Biden's big bill (version 3.0)

 Another day and another multi-trillion dollar policy proposal from the Biden Administration. This time, it’s $1.8 trillion for families and education. But wait, weren’t families and education covered in last month’s multi-trillion infrastructure package?

No matter. THIS week we want to give $1.8 trillion to families and schools. The details of the bill run the gamut from free preschool to black colleges to a national family medical leave program. I won’t detail them all here (but you can see a list of items included here) mainly because the bill won’t survive to see the light of day.

Photo credit: Alexander Schimmeck/unsplash.com

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While I’m not thrilled about Biden’s big spending proposals, I do have to point out a couple of things. The first is that the proposals have a long way to go to become law. While it’s fair to judge parties and politicians on their proposals, it’s also true that, as Moltke the Elder’s military maxim holds, no plan survives contact with the enemy. What goes into the Washington sausage grinder usually bears little resemblance to what comes out the other end.

In Biden’s case, the Democrats had to use their ace-in-the-hole of a budget resolution to pass the COVID relief bill in March, but even then, there was little room to spare. The measure passed the Senate with a 50-49 vote and there was only a nine-vote margin in the House. Assuming that the congressmen vote the same way on the infrastructure and education bills, they have no chance of passing because normal bills are subject to the filibuster, which as I have said in the past, is not going anywhere anytime soon.

On the other hand, there is precedent for two budget resolutions in a single year, which cannot be filibustered and only need a simple majority vote to become law. The precedent was set by… wait for it… President Trump and congressional Republicans in 2017. As I described a few weeks ago, Trump & Co. passed a budget resolution for the 2017 fiscal year and then proceeded to pass a second resolution for Fiscal Year 2018. Two budget resolutions for two separate years but passed within a short time. All nice and legal.

The problem is that there are a couple of moderate Democrats who are throwing cold water on Biden and Schumer’s parade. You know who they are. Joe Manchin and Kyrsten Sinema, whose votes would be required, have warned against using the measure.

Democrats should really thank Manchin and Sinema for putting the brakes on the Biden Administration, which might otherwise be tempted to… well, propose multi-trillion-dollar liberal wish-list bills that could actually pass. President Biden is likely to be more popular as a liberal crusader who proposes laws with a grand vision of government expansion than he would if those bills became law. Anticipation is often better than getting what you want, which only feeds additional wants.

I can think of two separate reasons for why the Biden Administration is proposing laws that it knows have very little chance of passage. The first is that it is political theater in which the president is telling progressives, “I’m one of you.” By trying to give the Democrat left everything it wants, Biden is angling for their support for the next three years, the 2022 midterms, and for his re-election campaign.

There. I’ve said it. I think Joe Biden will run for re-election, barring some unforeseen circumstance such as a sudden health problem. He’s building his credibility as a liberal warrior as well as creating a foil with which to blame his lack of success.

“I wanted to give you all this stuff,” Biden will say, “But the Republicans wouldn’t let me. I need for you to send more Democrats to Congress so that we can pass these bills in my second term!”

It’s a ploy that is at least as old as Congress itself. Both the Democrats and the Republicans need each other to bear the blame for their failures and be the target of the base’s anger. Ask for the moon and when you don’t get it, blame the other party.

The second reason is that Biden is a creature of the Senate. He knows how the legislative process works. Unlike some recent presidents who think that they can do anything they want because they won the election, Biden knows that he doesn’t have a blank check.

In that sense, Biden’s massive proposals are an opening bid in which he asks for the moon and expects Republicans to return with a counter-offer. If Republicans don’t want to spend $2 trillion on a grandiose infrastructure plan, maybe they could offer $600 billion on a bill that would pay for necessary upgrades to roads, bridges, and airports.

In the past, that has been how Congress worked. We compromised and made deals to get things done. But over the past few years, the pattern has become one of the opposition party just says “no” and then the party in power tries to bypass Congress uses executive authority. Our legislative system is broken but, if Republicans negotiate with Biden and the two parties start talking again instead of yelling past each other, then maybe we can begin to fix our government.

Wherefore art thou, Rubio?

