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- [00:01]
Podcast Host
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security Chatter, Lawfare, no Bull and the Aftermath.
- [00:34]
Jack Goldsmith
This is Car Tracks with Turtle Wax. Your car says a lot about you. So if we asked your car what it would say about you, what would it say? Listen, you dropped one of those tiny cheeseburgers under the seat like last week and now we're both dry heaving at the stench. Do us a favor, grab some Turtle Wax and let's get to work. This has been Car Tracks with Turtle Wax. You are how you car I'm no.
- [01:03]
Mary Ford
Tech genius, but I knew if I wanted my business to crush it, I needed a website. Now, thankfully, Bluehost made it easy. I customized, optimized and monetized everything exactly how I wanted with AI. In minutes my site was up. I couldn't believe it. The search engine tools even helped me get more site visitors. Whatever your passion project is, you can set it up with Bluehost with their 30 day money back guarantee. What have you got to lose? Head to Bluehost to start now.
- [01:42]
Joanna Schwartz
I'm Mary Ford, intern at Lawfare with an episode for the Lawfare archive for July 19, 2025. On Thursday, the Department of justice asked a federal judge to sentence Brett Haynes Hankinson, the ex police officer convicted in the killing of 26 year old Breonna Taylor in 2020, to one day in prison and three years of supervised release. Mr. Hankinson faces a maximum sentence of life in prison and was the only officer to be charged for his actions in the raid of Taylor's apartment. If the request is honored, this move would be a stunning reversal of Biden era policies which emphasize the importance of addressing racial discrimination in policing and holding officers accountable for their actions. For today's Archive episode, I selected an episode from February 14, 2023 in which Joanna Schwartz joined Jack Goldsmith to discuss the murder of Tyree Nichols, a 29 year old black man fatally shot by Memphis Police in January 2023. Schwartz and Goldsmith also discussed Schwartz's book How the Police Were Became Untouchable, Accountability Gaps in Response to Police Brutality, and more.
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Jack Goldsmith
I'm Jack Goldsmith and this is The Lawfare Podcast February 14, 2023. Last month's brutal murder of Tyree Nichols by Memphis police has once again sparked a national conversation about the causes of and remedies for persistent police misconduct and Abuse. To explore this issue, I sat down with Joanna Schwartz, a law professor at the University of California at Los Angeles, who is the author of a new book called how the Police Became Untouchable. The book argues that police abuse is is a result of pervasive pathologies in the legal system that shield from accountability not just police officers, but also their supervisors and the local governments for which they work. Schwartz and I discussed the many accountability gaps in the legal regime governing police abuse. Like her book, we focused on problems of achieving justice through the civil rights system, problems that include the high bars, to finding a lawyer, and to convincing a judge to hear the case, Fourth Amendment doctrine, qualified immunity, and the challenges of municipal liability. We also discussed the best path to reform and the prospects of reform. It's The Lawfare podcast, February 14, how the police Became Untouchable. Joanna, your book argues that persistent police misconduct and abuse is a result of pervasive accountability gaps in the legal system. And it proposes what to do about it. And for me, there are several things that make this book excellent. First, it's a comprehensive look at the problem. I thought, based on your prior scholarship, that you would focus mostly on qualified immunity and municipal liability as the real hurdles to police accountability, but the book is much more comprehensive than that. And second, you write about complex legal issues in an accessible and compelling way with real stories from real cases, which is a real gift and will make the book more broadly accessible. You state in the introduction, and this is a quote from you, we cannot wait for another viral video to restart our national conversation about police violence and reform. And yet here we are watching another viral video of another brutal, unjustifiable killing by the police, this time the murder of Tyre Nichols. And we're having another conversation in the country about police violence and reform. So we'll talk about reform later. But can you tell us how to understand this problem? I mean, give us an overview of the problem as you see it. Why does this keep happening?
- [05:46]
Expert Guest
Sure, I think that there's many problems, but I could break it down into really two sets of problems. One aspect of the problem, I think, is that we give police extraordinary weapons authority and discretion. We have these so called elite units like the Scorpion unit in Memphis and give their officers instructions to be aggressive with them, jumping out of their unmarked cars and assaulting people who are going about their lives with little or no suspicion they're doing anything wrong. We give armed police officers the responsibility to be first responders to people who are in mental health crises. We give police authority to stop and frisk people on the street to stop them when they're driving. And, and when we give police this much power and authority, we shouldn't be surprised that it sometimes gets abused. And then the other part of the problem that results in this continuing to happen is that we do not have effective systems of accountability for police. Police officers are very rarely criminally prosecuted and rarely disciplined. Tyre Nichols case that we've seen in the news is an exception to this rule where officers have been promptly fired and prosecuted. But in the vast majority of cases, cases that don't get that level of public attention and outrage, discipline and prosecution through the criminal system are really, really rare. So we're left then where people who have been abused by the police are left with civil suits seeking damages or court ordered relief as a only or best available means of justice and accountability.
- [07:38]
Jack Goldsmith
Okay, before you get to civil litigation and the problems there, can you say more about why we rarely see criminal prosecution and why internal investigation and discipline don't work?
- [07:50]
Expert Guest
Sure. Well, the data that we have about criminal prosecution suggests that officers are charged in less than 2% of police killings and are convicted in something like a third of those cases. And criminal prosecution is exceedingly rare in cases involving non fatal force or other kinds of discipline. And the reasons for that lack of prosecution are many. I think that many believe that prosecutors are often reluctant to bring charges against police officers. We've certainly seen that in the past, even as we haven't seen that in the Tyre Nichols case. And juries tend to be unwilling or unlikely to convict officers of criminal cases. So I think it's, it's both the prosecutor's decisions and also the jurors decisions that make criminal prosecution so rare when it comes to internal affairs investigations and discipline. The Department of Justice has investigated dozens of police departments across the country and have found in every situation, or almost every situation that police department's internal affairs investigations are faulty. When outsiders have compared internal affairs investigations files to litigation files of the same claims, they've found that those internal affairs investigators haven't done the basic kinds of investigations that they would use if they were trying to solve a crime. They don't investigate every witness. They don't try to resolve conflicts in evidence. They don't look more closely when there are virtually verbatim statements offered by police officers suggesting collusion. And then on top of that, there are in many states, law enforcement officers, bills of rights and union agreements as well that limit the powers of investigation and discipline. There are arbitration agreements that have been set into place, often again through Union advocacy that make it very difficult to fire officers. And even when there has been the rare decision to have officers fired, multiple elaborate processes that make it difficult for those terminations to stick. So those are the many challenges associated with internal discipline.
