 On February 8th, 2018, a retired man living in suburban Georgia named Henry Norris was watching the evening news in his bedroom when he heard what sounded like a bomb go off inside his house. A team of more than two dozen police officers had set off flashbang grenades. They broke through every door of his home with battering rams. Norris, who was nearly 80 years old at the time, told the officers about his bad knees and his heart condition. One cop thrust him to the ground where the police kept him for several minutes. They arrested him and took him out of his house in handcuffs. The officers were doing a drug raid, but they had the wrong house. The actual suspect, according to the warrant, lived in an off-white house with a black roof. Norris's house was yellow with a gray roof, and he didn't resemble the man police were after, who was less than half Norris's age. When Norris sued, his lawsuit was thrown out because of a legal doctrine called qualified immunity, which makes it difficult for victims to hold state or local government employees accountable for violating their constitutional rights. Qualified immunity was first created by the Supreme Court in 1967. The court strengthened it in 1982, when the justices ruled that a victim cannot sue a state or local government employee unless nearly identical misconduct has been ruled unconstitutional in a prior court decision. The rationale is that if there isn't an existing case with almost the exact same facts, then how would public officials know what they're doing is wrong? I think you could compare it to, you know, a person bringing a lawsuit that they've slipped and fallen in a grocery store and are filing a lawsuit. And the court says, have you been able to find a prior court case in which someone slipped and fell on orange juice in the produce aisle? UCLA law professor Joanna Schwartz is the author of the new book, Shielded, How the Police Became Untouchable. Because if it was water in the dairy section, that's not enough. Because how could a grocery store possibly know that they had to clean up water from the produce, orange juice from the produce section based on prior precedent that said they had to clean up water from the dairy section? Qualified immunity is supposed to ensure that government employees have proper notice of what conduct violates the Constitution. But this assumes that police officers are reading case law in their spare time. I aimed to just to test that out, and I looked at hundreds of California policies and trainings and found that officers, perhaps no surprise, officers aren't educated about the facts and holdings of the cases that clearly established the law. There are hundreds if not thousands of them, they couldn't possibly learn all of those cases in the course of their limited training hours. Qualified immunity applies even in cases of straightforward police misconduct. So, for example, when Fresno California police officers allegedly stole over $225,000 in 2013 while executing a search warrant, a federal court ruled that they were still protected by qualified immunity because they didn't have, quote, clear notice that they were violating their victim's constitutional rights. We as a society, whether we like it or not, are providing these officers with their power, their discretion, their badges and their guns. And I believe that we as a society also have a responsibility, a shared responsibility to make those people whole when their rights have been violated under our authority and to try to prevent something from happening again in the future. To underscore how difficult it is to hold police accountable, Schwartz writes about Tony Tempa, a man who died during an arrest in Dallas in 2016. Vicki Tempa, Tony's mother, got a phone call in Dallas that her son had died, a call from a police officer, a police official, but had no information for Vicki about how Tony died. And she called the department multiple times, got different stories about what had happened to Tony, that he had had a heart attack, that he had fallen down somewhere near his car and no straight stories. She then went to the morgue to see him and discovered that there was grass in his nose. How was that possible? It turns out the Dallas police department had intervened during a mental health crisis Tempa experienced one evening in August of 2016. Officers kneeled on his back for about 14 minutes in violation of their own training and he subsequently died of, quote, cocaine and the stress associated with physical restraint, according to an autopsy. But Vicki Tempa didn't know exactly what happened because the police wouldn't tell her. They refused to turn over the body camera footage, which she needed to state what's called a plausible claim, the bare minimum standard to file a federal lawsuit against government actors. If she couldn't get more information on what happened that night, then her lawsuit would be dead on arrival before a judge could even evaluate whether those officers would get qualified immunity. When they filed the lawsuit, they didn't know who the officers were, uh, who had been at the scene and they didn't know what happened to Tony. So they wrote sort of a bare bones complaint that the Dallas police department moved to dismiss because it didn't state a plausible claim for relief, even though the Dallas police department had in their own possession the body camera videos and other information about what had happened in the case. Vicki went through a three-year legal battle, which finally forced the police to turn over the footage in August 2019. Only then did she have enough facts to write that plausible claim. The idea about this plausible pleading standard is to give defendants notice of