Nazario v Gutierrez & Crocker, Case 2:21-cv-00169 -Filed 04/02/21 Eastern District of Virginia, Norfolk
This action arises from the behaviors of two Windsor [Virginia] police officers, Joe Gutierrez and Daniel Crocker (jointly, the “Defendants”), who, while on duty and in uniform, initiated a traffic stop against a uniformed U.S. Army Officer, Lt. Caron Nazario, who was driving back from his duty station. The Defendants did so ostensibly because they alleged that Lt. Nazario did not have a license plate on the rear of his newly purchased Chevrolet Tahoe. (Complaint ¶ 2)
This was a TRAFFIC STOP! for an alleged missing license plate, that was taped to the back window of the newly purchased vehicle!
CONFLICTING INSTRUCTIONS BY POLICE!
How do you follow the conflicting instructions from police?
“Keep your hands outside the window — Get out of the car now!”
Would you reach in the car to unbuckle your seatbelt with guns pointed at you?
Officer - "What's going on- you are fix'n to ride the lightning son!"
Lt. Nazario – “What’s going on?”
Officer – “What’s going on – you are fix’n to ride the lightning son!”
Officer – “You received an order, obey it.”
Lt. Nazario, with hands raised in the air states – “I’m honestly afraid to get out …”
Officer – “YOU SHOULD BE!”
If you don't like the media "spewing race relations between law enforcement and minorities" then don't give them ammo!
Defendant Gutierrez reiterated that he understood why Lt. Nazario did what he did by pulling over at the BP Gas station, stating:“I get it, the media spewing race relations between law enforcement and minorities, I get it”that pulling over at the well-lit BP “happens all the time,”and that “80% of the time, it is minority”
Hmmm —- IF IT HAPPENS ALL THE TIME, WHY DID YOU GET OUT OF THE CAR WITH GUNS DRAWN??????
Sergeant Major of the Army Michael Grinston – “Like many of you, I was concerned by the video of LT Nazario’s traffic stop in December. He represented himself and our Army well through his calm, professional response to the situation – I’m very proud of him.“
(For those not familiar with the military – The Sergeant Major of the Army (SMA) is the most senior non-commissioned/enlisted member of the United States Army, appointed to serve as a spokesman to address the issues of enlisted soldiers to all officers.)
“I pray for Lt. Nazario after watching the video of him being disrespected, detained and abused by the two officers. Being a Army veteran and retired Master Deputy Sheriff Fairfax Virginia. I was also represented by Mr. Roberts law firm and was successful in getting justice for years of injustice at the Sheriff’s office. Lt. Nazario did not deserve the racist actions he was subject to in the video.”
RET. Master Deputy Sheriff
US Army 1978-1984
CROCKER'S OFFICIAL POLICE REPORT
Lt. Nazario “willfully and wantonly disregarded [his] patrol vehicle’s blue lights and sirens and continued to travel westbound down Route 460.”
The“[d]river would not comply with orders to turn the vehicle off and place his hands outside the vehicle.”
“When officer [Crocker] attempted to unlock and open driver’s door, the driver hit officer’s hand away.”
“When officer [Crocker] attempted to unlock and open driver’s door, the driver hit officer’s hand away.”
Gutierrez Official Police Report
“The occupant, later identified as CARON NAZARIO, was told approximately 6times to show his hands and he refused“
“Crocker attempted to reach in and unlock the vehicle and NAZARIO slapped his hands away”
“I then deployed my pepper spray however NAZARIO was able to block my first attempt with his left hand. I sprayed a second time and NAZARIO turned away and hit the side of his head and neck. My third spray was to his face“
Much of the focus is on the 4th Amendment Claims - unreasonable seizure and excessive use of force. But A little about the 1st Amendment Claim.
THIS HAS TO STOP! - PRESS RELEASE -- IN RESPONSE TO THE ACTION OF THE TOWN POSTING A PRIOR TRAFFIC STOP INVOLVING LT. NAZARIO
FOR IMMEDIATE RELEASE 4/15/2021– 6:30 p.m.
All too often, after American law enforcement get caught and called out for violating the civil rights of American citizens, their go-to-play is to retaliate and re-traumatize their victim. They publish whatever derogatory information that they can find to cause further trauma and to call attention away from their own gross misdeeds. This is precisely what the Town of Windsor and its Police have done.