 A few years back, I thought Marco Rubio was one of the people who could save the Republican Party. Rubio, and a few other young conservative rock stars, seemed to have both the principles and the popularity to make limited government politics popular and practical as the country exited the Obama era. Although he wasn’t my first choice in 2016 (I originally backed Scott Walker), I volunteered for his campaign and ended up making phone calls on his behalf of Rubio. I took the picture accompanying this article at a 2016 campaign event in Houston. Imagine my disappointment with the Florida senator since 2016.

Rubio’s performance in the four years of Donald Trump’s hostile takeover of the GOP has been lackluster but not markedly worse than most other Republicans. But, even worse than his waffling and failure to stand up to Trump’s excesses and abuses of power is Rubio’s new adoption of populist talking points. The most recent example is his op-ed in the New York Post this week.

Marco Rubio at a 2016 rally in Houston (David Thornton)

First off, let me question Rubio’s decision to place a major policy piece in a second-tier outlet like the New York Post. The Post is a tabloid and not generally considered a serious paper. National politicians typically publish opinion pieces in their local papers but often write for such prestigious outlets as the Wall Street Journal, the New York Times, and the Washington Post, the papers of record for the country, but I can’t recall any politician of Rubio’s stature publishing an op-ed in the NY Post. The very fact that Rubio chose the NY Post for his piece makes it seem even more populist and less serious.

Rubio’s op-ed does not sound conservative. In fact, the opening paragraphs sound like they could have been ghostwritten by Bernie Sanders or Elizabeth Warren:

“What’s good for General Motors is good for the country.” This was a ­defining American ­adage in the last century, because it was true: US corporations helped to make our country the most prosperous in the history of the world. But with the profits came a corporate duty to care for the strength of the nation and its citizens. 

That bargain has broken down. Many in corporate America feel no obligation to act in the best interest of our country. 

He continues, “Historically, corporate America played an integral role in building thriving communities, stable families, and a strong nation.”

But, Rubio writes, things took an evil turn when “Corporate America began to view these good jobs, families, communities and even the nation as an afterthought. American workers of all backgrounds suffered as a result. Corporate greed annihilated an entire way of life.”

Again, this sounds like Bernie and Elizabeth Warren although the progressives might question when corporate America was ever good. Was it good when corporations imported slaves to work the cotton fields or Chinese coolies to do manual labor on the railroads? Was it good when corporations operated sweatshops that employed poor children who really should have been in school? Was it good when worker safety was such a low priority that a fire in the Triangle Shirtwaist Factory could kill 146 people?

I’d say that Rubio is espousing the same misplaced corporate priorities that the left has trumpeted for decades. What is the purpose of a corporation? It is not to create jobs or grow communities or support families, although these things are often happy by-products of successful corporations. The purpose of a corporation is simply to make profits and return dividends to its shareholders.

Of course, this does not mean that all is fair in love, war, and corporations. There are legal and ethical considerations. And not all of these ethical considerations are black and white.

I do have problems with how some tech companies aid repressive regimes like that of China in censoring the internet for their people. But Facebook, the company that Rubio singles out, is doing somewhat better in this regard. Facebook has been banned in China since 2009 when it was used by Muslim Uyghurs to coordinate uprisings against the government. In 2020, Facebook, along with Google and Twitter, said that it would stop reviewing requests for user data by law enforcement in Hong Kong in response to China’s new security law.

Rubio betrays his real concern when he criticizes corporations for “taking aggressive positions on woke cultural issues.” He compares corporate wokism with allowing “a company to dump toxic waste into a river upstream of a thriving town.”

“Yet corporate America eagerly dumps woke, toxic nonsense into our culture, and it’s only gotten more destructive with time,” Rubio says. “These campaigns will be met with the same strength that any other polluter should expect.”

But there is a big problem with Rubio’s stance because “woke, toxic nonsense” is not toxic waste. In the real world, there is a massive difference between toxic ideas and toxic chemicals. Our laws treat the two differently because they are very different.

What Rubio is proposing is no less than an attempt at corporate censorship and would be blatantly unconstitutional. The First Amendment guarantees protection against the very sort of government control of speech that Rubio proposes. The Supreme Court has held that Americans do not give up their constitutional rights, including free speech, when they band together to form a corporation.

