Joanna Schwartz: A Leading Voice on Police Accountability and Qualified Immunity

Joanna Schwartz is a prominent legal scholar and professor at UCLA School of Law, renowned for her expertise in police misconduct litigation, qualified immunity, and civil procedure. Her extensive research and publications have significantly contributed to the national conversation on police accountability and the legal mechanisms that protect law enforcement officers from liability. This article explores Schwartz's background, key research areas, and her impact on legal discourse and potential policy changes.

Background and Academic Career

Joanna Schwartz is the Honorable Harry Pregerson Professor of Law at UCLA School of Law, where she teaches Civil Procedure and 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.

Before joining UCLA, Schwartz gained practical experience working for a small civil rights firm in New York City, representing individuals who had experienced police abuse. She also contributed to a large class action against the New York City Department of Corrections. These experiences sparked her interest in the impact of civil rights litigation and the challenges faced by those seeking justice against law enforcement agencies.

Schwartz graduated from Brown University and Yale Law School. After law school, she clerked for Judge Denise Cote of the Southern District of New York and Judge Harry Pregerson of the Ninth Circuit Court of Appeals.

Research Focus Areas

Schwartz's research delves into critical aspects of police misconduct litigation, including qualified immunity, indemnification, and local government budgeting. Her work aims to test assumptions made by the Supreme Court and other courts about civil rights litigation, often revealing that these assumptions are ill-founded or based on myths.

Police Indemnification

One of Schwartz's most cited works is her paper "Police Indemnification," posted on SSRN in 2013. This study examined police indemnification practices in 44 of the largest law enforcement agencies across the country and 37 mid-sized and small agencies. 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?

Her research revealed that police officers virtually never pay settlements or judgments entered against them. Instead, 99.98% of the dollars come from local governments or insurers. This is due to indemnification laws and agreements that provide officers with legal representation and cover settlements or judgments. Even when exceptions exist for bad faith conduct or punitive damages, officers rarely pay.

Qualified Immunity

Schwartz has extensively researched qualified immunity, a legal doctrine that protects officers from liability even if they violate the Constitution, unless the law was "clearly established" at the time of the violation. Her work challenges the justifications for qualified immunity and explores its real-world impact.

Schwartz's scholarship has demonstrated that qualified immunity can lead to miscarriages of justice. For example, she cites cases where officers who stole money during a search were granted qualified immunity because it was not "clearly established" that keeping seized evidence was unlawful.

In her article "Qualified Immunity's Boldest Lie," Schwartz examined police training and policies in hundreds of California law enforcement agencies. She found that officers are not trained about the specific facts and holdings of cases that "clearly establish" the law for qualified immunity purposes.

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Civil Rights Ecosystems

Schwartz's research also highlights the significant regional variation in civil rights protections across the country. In her 2020 paper "Civil Rights Ecosystems," she argues that the likelihood of a person bringing a successful civil rights case depends on the specific location where the violation occurred.

She describes a civil rights ecosystem as an interconnected combination of people (judges, lawyers, juries), legal rules (qualified immunity, state laws), and practices (indemnification, settlement negotiations). Some regions are far more hospitable to civil rights claims than others. For example, she compares Philadelphia and Houston, noting that Philadelphia had ten times more lawsuits filed against officers and 100 times more paid to plaintiffs in civil rights cases, despite having law enforcement agencies of similar size.

"Shielded: How the Police Became Untouchable"

In 2023, Schwartz published "Shielded: How the Police Became Untouchable," a book aimed at translating complex legal topics to a broader audience. The book examines the various "shields" that protect police officers from accountability, including the challenges of finding a lawyer, pleading a complaint, qualified immunity, and indemnification.

Schwartz's goal is to explain how these protections work together and to provide a basis for reducing their strength. She argues that the rhetoric suggesting the sky will fall if it is made easier to sue the police is often overblown. Her book aims to show the reality of the barriers to justice and how they overlap.

The Future of Qualified Immunity

Schwartz's work has become particularly relevant in light of the increased scrutiny of qualified immunity following the murder of George Floyd. In her paper "After Qualified Immunity," she argues that many views regarding the potential consequences of eliminating qualified immunity are overblown.

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She notes that Colorado and New Mexico have created state rights to sue for constitutional violations without qualified immunity as a defense. While the full effects of these changes are still unfolding, the predicted dire consequences have not materialized.

Schwartz suggests that eliminating qualified immunity could simplify civil rights cases, allowing courts to focus on whether a constitutional violation occurred rather than on the complex question of whether the law was "clearly established."

Potential Supreme Court Action

Schwartz has also commented on the possibility of the Supreme Court revisiting qualified immunity. She argues that if the Court takes seriously the historical precedents and current operation of the doctrine, it could not justify its continued existence in its current form.

She points out that ample evidence undermines the purported common-law foundations for qualified immunity and that the doctrine fails to achieve its intended policy aims. While qualified immunity rarely shields individual officers from financial liability, it hampers the development of constitutional law and may send the message that officers can disregard the law without consequence.

Impact and Influence

Joanna Schwartz's research has had a significant impact on legal discourse and public understanding of police accountability. Her work has been featured in major media outlets, including The New York Times, The Washington Post, and NPR, and she has appeared on various news programs.

Her scholarship has also influenced policy discussions and legislative efforts to reform qualified immunity and other aspects of police accountability. By providing empirical evidence and nuanced analysis, Schwartz has contributed to a more informed and productive conversation about how to balance the need to hold law enforcement officers accountable for misconduct with the need to protect them from unwarranted liability.

SSRN and Timeliness of Research

Schwartz utilizes SSRN (Social Science Research Network) to share her ideas and stay current with the work of other scholars. She appreciates that SSRN provides free access to articles and allows for the rapid dissemination of research, which is particularly important in a rapidly changing legal landscape.

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