Windsor files response to Herring lawsuit

Published 5:12 pm Tuesday, February 1, 2022

The town of Windsor, on Jan. 28, filed a response to former Virginia Attorney General Mark Herring’s lawsuit alleging the town has engaged in a pattern of discriminatory and unconstitutional policing.

Herring filed the lawsuit in December, stating in a press release that his office’s months-long investigation had “revealed disturbing evidence” that Windsor’s Police Department “has operated in a way that led to discrimination against African Americans and violated their constitutional rights.”

The investigation began after body camera footage went viral online showing WPD officers Daniel Crocker and Joe Gutierrez holding 2nd Lt. Caron Nazario — an Army officer of Black and Latino descent — at gunpoint and pepper-spraying him during a Dec. 5, 2020, traffic stop. Gutierrez was fired, but Crocker was not.

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Nazario had been pulled over on Route 460 for allegedly lacking a license plate, though a temporary tag was displayed in the rear window. The officers claimed they didn’t see it and accused Nazario of eluding police for having driven roughly a mile before pulling over at a BP gas station.

Herring’s lawsuit was the first of its kind under a new state law empowering Virginia’s attorney general to file suits to stop systemic civil rights violations. As of Jan. 20, the lawsuit was still “pending,” according to Victoria LaCivita, a spokeswoman for newly elected Attorney General Jason Miyares. Miyares, a Republican, defeated Herring in November’s election.

According to the lawsuit, Black drivers accounted for 42% of the traffic stops the Windsor Police Department conducted from July 1, 2020, through Sept. 30, 2021 — though Blacks only account for 21% of the town’s population and 22% of Isle of Wight County’s.

The lawsuit also alleges the town’s police searched more vehicles driven by Black drivers than white drivers during the same 14-month period, even though Black residents do not constitute the majority of the town’s or Virginia’s population. It further alleges significant discrepancies in the department’s reporting of traffic stops — with the numbers reported to the Virginia State Police being lower than the numbers reported to the Town Council.

The town’s response contends the attorney general’s claims don’t include the number of traffic stops that took place on Route 460, a four-lane highway that passes through the town, nor a breakdown of the number of motorists stopped who were not residents of the town or county.

It then argues Isle of Wight County’s Circuit Court “lacks jurisdiction” because the attorney general “has no reasonable grounds to believe that a pattern or practice of conduct by law enforcement” has “deprived persons of rights, privileges, or immunities secured or protected by the laws of the U.S. or Commonwealth.”

It takes specific issue with the lawsuit’s allegation that the town has violated the Virginia Human Rights Act by “regularly and routinely denying services of a public accommodation to persons on the basis of their race, color or national origin during traffic stops or seizures.”

“The WPD’s actions in conducting motor vehicle stops, issuing traffic summons or citations, and attending court hearings does not constitute services provided as a place of public accommodation as defined by Virginia Code 2.2-3904,” the town’s response states.

The response is signed by John A. Conrad, outside counsel for the town.

The town had previously issued a statement in December denying the allegations and arguing that the lawsuit and its release 16 days prior to Herring’s last day in office was politically motivated.