Advisory Opinions - The Sound of Reform

Episode Date: June 8, 2020

David and Sarah discuss calls by protesters to "defund the police," ideas to reform police departments from no-knock raids to police unions, incorporation doctrine, and the miniseries 'Waco.' Show Notes: -David's Sunday newsletter -There’s Never Been a Better Time to Abolish Qualified Immunity -Justice Department Waco report Learn more about your ad choices. Visit megaphone.fm/adchoices

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Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And we're going to be talking an awful lot about police reform today. But we're not going to talk only about police reform. We're also going to talk about one of the more underappreciated constitutional doctrines that has changed our lives perhaps almost more than, I don't know, it's hard to think of a constitutional doctrine

that's been more immediately relevant to American people's lives. It's interesting. It's called incorporation. And then we're going to talk about the Netflix series Waco that Sarah and I have both watched, and Sarah has Boku thoughts. But before we dive into that, I'd like to please remind you to subscribe to this podcast. Please rate this podcast on Apple Podcasts. And this is a product of Dispatch Media, thedispatch.com, and please go check us out and become a member. All right, let's get started. Sarah, you spent some time over the weekend writing about, and it was published in the Morning Dispatch this morning, this slogan that we're hearing a ton about over the weekend

called defund the police. over the weekend called Defund the Police. And like many slogans that you hear online or chanted in the streets, it isn't necessarily self-explanatory as to what it actually means. So, Sarah, walk us through what does defund the police mean? Does it have many meanings? Is it obvious from the front end to zero out budgets? What is it? So this like perked up my ears because when I was at the Department of Justice, I actually did dive into some of the more academic, well-researched literature on abolishing prisons. Because there are smart people out there who have really unusual ideas on some of this. And I think it's worth diving in when they make a serious argument to see what their argument is and what ideas they have. And so when I saw Defund the Police the first time, I thought, huh, it kind of reminds me of that, of like something that

you initially see and think like, well, that's the silliest thing I've ever seen. This is just a phrase. But there are real people who have written thoughtful, interesting things on this, probably on defund the police, quote unquote, a phrase that I'm not sure that she would necessarily use. Mariam Kaba is one of the sort of major thinkers on this front. And so I wanted to introduce our morning dispatch readers to this idea that like, it's, you know, before you just scoff and move on with your day, you know, this is not just a slogan, like there are actual real thoughts behind it. So her thing is really on restorative justice. And this probably is the more extreme version where, you know, she says that you could draw on pre-modern conceptions of conflict resolution, such as

peace circles as an alternative to police and prison. So it's part of this like much, much larger concept of rethinking criminal justice as a whole. Again, I'm not saying that most Americans will find this persuasive, but what I am saying is you can go find real things to read about this that aren't just hashtags on Twitter. And so you have that on the one side. Then I think currently there are people who are, you know, really this week talking about instead of increasing the police's budget another X amount to hire more police officers to try to do more community policing, which they would argue hasn't worked, take that money and instead put it into social work, into school counselors, things like

that. And then I would say you have a third group who actually wants to replace core police functions. If you get a call, you know, a disturbance call, for instance, sort of a nonviolent police call, which is frankly the majority of 911 calls, that instead of sending police out there, you would send out this other group, social workers or community representatives with dispute resolution, you know, it's on a noise, you know, my neighbor has his music up too loud. You don't need to send police with guns as their argument. That escalates a situation. It doesn't de-escalate it. So I would put it in those three camps. The other part that's probably worth mentioning is that like no Democratic leaders, leaders have come out in favor of this. Karen Bass, chair of the CBC. No. Biden today. No. Minneapolis mayor. No. New York de Blasio. No.

AOC, yes. Although, again, she falls into that camp of just taking money from the police and putting it towards other things. She's not actually talking about getting rid of the NYPD. Same with Eric Garcetti in Los Angeles. So, you know, hashtag defund the police more like eliminate the Fed. It's a phrase that everyone like that, like got into the public consciousness really, really quickly, but that no one with political power actually supports the extreme version of it. Yeah. And Democrats just unveiled the House Democrats just unveiled a giant police reform package that I would say is probably the best expression of where the Democratic Party actually is, since this is the Democratic House, the most politically powerful arm of the Democratic Party right now. And it is not a defund the police package.

It is a package that reforms qualified immunity, that bans chokeholds, that would seek to establish, for example, a database of police misconduct so that if an officer commits acts of misconduct in one jurisdiction, that record follows him into another jurisdiction. And so it's got a lot of bullet points. None of them are defund the police. And so I fear that one thing that's going to happen in this debate is what you're going to end up having are people saying, well, Trump is going to run against defund the police when that's not the actual Democratic position. The actual Democratic Party position is something different.

It's kind of like how what we see is we set up these dichotomies in the media often as Trump versus AOC. Well, AOC is a very popular social media presence, but she has almost no power in the Democratic caucus. Beyond the power of persuasion or, again, using her pulpit to push maybe the Overton window, if you will, broader, in terms of actual committee chairmanship, legislation proposed, being the best friend of Nancy Pelosi. No. No. No. In fact, you know, their power has waned, I think, significantly within the Democratic caucus because they were, at least for a time, part of an intentional strategy to primary longstanding Democratic Party members, House members from the left. And there's few ways to

anger people more in a caucus than to present a direct challenge to their jobs and existing power. Their jobs, but it also makes them spend money that would have gone to what they consider the pickup seats. So like the money is fungible in the sense that like every dollar you have to spend defending an incumbent, which they are basically required to do under the rules of the DCCC, is money they can't spend picking up a new seat. So it really that's like more fundraising time where Pelosi has to get on the phone. That's like more fundraising time where Pelosi has to get on the phone. And, you know, politicians hate fundraising calls.

Right. Exactly. Exactly. So, you know, I think it's important to know what defunded the police that actually means, you know, because we've had a lot of slogans of late that what the slogan says is and what the slogan means is not obvious from the actual words of the slogan. Yeah. So, for example, we spent time talking about Believe Women, and there was dispute about what did Believe Women really mean. I wrote this weekend about the phrase systemic racism.

Well, the academic meaning of the term systemic racism, which you also wrote about in the morning dispatch, is different from the colloquial meaning of systemic racism. And once again, we've got another one of these things. Defund the police seems to have a kind of a literal meaning of zeroing out police budgets. When the reality is sort of like opening a door into an array of reform ideas stretching everywhere from peace circles on one end of the spectrum to, hey, let's cut 10% off the NYPD budget on the other end of the spectrum. Well, although let me draw some distinction here. They are – what the defund the police people actually reject are police reforms and because they see reforms as what you were describing right get rid of chokeholds uh better training more accountability what they're saying is we've tried all those things to varying degrees and it hasn't made a substantial enough difference so screw that we want to just start moving the money elsewhere. Not get rid of police departments. Again, for the most part, it's hard to find anyone who actually is just like get rid of police.

