January 14, 2023 by Tom Roberts, Esq.
POST TRIAL — Lt. Nazario’s legal team has begun drafting a motion for a new trial. Under Federal Rule 59, a trial judge has a duty to set aside a verdict and grant a new trial even though it is supported by substantial evidence, “if he is of the opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false or will result in a miscarriage of justice . . . .” The trial court may weigh the evidence and consider the credibility of the witnesses. Williams v. Nichols, 266 F.2d 389, 392 (4th Cir. 1959), citing, Aetna Casualty & Surety Company v. Yeatts, 122 F.2d 350 (4th Cir. 1941). It is not necessary, however, to consider whether under the “new trial” standards the jury verdict should have been set aside as contrary to the clear weight of the evidence on a Judgment Notwithstanding the Verdict (“JNOV”) In this case, Lt. Nazario’s team will focus on evidence that the jury did not follow the law as evidenced by the verdict form in addition to the gatekeeping function of the court when it comes to “expert” witnesses including the testimony regarding damages by defense expert that added criteria to the DSM5 for diagnosis of mental injuries, in addition to other matters to be brought to the court’s attention.
INSTRUCTION NO. 41 An officer has the right to use reasonable force to make a lawful arrest. Use of that force is not an assault or battery. Any force used in making an unlawful arrest is an assault and battery. The Court has found that when Plaintiff was initially detained, such detention was at that time a lawful arrest as a matter of law. Within reasonable limits, an officer is the judge of the amount of force necessary to make a lawful arrest. If, during the course of an otherwise lawful arrest, a law enforcement officer uses unreasonable force, such unreasonable force is an assault if it does not touch the citizen, and it is battery if it does. However, assault and battery are not mutually exclusive. Under these circumstances, a person may use reasonable force to resist the arrest and unreasonable force by an law enforcement officer. Whether force is reasonable must be judged based on the totality of the circumstances confronting the officer including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether the suspect is actively resisting arrest or attempting flight
Ask, given that the jury did in fact find Gutierrez assaulted Lt. Nazario, how could they not find a battery followed, WHILE “[Lt. Nazario] may use reasonable force to resist the arrest and unreasonable force by an law enforcement officer”? Sitting in the car and refusing to get out in the face of unreasonable force is authorized by law, even if under normal circumstances a law enforcement officer may order somebody out of the car — sitting in the car is the least amount of force Lt. Nazario used, and cannot be anything but reasonable! The jury failed to apply the law to this case and a new trial should be granted to avoid an injustice!
After 5 days of evidence, the jury determined that Gutierrez did assault Lt. Nazario but awarded only $2,685 to compensate Lt. Nazario for the damages he suffered and declined to punish Gutierrez or to send a message to other police officers that this conduct is unacceptable.
With regard to the illegal search of Lt. Nazario’s vehicle, the jury awarded $0.00 – nothing damages to compensate Lt. Nazario, and awarded $1,000 punitive damages. Once again, it is unlikely that the verdict will send a message to police officers, other than to let them know that this behavior will not result in any meaningful consequences – It is open season on citizens in Virginia and across the county.
Adding insult to injury, it is a sad day. Citizens will not rest assured that scenes like this are not repeated with impunity.
To all of the officers that strive to fulfill their oath we salute you and ask you to police your own.
OATH – “I (state your name), do solemnly swear (or affirm), that I will support the Constitution of the United States, and the Constitution and laws of (your state), that I will bear true faith and allegiance to the same, and defend them against enemies, foreign and domestic, and that I will faithfully and impartially discharge, the duties of a peace officer, to the best of my ability, so help me God”