‘Silos’ Can Keep Police Departments From Knowledge of Extent of Police Abuse and Consequences of That Abuse
by Matt Clarke
Around two decades ago, UCLA law professor Joanna Stewart was a civil rights attorney working on a large class-action lawsuit against the New York City Department of Corrections. While interviewing guards, she was surprised to learn that they did not know how many times they had been sued. Later, she discovered that this situation was common among police and correctional officers. The reason is that lawyers representing the officers intentionally withhold information from the departments, believing knowledge of previous misconduct will increase liability.
Frequently, “the information from the lawsuits goes back and forth from the city attorney’s offices, but that information doesn’t make its way over to the police department, officers and officials.” Thus, information about lawsuits is kept closely within the city attorney’s office in an information “silo.”
In her new book, “Shielded: How the Police Became Untouchable,” she explains how silos and legal protections such as qualified immunity and no-knock warrants have shielded officers from the consequences of their abusive actions. She argues that true reform will require local police departments to collect and analyze information from the lawsuits in which they are defendants and pay the costs of any settlements out of their own budgets.
“If departments knew that they would have extra resources if they decreased the size of their settlements and judgments in these cases, they might have an incentive to take better care and account of what their officers are doing,” giving them a financial incentive to reform, said Schwartz.
Schwartz noted that the origins of policing in the United States differ according to geography, but its antecedents in all regions had something in common – “subjugation and violence against disempowered groups.’’
In the South, policing had its origins in the state-sponsored slave patrols that focused on the subjugation of Black people. This subjugation was continued after the Civil War by unofficial but influential groups like the Ku Klux Klan. This severe oppression led to the belief that the North was a kinder place for Blacks and sparked the Great Migration. But the reality was that Blacks in the North were also subject to abuse by police.
The historical model for policing in the North was the London police force, according to Schwartz. Initially, its focus was on the subjugation and oppression of immigrant groups. But, by the 20th century, “police in the North had plenty of their own problems as well, and were using unconstitutional force, arresting people and assaulting people, particularly those Black Americans who came from the South to the North.’’
In the Southwest and some of the South, the Texas Rangers were the model for the initial law enforcement entity. But the Rangers had a bloody history of violent oppression, killing thousands of Mexicans, Mexican-Americans, and indigenous people. There were no consequences for these excesses.
The Fourth Amendment protection against unreasonable searches and seizures is examined in the book. It explains how “the way in which the Supreme Court interprets ‘reasonableness’ under the Fourth Amendment is focused far more on what the police officer was thinking at the time,” not the behavior of the suspect. “And the Supreme Court, in multiple opinions, has authorized, allowed, condoned officers to use force or arrest or search someone who has done nothing wrong. So long as they thought what they were doing was reasonable in the moment, that officer has not violated the Constitution.”
Schwartz notes that the race of the officer is irrelevant to who is the target of abuse. Black police officers tend to commit misconduct toward Blacks and other minority groups at the same elevated rate as white police officers. This calls into question the concept of reducing police abuses by hiring more minorities and shows the problem of abuse to be caused by a toxic police culture.
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