The Isle of Wight County Sheriff’s Office, on Nov. 18, acknowledged the existence of body camera footage and an internal affairs report purported to show ex-Windsor police officer Joe Gutierrez using force against an elderly Black driver — but declined to share those records with The Smithfield Times.

The incident occurred between August 2017 and July 2020 when Gutierrez was employed by the Sheriff’s Office as a deputy. Gutierrez then took a job with the town of Windsor’s Police Department, from which he was fired earlier this year after video footage showing him holding Army 2nd Lt. Caron Nazario — also of African American descent — at gunpoint and pepper-spraying him during a Dec. 5, 2020, traffic stop. The video went viral online and drew national media attention.

Nazario has filed a $1 million lawsuit against Gutierrez and Windsor Police Officer Daniel Crocker, who was also involved in the December 2020 incident but remains on the force. The suit accuses both of racially motivated police brutality.

The two had pulled Nazario over for allegedly not having a rear license plate. Nazario had a temporary New York license plate displayed in his vehicle’s rear window, but the officers said they didn’t see it and accused the lieutenant of eluding police when he drove roughly a mile down Route 460 to a BP gas station before stopping.

The Times learned of the prior excessive-force allegation from Gutierrez’s time with the Sheriff’s Office via an Oct. 27 court filing by Nazario’s attorney, Jonathan Arthur. According to that filing, the Sheriff’s Office concluded Gutierrez had committed a Level III violation of the agency’s use-of-force policy when stopping the elderly Black driver, and chose to suspend Gutierrez for 10 days without pay in lieu of firing him.

Arthur declined to provide the body camera footage or internal affairs report to the Times to substantiate the allegations in his filing. The Times then submitted a Freedom of Information Act request on Nov. 11 to the Sheriff’s Office for body camera footage, the incident report and the internal affairs report stemming from that traffic stop.

The Sheriff’s Office responded to the Times’ FOIA request on Nov. 18.

“We are in possession of this information you have requested,” Deputy Paul Nash of the agency’s Administrative Services Division wrote to the Times via email.

But “the Sheriff’s Office has elected to withhold release of this information,” Nash said, citing Virginia Code 2.2-3706, B.9.ii.

This section of code states “administrative investigations relating to allegations of wrongdoing by employees of a law-enforcement agency” are “discretionary releases,” and may be excluded from mandatory disclosure provisions.

According to Megan Rhyne, executive director of the Virginia Coalition for Open Government, law enforcement agencies’ use of this particular code section to deny FOIA requests for documents pertaining to alleged misconduct by officers is “pretty typical.”

The problem, according to Rhyne, is that the code doesn’t specify what constitutes “records” of “administrative investigations.”

“Just like in the criminal investigative file arena, a record (recording, memo, photo, statement, email, etc.) is an administrative investigative record if the department says it is,” Rhyne said via email. “And once they say it is, then this exemption can be used to deny access.”

But there is nothing in the law that would require them to withhold those records either. Disclosure is discretionary, Rhyne clarified, “and so they are making a choice not to release it.”

While Nash acknowledged that the Sheriff’s Office indeed has the discretion to release or withhold the records, “our standard practice is not to release information from administrative investigations relating to allegations of wrongdoing by employees,” he said.