In This Episode
DeRay, Myles, and De’Ara cover the underreported news of the week — including public outrage over Cleopatra’s blackness depicted on screen, Lizzo leads a protest against Tennessee anti-drag laws, and a staple franchise goes out of business. DeRay interviews UCLA professor of law Joanna Schwartz about her new book Shielded: How the Police Became Untouchable.
News
DeRay Bed Bath & Beyond Files for Bankruptcy
Myles Lizzo and a group of drag queens protested anti-drag laws on stage in Knoxville
De’Ara Egyptian lawyer sues Netflix for depicting Cleopatra as Black woman
TRANSCRIPT
DeRay Mckesson, narrating: Hey, this is DeRay and welcome to Pod Save the People. In this episode it’s me, De’Ara and Miles and we talk about all the news you don’t know from the past week, the underreported news. And then I sit down with author and professor Joanna Schwartz to discuss her new book Shielded: How the Police Became Untouchable. Here we go. [music break]
De’Ara Balenger: Family. Welcome to another episode of Pod Save the People. I am De’Ara Balenger. You can find me on Instagram at @dearabalenger.
Myles E. Johnson: I’m Myles E. Johnson. You can find me on Instagram and Twitter at @pharaohrapture.
DeRay Mckesson: This is DeRay at @deray on Twitter.
De’Ara Balenger: So we’re going to talk about Twitter and what’s happening in the Twittersphere. I’m not going to lead this conversation because I don’t pretend to know what was happening in the before times or now in the hereafter Elon times. So. Family. Take take it away. What what’s happening? [laughter]
Myles E. Johnson: Um. I feel like DeRay has a better rundown of like exactly what’s going on. [laughter]
De’Ara Balenger: I like how we make–
DeRay Mckesson: Yeah so–
De’Ara Balenger: –DeRay like the Twitter person, like he is a co-founder of Twitter. [banter]
DeRay Mckesson: [?] Let me tell you. So Elon has been trying to push Twitter Blue, which is $8 a month, which is going to give you like expanded uh video time upload. He’s going to privilege you in the in the algorithm, gets you a verification check, which is like the that was his that was a big deal. You could buy a verification check for the first time. And then he announced. So that happened. You could buy a check. And then he announced that the other day that he was taking away all legacy verified. Like all people who were verified, he’s taking it away. And the only way to be verified is to pay $8. And LeBron James is the first big celebrity to be like, if anybody knows me, you’ll know I’m cheap and I’m not paying $8 dollars, I’m not doing it. And then Stephen King said, I, too, am not paying $8. I’m not doing it. Like, take the check. I don’t care. So that day passed. Elon said everybody’s was going to go it didn’t. It didn’t happen. And then suddenly one by one, they started to disappear. So The New York Times was like when The New York Times sent out a release saying, we’re not paying for any reporters blue checks. So The New York Times was the first big account to lose their blue check. Only them though he didn’t pull anybody else’s like just The New York Times lost theirs. And you’re like, okay, well, that was sort of weird. And then he slowly, like inch by inch pulled other people’s and then last week we all lost it. Everybody who was legacy verified lost their blue check. And as you can imagine, chaos ensued because fake accounts started coming up. You know, and the reason why there’s verification on Twitter in the first place is because there was somebody who was impersonated and sued and then there is verification. So chaos ensues. And, you know, it’s like there’s like a Disney account that gets verified, but it is not Disney. It’s real people who get impersonated. Whole mess. And remember, the last time he did this, the stock for insulin fell because uh one of the companies impersonated um the real company. But then this is the best part of the story if you did not see is that because it was so chaotic, then Elon put in a new rule that said, if you had over a million followers, I’m automatically verifying you. So everybody with a million followers who were legacy verified, they get the checks back. So Chrissy Teigen is amazing. She’s like, I don’t everybody thinks that they paid for it. She’s like, I did not pay for this. Delete, delete, delete. So the way on Twitter to when Elon became in charge, the way to get rid of it is to change your name. If you change your name, it automatically deactivates. So Chrissy is like changing her name so that it disappears. And all these famous people who have a million followers suddenly are like changing their name so that the check disappears. Kobe Bryant suddenly verified and says that he participated in Twitter Blue. He did not participate in Twitter Blue. So all these people have passed away suddenly it’s like they gave their phone number. You’re like mm, I don’t think they did. And it’s just a mess. And then somebody starts a block the Blue campaign that’s like just block all the people who pay for it because it’s a scam. But it has been one of the most interesting things on Twitter to see verification be a black mark against you. And the way that it used to be something that everybody wanted. And now it’s like if you paid for it, not cool.
Myles E. Johnson: Yeah, it’s you know, I’m a pretty young person, but I remember the good days of, like good old classist status symbols that you used to have to have in your hand. Driving your car. And in my mind, this for whatever reason, this conversation goes to like a Bitcoin like uh space with me, we’re like, fake. Like where it’s like, it’s not real money, but it’s fake money and stuff like that. Because I years ago, I mean, like literally, like a couple of years ago, I was um verified under another name and I got really bored with my username. Um. That’s just my personality in general. I got really bored with my username and I changed my username and I knew that I was going to lose the checkmark and it just didn’t matter to me. I was like, I’d rather have a cute name than a check mark by my name. And it just it just it didn’t really have that much usefulness to me because there wasn’t like millions of people trying to impersonate me so I was like, okay, who cares? But it’s weird. Fast forward to like today, there’s so many people are seeing this like digital checkmark on an app as a status symbol. And I’m like, what happened to cars and designer clothes? And I don’t know, it’s just this a weird like, post-apocalyptic way of like asserting your power or your status in a society is that you have a blue mark next to your name on an app that like only one zillionth of the world actually uses? Um. That was the most interesting part of all this to me, is just very Hunger Games-y, very Black Mirror episode. So do you want your check mark back?
DeRay Mckesson: I’m lucky that my my twitter name is just DeRay, so people sort of will know that it’s me. Um. I do miss it for news purposes because that’s how I would know what reporters were like. That’s how I would know what to retweet. Because it was like, if you were a verified reporter, I would be more likely to be like, okay, they wouldn’t. This isn’t, they didn’t make it up. It’s not it’s not some weird thing. And now I don’t really know. So I just have to go by the people I follow I have to trust that if I followed you before he removed it, you were a legitimate reporter. Because that’s how I remember during the protests, that’s how I got burnt a lot is that I was retweeting stuff that just turned out not to be true because I like didn’t really know who was a reporter and who wasn’t. So that’s what makes me nervous now.
De’Ara Balenger: I guess I’m nervous about democracy. So [laughter] if–
DeRay Mckesson: Thank you.
De’Ara Balenger: –if this is the chaos that’s happening around something that I mean, it’s important because to your point, DeRay like, we want to make sure not to put misinformation in the world. So I just feel like if this vehicle is floundering, which seems like operationally a pretty easy vehicle to to run what’s happening when it comes to, you know, what’s the policy or what are the operations around monitoring, around making sure hate speech isn’t existing on Twitter, making sure Twitter isn’t being used for misinformation or disinformation. I just feel like this it’s kind of. I think it’s the beginning of the end for Twitter. That’s what I think. And I think that may be good. I don’t I don’t know.
Myles E. Johnson: I’ve long been a trendsetter. So when I started making my transition into Instagram baddie and stay at home house they/them it should have been cues that an era has died and another one is emerging. Yeah, I think and this kind of has to do with it and this. This started a little like just not as coherent as I would want it to be. But there’s something about like the AI happening and people, it getting better and people getting information through images and that happening and the fake news and the Deepfake videos, some of them look ridiculous and fake, but then others look really convincing. Um. And now people this like system that was used to verify certain types of specifically journalistic and newsworthy voices being taken away, the it to me, these are all symptoms of at least Twitter, if not the larger Internet. Writing from the inside, like writing from the inside, the fact that you could just put some stuff into a AI generator now and people think that the pope was walking around in– [laughter]
De’Ara Balenger: Montclair.