- [10:25]
Jack Goldsmith
Okay, so that leaves civil lawsuits. So that's where you were going.
- [10:29]
Expert Guest
That leaves civil lawsuits where I'm going. And I think that civil lawsuits have many sort of structural aspects that make them preferable to internal affairs discipline or to prosecution. For one, a person whose rights have been violated can bring a lawsuit themselves. They're not beholden to a criminal prosecutor or internal affairs officers to bring forth the case. They have the power through civil litigation to unearth crucial details about those cases. And they can get through a successful resolution of those cases. Money damages to compensate them for their losses, or possibly a court ordered relief requiring a department to change their policies or practices. So on the page, these seem like powerful and important tools. But as I argue in my book, the Supreme Court and state and local legislators have made so many barriers to relief in civil rights litigation at every stage of the process that, as I argue in the book, police have become all but untouchable. And as you mentioned in your very kind opening words, I have spent a lot of my research focused on qualified immunity doctrine. And qualified immunity has taken up a lot of air in current debate and discussion about police reform and accountability. And I think it makes sense that qualified immunity has played that role because the doctrine is, I think, illogical and damaging in ways that I'm guessing that will get into in a few minutes. But the challenges associated with bringing these cases and getting justice affect every aspect of the litigation process. At the very first step, there's finding a lawyer. It may be surprising to listeners to think that it's difficult to find a lawyer. If you sort of listen to popular commentary about civil rights lawyers, you might think that they are populating every courthouse, waiting for some someone to bring a case on behalf of or chasing the ambulances that are carrying these victims around. But actually, in many parts of the country, there are few lawyers that are willing to take these cases. In places outside of the large cities in the north particularly, and the cities of the Great Migration, these kinds of lawyers are few and far between. And a significant reason for this is that these cases are not financially viable to bring. Congress passed a law in the 1970s authorizing plaintiffs to get their attorneys fees when they win these cases, recognizing the social value of bringing them. But the Supreme Court has basically interpreted the law to allow defendants to offer settlement agreements that waive the right to attorneys fees. And as a practical reality of litigation, most of these cases settle, which mean that lawyers are really only likely to get a percentage of the damages that a plaintiff gets in this in the case and get nothing if their client loses. And these cases are expensive and complex and time consuming to bring, and the anticipated damages are not always very high, particularly if the plaintiff is unsympathetic in some way. And so in many cases, and I've spoken to many lawyers about this, they will bring a few civil rights cases, they will spend $10,000 or $20,000 in their time litigating, the case will get dismissed, and they'll decide to continue focusing on medical malpractice cases or personal injury cases instead of spending the time and money bringing these civil rights cases that are so hard to bring.
- [14:33]
Jack Goldsmith
And if you can't get a lawyer, you can't bring the lawsuit.
- [14:35]
Expert Guest
Well, if you don't have a lawyer, you can bring a lawsuit, but they're very hard to win even with a lawyer.
- [14:41]
Jack Goldsmith
You're not going to. Most people aren't going to have any chance of success as pro se litigants in these cases.
- [14:47]
Expert Guest
That's right. And, you know, there are cases that are, that are successful. But when you think about all of the challenges of winning in these cases, going through this without a lawyer is really, really, really challenging. So the next step, once you find a lawyer, is that you have to plead your complaint. That's the first legal paper that gets submitted with the court. And what the Supreme Court has said is that that complaint has to have enough facts that set forth a plausible claim for relief. That's the language the court uses. And it essentially has been interpreted, although different courts look at it in different ways, but it's been interpreted to require plaintiffs to know enough about the underlying facts of their case to establish a basis for relief before they get to the next step of litigation, which is discovery, where they would be able to demand information from the other side. This doesn't prove problems always. Often people know exactly what happened, but not. They don't always. And in the book, for example, I write about a man named Tony Timpa who died in police department custody, and his mother tried to find out what happened to him, how he died. They would not give his mother any information, not even the names of the officers, even though they had body camera footage. And then she filed a lawsuit, and the city moved to dismiss the case because she hadn't pled a plausible claim and she didn't have the information to plead a plausible claim because the city had the information and was refusing to turn it over. If you get past the pleading stage, then you have to prove a constitutional violation. The Fourth Amendment are usually the kinds of claims that get brought when you're suing the police. The Fourth Amendment protects against unreasonable searches and seizures. But the way in which the Supreme Court has interpreted the Fourth Amendment, there are few meaningful limits on that power to search and seize and use force against people. And as I talk about in the book, police can stop and search, arrest, assault, kill people who have done nothing wrong, yet not violate their Fourth Amendment rights. If you get past all of those barriers, find a lawyer, plead a complaint, prove a constitutional violation, Then comes qualified immunity, which is a doctrine that says even if you have violated the Constitution, the officer is entitled to qualified immunity so long as they have not violated clearly established law, which has come to be interpreted by the Supreme Court and lower courts as requiring that there be a prior court case with nearly identical facts. In order to get past qualified immunity, there are local government liability standards that you have to get passed if you want to bring a claim against the city. And in private business, employers are vicariously liable for harms caused by their office or their employees, meaning the employer stands in and pays the bill. There is no vicarious liability when it comes to constitutional claims. So plaintiffs have to show that there is a policy or custom of unconstitutional conduct that caused the violation in the case. And that is a standard that my research indicates is as difficult to prove, if not more difficult, difficult to prove than qualified immunity. So those are all of many standards and challenges, barriers to relief in the courts. Even if you get past all those barriers and you can convince a judge or jury you're deserving of relief, and it can be difficult for those fact finders to find in favor of plaintiffs in civil rights cases for reasons I describe in separate chapters in the book, then state and local laws and practices make it difficult for those victories to impact officers and their departments. Officers very rarely are financially sanctioned in these cases. It's the local governments that pay when money exchanges hands, or the insurance company. Police departments themselves rarely feel a financial sting from these cases. And the local governments and police departments don't gather and analyze information from these lawsuits in order to identify patterns of misconduct and types of behaviors that they could use to change their policies and practices moving forward.
