This post has three parts. The first describes the facts of an initial police encounter, which was widely publicized, and its aftermath, which was not. The second part describes how Mark Herring’s recent Complaint, which you can read about here, is very. . . . . . odd. The final part describes how this Complaint is actually a thinly veiled woke-takeover of a small town with a population of 2,746 people. It’s quite stunning.
The Traffic Stop and Pepper Spraying of Lt. Caron Nazario
On December 5, 2020, two police officers in the Town of Windsor in Virginia pulled over a man in a black SUV, because they could not see the temporary license-plate in his window. By the end of the short encounter, the individual being pulled over, Caron Nazario, was pepper sprayed by one of the officers. The widely-circulated videos surrounding this story can be viewed here and here.
Some other context for this man in the town of Windsor is that he had previously been pulled over for going 19mph over the speed limit. In that video, you can see how invisible his license plate is here. At about the 3:19 mark in that video, the police officer uses his flashlight to turn the invisible license plate — which is a New York temporary tag — into something visible. It is twilight during the November video and dark in the December video.
All in all, it’s hard to blame the guy for that fact about the invisible tag, because as I can attest during COVID in 2020, it was extremely difficult to get the DMV to do ANYTHING, and so I suspect Mr. Nazario had trouble getting his real tags. On the other hand, it is also quite clear that he does not obey commands to get out of the vehicle from the cops. On the other hand, this is also in the aftermath of the George Floyd stuff, and everybody was going crazy at this time. On the other hand, the invisible tag also makes the vehicle look like a stolen vehicle, and those felony investigations can get very dangerous for officers.
So, all in all, I think this was a messy situation that was very unfortunate. As to whether he should have been pepper-sprayed? Well, the Windsor Police Department fired the officer after an internal investigation, so there’s that. But this post isn’t going to discuss the proper training of the police officers, because this post is about the law, not police practice.
Private Civil Lawsuit by Caron Nazario
On April 2, 2021, Caron Nazario filed a federal lawsuit, suing the two police officers in their personal capacity. You can see that complaint here:
My very brief assessment of this lawsuit is that it is going nowhere, because he is suing these officers in their personal capacity. He’s doing that because it is the only possible way to sue the police officers, due to the doctrine of sovereign immunity. When police officers are acting within their proper authority, they ARE the state. If they step outside of their proper authority — going so far outside of what they are supposed to do, that they can no longer be recognized as agents of the state — you can sue them in their personal capacity.
The problem with Mr. Nazario’s lawsuit is that police officers pulling over a driver who has an invisible tag is UNQUESTIONABLY a police officer acting in his OFFICIAL capacity. So that one is going nowhere. But hey… …no harm in trying. I’ve seen worse cases than this.
Heck, I might have even filed worse cases than this. But that’s just the tough luck of civil lawsuits.
The Silent Criminal Review
But that did not end things. In late May of 2021, the Commonwealth’s Attorney received the file and began a criminal review of the incident. As you can see from this news story, this is what he said about how he will review the matter:
“I make my decisions based on the facts and the law,” Bell said Friday. “That’s it. I don’t care about public opinion … My focus will be on what the officers can do and cannot do — what is legal and what is not legal.”
And of course, that’s exactly what should be done. Good for him. However, I cannot find ANY update on the matter on the internet, and that is a LONG time for a prosecutor to sit on something. And since — as I said before — when police officers are pulling people over for invisible tags and the person does not comply with verbal commands, this is TEXTBOOK “acting as an agent of the state” which brings sovereign immunity. And yes, sovereign immunity covers more than “how commanders want their officers to act.” It covers the FULL SPAN of “excellent police work, sir!” to “Sigh… yes, that’s still technically legal.”
As such, I don’t think there’s going to be anything happening on the criminal front for the police officers. So, once again, sorry to Mr. Nazario, but that’s the tough luck of the legal system.
