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Joanna C. Schwartz Interview - Policy Debate 2020-21


Joanna Schwartz is a Professor of Law at UCLA School of Law where she teaches Civil Procedure and a variety of courses on police accountability and public interest lawyering. She is one of the country's leading experts on police misconduct litigation. I interview Ms. Schwartz on the 2020-2021 NSDA Policy Debate Resolution:

"Resolved: The United States federal government should enact substantial criminal justice reform in the United States in one or more of the following: forensic science, policing, sentencing."

Among other areas, Schwartz is a specialist on Qualified Immunity, a Supreme Court policy that "protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a 'clearly established' statutory or constitutional right." The policy was upheld in the unanimous 2009 Pearson v. Callahan decision.

Her study How Qualified Immunity Fails has been used as one of the best arguments for preserving the doctrine. Schwartz concluded, "Across the five districts in my study, just thirty-eight (3.9%) of the 979 cases in which qualified immunity could be raised were dismissed on qualified immunity grounds." Supporters of the doctrine argue this is evidence it is seldom used, and only in the most absurd and frivolous of civil cases against police. However, Schwartz disagrees with the use of her research in defense of qualified immunity. I ask her some questions in the following Q&A.

A.J. Camacho: As an expert, are you for or against the resolution? In your opinion, should the United States federal government enact substantial criminal justice reform in the United States in one or more of the following: forensic science, policing, sentencing?

Joanna C. Schwartz, UCLA: I am in favor of the resolution. We would benefit from substantial criminal justice reform in each of these areas.

A.J. Camacho: Are there common misconceptions about certain criminal justice reform proposals that debaters should be aware of?

Joanna C. Schwartz: This is a very broad question and one that is difficult to answer without more context. If you want to tell me about particular proposals you are considering I'm happy to offer thoughts. But there are dozens and dozens of proposals that are being considered.

A.J. Camacho: In a 2017 paper titled, How Qualified Immunity Fails, you "found that qualified immunity rarely served its intended role as a shield from discovery and trial in these cases." Specifically, only 3.9% of the cases in which qualified immunity could be raised were dismissed on qualified immunity grounds. In your opinion, what should we do about qualified immunity given your findings?

Joanna C. Schwartz: Even though qualified immunity doesn't regularly result in the dismissal of cases, it is a very harmful doctrine. I've described why in a few different fora. Here are a few examples:

Here Ms. Schwartz referenced two pieces two me. The first is a report she wrote in June for the Justice Collaborative Institute. In it, she writes, "While a federal civil rights law allows people to bring constitutional claims against law enforcement officers, qualified immunity shields all but the 'plainly incompetent or those who knowingly violate the law' from liability—a high bar that effectively excuses egregious, often lethal misconduct, and leaves victims of police violence without legal recourse for the violation of their constitutional rights."

The second piece was a series of tweets she wrote in response to a New York Times op-ed that used her research as evidence that removing qualified would not change police behavior: 


A.J. Camacho: Is there anything else you think debaters should know as they enter the season and prepare for tournaments?

Joanna C. Schwartz: Good luck! These are important and complex questions.

Joanna Schwartz is a Professor of Law at UCLA School of Law.

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