Although good academic literature, as I said. But it is, they would not say, they would disagree strongly with the idea that it's on a spectrum with police reform. Because they reject police reform. That is the one thing that the defund the police people are very much in agreement on. And the Democratic leadership very much disagrees with. Exactly. Yeah. The Democrat, the right, the Democratic leadership is no reform. Yes. Well, let's talk about some of these reform ideas. And and so this is this is when it's this is civil libertarian's time to shine, Sarah. This is the civil libertarian's time to shine because some of us in the civil liberty space have been saying for a long time that the more the state involves itself into the lives of citizens, the more there is an opportunity for armed officers of the state to have friction

with unarmed and armed citizens. And that friction escalates situations, often unnecessarily, and creates real problems. So let's just go through some... I want to point out two things. One, the escalation problem, which I think is the biggest one. And two, which I think is slightly different, which is the hammer and nail problem. Yes. The police are a hammer. So everything is a nail, which leads to escalation sometimes. But also, I think to some of the defund the police people's point, you know, you have a noise ordinance violation. And so police come in as hammers and are like, I see a criminal,

like a potential criminal thing I can deal with. Whereas if you sent someone in who dealt more with conflict resolution with neighbors, you know, it would not be the same hammer nail issue. Yes. Yeah. Right. Exactly. Okay. You ready? Yes. I've got a list, Sarah. He has a list, folks. I've got a list, y. Exactly. Okay. You ready? Yes. I've got, I've got a list, Sarah.

He has a list, folks. I've got a list y'all. Okay. We're going to be here for a while. Civil libertarian pet peeve. Number one, these are not in, in, or I didn't list them by how much they anger me. I listed, I'm just, this is just a list, but it's got to start somewhere. Over criminalization. Yeah. Okay. So this is one of my big problems. Over-criminalization. One of the worst examples of police brutality and really just an awful, tragic, horrible killing was the chokehold applied in the arrest of a man in New York who was selling Lucy cigarettes. Eric Garner.

Eric Garner. So what is a Lucy cigarette? Like he's literally selling individual cigarettes on the street. And that's unlawful. That's unlawful. It sort of falls under the broken windows theory. That was the idea, right? Like panhandling. And this is sort of a version of panhandling, even though also kind of capitalism. Yeah, right. It's spontaneous entrepreneurship, Sarah.

And so one of the things a civil libertarian says, every law eventually has a bayonet at the end of it. Because if you're going to defy and defy, eventually the state will assert itself. So selling Lucy cigarettes, Eric Garner is upset that he's being hassled. There's some resistance to the police. Next thing you know, he's on the ground. He's saying, I can't breathe. And he dies. That's a classic example, in my view, of over-criminalization.

When we take too many spheres of human behavior, apply state regulation to it, and often state regulation that doesn't have just civil penalties for disobedience has criminal penalties for disobedience. You know, one of the things that I always thought about with the Eric Garner killing is, if you're even going to make that illegal, why not just write him a ticket and a citation? At most, I mean, I think society is not going to be particularly harmed if people are allowed to sell loosey cigarettes. But over-criminalization is a problem. Yes, I think in that case also, what you could have had was public nuisance or, again, loitering, but then you'd have to prove that he was actually bothering people or something else. Whereas the

loose cigarette laws, which I think are so similar to a lot of other things, you don't need to prove anything. It's just sort of a fact. Like, were you selling a loose cigarette? Not, was there anything wrong with selling a loose cigarette at that moment at that time? Right. Exactly. And by the way, like loose cigarettes, I mean, I'm remembering I've never smoked, but really not one cigarette. No, no. Yeah. Wow. Sarah, I you know why I grew up like everyone smoked in my high school and stuff. And I just knew I would really enjoy it. to tell you the truth. Like I was like, that looks awesome. So I best not. Um, my mother told me she would kick me out of the house, uh, for that or coffee. For some reason, coffee was also like the same to her. Um, but you know, how many, everyone bums cigarettes, right? Like all the, like the nineties are known. Like that's how you meet people is bumming cigarettes. So, uh, you know, the idea of paying nineties are known, like that's how you meet people is bumming cigarettes.

So, you know, the idea of paying that person 25 cents, that's, that doesn't offend me or my moral sensibilities. Right. And we don't, we're not sitting here arguing that if you liberate America to sell Lucy cigarettes, that we're going to ease our policing problem. It's just one example. It's just one example. Okay. problem. It's just one example. It's just one example. Okay. Number two, the use of police as a revenue generating vehicle rather than a public safety force. Okay. Now this is something

that a lot of people, if I had to pinpoint something that does anybody much know about this? Well, in the app, when you think about it, yeah, you do. Because every time you're pulled over for speeding, and I've been pulled over a few times, you know there's a monetary fine attached to that that you're going to have to pay. And I've paid my share. And you begin to realize that, wait, there's incentives here to increase law enforcement to increase revenue. And there is a slippery slope, folks. And so one of the most interesting findings after the Michael Brown hands up, don't shoot controversy at Ferguson, the Obama DOJ

commissioned two studies. One was of the actual Michael Brown incident itself. And another one was of the practices of the Ferguson Police Department, because there was a huge amount of anger in that community towards the police department itself. The shooting sort of tore the scab off of an open wound. So what they wanted to do was find out what's going on in the Ferguson Police Department. And they reached two findings. One that's famous in conservative circles is that the hands up, don't shoot narrative was decisively debunked, that that was not what happened at Ferguson and that the officer could not be charged for murder in the killing of Michael Brown. That was the one that was all over conservative media, got hands up, don't shoot labeled one of the lies of the year. But very few people remember the other one, the other study. And the other study

was shocking to me. And what it indicated was that systematically considerations of public safety and policing were sidelined for considerations of revenue generation. And so what ended up happening as a practical matter is the police force was sort of using the citizens of Ferguson as an ATM. If they needed more money, literally there was evidence that in municipal court, they would go through arrest warrants to try to find, not for the purpose of public safety, but to find people who could pay fines. And so you're then having armed officers of the state, again, going back to the sort of the over criminalization, using all of the vast authority that they have under these, you know, all of the various rules of the road, et cetera, et cetera, to find and pull people over to raise money. And so that think about all the additional friction that that creates with the community. Not just friction.