- [19:28]
Jack Goldsmith
Okay, that's a pretty good overview of the book. I mean, those are basically the shields that you describe in the chapters of the book that prevent accountability or hinder Accountability in these cases. I'm going to drill down on a couple of those. Qualified immunity and municipal liability in particular. But before we get to the particular issues, you have an unusual history with these issues that led you to study these problems. Can you tell the listeners about that?
- [19:55]
Expert Guest
Sure. So after I graduated law school and after I clerked for a couple of judges, I started working at a small civil rights firm in New York City City that was at the time called Emory, Chelly, Cutie, Brinckerhoff and Abity. And I was one of four associates in a firm with four associates, four partners. And it was a tremendous experience working on civil rights cases against the New York City Police Department, the New York City Department of Corrections, and law enforcement agencies in the New York City area. And I decided to pursue civil rights litigation because I was interested generally in criminal justice reform. And I took the Supreme Court's words to heart that these suits were a key aspect of our constitutional apparatus and a key means of delivering deterrence and compensation for civil rights violations. But in practice, things worked a bit differently than I thought they would on paper. And for example, I learned in those cases that individual officers didn't pay for settlements and judgments entered against them, even when they had been disciplined or fired. And this was something that I learned in the representation of a man who I talk about in the book named Clay Tiffany, who was abused repeatedly by a police officer who was fired by his department. And then during litigation, that officer offered our client $200,000 to settle the case against him. We came to learn that that $200,000 was being offered and paid by the insurer for the village that had tried to distance itself from its officer and had, in fact, fired its officer. So that really got me thinking about who pays in these cases and why village like it, like in this case, would make the decision to foot the bill for an officer who they clearly thought had exceeded his powers. Another question that came to my mind during my practice arose when I was part of a team that had brought a class action against the New York City Department of Corrections for excessive force. And I was deposing officers and asking them about their litigation history, and they reported that they did not know how many times they'd been sued, what the claims were alleged against them, what the outcomes of the cases were, what had been paid. And when we deposed higher ups in the Department of Corrections, we realized they didn't know this information either. And it struck me as concerning that these cases that we were working so hard to bring didn't seem to be registering to the officers or the departments that were named in these cases. And these are questions that really stuck with me. And when I became a fellow at UCLA and then a member of the faculty at ucla, I dedicated myself to answering those questions empirically. And as I answered those questions, there were more questions that emerged resulting from my findings in prior research. And here I am 15 years later, really still motivated by the experiences and questions that first came to me in my first years of practice as a civil rights litigator.
- [23:33]
Jack Goldsmith
Okay, let's focus on qualified immunity. This is, as you say in the book, qualified immunity in recent years has come to be seen as a primary, if not the primary, hurdle to police accountability in these contexts. And I want to ask you about that at the end of this line of questions, but I want us to understand what the issues are. So can you explain, you briefly explained what qualified immunity was, but if you could talk about the Harlow vs Fitzgerald case, which is really, I think, the most important case in the history of qualified immunity in terms of setting us on the current path, because the court's analysis in Harlow was basically an instrumental analysis of how qualified immunity would work and what would happen if qualified immunity weren't available. There are a whole bunch of implicit factual assumptions in Harlow that you basically unpack and challenge. So could you tell us about Harlow?
- [24:30]
Expert Guest
Sure. And to just back up a quick step, qualified immunity was first created by the Supreme Court in 1967 in a case called Pearson vs. Ray. And at that point, it was described as a good faith immunity when officers were acting in good faith. But Harlow vs Fitzgerald in 1982 really got rid of that subjective requirement and instead described qualified immunity as appropriate so long as an officer didn't violate clearly established law. And the reason that the court in Harlow moved from this subjective good faith standard to this objective, clearly established law standard is because of these instrumental goals, as you say, that the court thought they were advancing by moving to this objective standard. And the court in Harlow talks about the importance on the one hand, of a damages case if there has been a violation of constitutional rights. But on the other hand, the court says there are frequently claims against the innocent, and those claims impose costs on the officers, but also society as a whole. And those costs, the court says, include the expenses of litigation, the diversions of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. And the concern that the fear of being sued, the court says, will dampen the ardor of all but the most resolute or the most irresponsible public officials in the unflinching discharge of their duty. So the court is concerned, recognizing that there needs to be these cases brought, but concerned that in weak cases, or the court repeatedly says in Harlow, in substantial cases, there can be many social costs taking up the time of the officers, deterring people from ever becoming officers, and over deterring officers when they're on the job. And so the court thought the benefit here of having an objective standard would mean that insubstantial cases could be dismissed quickly before discovery or trial, and so save the time of the officer and potentially the deterrence of the officer while they're on their job.
- [27:17]
Jack Goldsmith
Okay, so Carlo has a whole set of implicit assumptions. And so you've been doing empirical research for years now that's reflected in the book that questions these. And I'm just going to run through some of them, not necessarily in the order of your book. So the clearly established standard is the idea that, as the court said, officials need to be given breathing room to make reasonable but mistaken judgments about open legal questions. And so that has been the logic that led the court to really insist on there being a very closely factually related precedent on point to hold the official liable and to remove the shield of qualified immunity. And this whole scheme assumes that the police officers and police departments and local governments are paying attention in a fine grain way to the law. But, and frankly, this is the least surprising finding that you made. But why don't you tell us, why don't you tell us what the finding was?
- [28:16]
Expert Guest
Yeah, well, what I found, and as you say, it's unsurprising, but sometimes even unsurprising things need to be proven.
- [28:27]
Jack Goldsmith
I don't think it's not. I'm not saying it's unimportant, it's just. No, well, let me state it a different way. The court's assumption that these cops are poring over the fine grained distinctions of court of appeals decisions in their circuit and supreme court decisions. That's the implicit assumption, I think.
- [28:44]
Expert Guest
Yeah.
- [28:44]
Jack Goldsmith
And even before you tell us what the evidence is, it seems implausible.