The Strange Complaint of Mark Herring Against the Town of Windsor
But that’s not the end of the matter. On December 30, 2021, the Attorney General of the Commonwealth of Virginia, Mark R. Herring, who was defeated in his reelection bid by Jason Miyares, filed a lawsuit against the Town of Windsor. The full complaint can be accessed here:
This Complaint is. . . to put it mildly . . . ODD. But to explain why it is odd, I need to get into the legal weeds, which is exactly what this post will do. There are SEVERAL odd things about this complaint.
Odd Thing About Herring v. Town of Windsor #1: “Services”
The first odd thing about this complaint is the fact that it is calling the Town of Windsor a “place of public accommodation.” In the relevant part of the Complaint, it says:
13. The Department is a law enforcement agency within the meaning of Va. Code § 2.2-511.1.
14. The Department is open to the public and performs executive and enforcement functions to wit the provision of law enforcement services, on behalf of the Defendant as part of the Defendant’s governmental structure.
15. The Defendant is a place of public accommodation as defined by the VHRA, Va. Code § 2.2-3904.
16. The Department is a place of public accommodation as defined by the VHRA, Va. Code § 2.2-3904.
17. As part of the services it provides, the Department authorizes its officers to stop and search vehicles and, if necessary, use force to effectuate those duties.
Now, this complaint keeps citing the “place of public accommodation” in the Virginia Human Rights Act at Va. Code § 2.2-3904. Here is what that code provision says:
“Place of public accommodation” means all places or businesses offering or holding out to the general public goods, services, privileges, facilities, advantages, or accommodations.
It’s a little strange to call the town government a “place” or a “business” that is handing out “public goods, services, privileges, facilities, advantages, or accommodations,” but I suppose that fits. Is a town a “place” that has “accommodations” like roads? Sure. So, that’s legally unique, but technically true.
But the real kicker is what is stated in paragraph 17. The Complaint is saying that when the police pull people over and search their vehicles and, if necessary, use force, this is a SERVICE. As in, the Complaint is explicitly saying that when the police drew their guns and ordered Caron Nazario to lay down on the pavement, this was a “service” that the police department was “offering.”
Yeah…. “services” are usually things like washing cars, painting houses, and the like. Here, the Attorney General is trying to claim that ARRESTING PEOPLE is a “service.” That’s odd. And no, I am not aware of any legal rule that makes that strange idea plausible. This is typically called a USE OF FORCE, not an OFFER OF SERVICE.
That is downright ridiculous. BUT, the reason the Complaint has decided to do that is because it is NECESSARY for pulling people over and arresting them to be a “service” for this lawsuit to go forward.
It’s odd how weak that connection is.
Odd Thing About Herring v. Town of Windsor #2: The Awkward Silence
The second strange thing about the complaint is related to the fact that it mentions the interaction between the two officers and Caron Nazario:
26. On or about December 5, 2020, the Department stopped a driver, Lieutenant Caron Nazario, in what the Department indicated was a “felony stop”.
27. The Department does not have a policy on what constitutes a felony stop.
28. Upon information and belief, the Department has executed other such felony stops.
29. During the stop of Lieutenant Nazario, officers of the Department pointed their firearms at Lieutenant Nazario and subsequently deployed aerosolized pepper spray repeatedly on the Lieutenant. At no time did Lieutenant Nazario use or attempt to use force against the officers.
30 Lieutenant Nazario is a Black, Latino man.
31. The Department has received and investigated other complaints in which force was allegedly improperly used against Black drivers.
Now, this Complaint seems to think that it is a big deal that there is no “policy” that defines “felony stop.” But this is playing dumb. A “traffic stop” is a stop for violating a traffic regulation. A “felony stop” therefore, would be a stop because of a suspected felony. Because of the invisible temporary tag, I am guessing that the suspected felony was a stolen vehicle. This isn’t that hard. But anyway… …back to the Complaint.
