Jun 23 • 43M

Serious Trouble, Episode 2: Why Is It So Hard To Hold Police Accountable For Failures Like Uvalde?

Ken and Josh discuss when police have a legal duty to protect you, the limits of qualified immunity, and why Uvalde may have every legal right to conceal body cam footage.

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An irreverent podcast about the law from Josh Barro and Ken White.
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Dear listeners,

Episode 2 of Serious Trouble is ready for you to listen to! It’s all about the Uvalde massacre, the botched police response, and what legal rights you have to expect the police to perform their jobs. You may be surprised to learn they’re pretty limited.

Ken and I also talk about where the idea of qualified immunity comes from, and when it does (and doesn’t) protect police from liability for their actions. And we talk about why Texas law may put the various government agencies involved in this debacle on pretty solid ground when they refuse to disclose embarrassing documents, such as body camera footage.

We hope you find the show informative, and we hope you’re enjoying our return to podcasting so far — thanks for welcoming us back to your podcast feed. Next week’s episode will be the first one that will be for paying subscribers only. If you’re a free subscriber and you want to get that episode, hit the button below to upgrade.

If you are a paying subscriber and you listen to the show through a podcast app, you’ll need to make sure that you’ve hit the button to add your private podcast RSS feed to your player app of choice — otherwise, you’ll get an email about next week’s episode, but it won’t populate to your player. Look for that step in the confirmation email you got when you signed up, and it’s pretty simple once you’ve hit the button — but if you’re having any issues, please email podcasting@substackinc.com and they’ll get you set up.


Here’s a transcript of this Serious Trouble episode, and here are some resources we discussed:

In this letter to Texas Attorney General Ken Paxton, the City of Uvalde argues for why it should be exempt from releasing documents relating to the shooting at Robb Elementary.

DeShaney v. Winnebago, a Supreme Court case articulating the doctrine that there’s no substantive due process right to adequate police protection.

Ross v. United States, considering whether a police officer could be held liable for preventing others from saving a drowning child.

Salas v. Carpenter, a case rejecting a claim that police violated a victim’s rights in a hostage situation by preventing alternative avenues of rescue.

A detailed and thorough criticism of the doctrine of qualified immunity by the Cato Institute, a general explanation by Lawfare, and an update on legislative responses by the ACLU.

Ballentine v. Tucker, a recent Ninth Circuit case showing qualified immunity analysis in action and demonstrating that it is applied with a broader level of specificity in First Amendment cases.

The Texas Public Information Act handbook, detailing the byzantine exceptions to the public records law.

Reporting from the Texas Tribune: