‘I’m honestly afraid to get out’

Published 6:27 pm Tuesday, April 13, 2021

Lawsuit alleges Windsor police brutality

A lawsuit filed April 2 in Norfolk’s federal court claims two Windsor police officers assaulted and threatened a person of color during a traffic stop.

According to the suit, 2nd Lt. Caron Nazario, an Army Medical Corps officer of Latinx and African American descent, was in uniform driving home from his duty station the evening of Dec. 5, 2020, when Crocker and Gutierrez pulled him over, allegedly for not having a rear license plate and “dark tinted windows.” Nazario had temporary license plates displayed in his rear window, but the officers claimed they didn’t see them, and accused him of “eluding police” — owing to his having driven below the speed limit until he found a well-lit area to stop: a BP gas station.

The officers’ body camera footage shows both exiting their patrol cars and approaching Nazario’s vehicle with guns drawn.

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A tense exchange follows, with the officers continuing to demand Nazario exit his vehicle. In a video of the incident Nazario recorded on his cell phone, he repeatedly asks the officers “What’s going on?” and receives responses of “Get out of the car now!”

That is, until one of them — identified in the lawsuit as Gutierrez — replies, “What’s going on? You’re fixin’ to ride the lightning, son.”

“This is a colloquial expression for an execution, originating from glib reference to execution by the electric chair,” the lawsuit states.

When Nazario says “I’m honestly afraid to get out” of the vehicle, Gutierrez’s body cam records the officer replying, “Yeah, you should be.”

The officers continue to give conflicting commands, at times telling him to keep his hands out of the window and other times telling him to get out of the car, which would have required putting at least one arm back inside the vehicle to unbuckle his seatbelt.

The exchange continues until Gutierrez, as shown on his body cam, tells Nazario “you’re under arrest … you’re being detained for obstruction of justice.” Gutierrez then sprays him with oleoresin capsicum, commonly known as pepper spray.

Nazario’s lawsuit alleges the officers later made false statements on their incident reports to cover up what they’d done.

According to those reports, when Crocker attempted to unlock and open the driver’s door, the driver hit the officer’s hand away, and still refused to exit the vehicle, at which time he was OC sprayed. The driver then reportedly stepped out of the vehicle, but refused to comply and lay on the ground, and a “short struggle” with the officers ensued.

“In an attempt to get the driver on the ground, the driver was actively resisting, Officer Gutierrez delivered knee strikes to try to gain compliance,” Crocker writes. “The driver went down on one knee, however would not lay flat.”

The suit, however, claims Nazario had his hands up and out of the vehicle the entire time and “at no time does Lt. Nazario touch or smack either Gutierrez or Crocker during this interaction.”

With Nazario in handcuffs, blinded by the OC spray and in custody, an emergency medical technician asked if Nazario had any firearms in the vehicle, to which he replied he did. Upon locating the weapon, Crocker ran Nazario’s identification through his patrol car’s computer system, which confirmed Nazario’s driver’s license and concealed carry permit were both valid. He then checked the gun’s serial number to see if it was stolen. It wasn’t.

“Gutierrez watched this unfold and failed to stop Crocker or intervene in this unlawful search, despite having reasonable opportunity to do so,” the suit states.

As Nazario’s vision begins to return, Gutierrez is heard on Crocker’s body cam acknowledging Nazario’s reasons for continuing to drive to the well-lit BP.

“I get it,” he says. “The media spewing race relations between law enforcement and minorities, I get it,” adding that it “happens all the time” and that “80% of the time, it is a minority.”

The incident concludes with Gutierrez saying to Nazario, “If you want to fight and argue … you have that right as a citizen, if that’s what you want, we’ll charge you … If you want to just chill, let this go, and no charges filed, we’ll take the handcuffs off, we’ll get you a bottle of water … and sit here until you feel comfortable driving.”

According to Crocker’s report, Nazario was told he could be charged with improper display of license plates, obstruction of justice with force, misdemeanor elude and assault on a law enforcement officer or avoid charges due to his being active-duty military.

“I did not want to see Nazario’s career be ruined by poor judgement (sic),” Crocker writes. “Nazario chose not to be charged.”

The suit describes the body cam and cell phone footage as “behavior consistent with a disgusting nationwide trend of law enforcement officers, who believing they can operate with complete impunity, engage in unprofessional, discourteous, racially biased, dangerous and sometimes deadly abuses of authority.”