Additionally, his proposal to regulate and restrict “woke” speech would likely be a violation of the Equal Protection Clause. The government cannot favor one set of speech over another and decide that woke liberal speech is inferior to even Rubio’s call to eviscerate the First Amendment.

Rubio ends with one of the most quoted sentences from his op-ed, in which he argues, “America’s laws should keep our nation’s corporations firmly ordered to our national common good.”

But who decides what is in the “national good?” If Rubio’s wishes became law today, it would be the Biden Administration that implemented the new congressional guidelines, but I doubt that the resulting rules would please Senator Rubio.

And that’s the key that Rubio’s argument is garbage. What he wants to do is use the police power of government to restrict the speech of his enemies. Rubio and others would howl to the heavens if the Democrats asked for this power over conservatives but would love to assume the role of arbiter of the national good for themselves.

Does it make me a radical or a liberal to say that neither side should have the power to censor the other? I’d say it makes me a constitutionalist.

If Rubio is truly concerned about woke corporations and the effect of woke ideas on the country, then he should advance competing ideas, based on pragmatic conservative and constitutional principles. Let the ideas of the two sides compete in the marketplace of ideas. Refine them, make them better, and find a compromise to implement them.

The problem is that Rubio and other Republicans abandoned their conservative principles to form a human shield around Donald Trump. In doing so, they lost their credibility and they lost the argument.

Conservative ideas are not dead. They are often better and more workable than competing liberal ideas, but we do need new spokesmen for conservative thought who are not tainted by obsequience to Donald Trump.

Once upon a time, I thought that Marco Rubio could be one of those spokesmen. Now, however, Rubio has shed his conservative principles for populism and repression.

We need to find someone else.

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I may have to explain the subtitle for today’s piece. I once had a history class in college that focused on American involvement in Korea and Vietnam. It was a fascinating class taught by two veterans.

At one point, one of the professors sang a few verses of an old hippie protest song called, “Where Have All the Flowers Gone?” He did this a cappella in front of the class. It was a somewhat surreal and memorable moment.

That moment came back to me as I pondered today, where have all the conservatives gone? Long time passing. They’ve gone to populism everyone. When will we ever learn?

From the Racket

Good cop, bad cop

 I’ve been pretty critical of some recent police activity in these pages. That’s not because I dislike cops, but because some cops richly deserve criticism. Derek Chauvin, Kimberly Potter, the officer who mistakenly killed Daunte Wright, and the pair of Virginia police officers who pepper-sprayed a black army lieutenant all deserve to be criticized and punished appropriately for their actions. On the other hand, the anonymous officer who shot Ashli Babbitt as she stormed the Capitol was well within his authority and may have saved many more lives by taking hers. Now there is another hero officer to discuss. 

The April 21 shooting of 16-year-old Ma’Khia Bryant by Columbus, Ohio Officer Nicholas Reardon is another example of a justifiable shooting. The video below of the press conference includes both 911 calls and bodycam footage from the officers involved. At 4:30 on the video, as he arrives Officer Reardon sees Bryant assault another woman, and the frame at 4:34 clearly shows Bryant assaulting a second woman with a knife. (There is a slow-motion replay at 6:20).

As I discussed a few days ago, it is clearly justifiable and constitutional for an officer to shoot a suspect who is threatening someone’s life. As in the cases of Daunte Wright and Adam Toledo, Reardon had only a few seconds to make a decision and he chose correctly. 

Whether Ma’Khia Bryant was a child or not is immaterial. It doesn’t matter whether she was a good student or not. It doesn’t matter if she was an orphan or poor or black or white. What matters is that in that space of five seconds when Officer Reardon confronted her, she pulled a knife and tried to stab another woman… directly in front of a police officer. At 5:40, as the officers render aid, what appears to be a steak knife lies on the ground beside Bryant’s body. 

While the recent spate of police killings has exposed both good, bad, and accident-prone cops, it has also exposed the ideological lines underpinning the police brutality debate. On the right, some people will defend the police no matter what bad decisions they make. On the left, some people will attack the police no matter how good their decisions are. 

