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Lt. Nazario v Town of Windsor Police Officers – Official Update

Because this important civil rights case highlights the need for national attention and reform - this page will serve the public's right to know

I wish I was in Kansas, I wish I was in Kansas!

6/4/2021 – Gutierrez & Crocker completely ignore Blankenship v Manchin, 471 F3d 523, 530 (4th Cir. 2006) 

wow - Gutierrez & Crocker do not even try to distinguish the adverse case law - they just ignore it!

Lt. Nazario opposed Gutierrez’ and Crocker’s motion to dismiss the 1st Amendment claim, stating in pertinent part, “The Defendants’ claim that the First Amendment caselaw requires the Defendants to have actually charged the Lieutenant to complete the Constitutional tort is flatly wrong. E.g.,Blankenship, 471 F.3d 523 (4th Cir. 2006) (the threat of imminent regulatory action), see, also, Suarez, 202 F.3d at 687-88 (4th Cir. 2000) (no prosecution necessary where there is a threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will imminently follow)(emphasis added). Pursuant to both Blankenship, and Suarez, the Lieutenant as appropriately alleged and supported with facts, threat intimating imminent punishment. ECF No. 1, ¶¶ 56-58 and footnotes 75 – 80.

In their reply briefs ECF No. 32 and 33 – Crocker and Gutierrez do not address or attempt to distinguish Blankenship – they simply ignore it.   Officers can ignore the 4th Amendment, and ignore the 1st Amendment — but in a court of law, ignoring the law will not make it go away!

5/17/2021 – Crocker’s response to Complaint

5/17/2021 – Defendant Crocker filed responses.  Defendant Crocker tags along with Gutierrez’ arguments on the 1st Amendment claims.

Defendant Crocker asks the court to prevent Plaintiff Nazario from gathering evidence and conducting discovery with a Motion to Stay during the pendency of the investigation by the Virginia State Police, the Virginia Attorney General and the Federal Bureau of Investigations (FBI).  

Whether or not Crocker intends to exercise his 5th Amendment rights during these investigations simply should not prevent Plaintiff Nazario from access to the subpoena powers and other discovery to timely collect evidence!  

In his answer, Crocker denies most of the facts clearly evidenced by the video tapes, and contends “Defendants gave the Plaintiff a break” (¶76).  Despite the fact that Lt. Nazario was in handcuffs outside of the vehicle, Officer Crocker’s ignorance of Constitutional and Virginia law abounds with a claim that the search of the vehicle without a warrant was “tantamount to a ‘frisk,’was not a seizure,” (¶ 88) “and [he] did not conduct any search”.

Defendant Crocker, ignoring the fact that Lt. Nazario was silenced at the scene, argues “Plaintiff’s First Amendment rights have clearly not been “chilled” as evidenced by the filing of this lawsuit, the lack of any charges filed against him by either of the Defendants, the Plaintiff’s ability to establish a GoFundMe account,  and an Instagram account concerning the December 5, 2020 traffic stop, and the extensive press and television interviews given by the Plaintiff’s counsel on his behalf.” (¶102).

To see the response – <click here>

LET’S NOT DISAPPOINT DEFENDANT CROCKER – STAND WITH LT. NAZARIO – VISIT HIS GOFUNDME PAGE!

5/14/2021 – Gutierrez response to complaint

5/14/2021 – Defendant Gutierrez filed responses.  He has challenged the 1st Amendment claim stating that since Nazario was not arrested or subsequently charged the 1st Amendment claim should fail. In his pleading, he completely ignores the chilling of Nazario’s speech at the scene.

The Fourth Circuit couldn’t be clearer, “The general proposition that a government official may not retaliate against a citizen for the exercise of a constitutional right is clearly established law, per Trulock. The specific right at issue here, the right to be free of threats of imminent, adverse regulatory  action [or threat of criminal prosecution without probable cause] due to the exercise of the right to free speech, was clearly established by this Court in Suarez.”  Blankenship v. Manchin, 471 F.3d 523, 533 (4th Cir. 2006). Trulock v. Freeh, 275 F.3d 391, 404 (4th Cir. 2001).  For Deeper Dive – Click Here

The answer Paragraphs 13 – 55, with few exceptions state – “The allegations of paragraph [ ] seek to recount and recite events and statements that are visible and audible from video recordings of the incident at issue in this action. These video recordings speak for themselves, and this defendant denies the allegations of paragraph [ ] to the extent they misstate or mischaracterize the contents of such video recordings.” …”This defendant denies all allegations of paragraph [] not specifically admitted above.”

 
The answer is deficient.   FRCP – Rule 8(b)(1) provides that an answer must “state in short and plain terms its defenses to each claim asserted against it,” and “admit or deny the allegations asserted against it by an opposing party.” The “denial[s] must fairly respond to the substance of the allegation.” Rule 8(b)(2). Rule 8(e) requires the Court to construe pleadings “so as to do justice.”
 
Unless the claimant files an answer, the [plaintiff] may have to “guess at which allegations in the complaint are undisputed or irrelevant . . . and which will have to be proven by a preponderance of the evidence.” United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 664 F. Supp. 2d 97, 102 (D.D.C. 2009).
 
The plaintiff is left guessing as to each of these paragraphs whether Gutierrez is denying the factual allegations alleged in the complaint.  As such, the answer is deficient.  
 
To see the response – <click here>

5/12/2021 – spoliation

Windsor Town Manager William Saunders emailed The Smithfield Times “FYI-Officer Gutierrez blanked out his phone before returning it, so those texts were lost.”    – Defendant Gutierrez is alleged to have erased all text messages and emails from his town-issued cell phone prior to returning it to Windsor Officials!   See article.    Plaintiff Lt. Nazario will likely move for sanctions under FRCP 37(e) after discovery process gives the full picture of the destruction.  For a deeper dive into “spoliation”- click here

4/29/2021 – Orders

4/29/2021 – Defendants Joe Gutierrez and Daniel Crocker ordered to file responsive pleadings to the plaintiff’s complaint by May 15, 2021 – electronically signed by Lawrence R. Leonard, United States Magistrate Judge.  <click here>

4/15/2021 – Retaliation

Town of Windsor retaliated by releasing footage of  Lt. Nazario’s registration address – this was illegal.  The tape shows an unrelated traffic stop for speeding (with the same license plate hanging in the window!)

4/11/2021 – 4/15/2021 – Town of Windsor blame Lt. Nazario and Windsor Police Chief Rodney Riddle deny apology. 

The Town of Windsor disclosed on 4/11/2021, that Officer Gutierrez has been terminated from his employment. However, on 4/15/2021 Windsor Police Chief Rodney Riddle blamed Lt. Nazario: “Lt. Nazario took certain actions that created where we got to.” Asked if Lt. Nazario deserved an apology, he stated “I don’t believe so.” He claimed, “Based on the current law, the case law that is in place on how we deal with traffic stops, I think it was legal.” There continues to be much work to bring justice and change.

GoFund.Me – official GoFund.Me page started to assist Lt. Nazario with court costs and expenses of litigation.

4/8/2021 – Story Breaks

with THE VIRGINIAN-PILOT 

4/2/2021 – Suit Filed

4/2/2021 – The civil rights complaint arising from the December 5, 2020 incident was filed in the United States District Court for the Eastern District of Virginia, Norfolk Division.  Civil Action No. 2:21-cv-00169.  Attached to the complaint were 14 Exhibits, including video.  Access to these public documents were available at the court.  They were made available without a “PACER” account in dropbox on 4/8/2021 after the story broke. <click here>