May 6, 2021 by Tom Roberts, Esq.
Because this important civil rights case highlights the need for national attention and reform - this page will serve the public's right to know
Overview of the Jury Trial
Lt. Caron Nazario v Gutierrez and Crocker
The civil rights law firm of Thomas H. Roberts & Associates, PC represented Lt. Nazario. Associate attorney Jonathan Arthur undertook the bulk of the work leading up to the trial and at trial. Associate Andrew Bodoh assisted with work leading up to the trial. The elder founder of the law firm Attorney Tom Roberts participated as well throughout, serving as second chair at the trial and cross-examining one of the defense experts. Since 1986 the law firm is known for its work in civil rights.
Lt. Nazario Files Motion and Brief Seeking New Trial to Prevent Miscarriage of Justice
Lt. Nazario Motion for New Trial
Lawyers for Lt. Nazario filed a motion for a new trial to prevent a miscarriage of justice.
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 Diagnostic and Statistical Manual of Mental Disorders version 5 (“DSM5”) for diagnosis of mental injuries, in addition to other matters to be brought to the court’s attention.
Ask – Did the jury faithfully apply the law in Instruction No. 41?
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.
In Instruction 42, the Court explained the law “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. If, at any time, the detention becomes unlawful, the Citizen may refuse and use reasonable force to resist.“
MOTION -- A NEW TRIAL FOR LT. CARON NAZARIO
Just 1 of the many reasons a new trial should be granted Lt. Nazario under Federal Rule of Civil Procedure 59!
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”? (Jury Instruction No. 41) 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 should have found battery and should have awarded appropriate damages. This failure to apply the jury instruction colors their verdicts for Crocker. The nation was shocked by the verdict. The jury failed to apply the law to this case and a new trial should be granted!
Verdict Shocks the Nation
Jury Failed to Follow Instructions and Law:
Croker claims “The jury could have reasonably
found that Gutierrez’s statements constituted an assault, but that Nazario’s actions in continuing
to resist and refusing to comply with commands even after Gutierrez and Crocker holstered their
weapons, was unreasonable, thus justifying the use of pepper spray.”
Case 2:21-cv-00169-RCY-LRL Document 247 Filed 01/24/23 Page 5 of 17 PageID# 4949
Croker claims “Thus, even if Nazario’s
false assertions in his motion for a new trial were actually true, there is no evidence that such
resulted in any harm to him based upon his own doctors’ conflicting reports.” referencing “It was clear at trial that Nazario did not provide the same
information to Dr. Utsey (his psychologist) that he provided to Dr. Sellman (his psychiatrist). “
Case 2:21-cv-00169-RCY-LRL Document 247 Filed 01/24/23 Page 7 of 17 PageID# 4951
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”
Day 5 – of Trial
Lt. Col. Charles Reinhold.
Lt. Nazario’s team called as a rebuttal witness Nazario’s battalion commander, Lt. Col. Charles Reinhold. He appeared pursuant to a subpoena. His testimony gutted Crocker and Guterriez’ claim that Lt. Nazario did not have PTSD symptoms that interfered with his life. Lt. Col Reinhold testified that Lt. Nazario called him immediately after the Dec 5, 2020 incident, shaken and upset. He testified that Lt. Nazario was called up to duty after January 5, 2021 when the Virginia National Guard was called to the capital–and that he observed substantial changes in Lt. Nazario and that he needed help and more concrete directions to successfully fulfill his medical duties.
Jury Instructed in the Law
The court instructed the jury on the law to be applied to the case.
Plaintiff’s counsel Jonathan Arthur presented closing arguments in which he methodically walked the jury through the evidence and called out the defense for gas-lighting. He presented a chart showing the commands and Lt. Nazario’s compliance. Significantly, the chart showed that the defense claim that Lt. Nazario should have known that the command to “get out of the car” superseded the command to “keep your hands out of the window” because almost immediately after commanding him to “get out of the vehicle” he was again told “keep your hands out of the window, keep your hands out of the window” He reviewed the jury instruction that made clear that Lt. Nazario was authorized to resist the unreasonable use of force by the defendants with reasonable force. He asked the jury to determine the amount necessary to compensate Lt. Nazario for his injuries and losses, with the evidence from trial showing that out of pocket losses for medical expenses and income would exceed $500,000. He directed the jury to consider the veracity of the witnesses. Lt. Nazario’s closing asked the jury to reject Dr. Sheon’s testimony because she testified that Lt. Nazario did not suffer PTSD based upon criteria she attempted to slip in which was not in the DSM5. He asked the jury to consider the sworn responses to questions called interrogatories where Gutierrez swore to diametrically opposite things. He ask the jury to find that Gutierrez and Crocker collaborated on their reports which conflicted with the events shown on the videos from the body-worn cameras. He also pointed out that punitive damages was not just to punish the defendants but to deter the defendants and others, and that the punitive award should be heard by every officer in the United States.
Defendants closings continued to gas-light, blaming Lt. Nazario and denying that he was injured or suffered damages from the incident. Counsel for neither of the defendants attempted to defend the discrepancies between the videos and defendants official reports.
The jury began deliberations around 1:00 p.m. and continued until 4:30 p.m. when the court gave them the option of calling it a day or working until 5:30 p.m. They chose to continue working and at 5:30 they were released to return on Tuesday at 9:00 a.m. to continue with their deliberations.
Day 4 – of Trial
Day 4 of the jury trial ended late, with the court sorting out jury instructions with the parties counsel.
Earlier in the day the defense called three expert witnesses.
Keyhill Sheorn, MD
Defendants called a local psychiatrist, Dr. Keyhill Sheorn to the stand who claimed that Lt. Nazario suffered no psychological injury. However on cross-examination, she reluctantly acknowledged that she used criteria not included in the “gold standard” DSM5. On cross-examination, attorney Arthur elicited from her that she was paid $6,000 by the defendants, and that she is called as an expert witness in about 20 cases each year. She claimed to receive about $75,000-$80,000/year (although the jury could easily calculate that at $6,000 x 20 that would be $120,000) She also had to reluctantly concede that the criteria she used to base her opinion that Lt. Nazario did not have PTSD, General Anxiety Disorder or Panic Disorder were not in the gold standard Diagnostic and Statistical Manual of Mental Disorders version 5 (“DSM5”)!!! Further she had to concede that she knew this because her own report included an Appendix A which set out the factors accepted within the medical community.
Defendant Crocker then called as an expert Brandon Tatum, an officer with only 6.1 years of experience as a former police officer in Tuscon Arizona. He was unable to testify that either Guterriez or Crocker’s actions were reasonable, but offered testimony regarding what a reasonable police officer would do in various situations. In cross-examination by Tom Roberts, another of Nazario’s attorney’s, Tatum was required to break down scenarios. He conceded that a reasonable police officer would have taken into account that
- a citizen often is unaware that the blue lights are for him,
- a 4 lane highway at night is not the safest place to pull over for either the officer or the citizen
- he did not have statistical evidence to support his opinions
- a reasonable officer will not give conflicting commands
- a citizen buckled in his seat cannot keep his hounds out of the window and unbuckle his seatbelt at the same time
- a citizen may be immobilized by fear
- it is helpful for a citizen to communicate that fear to the officer
- an officer’s response to a citizen’s expression of fear to get out of the car should never be “Yeah, you should be”.
Despite the defenses claims that Nazario failed to comply and Tatum’s prior commentary on Youtube, on cross examination Tatum conceded that
- a vehicle slowing down in response to police lights was an initial sign of compliance and preferable to speeding up.
- stopping the vehicle was a sign of compliance
- answering a question of “how many occupants was in the vehicle” was a sign of compliance.
- putting hands out of the window upon command was a sign of compliance.