what is being alleged against them. Well, the Dallas police department had all the notice in the world about what their officers had done and yet used this tool to try to get the case dismissed. Those Dallas police officers originally received qualified immunity. That was ultimately overturned on an appeal and the Supreme Court confirmed in 2022 the Tempest family could finally sue the police. But it took six years for Vicki Tempest to get there. The Supreme Court and state and local governments across the country have created barriers to relief in these cases at every stage of the litigation process that makes it very difficult to win in these cases. Justice Clarence Thomas has critiqued qualified immunity as an example of legislating from the bench while Justice Sonia Sotomayor has said it allows police to quote shoot first and think later. But some consider it necessary to protect relatively low-paid public employees who can't be too afraid to make mistakes. Policing is obviously a dangerous job. It is often low-paid. How do we know that allowing officers to be sued isn't going to provide yet another disincentive to policing in the first place? The idea that's been commonly stated that officers are going to be bankrupted for split-second mistakes without qualified immunity bears no relationship to reality because officers are virtually always indemnified by policy or law, meaning the employer pays for those settlements and judgments. And the Fourth Amendment protects against those split-second mistakes. So they don't have those things to be worried about. So let's say we adopt some of the reforms that you propose. What's stopping Joe Schmo down the street from sashaying into the federal courthouse because he has an axe to grind and just filing a suit? Joe Schmo can sashay into the courthouse today and file a lawsuit. Joe Schmo with his frivolous lawsuit is not going to be able to find a lawyer, I'm guessing. Part of that is the way in which they are paid for these cases. They are paid if they win, usually a percentage, a third of the recovery. If they lose, they're paid nothing. And these cases are far more complicated and time consuming and expensive to bring than your average slip and fall case. So I've talked to a number of lawyers who typically do take personal injury cases or medical malpractice cases, take their first civil rights case, invest tens of thousands of dollars in their time, lose everything and think, I'm going to go back to my other line of work where I'm more likely to be able to make enough to keep the lights on. So you're saying a lawyer could spend thousands of hours of his or her time working on a case and get paid nothing? Absolutely, absolutely. Lawyers do with regularity. Anytime a plaintiff's lawyer brings a civil rights case that goes to trial and they lose, they will get nothing for their time. Overcoming qualified immunity doesn't mean you've won your case. It simply gives you the right to take your claim to trial and ask a jury to determine if damages are deserved. While qualified immunity only applies to state and local actors, federal cops receive an even more robust set of protections and are shielded by what essentially amounts to absolute immunity. Take the 2016 case of a then 70 year old retired cop named Jose Aliva, who arrived for a dental appointment at a VA hospital in El Paso Texas. When unprovoked, according to surveillance footage, federal officers placed him in a choke hold and contorted to leave his hand behind his back, damaging his shoulder and requiring two surgeries. He was prohibited from suing because the cops were acting at neither the state nor local level. These sorts of abuses have put police under an intense scrutiny over the last several years, but Schwartz concedes that law enforcement conduct has improved in recent decades. One indication of that is that fatal police shootings are down nationwide. In New York City, for example, officers shot and killed an average of 62 people a year from 1970 to 1974, which went down to nine fatal shootings a year from 2015 to 2021, according to data compiled by Peter Moskos, a professor at the John Jay College of Criminal Justice. I do think that policing has improved in important ways. My inquiry with this book is not to set out to canvas all of the ways in which policing should function, but really to ask the question of what kind of justice is available to people when their rights are violated. It may be that people's rights are violated less frequently now than 10 or 20 years ago. We don't have comprehensive data, but I think everything that we do have suggests that that is likely true. But it remains true also that our systems for holding police accountable in those circumstances in which they violate the law and people's rights really fails to offer justice to a meaningful percentage of those people. So how do you respond to people that are saying, you know, we essentially expect police to be James Bond and just be the perfect shot? I don't think that our legal rules demand perfection from officers. And I think it's far from it. In situations where courts say that there could be a constitutional violation, there could be excessive force. Ultimately, again, this is a question for a jury to decide whether the force used was reasonable. There are many, many people whose names readers have never heard of, whose lives have been turned upside down, if not snuffed out, by law enforcement, and then have their efforts to seek justice in these cases denied. I think that is a caseload and a cost that we as a society should be willing to take on. This is the moment to sit back calmly, look at the information, look at all of the information, and design a better future.