Sorry, not just friction, meaning I think the friction is extremely important. I think who they target for those things is extremely important. increase those number of interactions the likelihood that one of them will go wrong increases enormously because again sort of the the escalation problem and the hammer and nail problem every time that a police officer walks up to a car it is a dangerous situation for that police officer and they know it and so they have in the back of their minds all the times that it's gone wrong. Correct. Exactly. And yeah, that's exactly right. And then there's the sort of the grinding oppression of it, because what if you're targeting mainly poor neighborhoods and we'll get into why in a minute, you're targeting people who don't have much money.

And so let's say you're pulling somebody over for a broken taillight. And because they don't have as much money, they're less likely to renew their tags, right? Because that costs money. They're less likely to prepare a broken taillight or a cracked windshield because all of that costs money. But all of those things under the law have to be done. So yeah, there's a legal pretext to pull someone over. So they don't have money to begin with. Then they have the, what, $150 fine. And then if they miss the court date, the fines and court costs escalate. Then they've got an arrest warrant.

I mean, just think about the cascading state of affairs for people who are already under stress. They already don't have very much money. And this raised an interesting question in our dispatch comment section because we had a very robust comment response to my Sunday newsletter. And somebody said, well, wait a minute. If the police are interested in raising money, why are they going to the poor neighborhoods? I mean, soccer moms speed too, and they've got cash. Start pulling over. If the police are really interested in revenue, why aren't they pulling over the soccer moms speed too, and they've got cash. Start pulling over. Why aren't, if the police are really interested in revenue,

why aren't they pulling over the soccer moms? Sarah, why aren't they pulling over the soccer moms? Because the soccer moms fund the police through charities and whatnot. And separately from that, soccer moms will freak the F out. Soccer moms got power. Yeah. They know the sheriff and you know why'd you put up a speed trap outside of the soccer field because that just feels like harassment bob get the speed trap the sheriff

lives next door to the soccer mom it's his neighborhood so he's not going to set up a police trap in his own neighborhood yep he's going to set up a police trap in his own neighborhood. Yep. He's going to set up the police trap in a neighborhood where he doesn't know, you know, people and thinks that maybe they are more likely to speed or be into trouble or quote unquote need community policing. Well, and I was just saying in the podcast Green Room before we launched this, I can distinctly remember not long ago when a speed trap was set up outside of our nice neighborhood in Franklin, and people were ticked. They were ticked. And again, this is a situation where a lot of folks, it's just one phone call away from the mayor. It's just one phone call away from the sheriff. I'll tell you

a story, a true story. I'm in eastern Kentucky, and I'm trying a case. This is many years ago. Eastern Kentucky, a county that's pretty poor, not pretty poor, very poor, trying a case between two coal companies, totally unrelated to law enforcement issues. But a lot of officials in some of these counties, they kind of double hat. So our local counsel in the case, the local, the lawyer who hung up a shingle in that county, was also doubled as the county attorney. So he was a county attorney and he had his own law practice. So we're working in his offices and I walk back and there he is with the sheriff. And I see them passing around pieces of paper. And he comes out of there

and I said, what's going on? And he said, completely, just matter of fact, he says, yeah, we're just fixing tickets. And what he meant was they were looking at the pile of speeding tickets from the previous week and sidelining the tickets from people who had connections. And everybody else, you got to go to court. But if you were owed a favor, you don't pay the ticket. You can make a call and it would be taken care of. And this is one of the realities of revenue, when it's about revenue generation and not public safety. And when the police know that people with power will not tolerate a revenue generation presence

in their community, who gets hooked? I mean, who gets stuck for the money? It's people who are disproportionately poor. And then it creates the very problem you mentioned, Sarah. Then you've got more interactions with the police, more chances for things to go wrong. All right. Number three, no-knock raids. No-knock raids. That's so funny. Y'all all that I have the like weirdest, nerdiest conversations with my husband. But like I went off on no knock raids last night.

Well, go off now. Tell us what you told your husband. They are just the most dangerous thing for all parties involved. Yes. And I think that when you talk about escalation, a no knock raid already assumes the escalation. And it like it's it's you've jumped already to 100 miles an hour from zero. This is when the police do not have to knock and identify themselves as officers. You know, knock, knock. NYPD, we're here to execute a search warrant or an arrest warrant.

They just bash open your door. Um, and it would be terrifying to anyone. So, and the police know that you're going to not know what's happening and be terrified. So they're terrified of your reaction. They don't, they're not going there to get shot that day. So the police are on extremely high alert and the people who are in that house, God, and we're hoping it's the right house. Cause it's not, it's not always the right house. Right. Um, you know, for all, you know, it's the bad guys, not the good guys. And I'm using those terms, some, you know, and I'm using those terms some, you know. And so it just, it sets up a fire barrel keg situation right off the top. And I just think there could be a lot more discussion over,

I mean, that should be really some last resort stuff. To me, this is such low hanging fruit to reform that I can't even, it's hard for me to articulate how much I object to the no-knock raid except in the most extreme of circumstances. Many times what you're dealing with is a no-knock raid is designed for the purpose not of saving life, like you're raiding a place where you think someone is being held hostage. like you're raiding a place where you think someone is being held hostage, and in that circumstance, taking them by surprise is indispensable, or you're not raiding a location where a violent felon on the run is known to be, where taking them by surprise is indispensable.

You're often doing no-knock raids for the purpose of evidence collection and preservation. So this came up, by the way, and we'll talk about this obviously later, but in the Waco situation. Right. Yes. Yeah. Oh, man. So much to talk about there. So what am I what do I mean? I mean, if you've been a fan of cop movies for a while and especially at the height of the drug war, you're familiar with this sort of scene. The police come barreling in while frantically someone is flushing drugs down the toilet. And if you can get to the person before the drugs are all gone, the police win. If you flush, if you hit that flush handle before the police get there, the criminals win. And so you're like, you have this rooting interest when you're watching the movie. Get to the toilet before the drugs are all gone.

And so you have these no-knock raids where there is really the prime goal is to collect evidence. And there's some stuff about, well, maybe the person's dangerous who's holding the evidence, or the person who has the drugs, he might be armed. And so therefore, to protect the police, He might be armed. And so therefore, to protect the police, we've got to take them by surprise. But as you said, Sarah, can you possibly imagine the chaos? Because let's say you're completely asleep at 2.33 in the morning. This is how it'll often go down.

The door bangs open. They might start shouting, police, police, police. But you're completely asleep. The next thing you know, if you have a dog, it is racing towards the door, barking its head off, and is often immediately shot and killed or mortally wounded right from the get-go. So your family dog is howling, dying. You have no idea what's going on. Maybe you have a gun by your bedside. All you know is people are coming in screaming. The dog is dying.

