Publication Date
2024
Abstract
Joanna Schwartz’s Shielded: How the Police Became Untouchable is, in many ways, a triumph. It catalogues the laws regulating police with a breadth and depth unexpected from a book targeted to a popular audience, and it does so in gripping style. Although her ability as a researcher is well known to those who have encountered her earlier work, it is Schwartz’s ability as a storyteller that sets Shielded apart and makes the stakes of these doctrinal discussions clear. Admittedly, for those lawyers, judges, and academics who come to Shielded already familiar with Schwartz’s academic work, there is little new analytical ground covered. Most (but importantly not all) of the cases she discusses are those we have read and taught. Likewise, the points raised about the on-the- ground reality and interlocking nature of doctrines like qualified immunity and indemnity are, while always shocking, not unfamiliar to those who have read Schwartz’s pathbreaking law review articles. But even those of us who teach and write about criminal law and procedure will likely learn more from this book about the lives of the plaintiffs who inhabit the cases we teach.
Shielded queries how the police became untouchable. But it rarely asks why. Schwartz can be forgiven for not delving into this complex question. Describing the interlocking web of doctrine, policy, and practice that regulates police is a daunting task unto itself. But turning the focus from how to why surfaces an unexplained issue within Shielded: what benefit do we get from the current state of the world? This Review suggests that we can begin to resolve this question by turning our attention to the shadow of the law of the police.
One of Shielded’s most thought-provoking discussions centers on how civil rights attorneys have responded to the Court’s doctrines regulating civil rights cases. Part I builds on Schwartz’s observations by explicitly naming the shadow of the law’s role and applying civil rights litigation tools developed in other areas to analyze the law’s shadow. This helps to explain both why the Court’s jurisprudence may have been a rational but misguided attempt to encourage civil rights settlements, and why people both in and outside of academia have focused on doctrines, like qualified immunity, that rarely formally decide cases.
Although Schwartz aptly describes how civil rights attorneys bargain in the law’s shadows, she does not discuss the broader shadow the law casts on policing writ large. Part II attempts to fill this gap by turning to the law of pedestrian stops. This Review posits that the law forces police and “subject[s] of [the] carceral state” to bargain over safety and carceral involvement in settings shaped by legal and social power imbalances. These “bargains,” in turn, are no bargain at all. Instead, the law’s expectation is a submission to law enforcement that enables subordination, especially racial subordination.
The conclusion of this Review returns to Shielded. It argues that Schwartz’s failure to recognize and name this why may make her pro- posed solutions hollow and suggests why abolitionist theory may be necessary to make durable change.
Number
870
Recommended Citation
Davidson, Adam, "The Shadow of the Law of the Police" (2024). Public Law and Legal Theory Working Papers. 870.
https://chicagounbound.uchicago.edu/public_law_and_legal_theory/938