Myles E. Johnson: You know. It’s an interesting time.
DeRay Mckesson: That um that that Pope Montclair thing went far. It went far.
Myles E. Johnson: And not only did it go far, it went far. It was apparent apparently enough people don’t know enough about what the pope would wear, that it went far enough.
De’Ara Balenger: Yeah. What are y’all talking about? I didn’t. I didn’t. Again, how would I have seen that if it wasn’t on BET news? Can you please explain?
Myles E. Johnson: Well, the thing about it is, my my mother sent me this. [laughter] I’m over here like oh it’s got to the–
De’Ara Balenger: Because it was on it probably was on Facebook.
Myles E. Johnson: That’s what I was going to say. Once it gets to–
De’Ara Balenger: Another place where I do not live.
Myles E. Johnson: Once it gets to the Facebook. Oh, facts are facts are simply suggestions once it gets to Facebook. Um. So there was a picture of the pope in uh what do you call it like a like a like a coat, like a like a montclair coat, looking real–
De’Ara Balenger: Oh oh oh oh. I see.
Myles E. Johnson: –looking very swagged out in all white. And it was, I guess, for a lot of people, close enough to something that he they could wear and probably not maybe as informed of what the pope would wear. So, like, that image wasn’t was seen as cool but wasn’t like doubted and when you don’t doubt an image, you don’t look for things that suggest the image is made up and people were just passing it around like it really happened. I seen other things around, like gay prides like this gay pride in 1997 in Atlanta and those are just fake images or like here’s a punk rave from from 1976 of all Black people and it’s totally fake and it will get me you have to like really look to see the things that show you that oh this is a AI generated thing.
De’Ara Balenger: Okay.
Myles E. Johnson: Like if you–
De’Ara Balenger: So I–
Myles E. Johnson: If you saw this image.
De’Ara Balenger: Not to not to get us on a tangent, but DeRay and I both read Ted last week, and the one thing I learned from Ted is that this AI thing is going to bring us all down like this really–
Myles E. Johnson: Oh it’s coming for your head.
De’Ara Balenger: We’re talking about Twitter, Twitter and the dangers of Twitter. AI, it’s over. It is over. And the way these white people was talking about AI was so glorious. I was like, we are really in trouble. We are in trouble.
DeRay Mckesson: And the one guy was like, you know, I know it’s dangerous, but you’ll be able to register your identity with the patent office. And it’s like, sir, by the time they ruin my life, what? My, my, my notice to the patent office won’t matter by the time they deep fake my voice. Get me fired. Get me shot. Me calling the patent office to intervene is going to be a non solution.
Myles E. Johnson: Right. Specifically that, you know, we live in a post op– post post Oprah post post post Wendy Williams world. So if that if that deepfake is more interesting than that deep real? [laughing] That is your news story, that is who you are. If if that if that feels better and more interesting to people.
DeRay Mckesson: The other thing, too, while we’re here is um BuzzFeed News is going away. Did y’all see that?
De’Ara Balenger: No. No.
Myles E. Johnson: I did see that. RIP to a real one. Like a few years ago, there was some landmark what like what were the you probably you know better than me, DeRay. But I remember there being like some landmark things that they broke that were just [pause] like culture, like culture shifting.
DeRay Mckesson: Yeah, I don’t remember exactly what it was, but they definitely like to to say that BuzzFeed didn’t matter would just be to lie, you know what I mean like they were a and they were like our generation’s news thing um and gone and totally nuts.
Myles E. Johnson: Is it is it just I didn’t I saw the headline, but I didn’t um read it. It’s just about money?
DeRay Mckesson: It was money. Yeah, it was so, so so the the parent company that owns it is um also owns HuffPo. So they’re essentially putting all the news under HuffPo.
Myles E. Johnson: Oh. Which kind of makes sense because isn’t like Huffington Post kind of dying don’t they kind of need that extra support?
DeRay Mckesson: I don’t know much HuffPo I mean, I like about HuffPo. HuffPo. BuzzFeed to me was like the culture of the moment, the, the like, before it pops, I got the story. HuffPo, to me, it’s sort of like just Internet. It was like the Internet newspaper, you know what I mean?
Myles E. Johnson: Mm hmm. Yeah, No, that’s that’s, that’s really, really sad child.
De’Ara Balenger: This is listen, listen, I’m looking at um New York Times right now. Vice may close Vice World News if they can’t find a buyer. Insider um laying off 10% of its staff. Vox cut 7% of its workers. Um, some things are going on with Gawker as well. This is just–
Myles E. Johnson: I wouldn’t I’m not going to say what me and DeRay have talked about privately, but just say that this news directly aligns with what I’ve been trying to advocate to DeRay about privately. Um. So, you know.
DeRay Mckesson: What is that? You got to give me a teaser. I don’t know what that about BuzzFeed?
Myles E. Johnson: I no about news platforms and about–
DeRay Mckesson: Oh okay okay okay.
Myles E. Johnson: –platforms where writing can exist.
DeRay Mckesson: Got it got it. Okay, you’re hilarious. I’m like, what is that [laughter] like who are you talking too much uh too much cryptic here. I don’t know.
Myles E. Johnson: [laughing] Crypto language.
DeRay Mckesson: Well, we covered a lot.
Myles E. Johnson: In full transparency. It’s been a it’s been a chaotic, busy week for me. I’ve been booked, I’ve been busy. Um. It’s been a rollercoaster and we didn’t know if I was going to have news today and something told me, just take my self to Fader and find something. And I found Lizzo, it felt like she carved some news for me, like she did a thing this week just because she knew that I might not be plugged into the Internet. And what she did was she brought out a slew of drag queens. On her stage in um excuse me in um in Knoxville, this is so interesting to me. First of all, I think Lizzo is such an interesting pop star. I could sit and talk or write about Lizzo’s transgressive nature in the pop star cult– in the pop star uh uh environment for for hours. She, of course, because of size, because of how she wants to make music. So she’s not actually making these big vo– she’s not this like big vocalist on top of house music or kind of like almost using her voice as like, look what I can do. She’s making these songs that are just as much um concerned with melody and just as much concerned with being cute as like anybody else in pop music, which is sometimes we just don’t get that. You if you’re a big Black woman in music, you have to like wail all the time or make a certain type of music. I think that’s just transaggressive, just sonically. And then how she’s positioned herself is she hasn’t disappeared herself politically. She’s gotten more political, whereas other people, um even now in a post Lady Gaga born this way Beyonce I’m a feminist world, there are some people who still really ride a kind of apolitical, vaguely liberal uh uh persona and don’t really rock rock the boat unless it becomes just so comfortable to do it. And Lizzo, to me, really continues to do things that are provocative. Um. The images of this, this is really something that you have to see, the images of this of Lizzo Center stage and like drag queens to the right and to the left singing singing with each other is just super transgressive super camp. There’s something there is something humorous about the uh about the images as well. Um. And I’m going to quote her. “In light of recent and tragic events and current events, I was told by people on the Internet, cancel your show in Tennessee. Don’t go to Tennessee,” Lizzo said. “Their reason was valid. But why would I not come to the people who need to hear this message the most? Why would I not create a safe space in Tennessee where we can celebrate drag entertainers and celebrate our differences?” I love that. And if y’all remember rewind, that’s the kind of answer I wanted Beyonce to have when she was in Dubai. That’s the kind of comment that I wanted her like wanted to her to have because I was like, okay, you know, I can still that makes sense to me. And I can tell there’s somebody who’s thinking and reading and being critical and still came and did a action that happens to resolve you and still making money, which is also interesting when your political actions just happen to align with capitalistic gain. But you know, we take our wins how we can find them. But that’s just such a inter– to me, she’s such a smart pop star. And I think this was such a smart, provocative thing. And I think because sexuality and because of wealth, it’s such a [?] subject matter and something that is just not as exciting to us anymore. I think she finds ways to still do things that are provocative and and and new ways and ways that feel if not culture shifting culture cementing. In ten years when we see this, we’ll we’ll we’ll, we’ll look at this and we’ll know exactly what she was talking about, exactly the environment, exactly what she was protesting. And these are the kind of images and the kind of moments that highlight where we are in a culture that we can look back to as bookmarks. So shout out to Lizzo, shout out to the drag queens, shout out to uh the LGBT people in Knoxville who are um embarrassed.
DeRay Mckesson: I’ll say um [clears throat] so let me start in a hard moment and then get to Lizzo is that I was at a funeral last week. And it made me think a lot about like, what do I um one one of the questions was sort of, what do you want people to say about you? And I want people to say about me um, I am exactly who I say I am, like he was exactly who he said he was. He he was real. And that’s what I’d say about Lizzo. Like Lizzo is exactly who she says she is. She’s like, I’m a use my platform to tell the people positive messages, and da da da and she does it. I’m going to be comfortable with who I am in my body. She does it. I’m going to make products for people who look like me and are my community. She does it. Like the laws are unjust. I’m going to speak about them in every form that I can. She does it. And like it is you know, I’m a pretty hopeful person. I’m like a very optimistic person. And still I even get a little cynical about the entertainment space because the people we love sometimes just fall short of the ethics and fall face first into the capitalism. And what I love about Lizzo is that she just like she at every turn she like is who she says she is. And I really respect and love that. And it reminds me um that the good people exist.
Myles E. Johnson: That was so sweet and heartwarming.
De’Ara Balenger: It really was. And I also love this because it reminds me of Billie Holiday and how she would still go and perform and sing Strange Loop and get pulled off the stage when she did. So I just think it’s also–
Myles E. Johnson: Strange Fruit.
De’Ara Balenger: What did I say? Strange Loop?
Myles E. Johnson: You said Strange Loop.
De’Ara Balenger: Oh god. [laughter]
Myles E. Johnson: Yes.
De’Ara Balenger: Not strange loop.
Myles E. Johnson: Not that. Oh.
De’Ara Balenger: Strange. Not that strange fruit. Thank you Myles for the–
DeRay Mckesson: That was a [?] reference though.
De’Ara Balenger: That was it was. So I just, you know, I think. Yes. Like she she doesn’t have to do any of this, Lizzo. But she is to everybody’s point. And I just think it is in the vein of the legacy of so many incredible Black humans before her that did exactly the same thing. And it is it’s a courageous thing to do. Like she. It is illegal. Like what she did is against the law in Tennessee, which is wild, but it is also like she didn’t care. She was like, this–
Myles E. Johnson: Yeah.
De’Ara Balenger: –needed to be done. So, yes, amazing.
Myles E. Johnson: And it’s so interesting. I think that’s the most responsible thing you can do, because at the end of the day, America is a circus. But pop culture in America is a bigger circus. And the best thing you could do is create spectacle. And if you’re going to create spectacle and instead of doing it around champagne and around sexuality, um I think it’s always amazing when people decide to create spectacle around something that actually shifts things or empowers people.
DeRay Mckesson, narrating: [music break] Don’t go anywhere. More Pod Save the People is coming.
[AD BREAK] [music break]
De’Ara Balenger: My news is fascinating and I, I am I know that I’m ignorant to some things and and clearly missing something with this one. So evidently an Egyptian lawyer is suing Netflix for depicting Cleopatra as a Black woman. An Egyptian lawyer is suing Netflix for depicting Cleopatra as a Black woman. Okay. I know there are a lot of things happening on the continent, and because I have North African friends, I know the beef between the North Africans and the South Africans. And the colourism that’s happening there and the anti-Blackness that is happening there. But I guess what I did not know and what I’m missing and what I will do more research and work on is understanding how deep that anti-Blackness is. So this lawyer, Mahmoud al-Salmonic, al-Semary, um filed a case with Egypt’s public prosecutor demanding serious legal action against Netflix and blocking the platform in Egypt. Um. The complaint is about one, promoting Afro centrism that would erase Egyptian identity. And he wants to preserve Egyptian national and cultural identity among Egyptians all over the world and take pride in it um and believes that this depiction of Cleopatra is in contrast to that. The other thing I didn’t realize, and how would we know this, is that Kevin Hart was going to perform in Egypt, but then wasn’t able to because he was making connections between Egypt and Africa. So this series, which I didn’t really I didn’t know about, so um I also just want to watch it. It seems fascinating. The series is produced and narrated by Jada Pinkett Smith. Um. It explores the life of Egypt’s last pharaoh, Cleopatra, um her fight to protect the throne, her family, her legacy. Um. But moreover, I think what Jada is trying to do and what this article says, is she really just wants to depict African queens and the history of that, the resonance of that, um the need to know that. But this lawyer is arguing, really, that Cleopatra’s family roots are traced primarily to Macedonian Greece um and that only and some folks are arguing that she is part North African. But from his perspective and his research, she is more Greek than anything else. Um. And so even and then the larger picture is they’re like no matter what she was, we know that she was not Black. [laughing] We she’s anything but Black. Cleopatra, from this lawyer’s perspective. And also there’s a bunch of other Egyptians on here that are arguing the same thing. Um. Cleopatra was Greek. She was similar to the queens and princesses of Macedonia who were blond, not Black. This lawyer told uh this this news site al-Monitor. If we look at the massive figure of Cleopatra and her son from Julius Caesar on the south wall of the Temple of Hathor in Dandarah and her coins, there’s no evidence that she was Black. So if you look at her son. When he was on the wall or on some coins, you can see that his mom wasn’t Black, like, what are y’all even talking about? So I wanted to bring this to the pod because I just it was one of those things where I read it. I just was like, oh, this is like, this is deep. This is like some white folks hanging on to the Confederacy and the good old days type of narrative. Like, I just didn’t know that anti-Blackness on the continent was such. So–
Myles E. Johnson: It’s it’s–
De’Ara Balenger: Here’s what I got for y’all here’s she’s she’s but also, I feel like I grew up like, maybe it’s also, you know, because Black we love we love to take what’s ours. And I grew up being Cleopatra and Nefertiti for Halloween, and I grew up being like, they’re Black. These are Black people. They’re from Egypt.
Myles E. Johnson: Yeah. I this is such a weird story. I shouldn’t say weird it’s such an interesting story because, A, just as I was talking about, like, spectacle, this is obviously something to, in my opinion, being done in order to um get eyes and, and, and kind of a certain certain a specific type of narrative. But in my head and mind you, anybody who knows me knows I’m an old Hollywood lover. I’m like, British North British born Elizabeth Taylor. [laughing] [indistinct] Angelina Jolie. It was not her either. So to me, it has been of it has been a Hollywood movie. Cleopatra has been a Hollywood movie metamorphosis chameleon. And whoever is is imagining her life, who’s imagining um her gets to kind of project what it is like she’s she’s long been that kind of like chameleon cultural artifact that just like changes so and when Elizabeth Taylor was Cleopatra, it just so happened that Cleopatra fit the Black uh or excuse me, the white the white Hollywood um movie standards. Now that there’s been a um I mean, it’s not even now. And then when Michael Jackson wanted to assert his Afrocent– um Afro centricity and his Blackness, uh Iman was that was Iman, Iman was um uh Cleo uh Cleopatra like to me was that or was she Nefertiti? Let me watch the [pause] let me [?] I need a I need a that’s a good excuse to watch some more Michael Jackson. But either which way it’s been it’s just been long the tradition of whoever is the filmmaker and the storyteller, to make Cleopatra in certain people, in certain either historical art um people or even um mythical people in the image of the storyteller, because that’s a way to kind of show cultural dominance or to assert cultural dominance. And it’s never been seen, in my opinion, as a factual take, because at the end of the day, the people’s actual lives aren’t actually that interesting. It’s really just a way to assert cultural dominance. Yeah, I’m a hold onto that one.
