Attorney general’s lawsuit against Windsor sees shakeup

Published 1:59 pm Friday, May 27, 2022

All three lawyers former Virginia Attorney General Mark Herring tasked with prosecuting his police misconduct lawsuit against the town of Windsor are no longer employed by his successor, Jason Miyares.

Additionally, all four judges assigned to Virginia’s Fifth Judicial Circuit, which includes Isle of Wight County, have recused themselves from hearing the case. In their place, Virginia’s Supreme Court has appointed retired Judge H. Thomas Padrick Jr., who is himself a former police officer.

Padrick served from 1970 to 1981 as a detective for the Virginia Beach Police Department.

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Herring, a Democrat, alleged in his December complaint that a months-long investigation had “revealed disturbing evidence” that Windsor’s Police Department repeatedly “operated in a way that led to discrimination against African Americans.” The case was automatically assumed by Miyares, a Republican, after Herring left office in January.

The lawsuit, which is the first of its kind under a new state law that empowers Virginia’s attorney general to file suits to stop systemic civil rights violations, contends the WPD violated Virginia’s Human Rights Act and Virginia’s Public Integrity and Law Enforcement Misconduct Act by disproportionately stopping Black motorists.

According to the suit, Black drivers accounted for 42% of the WPD’s traffic stops from July 1, 2020 through Sept. 30, 2021 — though Blacks only account for 21% of the town’s population, and 22% of the county’s. ​​Windsor has disputed the former attorney general’s claims, arguing in its January response that Herring didn’t account for the number of out-of-area motorists stopped on Route 460, a four-lane highway that passes through town.

Herring had named Liza S. Simmons, then-acting chief of Virginia’s Office of Civil Rights, as the state’s counsel of record. He’d also named assistant attorneys general Palmer T. Heenan III and Brett P. Blobaum to the case.

According to court records, Heenan asked on Feb. 9 that the court grant himself and Blobaum permission to withdraw from the case, noting that as of Jan. 10, Blobaum was “no longer employed by the Office of the Attorney General.” Heenan too, his filing notes, planned to leave effective Feb. 11 to take a position in another state.

Miyares’ administration confirmed to The Smithfield Times May 26 that Simmons had also left her employment with the Office of the Attorney General.

The Richmond Times-Dispatch reported in January that 30 staff members — 17 of them attorneys — had been notified ahead of Miyares’ first day in office that they wouldn’t have jobs in his administration. According to the Miyares administration’s statement to the Smithfield Times, Blobaum, Heenan and Simmons were not among those terminated, but rather “chose to make their career changes.”

We are grateful for their service to the OAG,” reads the statement.

Heenan, in his Feb. 9 court filing, further asked that the court recognize Assistant Attorney General Brittany Sadler Berky as the case’s new counsel of record going forward.

Berky, according to her LinkedIn profile, joined Miyares’ administration in January after working for 16 months as an attorney with the nationwide Troutman Pepper law firm, where she specialized in “complex business litigation at the trial and appellate level.”

Her profile further cites “special expertise in constitutional law, civil rights, and legislative policy,” noting her membership in the Federalist Society and her past work in the U.S. Senate. According to Senate records, she worked for U.S. Sens. John Kennedy, R-La., and James Lankford, R-Okla.

The Federalist Society, according to the group’s website, is composed of conservatives and libertarians who believe law schools and the legal profession to be “dominated by a form of orthodox liberal ideology.” The group calls for “reordering priorities” within the legal system to “place a premium on individual liberty, traditional values, and the rule of law.”

Herring began what his administration had termed a “pattern and practice” investigation of Windsor last year after video 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. Nazario had been pulled over on Route 460 for allegedly lacking a license plate.

Nazario had a temporary New York plate displayed in his rear window, but the officers claimed they hadn’t seen it, and accused the lieutenant of eluding police for having driven roughly a mile down Route 460 to a BP gas station before stopping.

Nazario has filed his own lawsuit against the two officers, one of whom was fired over the incident. Windsor Police Chief Rodney “Dan” Riddle terminated Gutierrez in April 2021 following the release of the footage, but allowed Crocker to remain on the force.

The footage records Gutierrez at one point telling Nazario he “should be” afraid, and that he was “fixin’ to ride the lightning,” a phrase Nazario’s lawsuit contends is a colloquial reference to an execution. Gutierrez then pepper-sprays Nazario and forces him out of his vehicle and onto the ground.