You've had gunshots and you pull out a gun, as is your Second Amendment right. And then the next thing you know, there's a hail of gunfire and you're dead and perhaps or you're wounded and somebody else is dead, like in the Breonna Taylor shooting in Louisville. It's horrifying. And then the stories, I mean, I would encourage you to just go down this rabbit hole online. Some of the stories of the results of no-knock raids are just terrifying. Flashbang grenades that go into a crib, that was one. That one, I was just going to bring that one up. That's a horrible, and I won't people circulate the dog stories and dog videos. I will not participate in that. Like I, I take David's point that like, this is a rabbit hole that you can go down and that if you want to be outraged or you could just take his word for it, because I don't like watching videos of dogs who are, you know, trying to do their job for their family being

shot. I can't stand it. No, it's horrible. I would not encourage you to go down the rabbit hole of videos. I would really strongly encourage you to not look. I would encourage you to read because some of the stuff is scarring. And the other thing you have to realize is no-knock raids are not evenly distributed across the socioeconomic. There's a shock. Yeah. So again, so think of it like this. You live in a neighborhood where you're more likely to be pulled over for revenue generation purposes. You're more likely to be subject to or know someone's subject to a no-knock raid. And there's, you know, the layer of over-criminalization hangs like a pall over your

head far more than it does over mine. So those are over-criminalization, no knock raids. The, oh gosh, what was the second thing? Revenue generation. Yeah, revenue generation. All right. Next one, Sarah. You ready? Militarization. Now, this one is a little more complicated. It's a little more complicated. today and a police department today is outfitted far more lethally than a police officer was 20, 25 years ago. They have far more military style equipment than they did 20, 25 years ago. Body armor. Most cops probably have not just a pistol, but an assault rifle and maybe a shotgun also that they have in their cars, at least.

Due to the wind down of the Iraq war and the Afghan war, there have been huge amounts of surplus military armored vehicles, not tanks. Everyone says tanks, tanks, tanks. And we made perhaps our most embarrassing dispatch mistake by calling something that was definitely not a tank. And had I seen it before, because I deployed with an armored cavalry regiment, I think I know a tank, I would have said, what the heck? But anyway, these are not tanks. They're usually armored vehicles. Many of them are what are called MRAPs.

An MRAP is a vehicle that was designed to defeat the IED threat in Iraq and Afghanistan. It's a mine-resistant, ambush-protected vehicle, and it is an intimidating piece of equipment, Sarah. And these were given to police forces. So police forces are now, they have body armor, they have assault weapons, you know, ARs. They have armored vehicles that were once patrolling the streets of Iraq. And my goodness, they can look an awful lot like, the police can look an awful lot like an infantry battalion when they want to. And a lot of people look at that, and it's very intimidating, and there's kind of a whole phrase associated with it, the rise of the warrior cop to take from Radley Balco's work. Here's my issue.

I don't have a problem in the world with body armor. I think body armor is a great development. I think body armor is, yes, wear body armor. Body armor is a miracle invention. But if you're going to equip police like soldiers, give them soldier discipline. And if I see, the more I see cops interacting with the public in times of stress, and most cops that you watch are fine, are great, show the patience of Job in the face of provocations. But man, some engage in acts of indiscipline that I've never seen, never saw in all my years in the military. Never saw. And so I think my issue with militarization is the combination of military equipment without the quality of military discipline. Does that make sense, Sarah?

It makes sense. Worth noting, by the way, that the 1033 program is what it's called. It makes sense. Worth noting, by the way, that the 1033 program is what it's called. This was suspended during the Obama years, and Attorney General Jeff Sessions renewed that program while I was there. So I have some conflict that I should disclose in discussing this. But everything you're saying makes sense. Yeah. So I think that the militarization, it creates a more imposing presence. And there are there are limited times when you're imposing presence and the use of tactical kit. It's prudent. Like if there's an active shooter situation, you know, bring the SWAT team.

And I don't care if they look like, you know, they're all RoboCop. If there's an ongoing terror attack, like in San Bernardino, California, where there was a running gun battle in the streets. And if you've got an armored vehicle to deal with that, fine. But one of the things that, you know, I think there's this human nature issue is that it's like, I've got the armored vehicle. Why ain't I using the armored vehicle? And to, again, preview what we're going to talk about at the end here, that was also a big problem in Waco. They borrowed actual tanks from a nearby military installation, and the tanks are what ran into the compound with the tear gas. Yes. All right, here with the tear gas. Yes. All right, here's the last one.

This is a rich topic, so this is not exclusive, but this is sort of my civil libertarian list. Reforming police unions. And specifically what I mean about police unions, I don't mean the aspect of collective bargaining that is wages and benefits. Okay. I have my issues with public sector unions in general. I'm much less interested and much less focused on wages and benefits. How much money am I going to make? What does my retirement package look like?

And what's my health insurance like? That's important fiscally. But from the way in which we experience the police, it's not important. What is important are the terms and conditions of employment side of the collective bargaining. When can police be disciplined? And removed. And removed. is where we got a problem. Because what ends up happening is that in many ways,

core public policy issues regarding the use, regarding the presence and conduct of troops, troops, there I went, militarization of cops in your streets, is essentially removed from the public policy process and put into the collective bargaining process. And what the collective bargaining process often does is provides a layer of protection for the worst performers in the department that dwarfs the protections that exist for poor performers in almost any other workplace in the United States of America. almost any other workplace in the United States of America. And by the way, these are poor performers who have guns. So all I want is for each side to be consistent. And by the way, I think that these poor performers have guns actually is a difference maker to some extent.

But if you feel that way about teachers unions, that it protects the worst performers, you should feel that way about police unions. And to some extent, vice versa. Again, I think the fact that these worst performers have guns actually does make it a more egregious issue. But I would point to the Parkland shooting, that officer who it's not disputed. He knew there were gunshots and he stood by. In fact, he didn't even stand by. He moved further away as far as I think I've read. He was suspended and now he has been reinstated with back pay.

Again, I do not blame him for the deaths of those children and teachers. I can't imagine how chaotic that situation was and all the information he did not know at that time. But should he be a police officer on that force continuing forward? Set aside whether you think it was even bad conduct. What if it just wasn't good conduct? What if it wasn't what we want affirmatively in a police officer? Nope. He's still on the force. Yeah. Yeah. The Broward County stuff is just infuriating, just infuriating. And I so appreciate you calling out the consistency point because look, if you want bad teachers to be fired and believe you me, I want bad teachers to be fired. We should also want bad cops to be fired. There's also another difference between teachers and police officers, which I think is worth mentioning, which is, I think one of the parts that was maybe more heartbreaking in the George Floyd video and in some of these others.