- [28:47]
Expert Guest
Yeah. Qualified immunity cases really do seem to rest on the assumptions that officers are on notice of these cases. And they repeatedly talk about the need for qualified immunity so that officers are on notice of the unconstitutionality of their conduct. But when I looked at hundreds of policy manuals and training materials from California law enforcement agencies, what I found was that officers are not trained about the facts and holdings of the kinds of cases that clearly establish the law. Instead they're taught general principles. Principles like the Supreme Court's decision in Graham vs Connor, which sets out the Fourth Amendment excessive force matrix and says that force can only be used if it is objectively reasonable under the circumstances faced by the officer in the moment. That's what they're trained about. And then they are given various scenarios that are not coming from court decisions to get themselves comfortable with applying that standard. And yet the Supreme Court's qualified immunity doctrine has said that law is not clearly established at the level of Graham versus Connor. The fact that force was not objectively reasonable is not enough to overcome qualified immunity. Instead, a plaintiff has to find a prior court decision where a similar kind of force was used in a similar circumstance. And again, this is all justified in part by the need to put officers on notice when they aren't informed about these cases. And they never could be informed about these cases. I looked at 9th Circuit use of force cases and found upwards of 250 cases that could be used to clearly establish the law for qualified immunity purposes. That's just one circuit, just one kind of police power. Officers could never learn all of the cases that might clearly establish the law. And even if they did, they couldn't remember them. None of us could possibly remember the facts and holdings of all of those cases and then try to compare and contrast one's behavior or decision to arrest, decision to use force under the tense and fast moving circumstances that would appear. It's completely illogical and obviously so, but I approved it anyway.
- [31:25]
Jack Goldsmith
Okay. Another assumption of Harlow and related cases is that absent qualified immunity, cops would face huge liability for constitutional torts. And that would have, the court has said, perverse effects on the vigilance of law enforcement, ability to hire and the like. And you challenge that as well?
- [31:49]
Expert Guest
Yeah. So I set out to try to find out how often police officers contributed or paid settlements and judgments entered against them and sent out public records requests to probably about 150 large, medium and small law enforcement agencies across the country seeking information about payouts and how much officers contributed over a six year period. And after a lot of back and forth, I was able to get responses from 81 law enforcement agencies. And what I found was that officers virtually never paid anything towards settlements and judgments entered against them. In the 44 large agencies that I looked at, officers paid 0.02% of the dollars that were awarded to plaintiffs and police misconduct suits and taxpayers or insurers paid the other 99.98% of the money. I only found two of the jurisdictions the larger jurisdictions that actually required their officers to contribute anything. And the average amount that they were required to contribute was a few thousand dollars, not the entirety of the judgments. And in the smaller jurisdictions, I found that officers never were required to pay. None of this is because of qualified immunity. These are all cases where plaintiffs prevailed. Yep. But there are multiple reasons that officers didn't pay. One is indemnification agreements. States across the country have indemnification laws that vary, but generally require that local governments provide for attorneys and pay settlements and judgments in cases that are successful against their officers. Those indemnification laws came about at the same time that the Supreme Court was developing qualified immunity doctrine. They were essentially two different responses to the same perceived problem. Concerns about officers being overly deterred by civil service suits. And they solved the problem or attempted to solve the problem in two different ways. The Supreme Court by qualified immunity, state and local legislatures through these indemnification agreements. And now these indemnification agreements are what tend to mean that officers don't contribute anything in these cases. I do want to say there are instances in which officers are denied indemnification. There are even some jurisdictions that have a policy of not indemnifying their officers. And Memphis, where Tyre Nichols was killed, is one of those jurisdictions. But I've spoken to lawyers in Memphis and in other places that often deny indemnification. And officers don't contribute to settlements and judgments in those jurisdictions either. But the reason has to do not with the indemnification agreement, but with the financial incentives and realities of pursuing a essentially judgment proof defendant in these cases. Most officers are not going to have the resources to satisfy a substantial settlement or judgment. And so in those circumstances, lawyers tend to pursue claims against officers who will be indemnified if there's, if there's a possibility of some officer being indemnified or in a place with a policy of non indemnifying, any officer will need to pursue claims against the local government. And these jurisdictions. If there is a colorable claim against, the municipality will settle, even including settle a claim on behalf of the officer. But there has to be a claim brought against the city in order to get some sort of settlement.
- [35:58]
Jack Goldsmith
So I want to come back to that wrinkle later about when municipalities have a policy of indemnification and when they strategically don't have a policy of indemnification. I want to come back to that. But first, it's not. Again, it's important that you establish this, but it's not terribly surprising to me that many, maybe most jurisdictions indemnify, because I would think in many contexts absent indemnification, it would either be harder to hire cops or they'd have to pay cops more or cops wouldn't be as vigilant. So I imagine I can imagine an incentive to indemnify cops, especially if there's a bad faith carve out or something like that.
- [36:34]
Expert Guest
Sure.
- [36:35]
Jack Goldsmith
What's surprising to me, and I don't understand is why, if it's the cities that are paying out these payments rather than the cops, why there doesn't seem to be any feedback or learning loop from there? We would imagine, and I think the court has assumed this in its cases, we would imagine that if, if, if it's actually the local governments that are paying for cop abuse, that the governments would have an incentive to train better, prevent the worst cases of abuse, et cetera. And I would also think this would especially be the case to the extent that the state and local governments have insurance, because the insurance companies are precisely in the business of pricing risk and charging an amount that relates to what they perceive to be the cost of these risks. And oftentimes insurance companies play the role of, through the price system, ensuring that the insureds take proper precautions to keep down, to diminish and keep at reasonable levels these kinds of liability. So the question is, why isn't the system working in the respects I just speculated?