But after that short mention of the incident with Caron Nazario, the Complaint is COMPLETELY SILENT on the incident. That’s right. Even after referencing the incident in the Complaint, and even after the incident went to a criminal review by an African-American prosecutor, there is NOTHING in this Complaint that criticizes the actual interaction on December 5, 2020 through this Virginia Human Rights Act complaint.
And keep in mind, that the Virginia Human Rights Act makes it illegal to do the following:
B. It is an unlawful discriminatory practice for any person, including the owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation, to refuse, withhold from, or deny any individual, or to attempt to refuse, withhold from, or deny any individual, directly or indirectly, any of the accommodations, advantages, facilities, services, or privileges made available in any place of public accommodation, or to segregate or discriminate against any such person in the use thereof, or to publish, circulate, issue, display, post, or mail, either directly or indirectly, any communication, notice, or advertisement to the effect that any of the accommodations, advantages, facilities, privileges, or services of any such place shall be refused, withheld from, or denied to any individual on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, sexual orientation, gender identity, marital status, disability, or military status.
The law allows for the Attorney General to go after ANY PERSON — including the two police officers Joe Gutierrez and Daniel Crocker who actually conducted the stop — for wrongful acts. And we get NONE OF THAT here.
The absence of those officers on this complaint — or the Town of Windsor as the supervisor of those officers — is basically positive proof that THEY DID NOT BREAK ANY LAW ON DECEMBER 5, 2020.
Yes. Really. We’ve had more than a year to look into this situation and find ANYTHING illegal that these officers did to Mr. Nazario, and instead, we get a big pile of nothing.
That’s. . . . . .odd, isn’t it?
Odd Thing About Herring v. Town of Windsor #3: Statements that are Just Not True
Seemingly out of nowhere, there is a claim in the Complaint that states the following:
32. The Department lacks adequate policies and supervision to ensure that its officers are using force in a non-discriminatory and unbiased manner.
33. The lack of such policies and supervision has led to the biased application and use of force on members of the public.
That sounds pretty serious, doesn’t it? That sounds like there is a big problem with the policies of the Windsor Police Department. It’s like the message from the 1960s never made it to this small Virginia town, and the Jim Crow discrimination of the….
Oh wait…. …the Windsor Police Department policies are online — all 651 pages of them. And look what they’ve got under “Standards of Conduct”:
321.5.3 DISCRIMINATION, OPPRESSION, OR FAVORITISM
Unless required by law or policy, discriminating against, oppressing, or providing favoritism to
any person because of actual or perceived characteristics such as race, ethnicity, national origin,
religion, sex, sexual orientation, gender identity or expression, age, disability, economic status,
cultural group, veteran status, marital status, and any other classification or status protected
by law, or intentionally denying or impeding another in the exercise or enjoyment of any right,
privilege, power, or immunity, knowing the conduct is unlawful.
And yeah, they also have pretty standard policies for supervision of officers. So like…. …what the heck are they even talking about? It’s like the Attorney General didn’t cite it in the Complaint or even Google it, even though he has subpoena power.
And if you are wondering why there is not more detailed policy about not violating people’s 14th Amendment Rights, the answer is that police departments don’t have policies that repeat basic law by saying “Don’t break this law” and “Also, don’t break that law.” Police officers know the law. That’s part of their job. Not everything is in a policy. But even though discriminatory policing IS in a policy, the Attorney General is saying that it is not there.
That lack of thoroughness is… …odd.
Odd Thing About Herring v. Town of Windsor #4: Baseless Legal Assertions
At this point, we need to go to the actual “claims” of the lawsuit, because this is where things get REALLY interesting. If the Attorney General is not suing the Town of Windsor because of the actions of the two police officers, then what is he suing the Town of Windsor for? Here’s what we got:
- Claim I – the Town of Windsor’s discriminatory enforcement activity in disproportionately conducting traffic stops denies services to those seized on the basis of race, color, and/or national origin in the provision of municipal policing, which is a public accommodation.