De’Ara Balenger: But but but don’t you? But I feel like this is a case though. Like in the span of opportunities for people of color to play roles.
Myles E. Johnson: Mm hmm.
De’Ara Balenger: It seems to me that them playing folks that were popular or leaders in places where in places where people are majority of color. It just makes sense to me that it wouldn’t be an uproar for them to play that person. You know what I’m saying? It’s not like it’s not like we’re asking Cynthia Erivo to play Queen Elizabeth. Like this is a case where it’s like, Cleopatra was queen of Egypt.
Myles E. Johnson: I don’t I don’t I don’t–
De’Ara Balenger: Not queen of Germany. So–
Myles E. Johnson: I know. Well, A.) Africa’s not a monolith. So here. So when I’m not going to able to land on an answer without landing on white supremacy. But what I do know is that a lot of people who are not in America are tired of America’s SH when it comes to race. And people in Africa who I’ve talked to who are Egyptian, who are um who are in South Africa, all this other stuff, there are a lot of I should say there are a lot of people in Africa who who, who, who I’ve met who are like, no, Africa is not Black. Africa is its own experience. And y’all made up Black. And Egypt is not Black just because it’s in Africa. Because Africa is its own big continent. And if you look around in Egypt, these people aren’t what you would call these aren’t West African people. So I I get the resistance of of of Black Americans sometimes wanting to make Africa their Pan-African West African motherland fantasy and doing that by asserting the non-Blackness, which is racist, which is problematic. But I get how they get there. You know.
DeRay Mckesson: Yeah. The only thing I’d add is um like–
Myles E. Johnson: He’s so calm. [laughter]
DeRay Mckesson: Like like you said, Myles. Elizabeth Taylor well we know for a fact is that she did not look like Elizabeth Taylor. She did not. Or Angelina Jolie.
Myles E. Johnson: Okay.
DeRay Mckesson: Not with all of that sun in Egypt, I think what I was surprised at is how like it’s like the country itself is upset. Like the like the political like canceling Kevin Hart is like a it’s not just one person’s decision. And that is really interesting to me that is like the the decision to move away from Blackness is just that is fascinating, because what we didn’t see was the uproar about Angelina Jolie and all other people. And let’s be clear, if they casted a lily white woman, this would not be there would be no there might be an article, but there wouldn’t be a lawsuit. Right? Like, certainly wouldn’t be like a legal process to undo this. So shout out to Black Cleopatra. I hope Netflix makes four more with a Blacker Cleopatra.
Myles E. Johnson: But are we–
DeRay Mckesson: And–
Myles E. Johnson: –like interested in like, look, I’m always interested to me, like even when I think like Nubians, and just other or like woman king. I’m over here talking and I’m over here I still haven’t seen Woman King Bump but I’m just talking. [laughing] But like are we interested in better and more representations of African royalty that aren’t so fixated on Cleopatra?
DeRay Mckesson: I think we are. Yeah. But I do think we have a responsibility. And you look at some of the old images, like you talk about De’Ara that and they look on the wall. There are a lot of images of Cleopatra where she is dark skinned. Right? And we know that one of the things that happened in museums constructed in Europe is that they did whitewash the way that everybody looked. That’s why they, you know, destroyed the noses on the–
Myles E. Johnson: Knocked off the noses and stuff. Yeah.
DeRay Mckesson: Yeah yeah yeah. And when I really, really because at first I thought this was like maybe an earnest conversation about Cleopatra. And then I saw that they were saying um it was Black washed. And I’m like, well, not Black washed. Now, the moment you said that we Black washed Cleopatra, you completely lost any sense of credibility in the conversation. But yes, to your question, Myles, I do think we’re interested in like a deeper conception of royalty, but just like Jesus wasn’t white, like did not look like Brad Pitt. Didn’t not in that hot sun, did not.
Myles E. Johnson: That’s what I was trying to say, too, like even I didn’t want to call Jesus a mythical character, but I did want to say that it’s tradition for people to make people who are extremely powerful in their likeness to show cultural dominance and like Jesus, is obviously a good example of that um as well. Blackwash is a great name for something.
De’Ara Balenger: It is. [laughing]
De’Ara Balenger: But DeRay, I think to your point, I mean, like I’m agreeing with both of you and I think but partly it’s like I don’t. Yes, yes to Egypt being like, okay, America, we don’t want you to bring you know, we don’t want you to export your racism to us. But it’s also like they’re also racist. Like, I think partly like the way Egyptians have treated Sudanese refugees, the way like I think we can’t get away from like there is like an aspect of this is racism.
Myles E. Johnson: Oh, absolutely.
De’Ara Balenger: Like when I have to remind like and this is like what I have to remind my North African friends, y’all are African. And that may mean something different to me than it means from them. Given our given they weren’t raised in America. But there is some there’s is something there that is still universal in terms of don’t fall into white supremacy. That is going to separate us from people who are the most like us.
Myles E. Johnson: Yeah, no absolutely. Yeah, I wasn’t I was never trying to suggest that it wasn’t racist. I think I just I just was in my head able to map out intellectually how they arrived at the racism where they’re like, oh, y’all on this Black and white stuff. Because even me in Georgia because, yeah you, I could bring it home. If I’m in Georgia, literally, you’re Black, white or Mexican. And Mexican just happened in 1999. So in my whole life when I was in Georgia, you were either Black or white. Soon as I come here, I’m not Black. I’m Cape Verdean. Oh, okay. I’m not Black I’m Dominican. Well, you you look of the Negro persuasion to me. And it just seems like what’s happening with Egypt is just that happening on a larger scale where it’s like don’t bring that American Black white stuff over here, I’m Egyptian. I’m not your your your Negro 1995, remember the time fantasy. And neither is my Queen Cleopatra. But she’s still gonna have an afro and 4C hair.
De’Ara Balenger: Let’s have Beyoncé play Cleopatra and see if they have–
Myles E. Johnson: No I don’t need–
De’Ara Balenger: –something to say.
Myles E. Johnson: –that’s that’s too close.
De’Ara Balenger: I bet you they wouldn’t say nothing.
Myles E. Johnson: No. Yeah of course they wouldn’t.
De’Ara Balenger: Bet you they wouldn’t say nothing.
Myles E. Johnson: We need Lupita.
De’Ara Balenger: They wouldn’t say nothing. Okay.
Myles E. Johnson: We need Lupita.
DeRay Mckesson: Lupita. [laughing] [indistinct] So mine so let me just preface how this has to do with Black people, is that this story is one that I swear to God I grew up in because my aunts were always in a bath and body works.
De’Ara Balenger: No bed, bath and beyond.
DeRay Mckesson: Bed what is it called? [laughter] [banter]
Myles E. Johnson: That’s why they going out of business. That’s why [laughing]–
De’Ara Balenger: DeRay.
Myles E. Johnson: –they going out of business. [laughter]
De’Ara Balenger: Turning into me. [laughter] Turning into me, [laughter] you know I always love to–
Myles E. Johnson: That’s exactly why they [?].
De’Ara Balenger: —misname something.
DeRay Mckesson: [?] all confidently too.
Myles E. Johnson: Yeah, everybody think they’re going to bed, bath, and beyond and it’s Bath & Body works and that’s why they going out of business. [laughter] Jesus. Jesus.
DeRay Mckesson: Oh God.
Myles E. Johnson: Wait is there another store?