You can think that Derek Chauvin is a bad apple. And I think that Derek Chauvin, you know, he's going to be tried for murder. So if a jury convicts him, he will be a murdering bad apple. The three officers who stood by and watched that happen, I think it's hard to say that they are bad apples in their traditional sense. Because I think that I've yet to see someone make the case that if it had been three different officers that someone would have intervened. And so, again, I think you set up this culture with what you're talking about in terms of the unions protecting jobs, where also it infects the people around with that culture, that this guy's going to be on the force because God knows he's not going to get removed even if he is the bad apple. And then you get the fungus on the nearby apples. Yeah, it's like the bad, I totally get the analogy of there's a bad apple in every

bunch, but not every bunch protects the bad apple. That's right. But what if you knew the bad apple wasn't going anywhere, it was going to stay on the force, you were going to keep having to work with him. And so there's no point in you saying, hey, bad apple, stop doing that, because that's just going to cause disunity in the ranks. and the ranks. And in addition, not only is he not going anywhere, the very act of you calling out the bad apple is going to cause your peer group to come crashing down on you. I mean, I think one of the best visual representations of this dynamic occurred in the Buffalo Police Department in two counts. One is when the Buffalo Police Department officers, I believe it was Buffalo, pushed down the elderly gentleman. He obviously, I don't think the officers intended to cause that man to go into critical condition.

I think they intended to just push him out of the way, but he was an older gentleman. He fell. He hit his head. It's awful. Again, we don't recommend you viewing some of this stuff, but you could hear his head hit the pavement. And he was immediately in catastrophic medical distress. And one of the officers who pushed him sort of immediately started to move to help him. And another officer pulled him back from helping him. And then all the other officers just walked by in the line. The only, the people who moved to help, the one person who moved to help appeared to be the National Guard, the first National Guard soldier to arrive on the scene. And that person probably was a combat medic.

But they, the, when you watch it, it's the National Guard soldier who reacts to the injured person. Not one of the cops and the one cop who even tries to react is pulled back. So that's incident one that you look at. That's where it's the bunch. You have the two pushers and about 20 other cops. And then they're charged. And when they were charged, what was it, 57 officers resigned from? That turns out to be a little bit misleading.

From that force, not from the force. No, they did. They did. But the reasons were not based on that is what has come to light. The union claimed that that's why they resigned, which is sort of funny, actually. But the officers say that it was actually based on the police department's new policy about whether they would like legally protect them and pay for things and things like that gotcha but there was an incident where a bunch of cops applauded those two officers when they were when they uh walked out of a yes when they were released from court and so that again the bunch protecting the bad apple um okay, last thing, and this is philosophical because we've covered

these issues quite a bit. I think, so this is a tough one, Sarah. This is a tough one. So when you're a soldier, if you are asked, what is your priority? Is it coming home or is it accomplishing the mission? The soldier's response is it's accomplishing the mission. That doesn't mean that you disregard your own life and that the army disregards force protection or the army doesn't do everything it possibly can to accomplish the mission with minimal casualties. All those things are true. But when you're a soldier, it's really, if you understand the mission, your answer to that question is, my priority is accomplishing the mission. I've had a number of folks who've talked to me in the course of all of this and say,

and even in their specific experience, the priority of uniformed police is different. It is coming home as opposed to accomplishing the mission. Now, this is a hard thing to talk about. It's a hard thing to talk about because you're talking about people risking their lives. But it's also true that nobody is drafted into the police. We do not have a police conscription program. We do not have a police conscription program. And so I do think that when you put on a uniform voluntarily and you strap on a gun voluntarily, that your priority in your head is accomplish the mission.

And that doesn't mean your own life is to be disregarded by no means. Does that mean that? But I think philosophically, the ultimate priority switches. And so, I don't know. I just wanted to know what you thought about that. I think that's an interesting point. I mean, I do feel like it is worth emphasizing that how important police are and the difficulty of the job that they do and that for the last couple weeks and maybe even a culture that is extended for several years now, there has been this negativity toward police that I think is also corrosive. True. Including even this conversation where, you know, you're criticizing someone and we're not out there doing the job and we're not

having to go execute search warrants where someone might have a gun behind the door. And does all of this make them safer? And I think that's where you get back to the very original thing we were talking about, which is on escalation, hammer and nail, a culture of what their role is in society. And it's why I am less quick to completely dismiss the defund the police conversation and certainly the police reform conversation. Because I think that we should be having a conversation about all of those things that is about protecting citizens and also about what's in the best interest of our police forces long term. Right. Well, and there are plenty of police officers who are killed in the line of duty for doing their jobs and protecting us. And, you know, we're not hearing a lot about that right now. And true. And we should talk about it more. And so, you know, balance is important in all things. I'm very glad you said that, because one thing that should be made clear is a lot of what

we talked about just now. That's not the cops fault Overcriminalization is not their fault. Public policy figures saying you raise more money is not the cop's fault. The political dynamics that say raise the money, but really it's not possible to do it in certain neighborhoods where all the money is, is not the cop's fault. The fact that we have such a, for example, broken mental health system in this country, where the actual first responders time and time again to mental health crises are police officers, is not the cop's fault. And so time and time again, what we have is a legal structure that is not the fault of the police that puts immense strain both on the police and on the

community. And that's what the civil libertarian side of me says, we got to change this. We need to put less strain on the community and less strain on the cops. Because asking them to respond to every loud party, asking them to respond to every mental health crisis, that is putting a lot on them. I mean, a ton. Dad is putting a lot on them. I mean, a ton. Just the other day, my son was hanging out on a park bench not far from our house with some of his friends, not the other day, last summer. Time is blurring, Sarah. And they're just hanging out chatting, all of them that live in the neighborhood, and a cop car rolls up. Why? Because somebody saw some kids out after dark in a park and said, hey, we need to check that out. And so an armed officer of the state comes up to talk to a group of teenage boys just to make sure everything was okay. Again, that's not the cop's fault,

but it's a product of the structure that we have put them in. And you can see why some people in some of these communities where trust and faith has been lost would much rather that be someone other than a police officer who takes that call. And that's what the, quote, defund the police folks, at least some of them, are advocating for. Remove police from some of these situations. And the interesting aspect of this is with a lot of the over-criminalization and the interest on revenue collection, et cetera, et cetera, you result in, and this is something that a great phrase that I've seen from a lot of smart people online, you get under-policing and over-policing. Yes. You get under-policing and over-policing.

Yes. You get over-policing in the sense of they're running around doing all of these things pursuant to this larger structure they didn't create, which then stretches them thin when it comes to things like solving violent crime, being able to respond instantaneously and rapidly to an emerging crisis, et cetera, et cetera. And so there's a lot to be said, in my view, and I know I'm biased, for the civil libertarian side of this. And maybe it's our time, Sarah. I mean, I say our, just assuming you're a civil libertarian too, but maybe it's our time. Okay. Can we talk a little bit about incorporation? We spent a long time on that. Yes.