- [37:46]
Expert Guest
So I think it's a complicated question, and the answer is complicated too. I think that it's important to think about this as slightly different problems when you're thinking about large jurisdictions and small jurisdictions, in part because of the difference that insurance plays in those two kinds of places. So if you take a large city like Chicago, the city of Chicago pays hundreds of millions of dollars. I think it was half a billion dollars over a 10 year period in police misconduct suits, which is a lot of money as you think of half a billion dollars being paid to victims of police misconduct. But it's less than 1% of the government's budget. And when you think of the police department taking up a quarter to a third of the local government's budget, this large figure of half a billion dollars starts to seem much smaller. And so when you think about deterrence and the deterrent impact of money awards, the punch of civil rights suits is actually not that powerful. It's also important to see where the money comes from. So in Chicago, as I talk about in the book, the police department is required to pay settlements and judgments from their own budgets, which makes good sense if you're trying to incentivize the kind of risk assessment that you described. But when the Chicago Police Department runs out of money to pay settlements and judgments, it can go to the City Council and the remainder of the funds will be taken from general funds. And as I talk about in the book, that money as a practical matter often comes from money that has been earmarked to benefit those marginalized by society generally. As one example from the book, I talk about how money to satisfy settlements and judgments came from the budget to do lead paint testing in Chicago. So there's not a financial hit, a meaningful financial hit for large cities, even as the dollar figures seem large. There's also a bureaucratic problem, which is that police departments tend not to gather or analyze information from lawsuits brought against their officers. Part of this is because city attorneys are disinclined to share this information with police departments out of fear that somehow sharing this information will increase liability exposure. I think some of it is a problem of police departments not having robust risk assessment as part of their culture and institution. It could be a lot of different reasons, but the practical reality is that governments and police departments are not gathering and analyzing information from these cases that they would need in order to make decisions about how to change their policies and practices to prevent these things from happening in the future.
- [41:07]
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- [45:11]
Jack Goldsmith
So that suggests to me that in part that's a function of the fact that the liability regime may be suboptimal. I mean, they're just not suffering enough financial penalty as you're saying. For all the reasons you suggest in your book to have to kind of internalize these costs and put in training programs to the extent possible diminish abuse. But I want to move on to one last.
- [45:35]
Expert Guest
Yeah. Before we move on, I want to say a little something about insurers in the smaller jurisdictions. I do think that insurance companies can play an important role. And John Rappaport at the University of Chicago and I have both found examples of municipal liability insurers using their position to demand changes in personnel and policy. And I think particularly after the murder of George Floyd, insurers have begun exploring using this power more to press for reforms. But it doesn't always work. And a great example is Vallejo, California, which is a city that I write about in the book that has an extremely troubled police department where somewhere like 40% of their 100 officers have shot people. There are reports that officers bend their badges in celebration when they kill people. And no officers who participated in this so called badge of honor were disciplined or fired. And between 2010 and 2020, the city of Vallejo's insurers paid $16 million in claims. This is the kind of thing that you would expect would get insurers attention and they could press for changes. The first part of that happened they definitely got insurers attention. They had been part of this statewide municipal insurance pool and claims against Vallejo alone were eating up almost a quarter of that insurer's funds. So at the end of 2017, in the midst of this horrific decade of misconduct and abuse by Vallejo officers, the insurance pool voted to raise Vallejo's self insurance retention from $500,000 to $2.5 million. This might be taken by some cities as an indication that they needed to clean up their behavior and reduce their claims. Vallejo instead switched to a high risk insurer with a higher premium. So now their premiums have increased $2 million. It's something like a 25% increase in their insurance costs. So instead of addressing the underlying problems leading to these suits, the city of Vallejo decided to pay more in insurance. This is not a good long term strategy for the city of Vallejo.
- [47:51]
Jack Goldsmith
I was going to say so that still it doesn't. There has to be a limit to that. There has to be a limit to a city's ability to pay, whether it's directly or through insurance. And at some point I would think it has to have, just for budget constraint reasons, some sort of disciplining effect in trying to establish policies and practices to make policing less abusive.
- [48:16]
Expert Guest
I agree. And we'll see what happens in Vallejo in the in the coming years, I think they're going to face a serious reckoning on this point, the financial point, as well as the constitutional point.
- [48:26]
Jack Goldsmith
And again, all of this is endogenous to how easy it is to get damages. I mean, if, if it's. And part of this goes to reforms later, if it's, if it's easier and appropriate to get damages, and state and local governments are feeling the heat of damages, more than that, too, might spark useful reform. Okay, I want to talk about one last factual assumption, and that is the court. Supreme Court says qualified immunity is needed to protect officers from the burdens and distractions of defending themselves in insubstantial cases. They worry about excessive litigation. They worry that cops are going to be distracted from by all these lawsuits in the absence of qualified immunity. And you say that concern is overstated as well?
- [49:11]
Expert Guest
I do, and I think it's overstated for a couple of different reasons. One is that there are many barriers to relief in insubstantial cases. We've already talked about several of them. It's very difficult to find a lawyer if you have an insubstantial case, given that they are not going to be paid anything for that case if they lose. They have to prove a constitutional violation. They have to plead their claim. And so qualified immunity actually does its work on the most substantial cases, the cases that have been able to overcome all of those other barriers, the cases where plaintiffs have been able to prove a constitutional violation or put. Put evidence forward of a constitutional violation. So that's one set of problems that I see with this justification for the doctrine. The other is that although the Supreme Court has called it a driving goal of qualified immunity to spare officers from the burdens of participating in discovery, I found that fewer than 3% of cases were dismissed before discovery on qualified immunity grounds, and fewer than 4% were dismissed between discovery and trial on qualified immunity grounds. So qualified immunity isn't doing a very good job at dismissing cases. Now, even though it is not dismissing that many cases, qualified immunity is also increasing the costs and burdens of litigating these cases, in part because qualified immunity doctrine is complicated to understand and to litigate, in part because when qualified immunity is denied, defendants have a right immediately to appeal that denial, which can lead to years in additional litigation. And so, in fact, the evidence that I found suggests that qualified immunity may actually increase the costs and burdens of civil rights litigation instead of sparing officers from those burdens and distractions.
- [51:31]
Jack Goldsmith
So on that finding, which was surprising to me, very surprising, especially the one that qualified immunity rarely spares officers from discovery and trial. Yeah, that goes straight to Harlow. But it also, and you say this in the book, and I'm quoting you here, this finding makes it seem as if qualified immunity is not so bad after all. And you have responses to that. And I want to. I want to hear them. But my sense from the book, from the qualified immunity chapter, and from the reformed conclusions that we'll get to is that my takeaway was, yes, qualified immunity is an important problem in the accountability equation, but it's not as central as we, you know, maybe its attention suggests, especially in light of the whole other array of shields you talk about. Is that fair or is that wrong?