Both of these extremes are wrong. We should be judging these cops based on the specifics of each incident rather than twisting the facts to fit our preconceived ideas of whether cops are good or bad. 

Some cops are good. Some cops are bad. Sometimes good cops make tragic mistakes. What we should be doing is sorting through the facts and treating each unique situation appropriately based on that particular set of circumstances. 

At this point, the Columbus shooting seems to be a good example, not only of a justifiable shooting but of how a department should handle the aftermath. The department confronted the incident with openness and released the videos quickly. Even though some of the eyewitnesses to the shooting are on video asking why Bryant was shot and denying that there was a knife, the video does not lie. 

Contrast this with the killing of Andrew Brown, Jr. by members of the Pasquotank County Sheriff's Office tactical team in Elizabeth City, N.C. on the same day that Bryant was shot. The officers were serving an arrest warrant for felony drug charges when he apparently tried to flee. 

So far, there has been little information on what led to Brown’s shooting. In North Carolina, a court order is required to release the bodycam video per the State Bureau of Investigation. Even though shooting a fleeing suspect can be justifiable in certain circumstances, the lack of hard information and transparency from authorities has allowed rumors to take hold. At this point, we really don’t know why Brown died or whether the officers acted correctly. 

What we do know for certain is that Ma’Khia Bryant acted foolishly and criminally in attacking another woman in front of officers and that Officer Reardon acted heroically. If Reardon had not shot Bryant, one of the other women might have been killed or seriously injured. Given the close proximity of Bryant to her victim, Reardon’s accuracy should also be applauded. Bryant’s victim could have easily been hit by friendly fire if he was less proficient. 

Bad cops should be punished, but we shouldn’t go looking for reasons to be angry at cops who do their jobs well. Nicholas Reardon did his job well and the focus should be on the life he saved, not the life that he took.

From the Racket

Where were the riots?

 Over the past few weeks, I heard a lot of people speculating that there would be a new wave of riots across the country, no matter how the Derek Chauvin trial ended. The theory was that if the former officer was acquitted that the rioters would take out their anger and frustration on local businesses. On the other hand, if Chauvin were convicted, there would be celebratory riots. After all, if you want a new tv, does it really matter if Chauvin is going to prison or not?

Or so the theory went. The problem was that the riots didn’t happen. There were protests and demonstrations and marches, but they appear to have been mostly peaceful. There were some arrests at an “unlawful assembly” in Portland, but the “r” word does not seem to have been applied to the gathering.

May 28, 2020 protest in Minneapolis (Dan Aasland/Wikipedia)

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I have little doubt that riots would have erupted if Chauvin had been acquitted. It would not have even surprised me if there had been violence in the wake of the guilty verdict. It was not impossible that some of the demonstrators would have heeded Maxine Waters’ ill-advised cause for more confrontation. But, in the end, they did not.

People who made the assumption that there would riots no matter what should ask themselves why they were wrong. Maybe the problem is that most of us had it wrong last year.

Last year, there was a lot of ridicule about news stories, especially from CNN, that reported that 93 percent of BLM demonstrations were peaceful. A lot of people looked at the pictures of the riots and assumed the report was garbage, but what if it wasn’t?

The reports were based on a study by the Armed Conflict Location & Event Data Project (ACLED), a nonprofit that collects data on violence and protests around the world. The study found that that there were more than 2,400 peaceful demonstrations between May 24 and August 22 last year. During the same time period, there were 220 violent protests. That explains the math, but why didn’t we see these peaceful demonstrations on tv?

The answer is that if it bleeds, it leads. It’s no secret that violence and bad news make for more compelling and gripping video than peaceful protests. Nevertheless, those peaceful demonstrations were covered. Many of them were small protests in small towns, like my county seat. The BLM protest there, which I did not attend, was covered by our weekly newspaper and not much else.

I think the truth is that support for BLM was and is a lot more widespread and peaceful than most conservatives understood. FiveThirtyEight points out that support for BLM was at 60 percent last June and remains at 50 percent today.

To understand this, we have to understand that there is a difference between the BLM movement and the BLM organization. A lot of people, some conservatives included, support the idea that black lives do matter and that policing needs to be reformed. Far fewer back the radical aims of the BLM organization, which have been reported on by many conservative outlets.

