SCOTUS Stands Up For Qualified Immunity | Crooked Media
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October 19, 2021
What A Day
SCOTUS Stands Up For Qualified Immunity

In This Episode

  • The Supreme Court ruled in favor of police officers in two cases dealing with qualified immunity. Both decisions were unsigned, and none of the justices dissented – a possible indication that they are sadly not planning on overturning qualified immunity entirely any time soon.
  • Boston is poised to elect its first woman of color as mayor, and the election is just two weeks away. We talked with candidate Michelle Wu.
  • And in headlines: former Secretary of State Colin Powell passed away yesterday, the Biden administration is tackling ‘forever chemicals,’ and the union for Chicago Police Officers is fighting the city’s vaccine mandate.




Gideon Resnick: It’s Tuesday, October 19th. I’m Gideon Resnick.


Josie Duffy Rice: And I’m Josie Duffy Rice, and this is What A Day, the podcast that has all the potential and promise of Democrats controlling both houses of Congress.


Gideon Resnick: Yeah, just take a second and forget how it’s actually panning out. We are the platonic ideal of it.


Josie Duffy Rice: We are FDR.


Gideon Resnick: Only the good parts, to be clear.


Josie Duffy Rice: Yeah, none of the bad. Only the good. On today’s show, a conversation with the Boston mayoral candidate. Plus, the Biden administration takes action against forever chemicals.


Gideon Resnick: But first, we’re going to bring you some news from the Supreme Court, where the justices ruled in two cases yesterday that deal with when we can hold public officials accountable for violating a person’s civil rights. So Josie, you’ve been keeping track of this. Can you tell us a little bit about these cases?


Josie Duffy Rice: Yeah. So on Monday, the Supreme Court ruled in favor of police officers in two cases that deal with qualified immunity. Qualified immunity for those who don’t know is the legal doctrine that says cops and other public officials can’t be sued in their individual capacity for misconduct unless they violated quote, “clearly established rights.” So that’s legal. Speak for basically like cops can beat you up, they can violate your constitutional rights, and not only will they never face criminal charges, they also won’t even have to pay you a penny.


Gideon Resnick: Yikes.


Josie Duffy Rice: Over the past year or two, I began to look as if the court was maybe inching towards limiting the ability for cops to claim qualified immunity. But Monday’s decisions certainly make that possibility much more unlikely.


Gideon Resnick: Yeah, and it’s not just what they decided here, but how they decided it that is pretty notable. Can you talk a little bit more about that part?


Josie Duffy Rice: Yeah, absolutely. So like you said, I mean, the decision was notable and troubling for a few reasons. Both decisions were unsigned, and none of the justices dissented, which is never a great sign. But what’s more, these cases were decided summarily, and that’s what we call it when the court decides a case without extensive briefing or hearing an oral argument. It’s also called the shadow docket. And more and more the court has been issuing opinions about extremely important issues via the shadow docket, which is not really the idea of what the court is supposed to do, right? So, most notably, the Texas abortion case decided last month was also via the shadow docket. You may remember that case came down in the middle of the night.


Gideon Resnick: Right.


Josie Duffy Rice: And this really isn’t a good thing. I mean, these are serious issues, and they really require the court to consider all the information, and that’s, they’re not doing that when they do this.


Gideon Resnick: Yeah. And Shadow Docket as a name itself is as ominous as what they’re actually doing here.


Josie Duffy Rice: Totally. It’s pretty dark. It’s pretty dark.


Gideon Resnick: Yeah. And you said before that, before yesterday’s decision, it looked like the court was inching towards limiting qualified immunity. So why is that?


Josie Duffy Rice: Yeah, so this time last year, the court made these too narrow but notable decisions regarding qualified immunity, and the first one dealt with a group of Muslim men who are put on the No Fly List after they refused to be undercover spies for the FBI. The second case was about an incarcerated person who is forced to spend six days naked in a prison cell surrounded in feces from previous occupants and overflowing sewage.


Gideon Resnick: Jesus.


Josie Duffy Rice: Just deeply horrifying situations. In both cases, it may seem obvious that the court would have ruled the right way, right? But it was actually a pretty big deal that they did.


Gideon Resnick: Yes. Then why do you think yesterday’s rulings were actually different?


Josie Duffy Rice: Yeah. So while the cases last year involved retaliatory behavior that lasted days, if not months or years, the cases yesterday involve just moments of interaction. And it, that could be the reason the court decided not to take action yesterday. They also both involved domestic disturbances and threats of violence, unlike the cases last year. So in other words, while yesterday’s decision is disappointing, I don’t think it means the court will continue to embrace qualified immunity wholeheartedly.


Gideon Resnick: Yeah, and I think this term comes up a lot and people sometimes like, forget the origins here. So why is qualified immunity even a law? Did Congress pass it? How does it actually work?


Josie Duffy Rice: OK. Gideon great question, because it is not in fact, a law. Rather, it’s what we call judicial doctrine—just a technical term—which basically means court-made law, which means it became law through not-at-all democratic process. So way back in the 1800s, Congress gave Americans the right to sue public officials who violate their rights. But then, a century later, the Supreme Court invents this new concept called qualified immunity, and they say it’s like a small exception to the law, basically saying that if a public official acts in good faith and believes that they’re acting lawfully, then they can’t be sued. And then over the years, right, this small exception to the rule grows bigger and bigger. And now it’s really, really difficult to hold a public official accountable. They’re basically only held liable if they violate rights that are already quote, “clearly established” and that’s extremely, extremely fact-based. So any slight deviation from a previous fact pattern, you know, we give the cops the benefit of the doubt, and it makes it really difficult to hold law enforcement accountable when they do wrong. So that’s what I take away from this latest news from the Supreme Court.


Gideon Resnick: Yeah. Ooh. A lot to sit with there. Turn to the world of elections: in just two weeks, voters are going to head to the polls in a number of races across the country, some of which you have heard about here before. But today we’re going to talk a little bit about the race for Boston’s mayor. That is on November 2nd as well. And the first woman of color is poised to be elected.


Josie Duffy Rice: Can you tell us who the candidates are?


Gideon Resnick: Yeah, so at this point, they’re just two. They’re both Boston city councilors that are remaining in the race. Annissa Essaibi George and Michelle Wu, who has gained the support of many progressive leaders, including recently Senator Ed Markey. Wu were led by a pretty wide margin in a recent poll that was taken before the first one-on-one debate between the candidates. And they are actually set to debate again tonight. And I caught up with Wu shortly after she emerged as the top vote getter ahead of George in the first round of voting in the race in September. And Josie part of the reason this conversation is interesting, I hope, maybe, too people that are outside of Boston is because one of the things that Wu said was how local government can have this really large influence beyond city limits. Here she is:


Michelle Wu: I’ve been so grateful that people realize what happens in Boston will have an impact beyond our borders. What happens in cities all across the country is very much interconnected. And when we talk about movement building, we talk about the shifting the potential of what’s possible for momentum at the national and state level, cities are really where it starts. And there is a growing network and sisterhood and family of local leaders who are very much committed to moving progress and seeing the power of city government. I encourage folks to get involved with these races all across the country because this is a moment. If we want to see a Green New Deal, it will start with city Green New Deals moving and making that possible. If we want to see universal pre-K and closing the gaps for early education, cities can be the proof point for that. And so that’s what we’re striving for here, and really welcome the collaboration and interest and support here in Boston.


Gideon Resnick: And when you’re talking to voters, what is coming up the most frequently and has it changed since the start of the campaign? Often these are going on for so long that the primary issues that are floating to the top can be different as it goes on.


Michelle Wu: You know, we were the first campaign to announce back in September of last year. In some ways, it feels like eons ago before the last presidential election, before— but the issues have been consistent the whole time, and even as the pandemic has sort of ebbed and flowed in intensity and now we’re back at thinking about the Delta variant and what it means headed into this fall and winter, the reality is that the issues that the pandemic has brought, in fact, were just exacerbating the challenges that Boston is facing before. So housing is front and center, not a single neighborhood in the city you don’t hear tremendous stress when it comes to how to afford to stay. The connectivity between how you find your foothold in the city and then get to opportunity and jobs and the transportation in between. We need to close the racial wealth gap and the gaping disparities that our city sees despite tremendous resources. And we need to be planning for our future. And every coastal city now, especially in, on the East Coast, is thinking through what this looks like with intensifying weather and how we can be prepared and really lead on climate justice.


Gideon Resnick: A lot of the coverage from outside of the city has been about the historic nature of your candidacy, as well as others who are in the race. Do you think about that much? Does it play into how you’re talking to voters?


Michelle Wu: I think when you know, when I ran eight years ago for City Council for the first time, first-time candidate, no one had any idea who I was, it was a completely different experience of what we were asked on the campaign trail, right? And the constant feeling that there’s no way that I could have been elected as a young woman, Asian-American, not born in Boston. And at that time, when I was running, out of 13 city councilors, only one woman was serving. That was then Councilor Ayanna Pressley, the very first woman of color ever to be elected. And we have seen a steady increase in what representation looks like in seats of government that has brought about a connectedness to the urgency of our families’ day-to-day lives. And so it is important to make sure that we are in community, connecting the needs and the challenges with the power in city government to actually move quickly to get things done.