DeRay Mckesson: Bed Bath Beyond is going beyond everybody. It is going beyond existence because Bed Bath & Beyond is going out of business. And they were iconic for the coupons. I just remember there being a million coupons. You could buy whole sets of things. It was like a whole thing um and they’re going out of business. So this was my I don’t really do a lot of culture news on the pod. I normally I always have some thing where a system broke. But today I decided to bring um not Bath and Body works but Bed, Bath and Beyond, which is going out of business. Closing stores and to zoom all the way out, I do think there’s something really interesting happening about online retail, which is like its own thing, but also a set of stores that like people who don’t shop on the Internet, will no longer be able to go to. That were inexpensive, that were accessible, that did take cash, da da da like I think about my grandmother, I think about my aunt is not like buying a lot of stuff on Amazon. But there are stores that she goes to regularly. And what happens when they go bankrupt? What happens when they leave communities? And then people are forced to participate in the online retail space. That is just a very different thing, especially if you didn’t grow up in it.
Myles E. Johnson: Yeah, no, um I was I kid you not I when you sent the news, I was already in the mood of a com– for a comforter. We were we’re about due for a new comforter and a new um bedding set. And I went on DoorDash and I ordered my comforter and bedding set and candles and play um boyz to men, it’s so hard to say goodbye as the deliverer as the delivery person comes to my came to my door and it’s the end of an era. And I think that you’re right in the in the idea that there are for me, I’ll say it’s because it’s synonymous with Black woman going to shop for things that were not necessary. And that part makes me sad that, you know, the candles, the the all the accouterments that were in bed, bath and um and and child bed, bath and beyond um all all those things is that there is something there does feel like there’s like some symbolism there where like, oh, where where our aunties, where our grandmothers, where um my mother would go and like shop that’s no longer there when they would get things that they didn’t need, but they wanted and that would help life be a little bit easier. Um. Yeah, it’s it’s it’s truly sad. Buy a candle.
DeRay Mckesson: De’Ara.
De’Ara Balenger: Like there was somebody told me the other day about a TikTok with this little girl. She was on punishment because she missed a phone call from her parents and she was like crying. She’s like, I wish there was just a phone. That was only one phone in the house and it rang loudly. And everybody in the house could hear the phone. Girl land line. Like I feel like [laughing] like so many vestiges of how I grew up and what shaped me just in terms of the conveniences of how we lived. Or maybe these things weren’t convenient. I just think they are all, they’re disappearing. And I think big box stores like this that are going out of business, that are also taking jobs with them across the country just makes me a little sad. Sad because I wonder how many stores, how many stores does Bed, Bath and Beyond have across the country? I would imagine like–
Myles E. Johnson: It said 360, right?
DeRay Mckesson: Only like 300 now. They used to have 1000 um and now–
Myles E. Johnson: Yeah.
DeRay Mckesson: –they only have like 300. De’Ara, I didn’t even think about the that’s a good point. I didn’t even think about what this does to the economy. I was thinking about people not being able to spend money. But I do think about all the people now who had their job, like who this was one of their first jobs or they made money there. And like what you like, you’re not making money on Amazon. Very few people are monetizing Amazon for themselves who are not content creators. Right? Um. Yeah. Shout out to not Bath and Body Works. Or whatever the [?] it’s called.
Myles E. Johnson: Oh child.
DeRay Mckesson: [?]. I don’t know why that tickled me so much. That is hilarious.
Myles E. Johnson: And just a super duper side note. A super duper side note about Bed, Bath and be um beyond. Um. The stores at least in the New York area have not gotten the note that they closing down because when I tell you I paid full price for that comforter, [laughter] I said I said now I thought y’all were going out of business, where there was no coupon no markdown.
De’Ara Balenger: We may need we may need to ride over to Industry City to see if–
Myles E. Johnson: Yeah.
De’Ara Balenger: –it’s if it’s happening in the store. I’m a call, look, I’m a call over there today.
Myles E. Johnson: Yeah. So just to let y’all know, the liquidation has not quite set in. [laughter]
DeRay Mckesson: It is also like, you know, they’re so known for the coupons, which you all know is that they’re actually phasing out the coupons in like the first week in May.
Myles E. Johnson: What?
DeRay Mckesson: So yeah.
Myles E. Johnson: To what?
DeRay Mckesson: That’s like a–
De’Ara Balenger: Yeah, that makes–
DeRay Mckesson: They’re like not–
De’Ara Balenger: –sense.
DeRay Mckesson: –they’re no longer taking coupons um as as they as they transition to the end. It says it will stop accepting its coupons on Wednesday when it’s store closing sales begin. Customers will have until May 8th to use Bed and beyond, bed, bath and Beyond gift cards.
Myles E. Johnson: So now everything is going to be just be full price after that?
DeRay Mckesson: Yeah, which is a bizarre way to shut down.
Myles E. Johnson: Or maybe they’re going to do markdowns that you won’t be able to compound with coupons. Let’s hope that’s it.
DeRay Mckesson: [?].
Myles E. Johnson: Because I got some candles. Oh. Oh.
De’Ara Balenger: You know the other the other store like when we just in Canada, um Nordstrom was closing in Vancouver. So I guess Nordstrom is closing all of their stores across Canada. Which.–
DeRay Mckesson: Oh, yeah, I heard that.
Myles E. Johnson: Nordstroms, Barneys. All those things are are are about to–
De’Ara Balenger: Now if they ever close Nordstrom Rack, I don’t know what my dad is going to do on his, do not know. Okay.
DeRay Mckesson: The rack is such a like I remember the first time going being like this can not be the way people shop. Like I I’m okay with going in.
Myles E. Johnson: Yeah.
DeRay Mckesson: But this is too much it is chaos.
Myles E. Johnson: Chaos.
DeRay Mckesson: I don’t need nothing that bad.
De’Ara Balenger: Mm mm.
Myles E. Johnson: Chaos.
De’Ara Balenger: My dad could be in there all day and come out with 20 ties, four suits.
Myles E. Johnson: And those were my premier shopping experiences where Bed, Bath and Beyond, Nordstrom racks. Um. All those like, like outlets and stuff like that. So–
De’Ara Balenger: Yeah.
Myles E. Johnson: Like, ima– imagine little, little, little me when I first like, waiting to like Bergdoff Goodman, I’m like, Oh my God. [laughing]
De’Ara Balenger: No Myles.
Myles E. Johnson: [?] okay how do y’all make money, there’s only four things on the floor.
De’Ara Balenger: No my dad would do that. Because they sent me to that private school, and then I wanted a pair of DKNY jeans. I remember this. I was in the ninth grade and my dad took me to TJ Maxx, Marshalls, Nordstrom’s Rack, Filene’s Basement, Syms, like all the discount stores, he was like, well, if we can’t find your jeans here. Then I’ll take you to Nordstrom to get the jeans.
Myles E. Johnson: Wow.
De’Ara Balenger: By the fifth store, I was like, never mind, just forget it. I don’t even want em.
Myles E. Johnson: Listen.
De’Ara Balenger: I don’t even want em.
Myles E. Johnson: You ready for war after you do shopping at those stores.
De’Ara Balenger: I don’t need em. I don’t even want them anymore. [laughing]
DeRay Mckesson: And those value city, what? Like, really? What happens, though for people who the internet is not their way of buying things like you are really in a bind.
De’Ara Balenger: And that’s like malls. Like, I don’t. I love malls. And so just in all my travel, somehow I end up going to a mall. But I just feel like the malls just in the last few years, so many malls are closing or they’re just empty. Just really empty.
Myles E. Johnson: No it’s it’s–
De’Ara Balenger: So it’s wild.
Myles E. Johnson: It’s really sad. And I just, I just think that people who are not. I think the the harsh reality is and [?] at capitalism is that the people who are not savvy or like Internet savvy and like doing their shopping on the Internet, they’re just being disappeared and like they’re I think the dollars they’re bringing is just being like, oh, we don’t need that. Um. It’s being like, disregarded, which is sad. Um. We live in New York City, so it’s kind of we’re kind of like lucky because if you do want a candle or if you do want those type of things, there’s actually a lot of places, boutiques and stuff like that that have that have those things and and stuff like that. But yeah, if you’re in a place that doesn’t have just a plenty, like so many uh independent businesses and and entrepreneurial businesses and stuff like that, you’re kind of out of luck. And I just feel like most companies are saying and we don’t care. We’ll like put our put our money on the people who are buying online.