- Count II – the Town of Windsor has engaged in a pattern or practice of repeatedly violating the Virginia Human Rights Act by regularly and routinely denying the services of a public accommodation to persons on the basis of their race, color, or national origin during traffic stops or seizures in violation of Va. Code § 2.2-511.1.
- Count III – the Town of Windsor has used discriminatory law-enforcement practices through its agents and persons acting on its behalf that amounts to a pattern or practice by law-enforcement actions that denies person of rights protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution in violation of Va. Code § 2.2-511.1.
- Count IV – the Town of Windsor has engaged in a pattern or practice of repeatedly violating the Virginia Community Policing Act by regularly and routinely failing to collect, report, or provide public access to data pertaining to all investigatory motor vehicle stops as mandated by the Act, thereby depriving the public of the privilege of accessing such data in violation of Va. Code § 2.2-511.1.
Let’s describe what is happening on each of these claims.
Claim I, II, and III
To understand what the basis of Claim I, II, and III is, you need to just look at a few paragraphs. This is what those paragraphs say:
6. Defendant Town of Windsor is an incorporated municipal entity.
7. Approximately 2,746 people reside within the Town.
8. Between nine and twenty-one percent of the residents of the Town are Black.
9. Approximately 38,606 people reside within Isle of Wight County.
10. Approximately twenty-two-percent of the residents of Isle of Wight County are Black.
. . .
21. From July 1, 2020 through September 30, 2021, the Department conducted 810 traffic stop of Black drivers — representing approximately 42% of the stops conducted by the Department. Consequently, the Town stopped Black drivers between 200% and 500% more often than would be expected based on the number of black residents in the Town or Isle of Wight County.
22. Based upon a review of a limited subset of traffic stops provided by the Department and accounting only for stops within that subset conducted on residents of the Town, approximately 40% of traffic stops are conducted on Black drivers, again indicating a stoppage rate of between 200% and 500% more than would be expected based on the number of Black residents of the Town or Isle of Wight County.
23. Based upon the disproportionate stopping of vehicles driven by Black motorists, the Department is performing its law enfocement activities in a discriminatory and biased manner.
24. From July 1, 2020 through September 30, 2021, the Department searched more vehicles driven by Black drivers than White drivers, even though Black residents do not constitute the majority of the population of the Town or the Commonwealth.
In other words, because Blacks in Windsor are 21% of the population and because the Isle of Wight County has Blacks at 23% of the County Population, this Complaint ASSUMES that Blacks should be pulled over between 21% and 23% of the time.
But like….. REALLY?
There is literally NO data about how much Blacks “should” be pulled over, other than their population, and there are lots of ordinary facts that could tank this legal theory. Most obviously, traffic stops are not correlated to population. New York City, for instance, has far fewer traffic stops per capita than other places because of public transportation. Younger people who drive to work (or for work) get more traffic stops than older people who do not.
The question of what traffic stops are ACTUALLY correlated to is a very good question. Is it correlated to drivers in general? Is it correlated to drivers who drive over the speed limit? Is it correlated to the population of a certain age group that is more likely to drive faster (like young men)? Is it correlated to drivers on certain routes? Is it correlated to drivers at particular times of day? Is it something else?
I don’t know the answer to this because I am not a statistician who knows about police statistics in the Town of Windsor. However, I know that these are BASIC questions that the Attorney General must answer before he moves forward on that claim of “disproportionate traffic stops.”
In other words, that Count I, II, and III are EXTREMELY WEAK claims.
The “Service” Being Denied
Oh, but that’s not it. You see, the claim is saying that Black residents are being DENIED a “service” because of their race.
However, the “service” in the strange definition of the Complaint is traffic stops, searches, and taking people to Court:
17. As part of the services it provides, the Department authorizes its officers to stop and search vehicles and, if necessary, use force to effectuate those duties.
. . .
19. As part of the services it provides, the Department conducts traffic enforcement operations, including, but not limited to, stopping drivers for traffic violations, issuing tickets for traffic violations, and attending court hearings.
