“The US has imposed sanctions on the chief prosecutor of the international criminal court, Fatou Bensouda, in the latest of a series of unilateral and radical foreign policy moves.
Announcing the sanctions, the secretary of state, Mike Pompeo, did not give any specific reasons for the move other than to say the ICC “continues to target Americans” and that Bensouda was “materially assisting” that alleged effort.
He also announced sanctions against Phakiso Mochochoko, the ICC’s director of jurisdiction, complementary and cooperation division.
The US Treasury issued a statement saying Bensouda and Mochochoko had been deemed “specially designated nationals”, grouping them alongside terrorists and narcotics traffickers, blocking their assets and prohibited US citizens from having any dealings with them.”
We are trapped in an abusive relationship. When we finally have enough, our abuser comes after us with flowers and apologies, promising never to do it again.
Police take the knee. NASCAR and the U.S. Marine Corps ban the display of the Confederate flag. Nancy Pelosi uses a kente scarf as a political prop. Joe Biden, one of the driving forces behind militarized police, the massive expansion of mass incarceration and the doubling and tripling of sentences, speaks at George Floyd’s funeral. The National Football League apologizes for its insensitivity to racism, although no teams appear to be negotiating with Colin Kaepernick.
The mayor of Washington D.C., Muriel Bower, had the words “Black Lives Matter” painted in 35-foot-tall letters on a street near the White House but has also proposed a $45 million increase in the police budget and the construction of a $500 million new jail. The press, which does not confront corporate power and rarely covers the poor, rendering them and their communities invisible, engages in circular firing squads, sacking or admonishing editors and journalists for racially insensitive thoughtcrimes, to advertise its commitment to people of color.
“The public displays of solidarity are, as in the past, smoke and mirrors, a pantomime of faux anguish and empathy by bankrupt ruling elites.”
Once again, we see proposed legislation to mandate police reform—more body cameras, consent decrees, revised use-of-force policies, banning chokeholds, civilian review boards, requiring officers to intervene when they see misconduct, banning no-knock search warrants, more training in de-escalation tactics, a requirement by law enforcement agencies to report use-of-force data, nationally enforced standards for police training and greater diversity—proposals made, and in several cases adopted in the wake of numerous other police murders, including those of Eric Garner, Michael Brown and Philando Castile. The Minneapolis Police Department, for example, established a duty to intervene requirement by police officers after the 2014 killing of Brown in Ferguson. This requirement did not save Floyd.
Police unions, often little more than white hate groups, continue to have the unassailable power to brush aside would-be reformers, including community review boards, mayors and police chiefs. These unions generously bankroll the campaigns of elected officials, including public prosecutors, who do their bidding. Police unions and associations have contributed $7 million to candidates running for office in New York state alone, including $600,000 to Andrew Cuomo during his gubernatorial campaigns.
It is, as Yogi Berra said, “déjà vu all over again.”
The public displays of solidarity are, as in the past, smoke and mirrors, a pantomime of faux anguish and empathy by bankrupt ruling elites, including most Black politicians groomed by the Democratic Party and out of touch with the daily humiliation, stress of economic misery and suffering that defines the lives of many of the protesters.
These elites have no intention of instituting anything more than cosmetic change. They refuse to ask the questions that matter because they do not want to hear the answers. They are systems managers. They use these symbolic gestures to gaslight the public and leave our failed democracy, from which they and their corporate benefactors benefit, untouched. What we are watching in this outpouring of televised solidarity with the victims of police violence is an example of what Bertram Gross calls “friendly fascism,” the “nice-guy mask” used to disguise the despotism of the ultra-rich and our corporate overseers. Whatever you think about Donald Trump, he is at least open about his racism, lust for state violence and commitment to white supremacy.
“The problem is an economic and political system that has by design created a nation of serfs and obscenely rich masters.”
The crisis we face is not, as the ruling elites want us to believe, limited to police violence. It is a class and generational revolt. It will not be solved with new police reforms, which always result, as Princeton professor Naomi Murakawa points out in her book “The First Civil Right: How Liberals Built Prison America,” in less accountable, larger and more lethal police forces.
The problem is an economic and political system that has by design created a nation of serfs and obscenely rich masters. The problem is deindustrialization, offshoring of manufacturing, automation and austerity programs that allow families to be priced out of our for-profit healthcare system and see nearly one in five children 12 and younger without enough to eat.
The problem is an electoral system that is legalized bribery designed to serve a tiny, unaccountable cabal of oligarchs that engage in legalized tax boycotts, deregulation, theft and financial fraud. The problem is that at least half of the working class and working poor, a figure growing exponentially as the pandemic swells the ranks of the unemployed, have been cast aside as human refuse and are being sacrificed on the altar of profit as the country reopens for business and the pandemic crashes in wave after wave on front line workers.
The problem is the diversion of state resources, including over half all federal discretionary spending, to an unaccountable military machine that wages endless and futile wars overseas, the savage face of white supremacy beyond our border. This military machine perfects its brutal tactics and tools for control on people of color in the Middle East, as it did in other eras in Vietnam, Latin America and the Philippines. It passes on this knowledge, along with its surplus equipment, including sophisticated equipment for wholesale surveillance, drones, heavily armed SWAT teams, grenade launchers and armored vehicles, to police at home. Smashing down a door and terrorizing a family in a night police raid in Detroit looks no different from a night raid carried out against an Afghan family by Army Rangers in Kandahar.
Empires eventually consume themselves. Thucydides wrote of the Athenian empire that the tyranny it imposed on others it finally imposed on itself.
The entrenched racism in America has always meant that poor people of color are the first cast aside in society and disproportionately suffer from the most brutal forms of social control meted out by the police and the prison system. But there will not be, as Martin Luther King pointed out, racial justice until there is economic justice. And there will not be economic justice until we wrest power back from the hands of our corporate masters.
Until that happens, we will go through cycle after cycle of brutal police murders and cycle after cycle of the profuse apologies and promises of reform. We are trapped in an abusive relationship. When we finally have enough, when we cry out in pain and walk out, our abuser comes after us with flowers and apologies and promises to change. Back we go for more.
My hope is that this time around the gaslighting will not work. The protestors that have taken to the streets in some 750 cities are young, diverse, angry and savvy. Many were betrayed by the Democratic Party hierarchy who once again ganged up on Bernie Sanders to shove a corporate stooge down our throats, the calculation by the ruling elites being that as awful as Biden is, we will vote for him because he is not Trump. That this tactic failed in 2016 doesn’t seem to faze the oligarchs.
“By defunding or abolishing the police, or by paying prison workers fair wages, the primary bulwark used to keep a subjugated population in check will be removed, or in the case of prisons make the system of neo-slavery financially unsustainable.”
Many of those in the streets can’t find meaningful work, are often burdened by large sums of student debt and have realized that in this world of serfs and masters they don’t have much of a future. They understand that if these protests are to succeed, they must be led by people of color, those who suffer disproportionally from the inequities and violence meted out by the occupying forces of the corporate state. And they also know that social inequality is at the root of the evil we must vanquish.
The ruling elites will never willingly defund or abolish the police, which cost taxpayers $100 billion annually and often eat up half of city budgets, for the same reason they will never pay a minimum wage to the 2.3 million prisoners who work in our ever-expanding gulag. By defunding or abolishing the police, or by paying prison workers fair wages, the primary bulwark used to keep a subjugated population in check will be removed, or in the case of prisons make the system of neo-slavery financially unsustainable.
Rather, the elites, while assuring us that they feel our pain, will insist, as Biden is doing, that by throwing even more money at the police, and increasing police numbers on the streets of our cities, police will be accountable. This is true. But the police will be accountable not to us but the ruling class.
