonzo Grant and Tony Timpa, to name a few, paint a picture of a system that does everything it can to foreclose police accountability.

            What Schwartz does that is different is she not only points out the problems she offers solutions.  Schwartz, a professor of law at UCLA, has the bona fides to suggest ways to ease the endless pain of qualified immunity.

            One suggestion is, just as the Supreme Court invented qualified immunity out of whole cloth they could undo it just the same.  Even with a Court that does not seem beholden to stare decisis, it’s unlikely this right-leaning court would go in that direction.

            Second, she suggests making police officers who are found liable for violating a person’s constitutional rights pay a portion of any verdict against a police department or municipality. 

            In addition, she suggested that more cities pass initiatives to have unarmed people respond to those having a mental health crisis. I’d take it a step further; many of these tragic police encounters are traffic-related. How about creating a traffic force, that isn’t doing anything more than providing traffic citations.  No high speed chases, no vehicle searches, no immigration investigations—just a traffic ticket and you’re on your way.

            “Shielded: How the Police Became Untouchable” provides an easy-to-read history of the evolving treatment of the Bill of Rights by the U.S. Supreme Court. Schwartz’s book is filled with explanations of important decisions of the high court.  However, the reader doesn’t feel as though they’re slogging through a series of law school lectures.  Professor Schwartz’s writing is sharp, her examples are vivid and her conclusions are thought provoking.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. in New Castle, PA.   He is the author of The Executioner’s Toll and a columnist for Creator Syndicate. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com)