It is a credit to the character and integrity of Lt. Caron Nazario that all they have managed to find was footage of a speeding ticket, a traffic stop. It is a traffic stop where Lt. Nazario again waits for a clear, safe space to pull over. A traffic stop where Lt. Nazario remains calm and courteous. It is a traffic stop that is irrelevant to the deplorable actions of the town of Windsor’s police officers. It is footage whose release is only intended to retaliate against and to re-traumatize their victim. They retaliated by releasing footage of Lt. Nazario’s registration address – knowing he was afraid of retaliation, knowing their officers had already threatened to retaliate. And this was illegal.
Let us be clear, the Town of Windsor and its Police Department have now violated the law and sought to invite further violence on a uniformed member of the Armed Forces for speaking out against them. We have notified the appropriate authorities and this aggression will not go unchecked.
The conduct of the Town and its Police are shameful, but this is the conduct that the nation has now come to expect from them.
THIS HAS TO STOP!
WARNING TO ANY PERSON ENCOURAGED BY WINDSOR’S ACTION:
The Virginia Pilot – “2 Windsor police officers threatened and assaulted a man during an illegal stop, lawsuit claims. And it’s all on video.”
Channel 13 – Norfolk – “Civil lawsuit claims two Windsor police officers drew guns, pepper-sprayed uniformed soldier during traffic stop.”
Daily Press – “2 Windsor police officers threatened and assaulted a man during an illegal stop, lawsuit claims. And it’s all on video.”
Vice News – Cops Caught on Video Holding a Black Army Lieutenant at Gunpoint, Then Pepper-Spraying Him
Military News – 2 Virginia Police Officers Threatened and Assaulted Service Member During Illegal Stop, Lawsuit Claims
COMPLEX – Virginia Cops Caught on Video Holding a Black Army Lieutenant at Gunpoint, Then Pepper Spraying Him
Urban News – Windsor Police Officers are Hit With A Lawsuit After Assaulting a Man During An Illegal Stop
NewsWeek – ‘They Ruined His Life’: Cops Who Held Lt. Nazario at Gunpoint Must Face Independent Probe, Ex-Police Chiefs Say.
“Southers is the director of the Safe Communities Institute at the University of Southern California, where the LEWIS (Law Enforcement Work Inquiry System) is being developed.
“It’s unconscionable that they would do that to a compliant man who was serving his country in uniform. There’s just no excuse for that,” he added. “They just ruined his life. They have no idea. Army Lieutenant or not, they have no idea what it’s like to go through that kind of experience.”
“A Newsweek analysis of Windsor police data found that the seven-person police force engaged in roughly 200 monthly traffic stops last year. In November, they conducted 246 traffic stops and 174 in December, the month the incident took place. Furthermore, data shows that the department has continued to ramp up traffic related stops in 2021, with 323 in March, of which 226 summons were issued.”
Elected Leaders' Responses
This case shows why we must pass a federal police reform bill and reform immunity doctrines that shield misconduct. It’s disgraceful and unacceptable—in Virginia or anywhere else.
“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. This should have been a routine traffic stop and the video speaks for itself. The release of this video also comes while the Hampton Roads community is still mourning the loss of Donovan 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.”
Incidents like this are unacceptable. As our office continues to monitor the situation, the Windsor Police Department needs to be fully transparent about what happened during the stop and what was done in response to it….The video doesn’t show anything to justify how Lt. Nazario was treated.
It appears that yet again, Virginia is being forced to reckon with an instance of heinous police brutality against a Black man. This video highlights a sad reality for far too many of us in communities across our Commonwealth. That reality must be brought to an end. Today, I’m calling for an immediate investigation into this incident….
As the recently released appalling video of U.S. Army Lieutenant Caron Nazario makes clear, not even a military uniform and brave service to this country can shield Black and Brown Virginians from racist police harassment and brutality. In stark contrast stands the shield of qualified/sovereign immunity, which allows law enforcement to engage in racist brutality with little to no consequences…..
FROM: TOWN OF WINDSOR, VIRGINIA
DATE: APRIL 11, 2021
RE: POLICE STOP OF DECEMBER 5, 2020
The Town of Windsor, Virginia, acknowledges the unfortunate events that transpired on December 5, 2020 involving Lt. Caron Nazario and officers of the Windsor Police Department, Joe Gutierrez and Daniel Crocker.