Not everyone who supports BLM is a socialist. In fact, I’d say most are not. They are decent people of all races who believe that these unnecessary deaths are tragic.

The flip side is that you can’t honestly say you believe “all lives matter” if you think that the unnecessary deaths of George Floyd, Daunte Wright, Breonna Taylor, and others don’t require justice. Even police officers need to be accountable for bad killings if the lives of the dead matter.

One of the Civil Rights stories that connected most with me is the murder of Lemuel Penn. Lt. Col. Penn was an army reservist who was chased down and killed by Ku Klux Klan members after driving through Athens, Georgia in 1964. The murderers were initially acquitted by a local jury, but two of the six were later convicted on federal civil rights charges and sentenced to a paltry six years.

Penn’s murder occurred less than 20 miles from where I grew up and my childhood was separated by less than a decade from the shooting. As a University of Georgia student and then a worker in Athens, I frequently drove across the bridge where Penn died and past the historical marker that memorializes the shameful chapter in American history.

America and Georgia have changed a lot since 1964. Where local officials protected the klansmen from Athens, the Minneapolis police chief testified against Derek Chauvin. Members of the community of all races banded together to confront Chauvin and the other officers to peacefully try to save Floyd’s life… and then to seek justice.

I did not then support and do not now excuse the violence that was all too common in the wake of Floyd’s death last summer, but I do think that there is some truth to the idea that the riots were a result of anger at the system that boiled over after a series of controversial killings. Some, like the killing of Michael Brown, were justified under the circumstances, but too many were not.

So, why were there no riots after Chauvin was convicted? I think it was because the verdict affirmed that, unlike back in 1964, black lives do matter in 2021. I think that there was widespread relief and joy that sometimes the system does work and that bad cops can be held accountable… at least some of the time.

From the Racket

The difference between Ashli Babbitt and Daunte Wright

 Recently, a talking point on social media has contrasted the deadly shootings that involved QAnon adherent Ashli Babbitt, who was killed in the January 6 insurrection, and Daunte Wright, a black motorist killed by police in Minnesota last week. The social media posts question why Officer Kimberly Potter was charged in the death of Wright but no charges were filed against the officer who killed Babbitt. The simple answer is that the two incidents were very different and governed by different standards for the use of force. 

Both killings were caught on video so we have a very good idea of what happened in both cases. In the case of Ashli Babbitt, even though Capitol Police do not wear body cameras, there are multiple videos of the moment of her death because the rioters themselves were documenting their attack on Congress. One video, available on the Washington Post site with labels and captions, gives context for the situation. 

Capitol Police officers were backed against a door outside the “Speaker’s Lobby” of the House of Representatives. Rioters are confronting the officers and punching the glass on the door. Babbitt is at the front of the crowd and she can be seen talking to the officers. Members of the crowd offer to “make a path” for the three officers with their backs against the door to withdraw. When the officers move away, the crowd tries to break down the door. One rioter can be seen hitting the door, which has been reinforced with chairs on the other side, with what appears to be a baseball bat. An officer on the other side of the door who is not fully seen points a gun at the mob. 

The video goes to a split-screen as members of the mob yell that they see a gun. Babbitt is boosted through a broken window on the right side of the door opposite from the officer with the gun. The officer fires and Babbitt falls backward out of the window.

The Youtube video below has a different angle. The doorway is viewed straight-on and Babbitt, wearing a star-spangled backpack and with some sort of flag apparently wrapped around her waist, is seen attempting to pass through the broken window. The officer fires and she falls backward to the floor as the crowd scatters. 

In the case of Daunte Wright, we do have body camera footage. Wright was originally pulled over because his car had expired tags, but the officers then realized that there was a warrant for his arrest. 

In the video, we see three officers attempting to handcuff Wright when he breaks free and gets back into his car. A brief struggle ensues and Officer Potter, a 25-year veteran of the force and a training officer, can be heard yelling, “I’ll tase you,” but it is obvious that she is holding her pistol. She announces, “Taser, Taser, Taser,” and the officer struggling with Wright backs away as Potter fires. 

Her reaction is swift and horrified. She screams, “Oh my [censored]. I shot him.”