- [52:20]
Expert Guest
I think that's fair. I agree. I think that there has been so much focus on qualified immunity, particularly since George Floyd's murder, that it seems as though our system of accountability would work perfectly so long as that doctrine went away. And I don't think that that is true. I think that qualified immunity has come to represent all that is wrong with police accountability. But part of my aim in writing this book is to make clear that there are many other barriers to relief in these cases and many other ways of. In which law enforcement are shielded from the consequences of their actions. With all that said, I also think it is important to do away with qualified immunity. I think that the doctrine does not achieve its policy goals for all of the reasons that we've just been speaking about. It also creates independent harms I think that need to be addressed. One I just mentioned, it increases the cost and complexity of these cases. And I think it's part of the reason that lawyers are disinclined to represent plaintiffs in civil rights cases because bringing cases that implicate qualified immunity add thousands of dollars in attorney time to these cases when they're making the cost benefit analysis. I think that the existence of qualified immunity is a discouraging factor for lawyers in bringing these cases. I also think that, as I had mentioned before, qualified immunity denies relief to people whose rights have been violated. Qualified immunity only comes into play once someone's constitutional rights have been shown to have been violated. So although it does not dismiss a huge number of cases, the cases that are dismissed on qualified immunity grounds are important cases and cases where the plaintiffs should. Should have received some compensation. I also think that qualified immunity creates uncertainty about the law. The Supreme Court has allowed that courts grant qualified immunity without ruling on whether the Constitution was violated. And this creates, as I and others have argued, a stagnation in the law. And just to Give you one example, every circuit that has ruled on the issue has held that there is a First Amendment right to record the police. And we've had camera phones for about 20 years now, but only seven circuits have actually reached this question. One, the 10th Circuit, just reached this question last year and just held for the first time that there was a clearly established right to record the police. I think qualified immunity is part of the reason that that right has not been clearly established in all of the circuits. And when we think about new technologies in policing, discussion about using robots, armed robots to use force against people, those kinds of new technologies are going to fall into the same uncertainty so long as we have qualified immunity doctrine, or.
- [55:27]
Jack Goldsmith
At least so long as we have this idea that you can dismiss on qualified immunity grounds without reaching the merits of the constitutional claim.
- [55:35]
Expert Guest
Correct? Correct. And so long as qualified immunity is defined at this very narrow particular level.
- [55:43]
Jack Goldsmith
Okay, last question about qualified immunity you suggest at the end of the qualified immunity chapter. I say suggest. You lightly suggest that the Court may be turning a corner, because in recent years, there have been a few summary decisions where the Court summarily reversed on some really outrageous cases, although a lot of these cases are outrageous that aren't reversed. And it sent directions to the lower courts in light of the summary reversal to rethink what they said. And yet there's still been qualified immunity affirmances and no real sense that the Court beyond. Tell me if I'm wrong about this. Justice Sotomayor and Justice Thomas are really interested in rethinking the doctrine. So, I mean, how much. How much do you think the Court really is changing course?
- [56:31]
Expert Guest
My point of view on this has shifted over time. I'm an optimist to my own detriment. And there was a period of time in 2020 when the Supreme Court had a whole bunch of petitions before it that were raising qualified immunity. And as everything was happening, the protests following George Floyd and Congress introducing the George Floyd justice and Policing act, there was a sense or hope that the Court was going to make some sort of adjustment on qualified immunity doctrine. And although they have issued a couple of summary reversals, they really haven't taken up the issue of qualified immunity in any kind of robust way. And in fact, they've, I think, left us with more questions than we have answers about what the future of qualified immunity should be.
- [57:24]
Jack Goldsmith
Okay, let's move to municipal liability. Just explain the doctrine and the problem, if you could. I mean, explain what municipal liability is.
- [57:32]
Expert Guest
Sure. So local governments are not directly liable for the constitutional violations of their officers. Instead, the court held in 1978 that a local government can only be held responsible for the constitutional violations of their officers if they had a policy or practice that caused the violation. And there's a number of different theories of municipal liability that can be proven. One is an unconstitutional policy or unconstitutional conduct by someone at the very highest levels of government. Often the claim is that there was a failure to train or supervise properly their officers and that that led to the constitutional violation. But in practice, these claims are extremely difficult to prove because the court has said that you need to find prior similar unconstitutional conduct that the policymakers were aware of and deliberately indifferent to, and that they should have, in light of that prior information, done a better job of training or supervising their officers. And the standard comes to be as complex as qualified immunity. As qualified immunity, you have to find a prior court decision that's held that the constitution was violated under similar circumstances. For municipal liability, you have to find prior unconstitutional conduct that the policymakers knew of and disregarded. So it ends up being its own difficult standard to prove.
- [59:12]
Jack Goldsmith
And what happens, I mean, just so we can understand what's at stake here, what happens if suddenly municipalities are liable for the acts of their officials? What if there is respondent superior liability? How would that change the accountability world?
- [59:29]
Expert Guest
Well, it would change the litigation world significantly, because although today officers still virtually never pay, the threat not to indemnify is regularly used during litigation to reduce settlements or encourage settlements. And when there is a threat that an officer will not be indemnified, the plaintiff's going to have to bring a viable claim against the local government. So having vicarious liability would get rid of that dance. Vicarious liability would also presumably do away with qualified immunity, because the Supreme Court has clearly held that municipalities are not entitled to qualified immunity. So if there is direct vicarious liability for local governments, that would be an end run around qualified immunity.
- [60:28]
Jack Goldsmith
So you just raised something that I did not understand in the book, and that is one of your major findings on qualified immunity is that there's almost always indemnification for officers, or at least that officers almost never pay. But then in another part of the book, you talk about some localities have a policy of no indemnification, which they use strategically to try to force settlements and the like. And can you just tell us how those two lines of thought come together? I mean, they seem to be in tension with one another.
- [61:00]
Expert Guest
Yeah, fair question. And I think it is something that I've unraveled and got to understand a little bit Better over the years that I've been studying this. What I think you can take from my research is that officers virtually never pay. That does not mean that officers are always indemnified. Sometimes they are not. But even in those circumstances, officers still don't pay because as a practical reality of litigation and financial incentives, lawyers and their clients are not going to spend a lot of time pursuing a judgment proof defendant. Also, even when officers are indemnified, at the end of the day during the litigation process, the threat that officers won't be indemnified is used strategically in various ways by defendants to reduce settlements and sometimes to reduce jury verdicts or reduce verdicts after a jury has entered a verdict.