DeRay Mckesson: Boom.
DeRay Mckesson, narrating: Hey, you’re listening to Pod Save the People. Stay tuned. There’s more to come.
[AD BREAK]
DeRay Mckesson, narrating: [music break] This week, we welcome Joanna Schwartz to the Pod to talk about her new book, Shielded: How the Police Became Untouchable. Professor Schwartz is at UCLA, where she teaches civil procedure and courses on police accountability and public interest. Let me tell you, been a fan of Professor Schwartz for a long time. If you’ve ever heard of qualified immunity in the news or anywhere else. She is likely the reason. And in the book Shielded she uses over her two decades of advocacy and research to talk about the many ways in which the legal system protects the police at all costs. We talk about a lot. I learn from her every time I see a tweet. Every time I talk to her. And this conversation was no different. Hope you enjoy.
DeRay Mckesson: The one and only, professor Joanna Schwartz, thanks for joining us today on Pod Save the People.
Joanna Schwartz: Hey, thanks for having me.
DeRay Mckesson: You know, you were one of the first scholars of policing that we ever reached out to in my organizing work. And we’ve known you for a long time, but excited today to talk about your newest journey as an author of a new book. But before we talk about the book, how did you get to studying the police? Did you as a kid, did you always were you fascinated by the police? Did you stumble upon a case one day that changed your life? Like what was how did you get to the point of being a scholar on policing?
Joanna Schwartz: Uh. None of those none of those uh origin stories, although they would be great, uh are are true. I actually I mean to go way back uh after college, I thought I wanted to be an actor in the in the in the biz. And I worked as a personal assistant.
DeRay Mckesson: Really?
Joanna Schwartz: Yes. Yes. And I worked as a personal assistant. Uh. And, uh you know, all all respect for the person I worked for. But it was not the career choice for me. And uh and I ended up leaving that job going completely the other direction, starting to work at an alternative to prison program uh where I was in the Bronx Supreme Court, which is the courthouse in the Bronx, working with first time felony offenders, uh trying to get them out of jail and prison. And that led me to go to law school, and that led me to want to be a public defender. And I didn’t end up being a public defender, I ended up being a civil rights lawyer, um representing police officers, I mean, representing people in lawsuits against police officers and against the New York City Department of Corrections. And when I was doing that work, I started thinking a lot about how civil rights litigation actually worked and what impact these lawsuits that we were bringing against the police and the Department of Corrections, what impact they were actually having. And then those questions led me to want to be a law professor to start studying what was actually happening in these cases. And and then, you know, each time I did a study trying to understand what was happening, I got more questions in my mind about about other things that I wanted to know about. And that basically tells you what I’ve been doing over the past 15 years, which is looking at how civil rights litigation works, all the barriers to relief in these cases. And uh and after George Floyd was murdered in May of 2020 and people were writing and calling, trying to figure out how this system worked, I decided that I should write a book to write, to try to explain these realities to people who you know don’t like reading law review articles for fun on the weekends.
DeRay Mckesson: Are there any cases from the earliest part of your career that you will never forget?
Joanna Schwartz: Oh yeah, for sure. And I talk about a couple of them in Shielded. Uh. One was a case that we brought against the New York City Department of Corrections for abuse and force on Rikers Island, which, you know, there’s been lawsuits brought against the Department of Corrections for Rikers Island abuses for decades. And I was involved in one of those cases, and my experience working on that case really uh influenced, you know, sort of everything that I’ve done since then. Um. In some ways, we were deposing, meaning questioning under oath officers you know who had been directly involved in these beatings. And I was doing some of these questionings as a very new lawyer. And I remember looking at the personnel files of these officers and not seeing any indication of of lawsuits that were uh filed against them. But when I questioned them, they had been sued. They didn’t remember anything about the cases. They didn’t know whether they’d won or lost. They didn’t know what the allegations were. They didn’t know what the plaintiff got in terms of money. And then when we deposed the highers up, they didn’t know what had happened in these cases either. And I remember thinking very, very uh troubled at the time that we were spending all of this time and had spent decades bringing these lawsuits against the New York City Department of Corrections and its officers and they didn’t even seem to collect information about these suits. So how could they possibly be making a change when no one was paying any attention to them? And so that that was an experience that definitely has stuck with me.
DeRay Mckesson: Now do all the cases that you have seen and the politicians you’ve helped, the activists and organizers that you’ve supported. How did you decide on the book? There are a lot of things, that I have to imagine didn’t make it in the book. There are a lot of things you couldn’t you could have written about, but you sort of chose not to. How did you, tell me about how you chose the scope of the book, given the scope of the, the huge range of things that you’ve studied over the years?
Joanna Schwartz: Yeah, well, and it’s it’s a really good question because you could write a book about police violence, accountability and reform that was 5000 pages long, right? There’s so many things that you could talk about. And really what my focus is has tried to be narrow. Um. I’m asking in the book. Uh. When you know you can you can agree and disagree about how often police violate the law and violate people’s rights. But when officers do, we should agree that there should be some accountability, some justice for the victims, and lawsuits are the best and often the only way of getting some measure of justice. And the book shows all of the ways in which those that ability to get justice through civil suits have been thwarted by the Supreme Court and state and local governments. I’ve tried to focus in that way because I think that uh if you go too broad, there’s there’s um you know, there’s there’s there’s no way to to cover it all. I wanted to cover a specific set of problems um that that arise when people’s rights have been violated, partially to also to try to find a place of some agreement. You know. I I hope that people can read this book and have different points of view about abolition, different points of view about um the, you know, the extent to which reforms will work, different points of view about whether police are um all bad or, you know, mostly good and still be able to agree about the need for accountability in cases where people violate officers violate the law.
DeRay Mckesson: Now let’s do the 101. What is qualified immunity?
Joanna Schwartz: [laugh] Qualified immunity, which has been in the news for years now and is still really hard for people to understand because it’s a really confusing and and really hard to believe uh it exists kind of legal protection. Um. It was created by the Supreme Court in 1967. At that time, the Supreme Court described it as a good faith defense. So if officers violated the law but thought they were acting in good faith er but were acting in good faith because they thought they were applying the law, then they would be protected from liability in a civil case. It does not apply to criminal cases. Just is an important point to note it’s about damages in civil cases. But the Supreme Court has expanded that protection over time. They first got rid of this good faith standard and just said we get we’re going to focus only on whether officers uh violated clearly established law and then they defined clearly established law in a way that is virtually impossible to meet. So today, what the standard is for qualified immunity is that even if an officer has violated the Constitution, if the plaintiff can’t come forward with another court decision where an officer violated the Constitution in the similar way under similar circumstances, then that officer gets qualified immunity. And it’s not enough to just say it’s clearly established that officers can’t use force against a suspect who has surrendered. The plaintiff, the person who was beaten, has to find another court case where an officer used a similar type of force after the plaintiff surrendered in a similar way. It’s a really difficult standard to meet.
DeRay Mckesson: Can you give us a real life case where qualified immunity has been invoked?
Joanna Schwartz: I can give you many [laughter] real life cases where qualified immunity has been invoked. Uh. Let me give you two. So there is a man named Alexander Baxter, who uh was suspected of burgling a home. Officers were looking for him. He knew he was surrounded. He sat down with his hands in the air and having surrendered, the police officers nevertheless released their police dog on him and the dog attacked him under his arm because he had his hands in the air and and really seriously injured him. So he brought a lawsuit. In that same court there had been a prior court decision saying it was unconstitutional to release a police dog on a person who had lay down on the ground in surrender. And the court looked at that prior case and said that decision where it was unconstitutional to release a police dog on a person who was lying down did not clearly establish that it was unconstitutional to release a police dog on a person who was sitting with their hands in the air. The other example I wanted to mention is a case out of Fresno, California, where officers, when executing a warrant, stole pocketed for themselves a quarter of a million dollars in cash and rare coins. And those officers were given qualified immunity because there was not a prior court case, even though the court recognized officers should know that they can’t steal things while they’re executing a warrant. There hadn’t been a prior court case with similar enough facts to put those officers on notice that they couldn’t steal that money and those coins from the person who they were searching.