Yes. So we got an email from a reader that said can you please explain the incorporation doctrine and why some parts of the bill of rights are applied to the states and what aren't and how did this all happen that's a really good question so let's spend just a few minutes on the incorporation doctrine if you head on back to the 19th century, you can find a case called Chicago, Burlington, and Quincy Railroad versus Chicago, 1897. This is the first time that anything from the Bill of Rights was, quote, incorporated against a state, meaning that even though the Bill of Rights is pretty clear, Congress against a state, meaning that even though the Bill of Rights is pretty clear, Congress shall pass no law, for instance, in the First Amendment,

that even your state can't violate your First Amendment rights anymore. And well, back up, back up. I think a lot of people don't know that when the Constitution was written, none of the Bill of Rights applied to the states. Correct. That's what I'm saying. Like, yeah, it only applies to the federal government. Congress shall pass no law. Right, right. And so what you then have is the Civil War happens, and the amendments that come after the Civil War are clear about wanting to limit the power of states to violate people's civil rights in general. And so then you have a problem. We have an initial constitution and bill of rights that list out many of those rights, but only protect them against the federal government. You fight a huge war where the states were the ones violating people's rights.

And Congress, you know, and the country ratifies these amendments about protecting people from the states. And then everyone turns to the Supreme court and is like, okay, now what? So first up, you have this 1884 case called Hurtado, uh, and Hurtado, it's actually a little, little bit fun backstory, David. Yes. Mr. Hurtado's wife, Susie is having an affair. story, David? Yes. Mr. Hurtado's wife, Susie, is having an affair. She's having an affair with a man named Jose Estuardo. We're going to call him Jose because Hurtado and Estuardo are too similar. So Susie's having the affair with Jose and Mr. Hurtado does everything he can to end this affair. He sends his wife away. He reprimands her. I'm sure he can to end this affair. He sends his wife away. He reprimands her. I'm sure he did all sorts of stuff.

He threatens Jose as well. But love cannot be stopped, David, and Susie and Jose get back together, and I think you can guess what Mr. Hurtado does. He kills. He kills Jose. Oh, okay. Yeah, so he is charged with murder he's found guilty of murder and he is sentenced to death and his case gets all the way to the supreme court because he argued that he wasn't indicted by a grand jury now david you have said this many times before and it remains

true to this day bad facts make bad bad law. No one's feeling particularly bad for Joseph Hurtado. And the court says, no, the right to a grand jury in the Bill of Rights will not be applied to the states. Okay, so then we wait a little while, but we do get to 1897 in this Chicago case. And that is where we have the first time that the court says, actually, the 14th Amendment due process clause means that, yes, you cannot deprive anyone, any person of property without due process of law. And so we are going to apply that Fifth Amendment takings stuff to the state. So the states can't violate the Fifth Amendment either. It is incorporated against the states. And from there, we're off to the races.

against the states. And from there, we're off to the races. So currently, fully incorporated, First Amendment. Fully incorporated, which we need to talk about. Second Amendment, that's quite recent. That's like the most recent sort of big one in McDonald v. Chicago. But let's think about some things that aren't incorporated at all. Do you know which amendment is not incorporated at all? There's actually two. That's right. The third amendment.

My baby is not incorporated. Although, fun fact is I was like, you know, just having my own little time this morning. So it says, no soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law, which is interesting that the Constitution specifically says that Congress can overcome this because we sort of argue over whether Congress needs to be involved in some of these things anyway. So for you appellate lawyers out there, note that. Okay. Also, the Seventh Amendment is not incorporated. Then you have these partially

incorporated still. So for instance, the grand jury, the Hurtado issue has still not been incorporated. So federally, you have to have a grand jury indict you. And then state by state, totally up to the state still. The Sixth Amendment also was only partially incorporated. Fourth, eighth, fully incorporated. Okay, so let's get to more modern times because we've had two fun incorporation cases of late. McDonald v. Chicago. I'm sure you had plenty of thoughts on that. So did the court. There was all sorts of little kerfuffling behind the scenes in the concurrences and the dissents about whether you were incorporating through the 14th Amendment due process clause, or as Justice Thomas would

prefer, whether you were incorporating through the privileges and immunities clause or the majority opinion, which was that it turned on whether it was a fundamental right at the time of the Bill of Rights and not substantive due process. And then you had the two dissents arguing about which of those should apply as well. That's excellent. That's an excellent explanation. So I have two follow-up thoughts. Yeah. One small, one big. Small one is, if any administration, Republican or Democrat, tried to quarter the 101st Airborne in anyone's house in time of peace, I think you would see. Or if any state, well, that would be prohibiting the federal government. So incorporation doesn't apply.

But if you had a state governor trying to get a state national guard unit quartered in your house, I expect you would see incorporation of the third amendment toot sweet. I think that is for lack of a case or controversy that has not been incorporated. I tend to agree. It does feel like a fundamental right under any rubric that the court wants to use of the four options in McDonald. Right. The second thing is, I think I previewed this by saying, I think the incorporation was one of the most important legal doctrines to impact our lives. And here's what I meant by that. I think, you know, the founders were not perfect, and they were not perfect people working with a highly imperfect world.

And one of the interesting things about our initial constitutional structure is that it was a compromise to keep us all together. But the compromise contained within it, in many ways, the seeds of the Civil War. And because the wonderful sweeping rights outlined in the Declaration of Independence not only didn't apply to all Americans, obviously, because we had slavery, and because the Bill of Rights, the marvelous social compact and sort of a foundational legal social compact of America didn't apply to the states, the ability of the states to be individually oppressive of its citizens was quite considerable, quite considerable. And so you began to have the ability. This was sort of what you would call federal the worst and most toxic kind of federalism. I think of healthy federalism is where we all the post 14th Amendment kind of federalism where we all can enjoy the privileges and all kinds of different ways. But that bill of rights,

I can cling to that wherever I go. But the toxic kind of federalism is the federalism that we saw before the civil war. And frankly, during Jim Crow, after the civil war, where in theory, a lot of African-American citizens should have enjoyed all of these privileges or immunities, but in fact they didn't. Um, but with you have a republic built around unalienable rights, but you have a national governmental structure that does not guarantee those rights, you've got a problem. did is it finally harmonized nationally the promise of the Declaration of Independence with the legal operative provisions of government. And it took the Bill of Rights plus the Civil War amendments to do that. So that's my big comment. And just to wrap on this, we had the Ramos case this year, which was on unanimous jury

verdicts, which actually dealt with a little subset of incorporation doctrine that is worth just mentioning for fun, because this is a fun podcast where we get into footnotes and the whatnot, the footnotes of Supreme Court, you know, trivia. So, right, this was about whether unanimous jury verdicts were required for states. whether unanimous jury verdicts were required for states. And Justice Gorsuch, writing for the majority, says, So, if the Sixth Amendment's right to a jury trial requires a unanimous verdict to support a conviction in federal court, which, you know, all the case law agreed that it did, it requires no less in state court because the Sixth Amendment had been incorporated against the states.