- [62:08]
Jack Goldsmith
So can I just ask you this raises for me a question about your empirical analysis, which is it's like nothing else out there in the literature. There hasn't been in the last few decades any serious that I'm aware of systematic empirical analysis of the Harlow assumptions and the various assumptions of municipal liability. There are some people in law reviews who have, you know, questioned some of the inferences you draw from some of the empirics. And I don't want to get into those details because this is not here we have information and there's not much to compare it to. But can you just talk about in general how you went about conducting these, these empirical analyses?
- [62:48]
Expert Guest
Sure. And the, the different analyses were different based on the question that I was asking. So regarding the piece that I call Police Indemnification, but maybe should have been called Police Don't Pay to be, to be more accurate, I really focused on public records requests, getting local governments to give me information about how much they'd paid in settlements and judgments and how much of that money came from police officers in the other main qualified immunity project that I have worked on or the data set that I have worked on, I looked at five federal districts across the country, and I looked in those districts at two years worth of police misconduct filings in federal court, and I looked to see what happened in those cases, when and how often and at what stage qualified immunity was raised and the outcomes of those qualified immunity motions and the outcomes of the cases in general. And like any empirical analysis, there are absolutely limitations to those studies. For one thing, I'm focused just on law enforcement and local law enforcement. I am looking at five districts, and although my goal was to choose five federal districts that reflected a range in geography, but but also in expectations about how sympathetic courts were going to be to the qualified immunity defense, there's certainly the argument that different jurisdictions would have come out a different way. It's also only two years of analysis. And so certainly if you looked at more years or more recent years, you, you might be able to get slightly different views. I welcome people to continue looking at those issues and expanding on, expanding on.
- [65:06]
Jack Goldsmith
The research that I. Yeah, just to be clear, I wasn't being critical. I just.
- [65:10]
Expert Guest
Oh, no, no. I don't take it that way. I think there are important limits.
- [65:13]
Jack Goldsmith
Yeah, yeah, there are limits. And there's always questions about how you structure empirical analysis.
- [65:17]
Expert Guest
You know, one thing that I've done that I think is really important about that 5 federal district analysis is that I looked at dockets. I looked at a source called Bloomberg Law, although it could be done on PACER as well. Looking at the legal claims filed and where in the briefs and decisions qualified immunity emerged. There's been a lot of other research done looking, looking at Westlaw or at court of appeals decisions. And to my view, although all information is valuable in this context where we have so little information, looking at cases on Westlaw and court of appeals cases doesn't give a fully accurate picture of the role that these doctrines are playing in the litigation of cases. It doesn't capture all of the cases where qualified immunity is never raised, for example. It doesn't capture the cases where motions to dismiss unqualified immunity grounds are denied in a short decision that never appears on Westlaw. So this was a labor intensive process, but I think a really important process to be able to understand where within the civil litigation landscapes, qualified immunity fits.
- [66:33]
Jack Goldsmith
And again, I think it's very important because so much of the doctrine rests on empirical assumptions. And correct me if I'm wrong, but there's really nothing. I mean, Peter Schuck wrote a book in the 1980s that asserted a bunch of claims about factual claims. And I think he had a little bit of analysis about some of the assumptions we've been talking about, but there's really nothing close to the empirical research you've done, to the best of my knowledge. Is that right?
- [66:57]
Expert Guest
Well, I appreciate the kind words. Peter Schuck's book Suing Government, which, which was, you know, an inspiration to me, did look at some of the indemnification agreements. There has been great work that Alex Reinert has done looking. He focuses more on Bivens claims, so claims against federal officers.
- [67:24]
Jack Goldsmith
And just to be, just to be clear, you didn't in this book. I should have said this at the outset. This book is really focusing on accountability for state officers under section 1983 litigation and not for federal officers, which is what he looked at, right?
- [67:37]
Expert Guest
That's correct. And only because of limits in space and time. I think it's a hugely important topic as well.
- [67:45]
Jack Goldsmith
Okay, let's move on to reforms. So you have a reform chapter at the end where you have some suggestions. And here's my reaction. So many of the shields you identify in the book are just going to be very hard to reform because of where the current Supreme Court's at. I mean, all the standing issues that you talked about, Those are Article 3 doctrines. And if anything, the Court is getting more restrictive on those issues. I doubt that the Court is going to change the standard for dismissal for the complaint under Iqbal, the Fourth Amendment doctrine that you talked about as a hurdle. I think the Court is not going to move much on that. Judicial sentiment and jury sentiment, those aren't going to change. So that leaves. So the question one reaction is a lot of these things, I think realistically at the federal level aren't going to be fixable, but some of it is. Some of it is fixable. So in theory by Congress and potentially by the Supreme Court. So I guess my question is, if you were a dictator for a day or if you could force Congress at the federal level to enact reform, what does your ideal reform for optimal police accountability at the state and local level look like?
- [69:06]
Expert Guest
Well, I think that there are some things that Congress can absolutely do. There are some things that I think are really better suited for state and local governments to tinker with. And I'll put that to one side for a moment.
- [69:20]
Jack Goldsmith
I want to ask about that later.
- [69:21]
Expert Guest
Yeah, yeah. If you think about what Congress can do, they can do away with qualified immunity. They could create vicarious liability for local governments. They could. And the George Floyd justice and Policing act has language about this. They could mandate more data collection. They could tie federal funding to gathering data. They could tie federal funding to better accreditation standards and requirements and decertifying officers who engage in misconduct. They, they do have that power to, to try to use at least the promise of federal funds to create better systems of transparency, data collection and accountability. But I see Congress's best use in this process of police reform is creating uniform accountability rules that undo some of the work of the Supreme Court. And I see those things as being qualified immunity and municipal liability. Although there was a statute that was introduced soon after the plausibility standard was decided by the Supreme Court, there was a statute to do away with that. So they could do that.