In 1994, then Senator Biden pushed through the Violent Crime and Law Enforcement Act. It was supported by the Congressional Black Caucus, evidence of the growing disconnect between black political elites and those they should protect. The caucus has, in the face of the current crisis, once again called for the tired and toothless reforms that got us into this mess. “Black elected officials have become adept at mobilizing the tropes of Black identity without any of its political content,” notes Keeanga-Yamahtta Taylor in the New York Times.
The bill authorized $30.2 billion over six years for police and prisons. Biden boasted that he “added back into the Federal statutes over 50 death penalties—50 circumstances in which, if a person is convicted of a crime at a Federal level, they are eligible for the death penalty.” The bill, he bragged, authorized “over 70 increased—70, seven zero—70 increased penalties in new offenses covering violent crimes, drug trafficking, and gun crimes.” It also established the Community Oriented Policing Services or COPS Program that has handed more than $14 billion to state and local governments, most of the money used to hire more police. COPS also provided $1 billion to place police in schools, accelerating the criminalization of children.
The 1994 bill more than doubled the prison population. The United States now has 25 percent of the world’s prison population, although we are 4 percent of the world’s population. Half of the 2.3 million people in our prisons have never been charged with physically harming another person and 94 percent never had a jury trial, coerced to plea out in our dysfunctional judicial system.
Biden proudly said in 1994 he represented a new Democratic Party that was tough on law and order. “Let me define the liberal wing of the Democratic Party,” he said at the time. “The liberal wing of the Democratic Party is now for 60 new death penalties. That is what is in this bill. The liberal wing of the Democratic Party has 70 enhanced penalties, and my friend from California, Senator Diane Feinstein, outlined every one of them. I gave her a list today. She asked what is in there to every one of them. The liberal wing of the Democratic Party is for 100,000 cops. The liberal wing of the democratic Party is for 125,000 new State prison cells.”
There is only one way to defeat these forces of occupation and the ruling elites they protect. It is not through voting. It will come from the streets, where tens of thousands of courageous men and women, facing arrest, indiscriminate police violence, economic despair and the threat of Covid-19, are fighting for not only an end to racism, but for freedom.
Recalling the provocation that came midway through a routine traffic stop, Danville police officer Dylan Hayden told reporters Thursday that driver Donald Watkins’ decision to frustratedly point his finger at him was just the green light he needed. “Legally, I’m not allowed to touch the motorist after pulling him over, but when he extended his index finger directly toward me, I knew that gave me the go-ahead right there to take whatever action I deemed necessary,” said Hayden, adding that as soon as he noticed the conceivably threatening hand gesture, he had full authority to skip right ahead to exerting force. “Frankly, I probably would’ve had the okay to rock and roll after he cursed under his breath, but I wanted to be absolutely certain that I was in the clear. Once he pointed his finger at my chest from inside his vehicle, I knew I’d be covered no matter what happened next. He really left the door wide open for me with that one.” Hayden expressed confidence that there was probably someone wanted for robbery who looks similar enough to Watkins to legally justify pulling him over in the first place.
This inquiry is timely—perhaps even urgent. Over the past several decades, the Court has been slowly changing the doctrinal formula for qualified immunity. Most recently, it has begun to strengthen qualified immunity’s protection in another way: by giving qualified immunity cases pride of place on the Court’s docket. It exercises jurisdiction in cases that would not otherwise satisfy the certiorari criteria and reaches out to summarily reverse lower courts at an unusual pace. Essentially, the Court’s agenda is to especially ensure that lower courts do not improperly deny any immunity. This approach sends a strong signal to lower courts and elevates official-protective qualified immunity cases to a level of attention exceeded only by the Court’s state-protective habeas docket. While the Court doubles down on qualified immunity, the doctrine has also come under increasing outside criticism. Recently publicized episodes of police misconduct vividly illustrate the costs of unaccountability. Indeed, the NAACP Legal Defense Fund has explicitly called for “re-examining the legal standards governing . . . qualified immunity.”10 The legal director of the ACLU of Massachusetts has named the doctrine of qualified immunity as among the policing precedents that “we must seek to tear down.”11 Judge Jon Newman has argued that “the defense of qualified immunity should be abolished” by Congress.12 These calls make it all the more important to figure out whether the modern doctrine of qualified immunity has a legal basis in the first place.