DeRay Mckesson: And what do you find, I mean, you wrote a whole book you insert writing a book about it. But what what do you find in your conversations with people that they screw up about qualified immunity or when you hear it on the news and you’re like, ugh close but not quite or you’re like, that’s just not qualified immunity, stop calling it qualified immunity. What is that?
Joanna Schwartz: Well, I would say a couple of things. One is it does not apply to criminal cases. And I mentioned that a minute ago, but it’s important to emphasize it. Uh. There are other protections that officers have in criminal cases, but qualified immunity is about civil liability, meaning a civil suit seeking money damages. That’s one thing. Um the other thing is and and this truly gets under my skin, but the the people who defend qualified immunity, who don’t want to reform qualified immunity, offer versions of the same story again and again and again. And the story is that if officers don’t have qualified immunity, they will be bankrupted for mistakes that they make in a split second on the job. And I have studied this issue. Uh. I’ve spent years studying this issue. And that claim is wrong for two reasons. One is that officers are not threatened with bankruptcy when they are sued, and the protection has nothing to do with qualified immunity. The fact is that state and local governments across the country have what are called indemnification agreements, and those agreements provide that when an officer is sued, they’re they’re given a lawyer and settlements and judgments entered against them uh are paid by the local government or the government’s insurer. And when I looked at 81 law enforcement agencies across the country over a six year period, 99.98% of those dollars were paid by insurance companies, insurance companies or local governments, not the officers. 0.02% was paid by officers from two jurisdictions out of the 81 I studied, and they paid on average, in the rare event that they paid anything $4,000, which is which is not [?]–
DeRay Mckesson: $4,000.
Joanna Schwartz: $4,000, not a bankruptcy–
DeRay Mckesson: C’mon.
Joanna Schwartz: –petition, not a bankruptcy petition. So so officers are not being threatened with bankruptcy and qualified immunity is doing nothing to protect them from being threatened with bankruptcy. The other part is about these mistakes made in a split second. This drives me crazy because the Fourth Amendment, as interpreted by the Supreme Court, already protects officers who make mistakes during their work. If the mistakes are reasonable, the Fourth Amendment protects against unreasonable searches and seizures. And the way in which the Supreme Court has interpreted that it’s from the perspective of the officer. So if an officer I mean, the Supreme Court’s own decisions, say, when you’re looking at force used by an officer, you have to look at what the officer experienced at the time in the moment, what they were, what they were um faced with. You can’t look with 20/20 hindsight. You have to you know recognize that they might have misperceived things, might have made mistakes, and they’re not they haven’t violated the Constitution if they’ve acted reasonably. So the other half of of that defense of qualified immunity is that officers are going to be held liable uh if if they don’t have, let me start again. The other part of this is that they the other half of the justification for qualified immunity is that officers need it so that they’re not held liable for making split second mistakes. But what that defense of qualified immunity ignores is that the Supreme Court’s interpretation of the Fourth Amendment already protects against reasonable mistakes made on the job by officers. The way that the Supreme Court talks about the Fourth Amendment, they say that officers can use force so long as it’s objectively reasonable, reasonable to a reasonable officer under the totality of circumstances that they’re facing, making clear that you can’t use 20/20 hindsight to assess what an officer’s done. And all of that really means that qualified immunity isn’t necessary to protect officers from being sued when they make reasonable mistakes. The Supreme Court’s interpretation of the Fourth Amendment already does that.
DeRay Mckesson: So one of the things I learned in the book that I just didn’t know about at all was the Monroe v Pape decision, I think is what it’s called.
Joanna Schwartz: Yeah. So you know–
DeRay Mckesson: And had never heard of it. Can you tell us why why it matters?
Joanna Schwartz: Absolutely. So Monroe versus Pape is a decision that the Supreme Court issued in 1961 which first recognized that people could sue the police and other government officials when they violated the Constitution. And what the court said was that they could use a statute that was actually enacted 90 years earlier after the Civil War, during reconstruction in 1871. This is a statute that was originally passed as the Ku Klux Klan Act. And, you know, making sense to it’s it’s name. It was during the birth of the Ku Klux Klan and other white supremacy groups after the Civil War. And those groups were terrorizing and killing Black Americans and local law enforcement, local government was either participating in the violence or doing nothing to stop it. And Congress created this statute that said you could sue uh people for violating your constitutional rights in federal court, because state courts at the time were a very hostile place for Black people to be. And then the Supreme Court basically interpreted the 14th Amendment and other aspects of the law in a way that made that statute almost impossible to use during the birth of the civil rights movement in the 20th century. Courts started thinking about whether they could use that statute. And then it was in 1961 in Monroe versus Pape that the Supreme Court first ruled that officers could be sued for violations of the Constitution in federal court. But before that decision, if an officer assaulted someone, falsely arrested someone, the only thing you could do was sue in state court for a state law claim of assault or battery or false imprisonment. And those cases were heard by local judges, local juries that were really hostile to those kinds of cases. So Monroe vs Pape really opened the door to civil rights litigation, police misconduct litigation in our country in 1961.
DeRay Mckesson: Boom. I didn’t know any of that. Can you talk about what you think 2020 did to the landscape of the conversation around policing. You highlight George Floyd in the you you talk about the moment in the book. Like what 2020 man but can you tell us here like what what happened?
Joanna Schwartz: Yeah, well, if you think about the first reconstruction as the reconstruction following the Civil War. And you think about the second Reconstruction as the civil rights movement in the Sixties and as far as civil rights litigation was concerned, this Monroe versus Pape decision, it seemed like George Floyd’s murder in May of 2020 was prompting a third reconstruction. It was a moment where national international attention were focused laserlike on the problems of police violence, misconduct, accountability um and the racial disparities in policing. And I think in that moment you saw protesters carrying signs that said end qualified immunity. You saw state and federal legislatures thinking, we have to do something. We have to take some sort of action to improve. And I think there was a lot of important things that that did happen. You know, people have said following the killing of Tyre Nichols that nothing has changed. I don’t think that nothing has changed. I think that the conversations that began following the murder of George Floyd, the policies around the country that have been enacted to prohibit uh chokeholds and no knock warrants and to make uh allow force only when necessary, and decisions by state legislatures in Colorado and New Mexico and New York City to basically create state law rights to sue under the constitutional violations without qualified immunity and decisions by local governments uh like Philadelphia to limit or prohibit low level traffic stops. Uh. Decisions around the country to have unarmed mental health professionals uh respond when people are in mental health crises. All of those changes, I think, were inspired. They they had been recognized as important for a long time before George Floyd’s murder, but 2020, I think created a national urgency about making those kinds of changes. Now, of course, you know, it’s not like that um that moment uh moved us into a golden age of police accountability. There’s still many problems. There’s been a lot of backsliding. Um. And, you know, we’ve certainly got a long way to go since, you know, from from where we are now. But when you look at the response after Tyre Nichols killing with video immediately released with officers uh prosecuted and fired with the elimination of the Scorpion unit, you know, these are these are important and quick changes that I don’t think would have happened ten years ago. Again, I don’t think that they’re complete. There’s there’s a lot of things that you can criticize about the response in Tyre Nichols case. But I think that we are seeing some progress that can be pegged to uh the conversation that began in May 2020.