Wright attempts to drive away with his girlfriend, who was also in the car but is mortally wounded. He collides with another vehicle several blocks away and is pronounced dead at the scene per MPR News. 

The two shootings could not be more different. Ashli Babbitt was an aggressor, part of a mob that was actively trespassing on federal property and attempting to attack members of Congress. Daunte Wright was a fugitive who was attempting to evade arrest and flee. Different rules apply to the different circumstances. 

Although laws vary from state to state, police are generally allowed to use deadly force in situations where their actions are “‘objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” This standard stems from the Supreme Court’s decision in Graham v. Connor (1989).

This built on an earlier decision, Tennessee v. Garner (1985), in which the Court ruled that officers could shoot fleeing suspects but only if such force is “necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

These two decisions apply directly to the cases of Ashli Babbitt and Daunte Wright. Babbitt was part of a violent mob attacking the Capitol. It is “objectively reasonable” to believe that the officer thought that using lethal force to stop the mob from breaking the doorway was necessary not only to save his own life but the lives of members of Congress and other government employees as well. 

A Justice Department press release outlines the legal standard to charge the officer who shot Babbitt: 

Prosecutors would have to prove not only that the officer used force that was constitutionally unreasonable, but that the officer did so “willfully,” which the Supreme Court has interpreted to mean that the officer acted with a bad purpose to disregard the law.  As this requirement has been interpreted by the courts, evidence that an officer acted out of fear, mistake, panic, misperception, negligence, or even poor judgment cannot establish the high level of intent required under Section 242. 

The report on Babbitt’s death concluded that the shooting was justified and that the officer acted reasonably under the circumstances. His actions were ruled to be reasonable in “self-defense or in defense of the Members of Congress and others evacuating the House Chamber.”

On the other hand, Officer Potter had no reason to believe that Daunte Wright wanted to do anything other than get away. The arrest warrant stemmed from an incident in December 2019, more than a year earlier, and Wright was not a threat to the life or property of anyone as he attempted to flee. Potter did not intentionally shoot Wright because the shooting would have clearly been an unreasonable and unconstitutional use of force. 

This truth is underscored by the fact that the police department in Brooklyn Center, Minnesota is not even attempting to justify the shooting. Officer Potter submitted her resignation from the force and was herself arrested and charged with manslaughter in what a police spokesman in the video above calls an apparent “accidental discharge.” 

The bottom line is that there are two constitutional reasons for police officers to shoot someone. The first is in defense of a life, either the officer’s life or that of some innocent person. The second, which is closely related, is when a fleeing suspect’s escape would pose a threat to someone’s life. In both cases, the officer’s determination of the threat must be “objectively reasonable.”

There is the legal standard for the use of force, but there is also the reality of juries. In many cases, juries set an even higher standard for convicting police officers than the Supreme Court’s already high standard for charging them. As I wrote last week, an Arizona jury acquitted the officer who shot Daniel Shaver in a hotel hallway even though he gave contradictory commands that the intoxicated Shaver tried to obey. The case of the South Carolina police officer who shot Walter Scott, another black motorist, in the back and then planted a Taser on Scott’s body, ended in a mistrial. The officer eventually pled guilty to federal civil rights charges. 

One of the few officers to be convicted of a bad shooting was Mohammed Noor. Noor, another Minnesota officer (what’s going on up there?) was responding to a report of a possible rape when he fired through the window of his squad car, across his partner’s chest, at an unarmed 40-year-old Australian woman in her pajamas who had approached the car. Noor was convicted of third-degree murder and second-degree manslaughter and sentenced to 12-1/2 years for the 2017 shooting. 

Even if the Capitol Police officer had been indicted for the shooting, there is almost no chance that he (or she, we don’t know the officer’s identity) would be convicted. It would almost have to be a jury of 12 Anons to get a conviction in the case. 

On the other hand, Potter may or may not be convicted. She clearly killed Wright unintentionally, but as noted above, juries often give police a lot of leeway. 

The deaths of Ashli Babbitt and Daunte Wright resulted from very different circumstances. Different rules applied in both cases, but the officers’ action had to be “reasonable” in both situations. The actions of the Minnesota officer who killed Wright were not reasonable, but the actions of the Capitol Police officer were reasonable in the midst of an attack by a violent mob. 