THE LEGAL JUSTIFICATIONS FOR QUALIFIED IMMUNITY
The statute colloquially known as “Section 1983,” because it is codified at 42 U.S.C. § 1983, makes liable state actors who violate constitutional or other legal rights. It was first enacted during Reconstruction as a section of the 1871 Ku Klux Act, part of a suite of “Enforcement Acts” designed to help combat lawlessness and civil rights violations in the southern states. The statute originally provided: That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under theprovisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled “An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication”; and the other remedial law of the United States which are in their nature applicable in such cases.13As currently codified in the U.S. Code, the statute provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.14
Neither version of the text, you will notice if you wade through them, makes any reference to immunity. (The reference to the “same rights” and “other remedies” in the original statute pointed to the 1866 Civil Rights Act, which provided broad federal remedial authority, Supreme Court review, and presidential authority to direct prosecutions and use the military to enforce the Act.)
50 CALIFORNIA LAW REVIEW[Vol. 106:45 shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.14Neither version of the text, you will notice if you wade through them, makes any reference to immunity. (The reference to the “same rights” and “other remedies” in the original statute pointed to the 1866 Civil Rights Act, which provided broad federal remedial authority, Supreme Court review, and presidential authority to direct prosecutions and use the military to enforce the Act.)15Yet that is not the end of the matter. Legal texts that seem categorical on their faces are frequently “defeasible”—that is, they are subject to implicit exceptions made by other rules of law.16 “No vehicles in the park” might forbid ambulances from entering, but a separate rule of law may nonetheless provide an exception for government vehicles or for responses to an emergency.17Perhaps more to the point, legal provisions are often subject to defenses derived from common law. For example, the common-law rules of self-defense, duress, and necessity can all apply to criminal statutes that do not even mention them.18 Similarly, I have elsewhere defended the current doctrine of state sovereign immunity even though it, too, is an unwritten defense that goes almost unmentioned in the text of the Constitution.19 So perhaps Section 198320 permits such an unwritten immunity defense despite its seemingly categorical provisions for liability. To say that an unwritten defense can exist, however, is not to say that any particular unwritten defense is in fact legally justified. Such defenses come from other legal sources and must be justified on their own legal terms.
Section 1983 changed this framework. It created a direct cause of action against state officials for “the deprivation of any rights . . . secured by the Constitution”25 and thus eliminated the need to first allege a common-law claim or damages. In Hohfeld’s terms,26 most constitutional rights went from being treated as rules about power to being treated as duties.27 As a result, Section 1983 raised questions about how the new constitutional claims related to the old common-law claims, and whether the common law had any role to play in the new constitutional suits.
In their preference for a policy that protects police, conservatives abandon their commitment to textualism and embrace pro-government judicial activism.
If you haven’t watched the video of (former) Minneapolis police officer Derek Chauvin killing George Floyd by jamming his knee into Floyd’s cervical spine for nearly nine minutes until he loses consciousness, you really should. And if you can’t understand why large swaths of urban America have been in flames these last few nights, do two more things: (1) instead of George Floyd, who you probably don’t know, imagine the person pinned under Chauvin’s knee—prone, handcuffed, unresisting, and begging for mercy—was someone you love; and (2) listen to conservative pundits dissecting Chauvin’s merciless assault on Floyd with all the sangfroid of a referee performing an instant replay review to see whether the runner’s knee was down when the ball came loose. No wonder it seems as though the country is coming apart at the seams.
In determining the relationship between government and governed, one of the most important decisions a society can make is how accountable those who wield official power must be to those against whom that power is wielded. Congress made a clear choice in that regard when it passed the Enforcement Act of 1871, which we now call “Section 1983” after its location in the U.S. Code. Simply put, Section 1983 creates a standard of strict liability by providing that state actors “shall be liable to the party injured” for “the deprivation of any rights.” Thus, if a police officer walks up to your house and peeks inside one of your windows without a warrant—a clear violation of your Fourth Amendment right against unreasonable searches—he is liable to you for the violation of that right.