DeRay Mckesson: And one of the um one of the parts of the book that I was like, hmm didn’t know she was going to include this. I was like, this is interesting was a chapter on juries. I had anticipated some of the like. I was like, okay, I’m going to learn some court cases I didn’t know. I’m going to see a fleshed out explanation of qualified immunity. Juries I was like, okay, I wasn’t anticipating this chapter. And you go through some examples you like talk about notification da da why did you include that chapter? Like what what did you want people to take away from from that? Because I don’t think that the conversation about juries is is something that people commonly bring up in the conversation about police accountability.
Joanna Schwartz: Yeah, thanks for that question. I think it is really important. And, you know, I, I thought about what the barriers are to relief in police misconduct cases. And when when people think about that, they often think about the Supreme Court. And the Supreme Court has created a lot of barriers um like qualified immunity, like their interpretation of the Constitution. But even when you get past all of those barriers, then you still the goal in these cases for many people is to get to a jury, a jury of your peers who can hear the case, who can um decide you know what what the just outcome is. But I think it’s really important for readers and listeners to know that the way in which juries are assembled ends up weeding out a lot of people who might be sympathetic to plaintiffs in these civil rights cases. And it’s and it is uh a barrier that people don’t tend to think about. But as I talk about in the book, federal jury service, federal court jury service excludes, first of all, anyone who’s been convicted of a felony, okay. Which disproportionately excludes Black men particularly, uh and dis– and excludes a whole group of people who have had face to face direct connection with the criminal justice system and police. And so would be really well um uh situated to make to make assessments about police misconduct, in my view, then it eliminates anyone who’s not a registered juror. Um is a registered voter excuse me, eliminates anyone who’s not a registered voter. And then from that smaller pool, uh juries are made up of people who receive jury questionnaires. So they have to have stable homes where they can receive those questionnaires and have the time to fill out that questionnaire, return it, and then show up to jury service. And if you look at uh I look I focused that chapter on a case that came out of Florida in a district where 40% of Black uh community members are excluded from jury service for one or more of these reasons. And so this ideal of having a jury of your peers is really tampered muted, by the way in which this um jury service is you know, people come to be selected to be on juries.
DeRay Mckesson: Um. Do you do you feel like there’s any progress being made there or not in terms of the jury conversation?
Joanna Schwartz: I think that the conversation is happening. And actually just recently there was a lawsuit filed in New York about New York, uh New York’s jury service uh rules, and specifically about the the exclusion of people who have been convicted, convicted of felonies. And it’s a it’s an incredible complaint. Uh. I’ll I’ll share it with you. But the um part of what it talks about is the fact that who is convicted of felonies, who’s charged and convicted of felonies relates to all of the racial disparities in policing generally. Um. And so if you have police forces that disproportionately target and arrest Black people. Then you’re going to have and you have lifetime exclusions from jury service of people who have been convicted of felonies. Then you are dramatically limiting the represen– and the representation of Black people on these juries who are deciding criminal and civil cases. So is there is there movement? I don’t know uh that there is movement right now, but I can tell you that there are efforts to try to change this practice that are percolating around the country. And I think it’s it’s a really important area uh for for us to focus on.
DeRay Mckesson: Boom um what do you think comes next in in the work? So you’ve helped us all like understand the issues better. If you had a magic wand, would it be the QI sort of goes away at the federal level today. Do you think some states are going to do it better? Would you like to open up a little school to teach all the congresspeople so they stop saying QI wrong? Because Lord knows [laughter] that’s a doozy. Uh. If you had a magic wand, what’s your what’s the one thing you want to happen in magic wand land?
Joanna Schwartz: No, man. One thing in magic wand land? You know, if I think if, you know, I have focused a lot in my research on what I and others refer to as back end accountability. So what you do when officers have violated the law, what kinds of remedies you have for people, you know, but if I have a magic wand, what I’m going to use that magic wand for are front end reforms to try to prevent these injustices from happening in the first place. Um. And really, that means, I think, limiting the the kinds of interactions that police have with people. So I think that changes like the one that Philadelphia has um put forward that limits police ability to stop people for minor traffic violations. That kind of change, I think, would be an important one to replicate and reproduce. And importantly, I actually think that those kinds of changes are changes that police unions and officers can get behind as well. In Los Angeles recently, the the police uh largest union for the LAPD suggested a bunch of changes, including getting police out of the business of some lower level nonviolent policing, policing work that that abolitionists and reformers would also support, I think. And so I actually think that there is a way you may not even need a magic wand. There may be a way to find agreement um across people with very different views about the ultimate form police should take about getting police out of the business of a lot of the policing that they do that that ultimately leads to violence and death. Traffic stops uh again and again are the first interaction between police and people they kill. So let’s get police out of the business of low level, low level uh traffic stops.
DeRay Mckesson: There are two questions that we ask everybody. The first is uh, what’s a piece of advice that you’ve gotten over the years that’s stuck with you?
Joanna Schwartz: A piece of advice I’ve gotten over the years that has stuck with me. You know, when I was in the beginning of my um life as a law professor, trying to figure out what I should do. A colleague gave me the advice of figuring out what your superpower is and focusing in on that, what your comparative advantage is, what your superpower is. And I think it’s a really good piece of advice that can apply in a lot of different settings. The general lesson I think, to take from it is consider sort of what your strength is, what you bring to the table, and bring that to the table. You don’t have to be everything for everybody. Um. You don’t have to sort of I find that a lot of my students, for example, uh struggle with trying to figure out what their best possible use is if they’re interested in criminal justice or public interest lawyering generally is sort of where they can be most what what’s where is the area of greatest need, most value? And I actually think the way to look at it instead is where can you do the most good? You specifically, you given your strengths, your commitments, um your passions, and to to follow that because that’s the way you’re going to do the most good is if you use the strengths that you have, rely on those and and strengthen them further.
DeRay Mckesson: Boom. And the last question is um, what do you say to people who feel like they’ve done all the things. They read your book, read mine, listened to the podcast, emailed, they stood in the street, they testify, they lobbied, and the world hasn’t changed in the way they wanted it to. What do you say to those people?
Joanna Schwartz: First of all, I say thank you for caring. Thank you for working and pushing. And I also say the fight is never going to be over. I mean, you have to get you have to be comfortable with the idea that the fight will never end. And, you know, I again, I talk to students who get frustrated by the law and frustrated by all of these barriers to relief in these cases. And they think, oh, geez, maybe I want to go be like a family law lawyer go go, like, do something completely different, real estate law. And you you can’t you can’t give up. But you also have to recognize that the system is the way that it is, because there’s a lot of powerful influences that want it to be that way. And no change in any social justice arena has been permanent. There’s two steps forward, one step back, one step to the side. Another step forward. Two steps back. I mean, this is how progress and change happens. So I say, you know, get ready for the very long fight, but also make sure to take care of yourself because you have to you have to take care of yourself to be able to do the other work. So so make sure that you are in preparing for the long fight also, you know preserving your own ability to engage in that fight over the long haul.
DeRay Mckesson: How do people stay in touch with you? Where do people go to be up to date with what you’re doing?
Joanna Schwartz: So uh I am on Twitter. @JCSchwartzProf. I’m also I have a website that has a lot of great information about my research and about my book. And it is JoannaSchwartz.net. So J-O-A-N-N-A-S-C-H-W-A-R-T-Z dot net. And those are the best places to find me.
DeRay Mckesson: Boom. Well, we consider you a friend of the pod. Everybody go get the book and can’t wait to have you back.
Joanna Schwartz: Can’t wait to be back. Thanks so much for having me.
DeRay Mckesson: See you later. [music break] Well, that’s it. Thanks so much for tuning into Pod Save the People this week. Tell your friends to check it out and make sure you rate it wherever you get your podcasts. Whether it’s Apple podcast or somewhere else. And we’ll see you next week. Pod Save the People is a production of Crooked Media. It’s produced by AJ Moultrié and mixed by Evan Sutton, executive produced by me and special thanks to our weekly contributors Kaya Henderson, De’Ara Balenger, and Myles E. Johnson. [music break]
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