It further characterizes Crocker’s and Gutierrez’s after-the-fact incident reports as containing “near identical material misstatements of fact” that “ignores and intentionally omits material facts of the Defendant’s escalation, use of firearms, and the threats of murder within a minute of pulling Lt. Nazario over.”

The suit asks for $1 million in damages. Nazario’s lawyer, Jonathan M. Arthur of Thomas H. Roberts & Associates P.C., said no court date has been set yet.


Gutierrez fired

Nazario’s lawsuit and the accompanying video footage made national headlines over the weekend, drawing reactions from local, state and federal officials. On Sunday evening, Windsor Town Manager sent an email to several media outlets, including The Smithfield Times, stating Gutierrez had been fired as a result of the incident.

According to that press release, Gutierrez’s use of pepper spray had prompted an internal investigation “immediately following the incident,” which concluded that “Windsor Police Department policy was not followed,” and resulted in “disciplinary action, and department-wide requirements for additional training” implemented in January.

“We are saddened for events like this to cast our community in a negative light, Saunders’ press release states. “Rather than deflect criticism, we have addressed these matters with our personnel administratively, we are reaching out to community stakeholders to engage in dialogue, and commit ourselves to additional discussions in the future.”

But Saunders’ press release gave no specific date for when Gutierrez was terminated, nor any indication of whether Crocker was still employed. That didn’t sit well with Valerie Butler, who is president of Isle of Wight County’s NAACP chapter, and called the videos “evident of what the NAACP has been saying all along” with regards to treatment of African Americans by police.

On Monday, she hosted a press conference in the parking lot of Windsor’s municipal building in view of the BP gas station where the incident occurred. There, she and state Del. Don Scott called for Crocker’s immediate termination.

On Tuesday, Saunders confirmed to the Times that Windsor’s police department had allowed Gutierrez to remain employed for four months following the incident, only firing him this Sunday, April 11, after the video — and Nazario’s police brutality lawsuit — made national headlines.

Saunders further confirmed Crocker is still employed by the Windsor Police Department, but didn’t say why the department had allowed Gutierrez to remain on the force four months after its review of the body cam footage during its internal investigation.

“I’m a former naval officer myself, and one of the things that made me sick to my stomach was to see this man in uniform being disrespected in the manner and the way that he was treated,” Scott said.

“It was shameful; it was embarrassing; it was disgusting. Neither one of those officers who perpetrated those acts should be wearing that uniform right now. They should not be in this community doing this type of work.”

Del. Jeff Bourne, who’s sponsoring a General Assembly bill to end qualified immunity for law enforcement in Virginia, also spoke at the conference. According to the American Bar Association, qualified immunity shields government employees from liability for their misconduct, even if they break the law. Under the doctrine, police officers can never be sued for violating someone’s civil rights, unless they violated “clearly established law.”

Bourne and Scott admit ending it will only make it easier for people like Nazario to sue officers after-the-fact for misconduct. To prevent misconduct from occurring in the first place, Scott is suggesting the state consider revising its Law Enforcement Procedural Guarantees Act.

“Go look at it; it protects officers when they get in trouble, when they do something wrong,” Scott said. “It gives them more due process than the average citizen.”

According to Bourne, the allegedly missing license plate for which Nazario was pulled over shouldn’t have warranted a traffic stop in the first place per recent changes to state law.

“We passed a bill in the summer [of 2020] that made these types of stops for minor traffic infractions illegal and unfortunately it was too late for Lieutenant Nazario,” he said.

Butler and other NAACP officials are asking the public to sign an online petition asking Gov. Ralph Northam to call a special session of the General Assembly for the purpose of passing Bourne’s bill. The petition, available at demandaspecialsession.com, had 1,500 signatures as of the time of the press conference, according to Virginia’s NAACP executive director, Da’Quan Love.

“Ladies and gentlemen, the time for statements and sympathies is over,” Love said. “We deserve action and we deserve it right away.”


Calls for independent investigations mount

The incident also drew the attention of Gov. Ralph Northam, who, on Sunday, directed the Virginia State Police to begin its own independent investigation of Windsor’s police department. Northam called the incident “disturbing” and said it angered him.

“Our Commonwealth has done important work on police reform, but we must keep working to ensure that Virginians are safe during interactions with police, the enforcement of laws is fair and equitable, and people are held accountable,” the governor said. “I am inviting Army medic Lieutenant Caron Nazario to meet soon — we must all continue the larger dialogue about reform in our country.”