But many conservatives do an odd thing: In their preference for a more forgiving policy that gives police and other government officials substantial leeway in the exercise of discretion, they abandon their stated commitment to textualism and embrace an “interpretation” of Section 1983 that is utterly divorced from its text. The vehicle for this conservative brand of what we might call “living statutory interpretivism” is the Supreme Court’s qualified immunity doctrine, which judicially amends Section 1983 to provide that the standard for liability will no longer be the deprivation of “any rights”—as Congress expressly provided—but rather the deprivation of any “clearly established” rights.
As documented in considerable detail on Cato’s Unlawful Shield website, those two words—“clearly established”—do an extraordinary amount of work in keeping meritorious cases out of court and ensuring that plaintiffs whose rights have been violated by police or other state actors will receive no recovery unless they can find a pre-existing case in the jurisdiction with nearly identical facts. But that is plainly not the statute that Congress wrote, nor is it the standard of accountability that Congress chose. Moreover, as Professor Will Baude demonstrates in his masterful article, “Is Qualified Immunity Unlawful?,” there is no credible textual or historical basis for the qualified immunity doctrine; it is a blatant act of pro-government judicial policymaking—activism, if you will—and nothing more.
So now back to the killing of George Floyd. Watching that horrific video, one cannot help but notice the look of utter complacency on the face of Derek Chauvin as he drives his knee into Floyd’s neck. There is no life-or-death struggle—indeed, no struggle at all; nor is there any evident anger or passion—there is simply the banality of a man wearing a badge, surrounded and supported by other men with badges, methodically squeezing the life out of another human being.
It is well known that prosecutors rarely bring criminal charges against police officers, and indeed it seems unlikely Chauvin would have been charged had his assault on George Floyd not been captured on a viral video. That means the only avenue of accountability for most victims of police misconduct is a civil rights lawsuit that they themselves can initiate without the largesse of some prosecutor or citizen review board. But the Supreme Court has largely gutted that remedy with a judicially confected gloss that transforms the legislatively chosen policy of strict liability into one of near-zero accountability.
Cities are burning, and many people are venting their rage—yet again—about how cavalier police have become with the use of force, including lethal force, against the very citizens they are sworn to protect. Those people are right to be angry, and they’d probably be even angrier if they understood that it was never supposed to be like this—that Congress specifically chose a system of robust government accountability that was repudiated and perverted by the Supreme Court.
This Monday we will find out whether the Court will take the unprecedented opportunity it now has to revisit qualified immunity. It will be particularly interesting to see which self-styled conservatives—on and off the Court—place their stated commitment to textualism and judicial deference above whatever personal preference they may have for continuing our half-century experiment in near-zero accountability for law enforcement.
Redirect it to emergency response programs that don’t kill black people.
The only way we’re going to stop these endless cycles of police violence is by creating alternatives to policing. Because even in a pandemic where black people have been disproportionately killed by the coronavirus, the police are still murdering us.
On Monday, a worker at a store in Minneapolis called 911, claiming that George Floyd had used counterfeit money. The incident ended with a police officer suffocating Mr. Floyd to death, despite his and bystanders’ pleas for mercy. Protests have since erupted across the country while the police respond with military-style violence.
As the case of George Floyd makes clear, calling 911 for even the slightest thing can be a death sentence for black people. For many marginalized communities, 911 is not a viable option because the police often make crises worse. These same communities, who often need emergency services the most, are forced to make do without the help.
More training or diversity among police officers won’t end police brutality, nor will firing and charging individual officers. Look at the Minneapolis Police Department, which is held up as a model of progressive police reform. The department offers procedural justice as well as trainings for implicit bias, mindfulness and de-escalation. It embraces community policing and officer diversity, bans “warrior style” policing, uses body cameras, implemented an early intervention system to identify problematic officers, receives training around mental health crisis intervention, and practices “reconciliation” efforts in communities of color.