In the vernacular of many Second Amendment activists, the insurrectionist mob f-ed around and Babbitt found out. It’s nothing short of a miracle that Babbitt was the only fatality among the insurrectionists because officers defending the Capitol had adequate justification to shoot many more of the rioters. 

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Speaking of cops behaving badly, last week video of a disturbing traffic stop from December 2020 in Windsor, Virginia became public. A YouTube video combines the driver’s cellphone video with two body cameras from the officers involved. 

The driver of the car, Caron Nazario, an active-duty army lieutenant who is black and Hispanic, was stopped because the officers thought that he did not have a license plate on his car, although a CNN report notes that a temporary dealer tag was in the rear window. Nazario reportedly activated his turn signal and continued driving to find a well-lit area in which to pull over. More than a mile later, he stopped at a gas station.

In the ensuing confrontation, the officers approach Nazario’s vehicle with guns drawn and yell at him with confusing orders. In rapid sequence, the officers tell him to “put your hands out the window and turn the vehicle off,” let me see your hands,” open the door and step out,” and “keep your hands outside the window.” 

Nazario asks repeatedly why he was stopped, but the officers never answer the question. Instead, one warns him that he about to “ride the lightning.” When Nazario says that he is afraid to get out of the car, one of the officers replies, “You should be.” 

Nazario tells the police at one point that he does not have to get out of the car for a traffic stop. This seems to be his big mistake. The Supreme Court ruled in Pennsylvania v. Mimms (1977) that an “order to get out of the car, issued after the respondent was lawfully detained [for a traffic stop], was reasonable, and thus permissible under the Fourth Amendment.” 

The average motorist doesn’t know about the Supreme Court ruling from 40 years ago, however. I didn’t until I looked it up. The officers could have explained to Nazario that the law required him to get out of his car, but instead they increased the tension by repeatedly screaming the same commands over and over.

The officers eventually try to open Nazario’s car door and pepper spray him without warning. Throughout the entire incident, Nazario keeps his hands in view and holds them out the window. 

After he is pepper-sprayed, the officers open his door and order him out, but Nazario is still wearing his seatbelt. The officers order him to release the seatbelt, but Nazario still has his hands raised. Nazario announces that he is reaching for his seatbelt, to which the officer responds, “Fine!”

As with many of these incidents, there were mistakes on both sides. Nazario’s temporary tag was not correctly displayed in the holder and he disobeyed a lawful order to get out of the car. On the other hand, the officers did nothing to de-escalate the situation and continuously heightened Nazario’s fear that he was going to be shot. 

In the end, the officers end up letting Nazario go. They give him the choice of being charged or to “chill and let it go.”

The CNN report indicated that one of the officers alleged in his report that Nazario “assaulted” him by “striking my hand away” and that the pair gave him “several more commands to comply with orders or he would be sprayed.” The body camera footage does not back up either claim. 

The officer who pepper-sprayed Nazario has been fired and the other officer will undergo additional training per CBS News. Nazario has filed a lawsuit against the department, but such suits are notoriously difficult to win. 

The incident is yet another example of why we need police reform that includes better training for cops on how to de-escalate potentially violent situations. I believe that this sort of incident is much more common than most of us would care to admit. 

Throughout the incident, Nazario remained calm and polite, we don’t know what would have happened if he acted differently, but I don’t blame him for being afraid for his life. That is especially true since Nazario is the nephew of Eric Garner, who was killed by NYPD officers during an arrest in 2014. 

Good advice if you are stopped by police is to be calm, be polite, and keep your hands in sight, as Nazario did. Don’t make sudden moves. This is especially true if you are exercising your right to carry. When in doubt, sit still and keep your hands visible. Maintaining a grip on the steering wheel is one way of doing this. It’s also a good idea to become familiar with your state’s laws regarding interaction with police so that you can know both your rights and the limits of the officer’s authority.

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If you didn’t read the Racket over the weekend, check out my discussion of President Biden’s retreat from Afghanistan and the new Republican America First Caucus in Congress.

Fro the Racket

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