Virginia’s House Democratic Caucus also condemned the department’s conduct, stating, “The footage of Windsor police officers conducting themselves in an undeniably unprofessional and unethical manner reflects why Black and Brown communities fear and distrust the police,” the statement read. “Behavior like this tarnishes the work of all law enforcement and undermines efforts to create trust between police officers and communities. We call for a full and transparent investigation into the actions of the officers involved. No one is above the law, especially those sworn to uphold it.”

On Monday, Virginia Attorney General Mark Herring announced his Office of Civil Rights had requested the department send over numerous records, including those concerning the employment status of the two involved officers and any other allegations of racial profiling or police brutality over the past 10 years.

The Fraternal Order of Police of Virginia, the state’s branch of the world’s largest organization of sworn law enforcement officers, “supports a comprehensive investigation of the Windsor Police stop of U.S. Army 2nd Lt. Caron Nazario,” said Virginia FOP President John H. Ohrnberger. “The FOP of Virginia does not condone excessive use of force in any way, and that appropriate action should be taken upon completion of an investigation.”

“I will state for the record — no deputies from the Isle of Wight County Sheriff’s Office were present or in any way involved in this traffic stop,” said County Sheriff James R. Clarke Jr.

Primary law enforcement jurisdiction within Isle of Wight’s two incorporated towns — Smithfield and Windsor — falls to each town’s police department, he said.

“When the matter is fully investigated, my hope is that justice and fairness will prevail,” Clarke added. “The professional men and women of the Isle of Wight County Sheriff’s Office have worked hard to build positive and constructive relationships with all who live, work, or visit our County. We will continue to conduct ourselves in a manner that holds the public faith and trust as a priority.”

Del. Emily Brewer, the Republican representative for Isle of Wight County in Virginia’s House of Delegates, is also calling for an investigation — one that will be “full, transparent, and unbiased” according to a statement she made on Twitter Sunday.

Congressman Bobby Scott, whose 3rd Congressional District includes Isle of Wight County, is calling for a concurrent federal investigation.

“I was horrified when I viewed the recently released video footage of the police treatment of Caron Nazario, a second lieutenant in the U.S. Army,” Scott said. “This should have been a routine traffic stop and the video speaks for itself. The release of this video comes while the Hampton Roads community is still mourning the loss of Donovon Lynch who was killed by officers while their body worn cameras were not activated. Both of these instances should be investigated by federal authorities.

“These dangerous and tragic events highlight why the House of Representatives passed the George Floyd Justice In Policing Act. I urge my Senate colleagues to immediately pass this legislation and send it to President Biden’s desk for signature. It would be a critical first step in reforming policing in America.”

Lynch was killed the night of March 26 in Virginia Beach as police responded to two shooting incidents. Police initially described Lynch as an “armed citizen,” but Virginia Beach Police Chief Paul Neudigate later said his officers found a gun “in the vicinity” of the shooting and didn’t have any evidence it belonged to Lynch, the Virginian-Pilot reported. The officer who killed Lynch was wearing a body camera, but it wasn’t activated and investigators don’t know why.


Future lawsuit expected?

Saunders deferred any further comments on behalf of the town until after Windsor’s Town Council meeting Tuesday evening, which had yet to start as of press deadline.

The council had scheduled a closed session at the end of the meeting for a consultation with legal counsel. The meeting agenda cites an exemption from open meeting requirements under state code 2.2-3711.A.7, which states a closed session for this purpose is allowable when “actual or probable litigation” would “adversely affect the negotiating or litigating posture of the public body” were it to be discussed in view of the public.

Nazario’s lawsuit, however, doesn’t name the town or its police department as defendants. Instead, it names Crocker and Gutierrez in their personal capacities.

“There must be some adverse effect on the Town’s negotiating or litigating posture in order for the exemption to apply,” Alan Gernhardt, executive director of Virginia’s Freedom of Information Advisory Council, confirmed. “It follows that the Town could not use that exemption to discuss litigation in which the Town had no legal interest. However, without knowing what was actually discussed, I cannot offer a definite opinion on this issue, especially keeping in mind that the exemption includes probable litigation.”

Probable litigation, he said, is defined as litigation that has been specifically threatened or on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a known party.

“A discussion of whether the Town could have legal liability if it was added as a defendant in the suit would qualify as probable litigation, even though [Nazario] did not actually file against the Town at this point,” Gernhardt said.