George Floyd was still murdered. The focus on training, diversity and technology like body cameras shifts focus away from the root cause of police violence and instead gives the police more power and resources. The problem is that the entire criminal justice system gives police officers the power and opportunity to systematically harass and kill with impunity.
The solution to ending police violence and cultivating a safer country lies in reducing the power of the police and their contact with the public. We can do that by reinvesting the $100 billion spent on policing nationwide in alternative emergency response programs, as protesters in Minneapolis have called for. City, state and federal grants can also fund these programs.
Municipalities can begin by changing policies or statutes so police officers never respond to certain kinds of emergencies, including ones that involve substance abuse, domestic violence, homelessness or mental health. Instead, health care workers or emergency response teams would handle these incidents. So if someone calls 911 to report a drug overdose, health care teams rush to the scene; the police wouldn’t get involved. If a person calls 911 to complain about people who are homeless, rapid response social workers would provide them with housing support and other resources. Conflict interrupters and restorative justice teams could mediate situations where no one’s safety is being threatened. Community organizers, rather than police officers, would help manage responses to the pandemic. Ideally, people would have the option to call a different number — say 727 — to access various trained response teams.
The good news is, this is already happening. Violence interruption programs exist throughout the country and they’re often led by people from the community who have experience navigating tricky situations. Some programs, like one in Washington, D.C., do not work with the police; its staff members rely instead on personal outreach and social connections for information about violence that they work to mediate and diffuse. We should invest in these programs, which operate on shoestring budgets, so they have their own dedicated dispatch centers outside of 911.
Dallas is pioneering a new approach where social workers are being dispatched to some 911 calls that involve mental health emergencies. The program has shown success, and many of the people receive care that they would never have gotten in jails or overcrowded hospitals.
In California, the Bay Area Transformative Justice Collective deals with child sexual abuse without the police. The collective develops pods — groups of people including survivors, bystanders or people who have harmed in the past — that each pod-member feels they can turn to for support when needed.
Here’s another idea: Imagine if the money used to pay the salaries of police officers who endlessly patrol public housing buildings and harass residents can be used to fund plans that residents design to keep themselves safe. The money could also pay the salaries of maintenance and custodial workers; fund community programs, employment and a universal basic income; or pay for upgrades to elevators and apartment units so residents are not stuck without gas during a pandemic, as some people in Brooklyn were. The Movement for Black Lives and other social movements call for this kind of redirection of funds.
We need to reimagine public safety in ways that shrink and eventually abolish police and prisons while prioritizing education, housing, economic security, mental health and alternatives to conflict and violence. People often question the practicality of any emergency response that excludes the police. We live in a violent society, but the police rarely guarantee safety. Now more than ever is the time to divest not only from police resources, but also the idea that the police keep us safe.
Disparaging comments. Demeaning jokes. As the mogul reportedly considers a 2020 presidential run, it remains an open question whether his long-alleged history of undermining women will affect his chances.
If you find yourself seeking, in these turbulent times, evidence of steadiness among the chaos—proof that even as the seas rise and the winds whip and the world that was gives way to the world that will be, some things will remain the same—here is a fact that seems always to be true: Mike Bloomberg is considering a run for president.
The newest version of the old truth comes from an article published this week in The New York Times: The billionaire former mayor, the paper announces, validating the rumors, is again considering a presidential run—this time, however, as a Democrat. It would not be an easy candidacy. “Mr. Bloomberg,” the Times points out, “is plainly an uncomfortable match for a progressive coalition passionately animated by concern for economic inequality and the civil rights of women and minorities.” Indeed: In an interview with the paper, Bloomberg defends stop-and-frisk. And, voicing “doubt” about some of the revelations that have been made in the course of #MeToo, Bloomberg mentions as an example Charlie Rose, who had broadcast his show from a space in Bloomberg’s corporate offices. He declined to say, specifically, whether he believed the many allegations against Rose. “Let the court system decide,” the former mayor said.