- [70:44]
Jack Goldsmith
And in theory, they could do That I agree. So given that array of possibilities, is there going to be momentum in Congress after the Tyree Nichols murder? And I mean, what is the state of play now? And what do you see the prospects for reform at the federal level?
- [70:58]
Expert Guest
I think that there certainly is momentum, at least if you read news reports indicating that Cory Booker is sort of back at the drawing board. I fear that qualified immunity is not going to be part of that conversation. It has become so politically polarized. And I've, I've participated in legislative hearings at the federal informal conversations, I should say, at the federal level, in legislative hearings at the state level. And the same myths about qualified immunity that have inspired the doctrine for decades, claims that officers are going to be bankrupted for reasonable mistakes are still being touted again and again by defenders of qualified immunity, union officials, city and local government officials. And they are frightening claims, even if they are not true. And I think those claims prevented qualified immunity from moving forward originally in the George Floyd justice and Policing act. They've caused state legislatures to back away from qualified immunity reform. And I predict that that's going to happen again in Congress. I think that changing the municipal liability standards and having vicarious liability is something that holds perhaps more promise and potential. Lindsey Graham has suggested he's open to it, as has Tim's Scott, But I also think that there are concerns and rightful concerns that creating a system where there is no possibility of consequences for officers through the civil justice system is concerning.
- [72:40]
Jack Goldsmith
Yeah, so you talk in the last chapter, and I actually talk about this in my federal courts class as well, about the promise of reform at the state level. And there's been more movement there. And I have to say this does seem more promising to me, and I want you to explain it, but it seems more promising to me for a bunch of reasons. First of all, we've seen a number of reforms at the state level. Second, it's actually to me a tricky question what the right menu of fixing all of these various shields is, because as Dick Fallon and other people have argued, the whole array of rights and remedies, you can't just focus on one without trying to figure out what the impact of the system on the system is and the impact on other rights and remedies, and there might be countervailing impact. So it seems to be a good idea to have a whole variety of reforms at the state level so we can actually get some information about what works and what the empirical consequences are. So anyway, can you talk about the state and local government reforms, how they dip why they have promise and, and if you think they do. And what do they look like?
- [73:44]
Expert Guest
Sure. Yeah. So there are a lot of states that are considering police reform bills. I think something like half of the states took up police reform bills after George Floyd's murder. And some of those bills, many of those bills were voted down, but are now are being reintroduced. And I can imagine that following Tyre Nichols, there will be even more attention paid to them. I think that Colorado's bill is sort of a gold standard among the legislation that's been passed, and it addresses many of the shields that we have been talking about during this conversation. The Colorado bill does create some bright line rules limiting police force. It creates a state law right to sue for constitutional violations, and it prohibits qualified immunity as a defense in that state law claim. It also requires that local governments pay settlements and judgments on behalf of their officers. However, an important asterisk. If the local government finds that their officer acted in bad faith, they can be required to contribute $25,000 or 5% of the settlement or judgment, whichever is less. If the officer can prove that he does not have the, or she does not have the resources, the city will be required to pick up the whole tab. But there's a lot about this arrangement that strikes me as really promising. One, of course, the statute essentially does away with qualified immunity. Two, the statute ensures that plaintiffs are going to be compensated for their losses and does away with whatever strategic maneuvering that there might be about threats not to indemnify. But it also creates a financial sanction for officers who have acted in bad faith, and at least ideally, ostensibly, the fact that local governments are going to have to find out and decide whether officers acted in bad faith means that they will pay attention to these cases and what happened in them. I don't know what they're going to necessarily do with that information moving forward, but it does require there be more attention paid to these cases. And this is a, this is a statute that was passed right after George Floyd's murder. Other statutes look, look different. But I agree with you that there is a value in experimentation among jurisdictions. I see two, two dangers or two notes of caution. One is that not every state is going to pass this kind of reform and we're going to end up in a system where people's constitutional rights truly vary dramatically based on where in the country they happen to have their rights violated. Thus my preference for a national standard. But absent that, I certainly will take state reforms. The other thing is it's exceedingly important to gather and analyze information about how these statutes function. If we're going to have them be a model moving forward, we really need to see what the effect is of Colorado's statute, for example, and we're beginning to get that information. But I think it's, we need to continue digging in and figuring out what's happening in Colorado and what effect these changes are having.
- [77:23]
Jack Goldsmith
So one final question. When I write books that build on prior scholarship, I find that I often learn a lot that wasn't in my prior scholarship. And I'm just wondering what was the most surprising or interesting thing to you that you learned in kind of putting this whole thing thing together? You've been working on this for a long time and this is kind of a summary statement of, of your view of police accountability. What was the mo? What did you learn?
- [77:52]
Expert Guest
Well, I would say I'll give you three answers. There were some aspects of, of the system that I really hadn't known much about before I delved into the book. So jury selection, for example, was something that I hadn't really understood. So I did. I learned new things in writing the book about that and some other areas of the law. I think it was really valuable to me to think about all of these different aspects of the law together. And I have spent a lot of time talking and thinking about civil rights litigation. But one of the real values of the book to me was to be able to set out all of these barriers together and really think of them as part of a single whole. And the third thing was, as I think you mentioned at the top of our discussion, the book is really focused on stories of people who the public hasn't heard of, who don't have viral videos of their mistreatment, but whose lives were really shaken by police abuse. And I talk about different people in each of the chapters and the ways in which these barriers have frustrated their efforts to get justice. And to me, although I began my practice in this area as a civil rights litigator with clients and thinking about the law through my clients eyes, there was something really grounding and powerful about talking to these people, learning about their cases, and really seeing the impact of the law on these people's lives as well as on their cases.
- [79:39]
Jack Goldsmith
Joanna Schwartz, thank you very much.
- [79:41]
Expert Guest
Thank you.
- [79:46]
Jack Goldsmith
The lawfare podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this, this and other Lawfare podcasts. By becoming a Lawfare material supporter at Patreon.com Lawfare you'll get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Chatter, Allies, and the Aftermath. Our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written work@lawfareblog.com the podcast is edited by Jen Patja Howell and your audio engineer. This episode was Noam Osband of Goat Rodeo. Our music is performed by Sophia Yan. As always, thank you for listening.
- [80:36]
Podcast Host
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