So we're done, right? That that was like on page seven. It should have been a seven page opinion. It's not. And it's because of this idea to some extent of quote dual track incorporation, which justice Powell had championed back in the justice Powell days, which was the idea that a single right can mean two different things depending on whether it is being invoked against the federal or state government. And what makes Ramos interesting, aside from like how it was covered, you know, headline, unanimous jury verdicts no longer allowed, what this opinion actually did was kill dual track incorporation. So that's the end of that.

And we have unanimous jury verdicts nationwide. And so incorporation from the Civil War to today, still very much a live topic. Incorporation marches on. So thanks for the email asking us about incorporation. I thought this was like one of my more fun little history dives to do. Yeah. Thank you. Yeah, absolutely. Okay. Let's wind up. Let's talk Waco. So did I recommend Waco to you or did you come to it on your own? Hard to say.

Okay. You're now just like a voice in my head, whether it's a real voice or just the thought of your voice. Who knows? So I watched this at the beginning of lockdown. And I either said or hoped that you'd watch it also. And it's a Netflix documentary that originally aired on a more obscure, was it Paramount TV? It was Paramount. Yeah.

Yeah. So nobody saw it. And now it's on Netflix and lots of people are seeing it. And it's, okay, it's Branch Davidian propaganda, I would say, to an extent. But it's still worth watching. And it was frankly infuriating to me as I watched it, as in I felt great anger at the Department of Justice and great anguish on the part of the Branch Davidians. And it's a little known chapter in American history nowadays, but it's very consequential, I think. And I just want to go your thoughts and you did a deep dive into the civil suit

that came up after this. So I'm just pressing play on Sarah right now. Guys, so many feelings about Waco. So first of all, it's pretty short, six episodes. They're each like 45 to 50 minutes. You can knock this out. It was on my list of things to get done before the brisket is fully cooked. Side note, by the way, David, we have today and we have Thursday before baby is supposed to come. I did everything I could to ensure that we will have our Thursday episode as planned. You know what I did? What? I shaved my legs this morning because as any woman who's been through her twenties knows, if you shave your legs, uh, in anticipation of some, you know, date or whatever, like whatever,

Nick, it's not going to happen. It's a guaranteed, uh, jinx for that happening. So I'm pretty sure I will not go into labor today because I have shaved my legs. So this was important for me to watch before that happened because I wanted to see it. this is Branch Davidian propaganda. I want to take a slightly different take. Okay. I think what they were trying to do for us as the viewer is there's a line in there where the FBI negotiator says to the HRT hostage rescue team leader, who's the like aggressive, let's kill them all guy. What will it take for you to see these people as human? like aggressive let's kill them all guy what will it take for you to see these people as human and you know i grew up not far from waco i remember very much all 51 days of the nightly news coverage of this it was a big big deal in texas and not great for our state's reputation yeah uh not great but i i think that they left out some key things about the Branch Davidians,

but I think they did it very much on purpose because the goal was for us as viewers to see them as not so different from us and to see them as human. And frankly, if you tell the full story of the Branch Davidians, that's going to become very difficult. So for instance, they talk about him marrying a 14-year-old as his wife and taking on these multiple wives, something they had to get to because that sort of, I mean, we all know that. But there was testimony at the congressional hearings that happened after this that, in fact, he was having, and this was from one of the girls herself, who by the time of the congressional hearing was, I believe, only 14 years old, that he started

having sexual relations with her at 10, took her as a spiritual wife at 10. I think that would be much harder to see him as human if we had been told that. They also, I think, are trying to make a point about tear gas, which they do at the end, where they sort of take the side of even if the Department of Justice did not set the fire on purpose, that it was such a known incendiary that that they should have not done it or been ready for it, et cetera. That's what the civil lawsuit really turned on. Whether they started the fire, negligent not to have fire equipment on the scene, et cetera. So there's these wrongful death suits. And the documentary takes a pretty strong view of that, even if they don't take a view on who started the fire. And there's a reason for that. Because there is a tape of that, even if they don't take a view on who started the fire. And there's a reason for that, because there is a tape of that day inside. And they show this a little of theirs.

They have it bugged inside. So they do have a tape from that. And the Branch Davidians, like there's these voices saying, start the fire. Should we light the fire now? Let's keep that fire going. And you can hear the tanks rumbling by, which certainly undermines the idea that the ATF is wholly responsible for starting the fire. Yeah. And that there was no thought of suicide

in the building. So I find that all interesting. But legally, just nerd out for a second. Rule 39 C of the federal rules of civil procedure, as I'm sure you've memorized, David. Oh, of course. Do you want to do you want me to say it now or I'll let you say I'll let you say I don't want to flex. Yeah, yeah. This is the provision where a plaintiff who does not have the right to a jury trial, hint the federal government, the court may authorize an advisory jury if a party requests it or the judge concludes independently that it was appropriate. In the Branch Davidian lawsuits, the federal judge has a five-member advisory jury.

And I don't know if you knew that. I did not know that. And the five-member jury said, advised the judge. Again, he was not bound by their opinion at all. But I think nobody could come up with a case where a judge who had asked for an advisory jury did not then follow the jury's recommendation. The agents did not fire indiscriminately in the initial raid. The FBI did not negligently deviate from the Washington-approved tear gas plan. And the FBI did not negligently start or contribute to the spread of the fire or negligently fail to have firefighting equipment in place. So it was a complete loss for the Branch Davidians in all of the civil trials that followed.

The congressional hearings were very bad for who the Branch Davidians were. But again, that wasn't so. OK, so all of that's true. Yes, it's Branch Davidian propaganda in that sense. But I would argue that was not the point of the documentary. The point of the documentary is. This is the federal government acting against its own citizens. Oh, my gosh.

So that that's where I want to launch from. Yeah. So one of the things that was there are two questions. Did David Koresh need to be arrested is question number one. And question number two, if you answer yes to the question, did David Koresh need to be arrested, then question number two is how do you effectuate that arrest? Right. Now, there was a lot of evidence that David Koresh was not a dude just holed up inside that compound. Right. You have the child stuff and you have the guns,

which part of his manifesto was that this would all end with the government coming and them having a final shootout and the Branch Davidians dying. That was his prophecy. So in order for that to come true, he kind of has an incentive

for all this to go down the way that it did, frankly. Yeah. But there was evidence that he was not just hold up there. Like he would go jogging. Yes. On times he would go into town. He actually had a relationship with the sheriff in the town. And so could you arrest the guy, And so could you arrest the guy, the cult leader, the central figure, with just a few cops when he's out and isolated and vulnerable? I think the answer to that was yes, you could have done that. Instead, the ATF launched what is best described as an air assault on the Branch Davidian compound, complete with media along for the ride. Ooh, there was another lawsuit about that, by the way, David, which I even found surprising, right? They show the leak, why the Branch Davidians knew that the ATF was coming.