What is not fully addressed in the Times article, however—and what is not fully explored in the many similar pieces that consider the current iteration of Mike Bloomberg’s presidential ambitions—is a series of stories about him, accumulated over decades, that suggests in the aggregate a distinct pattern when it comes to his treatment of women:
- reports of disparaging comments made about women’s bodies and appearances.
- Allegations of a deeply sexist work environment at the company that Bloomberg founded and, for many years, ran. Stories that linger like exhaust in the air every time Mike Bloomberg is mentioned as, potentially, the next president of the United States.
This is a time in America of accountabilities that are—this is the most generous way to put it—unevenly distributed. Some people bear the heaviest and cruelest of burdens; others move through the world with easy indemnity. Christine Blasey Ford makes an allegation of sexual violence against the Supreme Court nominee Brett Kavanaugh; she is attacked as a victimizer. The man who last sought the presidency of the United States admitted to—bragged about—his own history of assaulting women; he won the office nonetheless. Exhaust, exhausting: The impunities form their own kind of fog.
The stories about Mike Bloomberg, though—stories, told through lawsuits and journalistic accounts, that involve allegations not of physical abuse but of more insidious manifestations of misogyny—ask broader questions about the ways electoral politics and basic morality will continue to tangle with each other as #MeToo marches onward. Will the stories (many of which Bloomberg has publicly denied as the inventions of money-hungry opportunists) have any bearing on his potential presidential candidacy? Will the Americans (and specifically now, apparently, the Democrats) of the current moment consider allegations involving casual misogyny, on the personal level and at the institutional, to be politically disqualifying? Will they consider those claims, indeed, to be worth discussing at all? Or will they dismiss them as the predicable collateral of the thing Americans are conditioned, still, to value above all: the successful accumulation of power and wealth?
From 1996 to 1997, four women filed sexual-harassment or discrimination suits against Bloomberg the company. One of the suits included the following allegation: When Sekiko Sakai Garrison, a sales representative at the company, told Mike Bloomberg she was pregnant, he replied, “Kill it!” (Bloomberg went on, she alleged, to mutter, “Great, No. 16”—a reference, her complaint said, to the 16 women at the company who were then pregnant.) To these allegations, Garrison added another one: Even prior to her pregnancy, she claimed, Bloomberg had antagonized her by making disparaging comments about her appearance and sexual desirability. “What, is the guy dumb and blind?” he is alleged to have said upon seeing her wearing an engagement ring. “What the hell is he marrying you for?”
Bloomberg denied having made those comments, claiming that he passed a lie-detector test validating the denial but declining to release the results. (He also reportedly left Garrison a voicemail upon hearing that she’d been upset by the comments about her pregnancy: “I didn’t say it, but if I said it, I didn’t mean it.”) What Bloomberg reportedly did concede is that he had said of Garrison and other women, “I’d do her.” In making the concession, however, he insisted that he had believed that to “do” someone meant merely “to have a personal relationship” with them.
That suit was settled in 2000; its terms were not disclosed. Other suits made similar claims. In a 1998 filing, Mary Ann Olszewski reported that “male employees from Mr. Bloomberg on down” routinely belittled women at the company—a pattern of harassment, she said, that culminated in her being raped in a Chicago hotel room by a Bloomberg executive who was also her direct superior. The case was dismissed (not, apparently, on its merits, but rather because Olszewski’s attorney had missed the deadlines to respond to a motion to end the case). Before it was, though, in a deposition relating to the suit, Bloomberg testified that he wouldn’t consider Olszewski’s rape allegation to be genuine unless there were “an unimpeachable third-party witness” to corroborate her claims. (Asked by a lawyer how such a person might happen to witness a rape, Bloomberg replied, “There are times when three people are together.”)
“Bloomberg’s Sexual Blind Spot” is how The Village Voice summed it up in 2001. “Anti-woman obnoxiousness,” Cord Jefferson, then at Gawker, called it in 2013. Part of that obnoxiousness involves the many reports related to what Bloomberg once told a reporter: “I like theater, dining, and chasing women.” (He elaborated: “Let me put it this way: I am a single, straight billionaire in Manhattan. What do you think? It’s a wet dream.”) In his 1997 autobiography, Bloomberg by Bloomberg, the mogul bragged about keeping “a girlfriend in every city” during his years working as a Wall Street stock trader in the 1960s and ’70s. He is reported to have said, of the computer terminal that made his fortune, “It will do everything, including give you [oral sex]. I guess that puts a lot of you girls out of business.”
There’s more: Bloomberg reportedly saying to a journalist and the journalist’s friend, as he gazed at a woman at a holiday party, “Look at the ass on her.” (He denied having made that comment.) Bloomberg, according to a top aide, seeing attractive women and reflexively remarking, “Nice tits.” Bloomberg, mocking Christine Quinn, the then-speaker of New York’s City Council, for going too long between hair colorings. (“The couple of days a week before I need to get my hair colored,” Quinn once said, “he’ll say, ‘Do you pay a lot to make your hair be two colors? Because now it’s three with the gray.’”) Bloomberg mocking Quinn again, she said, for failing to wear heels at public events. (“I was at a parade with him once and he said, ‘What are those?’ and I said, ‘They’re comfortable,’ and he said, ‘I never want to hear those words out of your mouth again.’”) Bloomberg, quoted by colleagues as saying, “If women wanted to be appreciated for their brains, they’d go to the library instead of to Bloomingdale’s.” Bloomberg being asked in a deposition, “Have you ever made a comment to the effect that you would like to ‘do that piece of meat,’ or I’d ‘do her in a second’?” Bloomberg replying, “I don’t recall ever using the term meat at all.”
These reports suggest the extent of the blind spot. They also suggest, however, the expansive underbelly of #MeToo: the easy entitlements by which men come to see women as existing in part for their pleasure. The stories told of Bloomberg paint a picture of self-centric power, of moral tautologies, of limited empathies. (Joyce Purnick, in her 2009 biography, Mike Bloomberg: Money, Power, Politics, describes a man who is “curt, profane, cranky, and willful,” and, relatedly, “allergic to introspection.”) And, set as they are in the towers of the American corporation, places where power is assumed to justify itself, they suggest precisely the kind of trickle-down inequalities that politicians in particular might be in a position to combat. Sexism, for one, converted into a system: There is so much that is summoned—of hateful history, of the way that the past insinuates itself on the present—when a powerful man sizes up a less powerful woman in his employ and says, “I’d do her.”
Earlier this month, another suit involving Mike Bloomberg was (very briefly) in the news. The mogul was reinstated as a defendant in a 2016 civil suit brought against Bloomberg the company by a former employee: She claims that in addition to the hostile work environment and sexual discrimination she experienced at the company, she was raped by a manager at Bloomberg when she was 22. (Lawyers for Bloomberg and the now-terminated manager deny her allegations.) The suit also holds the majority owner of Bloomberg liable for the woman’s claims. The judge in the case, who had previously ruled that Mike Bloomberg had no immediate connection to the woman’s claims, reconsidered his ruling; the case will move forward with Bloomberg listed as a defendant.
Bloomberg has traditionally dismissed the lawsuits filed against him and his company as publicity stunts and money grabs and, in the fullest sense, nuisances. (“What’s happening,” he explained of one such case, “is that because I’m so visible, that obviously I’m a target.”) To run for office, however, is to make oneself a different kind of target; that is the exchange that is made when a person seeks such direct power over other people’s lives. The story published in the Times this week is a trial balloon for a potential presidential candidacy; it is also testing, however, another thing. What are voters willing to tolerate, at this point, in those who propose to lead them? What are they willing to ignore? What has changed since the last time Mike Bloomberg ran for public office? And what—the world being, in the end, full of truths that remain so stubbornly true—hasn’t changed at all?