Gideon Resnick: You might not be thinking this broadly at this point, but I’m curious what you think the future of the Left looks like in the U.S. overall.


Michelle Wu: City government is where we can move issues and where we can see progress that is tangible, that is immediate, and that can build momentum very quickly across all other levels of government. We in Boston are seeking to really have an impact beyond our borders, ensuring that we can be a proof point for what it looks like and how everyone benefits when we enact a city-level Green New Deal. And when we focus on universal pre-k and child care and fair free public transportation—this all you know, as you said, it’s all intertwined. It’s all intersectional. But at the city level, that’s where you can move most quickly on it.


Gideon Resnick: And I want to get to some questions that listeners had. So this comes from Aubrey Hartnett. She said in efforts to close education gaps, what are your plans to move to an elected school committee, especially with the resignations over issues of race during the pandemic?


Michelle Wu: Yeah, Boston has a currently all-appointed school committee structure. I have put forward a proposal that would require many layers of legislative process, but to move to a majority elected committee, retaining a few appointed seats for ensuring that there’s representation of the diversity of the city, of expertise, that is most impactful in that moment. But I have two kids in the Boston Public Schools, first grade and pre-K. I have raised my sisters in the Boston Public Schools so this is kind of my second round of being a BPS mom after being a legal guardian first, a decade of experience in seeing the gaps and disconnects. We need governance that empowers our community members to be involved. There are so many resources in Boston, financial, activism, expertize. We just need to make sure we’re actually connecting people to the platforms for organizing and change.


Gideon Resnick: And you’ve been alluding to this quite a bit, but this is from Erin Lee Sanders, she said: what is your plan for how the climate crisis is affecting Boston?


Michelle Wu: Yeah, we are a city, geographically, almost a third of our downtown landmass is built on human-made landfill, where the hills of Boston were cut down and put into bays and the ocean to build out that land mass. It’s low-lying. It is the first to be taken back by floods, already, we are seeing an intensification of heat that is directly exposing the inequities in our city, a 10 degree temperature difference between communities of color, particularly the Black and brown communities in Roxbury, without as much tree cover compared to leafier neighborhoods—that’s directly impacting public health, economic opportunity and safety. And so I’m proud that my team has put forward the first city-level Green New Deal anywhere in the country, working with the federal activists and leaders who’ve been part of the Green New Deal on that level with local activists. It is the big picture of accelerating de-carbonization through very tangible steps: let’s boost our tree canopy, let’s convert to electric school busses, let’s change our stormwater infrastructure. When we recognize how quickly the impacts build on each other, that builds momentum to do even more.


Gideon Resnick: That was my conversation with Boston mayoral candidate Michelle Wu.


Josie Duffy Rice: We’re going to keep covering some of these races happening around the country and answer some of your questions in the days and weeks to come. Be on the lookout for more from this interview on our social feeds later. But that’s the latest for now. We’ll be right back after some ads.


[ad break]


Gideon Resnick:  Let’s wrap up with some headlines.


[sung] Headlines.


Josie Duffy Rice: Former Secretary of State Colin Powell died yesterday at the age of 84 from complications of COVID-19. Powell was vaccinated, but his immune system was weekend due to treatments for multiple myeloma. He also had Parkinson’s disease. In 1991, after serving 35 years in the army, Powell became the youngest and first Black chairman of the Joint Chiefs of Staff. Just under 10 years later, he was appointed Secretary of State under George W. Bush, where he would present the argument to the United Nations that Iraq possessed weapons of mass destruction that gave the United States cause to invade Iraq, resulting in a nearly 10-year war and occupation that killed untold number of civilians, with estimates ranging from about 150,000 to one million. Those weapons, as you all know, were never found, and Powell later said he regretted his role in sending the U.S. to war. President Biden said of Powell yesterday that he quote, “embodied the highest ideals of both warrior and diplomat.” One Iraqi resident interviewed by the Guardian said quote, “he introduced chaos to Iraq, he was an important part of this because he was the main liar who gave unreliable reasons for America to attack Iraq.”


Gideon Resnick: Yesterday, the Biden administration announced a three-year initiative to regulate and restrict the use of so-called forever chemicals found in everything from food packaging to cosmetics. Known as PFAS, these chemicals never break down, and scientists have found that PFAS exposure can have adverse health impacts, including but not limited to, liver damage, decreased fertility and cancer—the things that your Facebook uncle thinks the vaccine does. In all seriousness, this plan by the Environmental Protection Agency is a roadmap to combatting pollution. And environmental activists welcomed the announcement, but also said there is still more work to be done. PFAS are also being targeted in the Congressional Bipartisan Infrastructure Bill with a measure to address how they contaminate drinking water. That bill is awaiting a vote in the House.


Josie Duffy Rice: Put another asterisk on the “protect” and protect and serve, because the Union for Chicago Police Officers is currently fighting the city’s vaccine mandate. The deadline for all city workers to be vaccinated was last Friday, and employees were supposed to upload their vaccination status to the city portal at that point. While most Chicago departments had or were close to 100% response rates, the police had—drumroll—the lowest. As of yesterday, it was estimated that over one third of the police department still refuses to get inoculated. On Sunday, the Chicago Police Department issued a warning to officers that if they disobey the city’s mandate, they could face quote, “separation from the department. The union’s president, John Catanzara, argues that the vaccine requirement is illegal because the city did not negotiate terms with the union, although other unions like the teachers union, are in favor of the mandate. On Friday, the police union filed a lawsuit against the city and Mayor Lori Lightfoot’s office, alleging that this was against collective bargaining rights. The same day, the mayor filed her own suit against the union and Catanzara, alleging they were encouraging a quote, “illegal work stoppage to strike.”


Gideon Resnick: Oy.


Josie Duffy Rice: Whooh. Yeah.


Gideon Resnick: In other union news, executives at Starbucks like their unionization efforts like they like their independent neighborhood coffee shops. That is right: wiped off the face of the Earth. So they’re responding to a burgeoning unionization effort in Buffalo, New York, with a full court press, excuse me, full court French press—could not miss that pun on ethical grounds, sorry again on ethical COFFEE grounds. I continue to thank you for listening to this show. According to employees of the multiple Buffalo Starbucks that filed for a union election, company officials and quote, “support managers” have been showing up from out of state! The managers work the floor with staff, but workers and organizers perceive them as part of a campaign of intimidation that aims to undermine the unionization push. Starbucks has also temporarily shut down stores in the area and turned them into training facilities. Now, the company says all their actions are above board, and it only intends to improve training and alleviate staffing shortages, but one teensy tiny argument against that explanation is a video obtained by The New York Times in which an Arizona Starbucks manager who’s headed To BUFFALO—think about that on a map for just a second and how far away that is—tells their coworkers that quote, “there’s a huge task force out there that’s trying to fix the problem, because if Buffalo, N.Y., gets unionized, it will be the first market in Starbucks history.” I.e: a fix would be stopping the unionization.


Josie Duffy Rice: I got to say, I just love this story that Starbucks is like, uh, actually, we just were training people—as if the only people that they could get to train were in Arizona.


Gideon Resnick: Right.


Josie Duffy Rice: They, it took 20 miles for them to get the right person to come in. Just remarkable.


Gideon Resnick: Right, right, right. Just the next time that you’re in, just know that they’re going to be 13 employees, they’re all going to be in your way. And for some reason, they’re going to be sitting on their laptops and not actually doing typical Starbucks work. But it’s fine.


Josie Duffy Rice: Right. They’re not actually going to be helping, you know?


Gideon Resnick: It’s totally normal.


Josie Duffy Rice: No, totally. Very above board.


Gideon Resnick: And those are the headlines. One more thing before we go 544 Days is Crooked’s podcast that follows the true story of Washington Post journalist Jason Rezaian, who was held hostage in Iran and wrongfully accused of being an American spy. In the final episodes, Jason remains in prison as the clock ticks down on the possible nuclear deal between Iran and the Obama administration. You can catch the full season, all nine episodes, right now. Listen and follow for free only on Spotify. That is all for today. If you like the show, make sure you subscribe, leave a review, if you want to crush a union election, do not say so on video, and tell your friends to listen.


Josie Duffy Rice: And if you are into reading, and not just fan fiction about productive Democrat-controlled houses of Congress like me, What A Day is also a nightly newsletter. Check it out and subscribe at I’m Josie Duffy Rice.


Gideon Resnick:  I’m Gideon Resnick.


[together] And don’t talk to me until I’ve had my coffee puns.


Gideon Resnick: Exactly, exactly right.


Josie Duffy Rice: Honestly, the only union I’m breaking up is this union of puns that we experienced.


Gideon Resnick: I hope you know that you have committed the cardinal sin that Starbucks did, which was, that was on tape. So you are, you’re fucked.


Josie Duffy Rice: Forgive me.


Gideon Resnick: What A Day is a production of Crooked Media. It’s recorded and mixed by Bill Lance. Jazzi Marine is our associate producer. Our head writer is Jon Millstein, and our executive producers are Leo Duran and myself. Our theme music is by Colin Gilliard and Kashaka.