Chief Ken Wallentine
Defense witness Wallentine testified that most tasers used by police departments are markedly different in color, usually yellow, to distinguish them from firearms. He also testified that under certain circumstances even with hands out of the window, force may be used to extract a person from the vehicle, including use of a k-9. He was unable to testify that under the circumstances in Lt. Nazario’s case it would have been appropriate to use such force.
Day 3 – of Trial
The defense began its case on day 3.
Daniel Crocker testified that he was still in training at the time of the traffic stop. He claimed that it was easier to call on the radio a “felony stop” than “high risk stop” notwithstanding that “felony” is 3 syllables and “high risk” is only 2. He acknowledge that this violated the Windsor police policy. On cross-examination he was forced to concede many of the acts of compliance by Lt. Nazario where he previously contended Lt. Nazario was “non-compliant”. The federal court had already determined that the search of the vehicle violated the clearly established law that police officers should have known and that it violated Virginia’s law as well.
Day 2 – of Trial
Shawn Utsey, Ph.D.,
Shawn Utsey, Ph.D., a psychologist testified that he had provided counseling and treatment to Lt. Nazario after this incident working with psychiatries James Sellman, MD.
He conducted empirical testing to confirm his diagnosis given in accordance with the DSM5 of PTSD and General Anxiety Disorder. He explained to the jury that there is no cure for PTSD only management of the symptoms. The court limited his testimony so that he was unable to delve very far into the issues of injuries from racial violence.
James Sellman, Ph.D.
Dr. Sellman, a psychiatrist in Richmond, Virginia with almost 50 years of medical experience and substantial experience with vets and PTSD explained to the jury PTSD. He explained that in the center of the brain, the amygdala is a small, almond-shaped region of the brain that plays a role in assessing threat, forming and storing emotional memories, fear, and other memory functions which can become overloaded and interfere with the normal thinking of the frontal cortex.
Dr. Sellman had numerous sessions with Lt. Nazario via zoom during COVID, and also interviewed family members and worked in collaboration with Dr. Utsey.
Dr. Sellman using his experience, training and the DSM5 diagnosed Lt. Nazario to have severe PTSD, General Anxiety Disorder and a Panic Disorder.
Mark Bong, JD
Mark Bong is an attorney in Virginia whose practice includes representing law enforcement in disciplinary and decertification matters. He served as a police offer for 12 years in Florida with over 200 felony arrests and more than 1000 misdemeanor arrests and 3000 hours of law enforcement training and was involved in state wide training of officers. He has degrees from Harvard, and obtained his law degree in Richmond.
The court recognized Bong as an expert in policing. Bong testified that traffic stops was the lowest category of police deaths and that the chief concern of officers should be to serve and protect their community, acting reasonably in their interactions with citizens. After being cross-examined by the defense, he testified that the December 5, 2020 actions of Crocker and Gutierrez was “absolutely not reasonable.” He explained to the jury what a reasonable police officer would have done. In his direct examination he explained that drawing weapons and pointing them at a citizen in a traffic stop like that of Lt. Nazario was unreasonable, extreme and inconsistent with training and policy. a reasonable officer. He explained that it was better for an officer to interact with the citizen in a calm fashion and to give a citizen time to process and to respond to requests. He explained that failing to communicate and explain to citizens needlessly increased the danger to everybody, increasing the risk for potentially deadly mistakes and miscues. He explained that seeing a person’s hands was important and that reaching into the vehicle to unbuckle a seatbelt might cause increased risk and awareness for officers.
Bong explained that ordering a citizen out of the vehicle in a traffic stop or a “terry stop” was legal but not always reasonable under the circumstances. When an officer has unreasonably increased a citizen’s fear by unreasonable escalation, including unreasonably drawing weapons and pointing those weapons at the citizen that it is unreasonable to expect a citizen to step out of the vehicle.
Bong likened the use of force continuum to a set of steps that an officer should climb or descend based upon the circumstances.