But because of the strange definition, where getting pulled over is a “service,” the Complaint actually shows that the Police are giving Black residents MORE “service” than white drivers. So even assuming the strange idea of traffic stops being a “service,” in the twisted logic of this complaint, it is WHITE DRIVERS WHO DO NOT GET PULLED OVER who would have the claim of “discrimination” through the Virginia Human Rights Act.
It is also worth noting that the Complaint does not allege that this mismatch of population and traffic stops is INTENTIONAL. Instead, it is based on “disparate impact.” More on that later.
Odd Thing About Herring v. Town of Windsor #5: The Right to Statistics in Count IV
The last claim, Count IV, is the strangest one:
74. As alleged herein, the Defendant has engaged in a pattern or practice of repeatedly violating the Virginia Community Policing Act by regularly and routinely failing to collect, report, or provide public access to data pertaining to all investigatory motor vehicle stops as mandated by the Act, thereby depriving the public of the privilege of accessing such data in violation of Va. Code § 2.2-511.1
Essentially it accuses the Town of Windsor of not keeping good statistics. Paragraph 34 to 59 of the Complaint show the different statistics that were given to the Town of Windsor Council and the Virginia State Police pursuant to Va. Code § 52-30.2. So, apparently, the Police Department for the Town of Windsor is giving different numbers to the Virginia State Police about traffic stops than it gives to the Town of Windsor Town Council. Here’s a small example of what the Complaint says:
40. On November 10, 2020, the Department presented a report to the Windsor Town Council stating that the Department made 196 traffic stops and issued 142 summons or citations for the primary offense during the month of October 2020.
41. Data reported by the Department through the Virginia State Police under the Virginia Community Policing Act states that the Department made 144 traffic stops and issued 111 summons or citations during the month of October 2020.
In all of the examples, the Windsor Police report FEWER incidents to the State Police than to the Town of Windsor.
THIS LOOKS LIKE A COVER UP!!!!
Unless… …wait… maybe… …I’ve heard this crazy thing about statistics where if you are looking for different kinds of information in the data, then the numbers from that data will be different based on the questions you ask. So….. what are the requirements of Va. Code § 52-30.2 that the Town of Windsor apparently violated? Well, let’s take a look:
A. No State Police officer shall engage in bias-based profiling in the performance of his official duties.
B. State Police officers shall collect data pertaining to (i) all investigatory motor vehicle stops, (ii) all stop-and-frisks of a person based on reasonable suspicion, and (iii) all other investigatory detentions that do not result in an arrest or the issuance of a summons to be reported into the Community Policing Reporting Database. State Police officers shall submit the data to their commanding officers, who shall forward it to the Superintendent of State Police.
C. Each time a law-enforcement officer or State Police officer stops a driver of a motor vehicle, stops and frisks a person based on reasonable suspicion, or temporarily detains a person during any other investigatory stop, such officer shall collect the following data based on the officer’s observation or information provided to the officer by the driver: (i) the race, ethnicity, age, gender of the person stopped, and whether the person stopped spoke English; (ii) the reason for the stop; (iii) the location of the stop; (iv) whether a warning, written citation, or summons was issued or whether any person was arrested; (v) if a warning, written citation, or summons was issued or an arrest was made, the warning provided, violation charged, or crime charged; (vi) whether the vehicle or any person was searched; and (vii) whether the law-enforcement officer or State Police officer used physical force against any person and whether any person used physical force against any officers.
D. Each state and local law-enforcement agency shall collect the number of complaints the agency receives alleging the use of excessive force.
Here’s the extremely boring question that could tank this entire claim: What is the difference between an “investigatory stop” and a “non-investigatory stop”? Could that be the reason that the numbers are different? That sounds like a more reasonable explanation than a MASSIVE COVER UP of the data. You’d also expect that the Attorney General would describe what an “investigatory stop” is.
Oh, but here’s the real key thing. Guess whose responsibility it is to ask for the data? It’s not the Town of Windsor. From the same Community Policing Act:
All state and local law-enforcement agencies shall collect the data specified in subsections C and D of § 52-30.2, and any other data as may be specified by the Department of State Police, on forms developed by the Department of State Police and submit such data to the Department of State Police for inclusion in the Community Policing Reporting Database at Va. Code § 52-30.4:
Yep. That’s right. It’s the STATE POLICE that writes the rules for how investigatory stops are reported to the Virginia State Police. And it is the STATE POLICE who collect this data. The Virginia State Police DO NOT write the rules for how stops are reported to the Town Council of the Town of Windsor.
Even a moderately intelligent person who is familiar with basic accounting can see the problem here.
Odd Thing About Herring v. Town of Windsor #6: The Non-Existent “Disparate Impact” Legal Theory in Virginia
As I have described above, there is no claim that the Police Department of the Town of Windsor intentionally engages in biased policing. Instead, the claim is that there is a “disparate impact” of policing that amounts to discrimination.
“Disparate impact” is a concept of federal law that is distinguished from “disparate treatment” in civil rights anti-discrimination legislation. “Disparate treatment” is the basic level of discrimination that most people think of when they think of discrimination. For example, if black employees are screened for drugs at a workplace, but white employees are not, this would be disparate treatment.
“Disparate impact” is more complex. It was described by the Supreme Court in a case called Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519, 524 (2015):
This dispute comes to the Court on a disparate-impact theory of liability. In contrast to a disparate-treatment case, where a “plaintiff must establish that the defendant had a discriminatory intent or motive,” a plaintiff bringing a disparate-impact claim challenges practices that have a “disproportionately adverse effect on minorities” and are otherwise unjustified by a legitimate rationale.
Disparate impact is a very useful — and perhaps quite necessary — tool in law. After all, many times the defendants in a case are large corporations, not natural persons. The Department of Community Housing case above was a legal question was as follows:
The underlying dispute in this case concerns where housing for low-income persons should be constructed in Dallas, Texas—that is, whether the housing should be built in the inner city or in the suburbs. This dispute comes to the Court on a disparate-impact theory of liability. Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519, 524 (2015)
When a defendant is an arm of the government of a Texas city, how is it possible to know what 1,330,000 people “intend”? When a defendant is Amazon, how is it possible to know what the 1,468,000 employees “intend”? In other words, when you reach a certain scale of management and oversight and size, it doesn’t matter what was “intended” by various actors. Instead, all that is possible to prove to correct an obvious wrong is the RESULT.
So, this post isn’t claiming that “disparate impact” litigation is completely worthless. Sometimes, it is a necessary tool for a specific situation. But the point of bringing all this up it to point out another odd fact about this complaint:
VIRGINIA COURTS HAVE NOT YET RECOGNIZED DISPARATE IMPACT CLAIMS.
That’s right. The legal grounding for this ENTIRE COMPLAINT rests on a legal theory that has not been recognized in Virginia. Though the idea exists in federal law relating to federal statutes, the Virginia Supreme Court has never recognized the doctrine. A Fairfax Circuit Court described this silence from the Supreme Court in a case in Fairfax County:
During oral argument on March 2, 2011, and in briefs on the demurrer and supplemental briefs, Plaintiffs and Wells Fargo dispute whether an individual may pursue a claim under the VA ECOA for discrimination based on a disparate impact theory, as opposed to a more traditional disparate treatment theory. The Virginia Supreme Court has yet to speak on this issue and regardless of the lack of precedent, the Court finds that the Plaintiffs have failed to allege the requisite elements of a claim for disparate impact discrimination. Best Med. Int’l, Inc. v. Wells Fargo Inc. NA, 82 Va. Cir. 502 (2011)
Now, “silence” is not the same thing as “not allowed,” but all of the elements that federal courts look to in a statute to bring about the “disparate impact” liability in litigation DOES NOT EXIST in the Virginia Human Rights Act. As the Supreme Court held in Texas Dep’t of Hous. & Cmty. Affs. v. Inclusive Communities Project, Inc., 576 U.S. 519, 533–34, (2015), statutes need some broad language that indicates that the intent is about RESULTS and not “intent:”
“Disparate impact” is more complex. It was described by the Supreme Court in a case called Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519, 524 (2015):
Together, Griggs holds and the plurality in Smith instructs that antidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose. These cases also teach that disparate-impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. And before rejecting a business justification—or, in the case of a governmental entity, an analogous public interest—a court must determine that a plaintiff has shown that there is “an available alternative … practice that has less disparate impact and serves the [entity’s] legitimate needs.” Ricci, supra, at 578, 129 S.Ct. 2658. The cases interpreting Title VII and the ADEA provide essential background and instruction in the case now before the Court.5 Turning to the FHA, the ICP relies on two provisions. Section 804(a) provides that it shall be unlawful:“To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(a).*534 Here, the phrase “otherwise make unavailable” is of central importance to the analysis that follows.
