It's certainly possible that if qualified immunity went away, that would be an indication to law enforcement that legislatures were not protecting them, but I think that would be based on a myth as opposed to the way in which it actually functions on the ground.

Joanna Schwartz

There’s a longstanding presumption by prosecutors certainly, and also by jurors, that when officers use force it's justified, but I also agree that post-Ferguson, there has been a shift in the view about police justification.

Joanna Schwartz

This is against the backdrop of a well-settled principle that officers can't use force, should not use force against people who are not physically resisting, and that precedent carries very little weight when courts won't let those cases go forward simply because the person in the case before them walked away instead of saying something or the officers kicked them instead of punched them or these very minor deviations.

Joanna Schwartz

If a lawyer knows ahead of time that the officer is not going to be identified, who has no resources, it makes no financial sense at all to litigate that case, if we've given up the charade that accountability is only through financial payments by those officers, then we need to think more seriously about what the consequences are and what our internal disciplinary systems look like in law enforcement agencies.

Joanna Schwartz

They say qualified immunity is intended to weed out the most insubstantial cases.

Joanna Schwartz