The pursuit and ultimate stop resulted in the use of pepper spray against Lt. Nazario by Officer Gutierrez. As a result of this use of force, Department policy requires an internal investigation to determine the appropriateness of such actions. The investigation of this event began immediately. At the conclusion of this investigation, it was determined that Windsor Police Department policy was not followed. This resulted in disciplinary action, and department-wide requirements for additional training were implemented beginning in January and continue up to the present. Since that time, Officer Gutierrez was also terminated from his employment.
The Town of Windsor has remained transparent about this event since the initial stop, and has openly provided documents and related video to attorneys for Lt. Nazario. The Town will continue to provide information related to this event in its commitment to openness. The Town has also requested an investigation of this event by the Virginia State Police, and joins with elected officials who have called for a full and complete review of the actions of these officers.
The Town of Windsor prides itself in its small-town charm and the community-wide respect of its Police Department. Due to this, we are saddened for events like this to cast our community in a negative light. 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.
For more information, please contact Town Manager William Saunders at email@example.com
"Graham" -- An Officer is prohibited by the 4th Amendment from using excessive force -- the force was objectively excessive: insignificant alleged traffic violation, suspect posed no immediate threat - hands out of the window, no active resistance or attempt to evade arrest by flight - "what's going on?"
The United States Supreme Court in Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872 (1989) explained that what constitutes reasonable force is to be determined by an objective standard with careful attention to the facts and circumstances of each particular case. “Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559 (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S., at 8-9 (the question is “whether the totality of the circumstances justifie[s] a particular sort of . . . seizure”).
…As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation….The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
"Mimms" - An officer has no right to order the driver out of the vehicle when the underlying stop is unlawful - (the license was visible in the window)
Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) the United States Supreme Court held that, for officer safety reasons, a lawful traffic stop authorizes officers, as a matter of course, to require drivers to exit their vehicles. 434 U.S. at 111 n.6. However, the decision requires an examination of the circumstances in each case, rather than providing “carte blanche authority” to routinely order drivers out of the vehicles after a traffic stop: In a footnote the Mimms court stated:
[W]e do not hold today that “whenever an officer has an occasion to speak with the driver of a vehicle, he may also order the driver out of the car.” We hold only that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.
"Gant" - No reason to believe the vehicle contained evidence of the offense for which the occupant has been arrested - There was no lawful excuse to search the vehicle and to remove Lt. Nazario's firearm to run the serial numbers.
Police may not search a vehicle without a warrant when they have removed the occupants from the vehicle unless it is reasonable to believe the vehicle contains evidence of the offense for which they have arrested the occupant. The US Supreme Court stated in Arizona v. Gant, 556 U.S. 332, 351, 129 S. Ct. 1710, 1723-24 (2009):
Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
Virginia Law - Right to Resist Unlawful Arrest, but with risks.
Judge Beales explained the right and risk of resisting an illegal arrest in Lightfoot v. Commonwealth, No. 0313-20-2, 2021 Va. App. LEXIS 55, at *8-9 (Ct. App. Apr. 6, 2021): “Under the common law, a citizen generally is permitted to use reasonable force to resist an illegal arrest.” Commonwealth v. Hill, 264 Va. 541, 546, 570 S.E.2d 805 (2002). “The underlying rationale supporting this common law right is the ‘provocation’ of an illegal arrest, which operates to excuse an assault directed at thwarting the unlawful arrest.” Id. at 547. “An unlawful arrest was considered a great provocation at common law because of the dire consequences, including incarceration of extreme duration, which often resulted before an accused was permitted a trial for the charged offense.” Id. However, “to the extent a suspect exercises his right to resist an unlawful arrest, he gambles that the facts and circumstances viewed objectively from the officer’s perspective will not support a finding of probable cause.” Doscoli, 66 Va. App. at 426 (emphasis in original).
Lightfoot v. Commonwealth, No. 0313-20-2, 2021 Va. App. LEXIS 55, at *8-9 (Ct. App. Apr. 6, 2021) The court failed to discuss the greatest risk – that the police officer kills or injures the subject.
“To constitute obstruction of an officer in the performance of his duty, it is not necessary that there be an actual or technical assault upon the officer, but there must be acts clearly indicating an intention on the part of the accused to prevent the officer from performing his duty, as to ‘obstruct’ ordinarily implies opposition or resistance by direct action and forcible or threatened means. It means to obstruct the officer himself not merely to oppose or impede the process with which the officer is armed.”
Jones v. Commonwealth, 141 Va. 471, 478-79, 126 S.E. 74, 77 (1925)