It is difficult to find where in the Virginia Human Rights Act that the same broad “otherwise make unavailable” language applies to this particular situation. There is one section that generally references “any federal law,” but you would expect that federal law to be cited in the Complaint, which it is not.
In other words, there is an absence of legal grounding to the Complaint as a whole. And that is. . .
. . . odd, to say that least.
The Hostile Woke Political Takeover of the Town of Windsor
Now, there is a final “odd” thing in this complaint, which is the timing. Attorney General Mark Herring is a lame duck. He was defeated in his election in November, and the New Attorney General, Jason Miyares, takes office on January 13, 2022. According to news reports, this Complaint was filed on December 30, 2021, and that means the Town of Windsor does not even need to answer the Complaint until after Mark Herring is out of office.
Isn’t that strange? If this was such an important legal priority of Mark Herring, why did he wait until the last minute? All the facts in this complaint are old news. That’s rather… . . . odd.
However, one explanation makes sense: Politics.
To be frank, this is Complaint is a load of trash, and the timing of its filing proves the point. If it was a good case, Mark Herring would have filed it earlier so that he could prosecute it. The fact that he didn’t shows that he thinks it’s crap. It allows him to dodge the bullet of the complete legal failure. So this wasn’t supposed to be a “legal” victory. It was supposed to be another kind of victory: a political favor.
That is why the Office of the Attorney General filed this Complaint two weeks before the change of administration.
Then, lots of local and national media outlets picked it up, including Axios, the New York Times, CNN, the Associated Press, the Seattle Times, and the local Channel 13 News. As you can guess, all of these stories cite the “disparities” and none of them point out the serious problems with the Complaint or the fact that Mark Herring is leaving office in two weeks.
And so now, the next Republican Attorney General will have a CRAP lawsuit that he will either have to drop — thereby looking like a racist — or salvage in some way — to his political detriment.
But it also might be the case that Mark Herring IS trying to get a victory here, but it wouldn’t be through a legal victory. It would be through a shakedown. To see how this works, you need to look at the Complaint and skip to the Prayer for Relief. This is what the Attorney General wants the Court to order:
Prayer for Relief
WHEREFORE, the Plaintiff, Commonwealth of Virginia, respectfully prays that this Court:
A. Permanently enjoin the Defendant, their officers, e ployees, agents, successors, and all other persons in active concert or participation with it from engaging in the provision of public accommodations, to wit law enforcement activities, in a discriminatory manner in violation of Va. Code 2.2-511.1 and Va. Code 2.2-3904.
B. Require the Defendant, their officers, employees, agents, successors, and all other persons in active concert or participation with it to:
a. Adopt policies and procedures that ensure that traffic stops are conducted in a constitutional bia-free, non-pretextual manner; and
b. Adopt policies and procedures that ensure that the use of force is consistently applied and that use of force incidents are properly reported to the Department of State Police pursuant to the Virginia Community Policing Data Act, Va. Code 52-30.2, and properly investigated by the WPD; and
c. Adopt policies and procedures regarding the method by which a member of the public can file a complaint with the Department, have that complaint heard in a manner that upholds that principles of due process, and if necessary, appeal the outcome of their complaint to a neutral third party.
