The Lawfare Podcast: "Lawfare Archive: How the Police Became Untouchable" Release Date: July 19, 2025

Hosts:

• Jack Goldsmith – Host of The Lawfare Podcast
• Joanna Schwartz – Law Professor at UCLA and Author of How the Police Became Untouchable

Introduction

In this episode of The Lawfare Podcast, host Jack Goldsmith engages in a profound discussion with Joanna Schwartz, a renowned law professor and author of How the Police Became Untouchable. The conversation delves into the intricate mechanisms that have historically shielded police officers from accountability, focusing on recent high-profile cases like the murder of Tyree Nichols and the conviction of Brett Haynes Hankinson in the killing of Breonna Taylor.

The Persistent Problem of Police Misconduct

Overview of Accountability Gaps

Joanna Schwartz articulates that the persistence of police misconduct and abuse is deeply rooted in systemic accountability gaps within the legal framework. She emphasizes that these gaps not only protect individual officers but also shield their supervisors and the municipalities they serve.

"Police abuse 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."
— Joanna Schwartz [04:30]

Key Issues Identified:

• High barriers to achieving justice through the civil rights system.
• Challenges in finding competent legal representation.
• Judicial reluctance to hear cases.
• Complexities surrounding Fourth Amendment doctrines and qualified immunity.

Qualified Immunity: A Central Barrier to Accountability

Defining Qualified Immunity

Qualified immunity is a legal doctrine that protects government officials, including police officers, from liability unless they violated "clearly established" statutory or constitutional rights of which a reasonable person would have known.

Historical Context and Evolution

Schwartz traces the origins of qualified immunity to the 1967 Pearson v. Ray case, initially framed as "good faith immunity." However, the 1982 Harlow v. Fitzgerald decision shifted the standard to an objective "clearly established law" approach, removing the subjective good faith requirement.

"Qualified immunity has played a role because the doctrine is, I think, illogical and damaging in ways that I'm guessing that will get into in a few minutes."
— Jack Goldsmith [03:06]

Empirical Findings on Qualified Immunity

Through extensive research, Schwartz reveals that qualified immunity rarely serves its intended purpose of protecting officers from frivolous lawsuits. Instead, it predominantly acts as a barrier in substantial cases where constitutional violations have occurred.

"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."
— Joanna Schwartz [49:11]

Critical Insights:

• Qualified immunity does not significantly reduce the burden of litigation as intended.
• The doctrine increases the complexity and cost of civil rights cases, discouraging lawyers from taking them on.
• Qualified immunity denies relief to victims whose rights have been clearly violated, perpetuating a lack of accountability.

Municipal Liability: Complicating the Accountability Landscape

Understanding Municipal Liability

Municipal liability holds local governments accountable for the unconstitutional actions of their officers, provided there is evidence of a policy or practice that led to the violation. However, proving such liability is exceptionally challenging due to stringent legal standards.

Challenges in Proving Municipal Liability:

• Necessitates evidence of policies or practices causing constitutional violations.
• Requires demonstrating that policymakers were aware and indifferent to prior misconduct.
• The standard is as stringent as that of qualified immunity, further obscuring accountability.

"Municipal liability would get rid of that dance. Vicarious liability would also presumably do away with qualified immunity."
— Joanna Schwartz [59:28]

Empirical Observations:

• Officers rarely pay settlements or judgments personally, as indemnification agreements typically obligate municipalities or insurance companies to cover these costs.
• Even jurisdictions without indemnification policies see minimal financial repercussions for officers, due to strategic litigation practices that favor settlements against municipalities.

Empirical Research Methodology and Findings

Research Approach

Schwartz employs a thorough empirical methodology, analyzing public records from over 80 law enforcement agencies and examining federal court dockets across five federal districts. This approach uncovers the systemic issues hindering genuine police accountability.

Key Findings:

• Officers contribute negligibly to settlements or judgments, absorbing only about 0.02% of the total payouts.
• Municipal indemnification laws, established concurrently with qualified immunity, ensure that local governments bear the financial burdens of misconduct cases.
• Insurance companies play a limited role in enforcing accountability, as seen in the Vallejo, California case where increased premiums did not lead to meaningful reforms.

"Qualified immunity may actually increase the costs and burdens of civil rights litigation instead of sparing officers from those burdens and distractions."
— Joanna Schwartz [51:30]

Prospects for Reform

Federal vs. State-Level Reforms

Schwartz suggests that while federal reforms hold potential, significant changes are more feasible at the state and local levels. States like Colorado are pioneering comprehensive reforms that address multiple accountability barriers simultaneously.

Colorado's Legislative Model:

• Abolishment of qualified immunity in state law claims.
• Establishment of vicarious liability for municipalities, ensuring that local governments cannot evade responsibility through indemnification policies.
• Financial sanctions for officers acting in bad faith, promoting greater accountability.

"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."
— Joanna Schwartz [73:44]

Challenges to Federal Reform:

• Political polarization surrounding qualified immunity makes federal legislative changes difficult.
• Myths and misconceptions, such as fears of officers being bankrupted for reasonable mistakes, hinder progress.
• Limited momentum in Congress, despite public outcry following incidents like Tyree Nichols' murder.

Encouraging Trends:

• State legislatures experimenting with varied reform models, providing valuable data on effective strategies.
• Potential shifts in congressional attitudes, influenced by ongoing advocacy and public demand for accountability.

Conclusion

Joanna Schwartz’s insights shed light on the multifaceted barriers that render police officers "untouchable" within the current legal framework. While doctrines like qualified immunity and municipal liability erect formidable obstacles to accountability, state-level reforms offer a beacon of hope for meaningful change. However, the path to comprehensive reform remains fraught with political and systemic challenges.

Final Thoughts:

• Holistic reforms targeting multiple accountability barriers are essential for genuine police oversight.
• Empirical research is crucial in understanding and addressing the nuances of police accountability.
• Public awareness and continued advocacy remain pivotal in driving lasting changes within the justice system.

Notable Quotes:

• "Police abuse 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."
  — Joanna Schwartz [04:30]

• "Qualified immunity may actually increase the costs and burdens of civil rights litigation instead of sparing officers from those burdens and distractions."
  — Joanna Schwartz [51:30]

• "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."
  — Joanna Schwartz [73:44]

This comprehensive summary encapsulates the critical discussions between Jack Goldsmith and Joanna Schwartz, highlighting the systemic issues obstructing police accountability and exploring potential avenues for meaningful reform.