Yeah. I've never seen this before, but they actually settled that case. So it was the Waco newspaper, the Waco TV station, and the ambulance company where the ambulance driver, they do know who the leak is. It was an ambulance driver, not the ATF. They settled that lawsuit for $15 million over the leak. Fascinating. That doesn't happen. Yeah, that is fascinating. So you do an aerial assault that the Branch Davidians are tipped off. And I can't remember in the documentary, or it's a dramatization. In the dramatization, there's warnings to the coming force that the cover is blown. And I can't remember if that was factually correct or not, that it was known. It is disputed. Disputed. Okay, it's a disputed fact. There's no dispute that the Branch Davidians knew it was known. It is disputed. Disputed. Okay. It's a disputed fact. There's

no dispute that the Branch Davidians knew it was coming. Yes. Yeah. And so there's an aerial assault on a heavily armed and alerted compound. And that to me was what the heck. That was the what the heck. And it's heavily disputed who fired first. Yes. Heavily disputed who fired first. That's one of those things that, you know, we may never know. But there's a lot of evidence that there's evidence the ATF fired first. And there's evidence that the ATF fired first by doing what, Sarah? Shooting at dogs. I mean, you know, that just hurt me in places, David, to watch that.

Yeah. And so that is now did Davidid kresh need arresting yes did we need a area an air assault and this man it's connecting so many themes yes by troops who are less trained in air assault than probably any set of officer of soldiers who've ever set foot in a helicopter of a heavily armed compound that's alerted. I mean, my goodness, my goodness. And then the other thing is, regardless of whether the Branch Davidians started the fire, was that assault on day 51 necessary? Or was David Koresh on the verge of coming out and concluding it peacefully? And that's something, again, we'll never know.

But that's one of the aspects of the show that's really interesting because the show is based on a former Branch Davidians book and on the hostage negotiators book. Right. the hostage negotiators book. Right. And of course, the negotiator is going to say and has said, this wasn't necessary. You know, there was going to be a conclusion here. And that's the other question. Trivia point, Sarah, I was actually interning in the U.S. attorney's office in the Eastern District of Massachusetts in the Organized Crime Division when the final assault occurred. I was in a federal courthouse when the final assault occurred and watched the building go up in flames with a phalanx of U.S. attorneys around me. To a man, they were, and woman, they were stricken. Like, they couldn't believe it had ended up like that they couldn't it's awful

to watch and especially you know like i think um watching it with scott obviously scott did you know he remembered it but like he didn't really know how it ended and like i knew exactly how this was going to end and how many kids had been in that compound when the flames go up and how many, like none of them are going to make it out. Um, it's really hard. And that's why I don't mind, I guess, that this is a bit of a retelling as a think of these people as human. And so we're going to have to shade some of this so that you see them more as potentially people like you and less as the other. Yeah. No, no, I get it.

I get that. But it is gripping television nonetheless. It's just gripping television that I would recommend watching the way Sarah and I have started to watch gripping television, which is with our computer in our lap, fact-checking the whole way. Of course. Which is actually fun to do. And by the way, for those who are Friday Night Light fans,

the guy who plays David Koresh is, and is the executive producer of this, was one of the main dudes in Friday Night Lights. So we keep our Texas TV going. That's right. That's right. And Friday Night Lights, by the way, the movie, the TV show has gotten so famous

that people forget the movie. True. The movie is awesome. The Friday Night Lights movie is awesome. It's one of my, it might be, this is a whole other conversation. It's a top four sports movie for me. Interesting. Easily, easily.

But anyway, and that's another one to watch with your computer in your lap, fact-checking as you go, because it's based on real events. They go on to this day. Friday Night Lights is a real thing in Texas. In Tennessee, my son, he had three years of high school football and that ended in overtime in the state playoffs with the quarterback of his team about to run in the winning touchdown and fumbling on the one yard line. Oh, no. It's a metaphor that came true. Oh, my goodness, Sarah. The emotions that came pouring because you know that, you know, like if your son's not playing college football, this is it. This is it for football. This is, and he loved it and he

loved it. And he was on a really good team and it's just the ball hit the turf and the other team jumped on it. And there are two things going on at once. One was just this anguish that it ended, but part of me was also happy for the other team. They're going insane because they had had a teammate die during the season, and they were playing, you know, for him. Are you sure you're not just remembering an episode of Friday Night Lights?

Because this sounds so dramatic. Yeah, this is so dramatic. And so, you know, and a bunch of my friends were, you know, parents of kids at that high school because it's like the next high school over. But for my son, like, you're in anguish, like in anguish because there's something just so intense about high school football, especially in the South. And, man, I sat down, I was going to write about that whole dynamic and it was just too raw. I couldn't do it, Sarah. Before we leave, by the way, lest people think that we didn't do our jobs this morning, there were no cert petitions granted on Second Amendment or qualified immunity. So the nine

granted on Second Amendment or qualified immunity. So the nine pending qualified immunity cert petitions just carry on over. And two, I can't believe it. We only got one opinion today. It doesn't help. So we didn't get any of the big cases. And it was a February opinion. So my bingo card did not fundamentally change. So no Supreme Court updates today. We will have to wait until Monday, at which point I will have a brisket. But David, I have to tell you, I just I think I have to join you on Monday because I can't let you do these fun cases by yourself. I can't. I won't. No. And you've got two full grown adults in your house. One one could take care of the brisket. That's right. So that's all to say, listeners, please don't be upset with me when I might be joining on Monday. And also, listeners, know that no one has pressured Sarah to do this.

None. None. I was really hoping we'd get some cases today, but then when we didn't, I was like, that's it. I'm bringing the microphone with me and the little fuzzy thing that I recorded. It's all coming to the hospital. It's going in my to-go bag. That's it. Oh, my goodness. Yep. I'm doing it.

Sorry. Oh, my goodness. All right, listeners, you've heard the promise. We're not holding her to it. Just to be clear. This is not the most oppressive work environment in America. So we're not holding her to it. But that would be an interesting podcast nonetheless.

So, all right. I'm sure the nurses will appreciate it. Until Thursday. Thursday. We'll talk to you again on Thursday. This has been the Advisory Opinions Podcast with David French and Sarah Isker.