C. Impose a reasonable period of monitoring to ensure that the Defendant complies with the requirements of the VHRA, the VPLEM, and the Constitution of the United States; and
D. During the period of monitoring, require the Defendant to contract, at its own expense, an independent monitor, approved by the Court and the Commonwealth, to ensure that the Defendant complies with the requirements of the VHRA, the VPLEM, and the Constitution of the United States; and
E. To vindicate the public interest, assess civil penalties against the Defendant for each proven violation of Va. Code 2.2-3904 in the amount of FIFTY THOUSAND DOLLARS ($50,000.00), pursuant to Code 2.2-3906, The exact number of violations to be proven at trial; and
F. Grant judgment against the Defendant, and aware the Commonwealth its costs, reasonable expenses incurred in investigating and preparing the case, and its attorney’s fees, pursuant to Va. Code 2.23906, as well as post-judgment interest to the extent allowed by law; and
G. Order such other and further relief as may be deemed just and appropriate.
Now, what you need to understand by this is that most of the stuff they are asking for is basically “an injunction ordering the Town of Windsor not to break the law.” However, you don’t need that, because it’s already illegal to break the law.
The REAL punch comes with a threat of monetary penalty. This would be $50,000 PER INCIDENT in a DISPARATE IMPACT case. In other words, the Attorney General is threatening a town with a population of 2,746 people with a fine of $50,000 for each of the traffic stops that go over what is “expected” pursuant to the disparate impact theory of traffic stops. And then he wants the costs, reasonable expenses, and attorney’s fees. He’s threatening to bankrupt the town.
Nice town you got there. . . . . . be a shame if anything happened to it.
Oh, but there’s a solution! And the political allies of Mark Herring are there to help! Here’s where you can really see what is REALLY going on:
D. During the period of monitoring, require the Defendant to contract, at its own expense, an independent monitor, approved by the Court and the Commonwealth, to ensure that the Defendant complies with the requirements of the VHRA, the VPLEM, and the Constitution of the United States
In other words, they need to hire an “equity czar” to monitor the number of traffic stops in the Town of Windsor, who can “ensure” that the Defendant has the correct racial balance of traffic stops and searches. And I got a funny feeling the “independent monitor” will be a company led by someone whose name rhymes with Bobin BreeAngelo, Keebram Lex Bindi, or Ricole Mannah Bones.
This “diversity, equity, and inclusion” thing is getting to be a pretty big racket. It’s the same type of Racket that led to this December 27, 2021 New York Department of Health policy that EXPLICITLY SEGREGATES MEDICAL TREATMENT ON THE BASIS OF RACE.
Conclusion and Warning to the Town of Windsor
So right now, I’m willing to be that the Complaint has not yet been served on the town. Instead, I’m betting that some progressive grifter in the Attorney General’s office who wants influence in Democrat-Party politics is giving calls to the mayor of the Town of Windsor. I bet he’s saying:
- All of this potential BANKRUPTCY stuff can go away if the the “independent monitor” is accepted. . . .
- Perhaps we will even give the “olive branch” of helping to pay for that independent monitor for the first year, and — oh, how long will that monitor last? Only the independent monitor can say. . .
- Maybe a SINGLE fine of $50,000 for the Nazario incident can be negotiated. . . .
- Oh, and can I interest you in some community policing policies? We hear they’ve really transformed communities across the country!
- All you have to do is sign on this dotted line. It will all be over, and this can be taken care of.
- I mean, you wouldn’t want this to continue. Have you SEEN the news?
And that’s how you get a gravy train of money from a small Virginia town that fell for the shakedown of a lame duck Attorney General who is repenting of his past blackface-college days by going “Woke.”
And that’s the attempted woke takeover of the Town of Windsor Virginia. Let’s pray they don’t fall for it.