He explained that the unreasonable escalation of force made that force unreasonable. (The court later provided instruction to the jury that a citizen may lawfully resist unreasonable force).
Bong explained that it was completely unreasonable for an officer to consider local policing to be similar to an active war zone.
Day 1 – of Trial
From the pool of prospective jurors summons to the court (“veniremen” ) the court randomly called individuals to the witness stand. The court then followed up on answers to questions each had previously completed to a questionnaire. Some were excused “for cause” and the parties each had an opportunity to exercise a “pre-emptory” strike to remove a juror for any reason. 9 jurors were seated.
Initial Jury Instructions
The court provided initial instructions to the jury, explaining their role in the legal system.
Each party party presented an overview of the facts and issues in the trial.
Nazario’s opening delivered without props explained to the jury the facts that would be presented in the trial, reviewing all of the acts of compliance by Lt. Nazario, beginning with his slowing the vehicle once he realized the blue lights and siren were directed at him, identifying the most well-lit space ahead, using his turn signals before changing lanes, pulling into the BP station, and stopping his car. He complied by rolling his window down. When Lt. Nazario saw the police officers’ guns drawn and pointed at him, he set his camera to record in case he was killed. He complied by placing his hands outside the window. He complied by responding to the inquiry informing the officer he was the only person in the car. On the other hand, Officer Crocker had called in a “Felony” traffic stop in violation of Windsor policy and without any evidence a felony had been committed which was unreasonable. He had immediately drawn his gun and pointed it at a citizen where the stop was initiated because there was no license plate showing. But Officer Crocker did see and later admitted to seeing the registration taped to the window at the outset of the stop at the BP station. With conflicting commands to keep his hands out of the window and later interspersed commands to get out of the vehicle, which he could not do with the seatbelt on Lt. Nazario continued to obey the command to hold his hands outside the window hoping he would not be shot. The opening statement told the jurors that the evidence would show that the actions of both Crocker and Gutierrez was unreasonable created justified fear in Lt. Nazario. Refusing to answer the simple question “What’s going on?”, Gutierrez threatened Lt. Nazario that he was “about to ride the lightning” and when Lt. Nazario explained that he was afraid to get out of the car, Gutierrez stated “Yeah, you should be” Ultimately while his hands remained raised and outside the vehicle, pleading with the officers to calm down and talk, Gutierrez pepper sprayed him in the eyes and face, while Crocker stood by with his hands in his pocket, showing neither officer feared Lt. Nazario. Blinded by the pepper spray, immediately upon Lt. Nazario’s feet hitting the pavement, instead of handcuffing the disabled soldier, Gutierrez used knee strikes with Crocker forcing Lt. Nazario to lie facedown in uniform upon the wet and dirty payment, where Lt. Nazario was sobbing fearing that he would be shot on American soil in uniform lying on the ground in disgrace. Despite claims that driving slowly a little over a mile to the most-well-lit space on the short stretch of 460 running through Windsor, counsel told the jury that they would hear Gutierrez admit on tape that driving to a well-lit space was not the problem, that it happened a lot but that 80% of the time it was minorities who did so.
Defendant Gutierrez’ counsel’s opening aided with flashy electronic powerpoint presentation promised the jury that the evidence would show that it was all Lt. Nazario’s fault, he failed to comply, the officers used the least amount of force, that he didn’t know Officer Crocker was going to illegally search the vehicle and that Officer Gutierrez acted humanitarian and kindly towards Lt. Nazario.
Similarly Crocker’s counsel promised the jury that the evidence would show that Lt. Nazario was not injured and that it was Lt. Nazario’s fault.
Plaintiff’s Case in Chief
Lt. Caron Nazario
Plaintiff Lt. Nazario testified as the 1st witness of the trial. He testified that he was from New York. That his family had long and deep ties to law enforcement. He had even pursued a career with NYPD and the NY State Police before deciding to serve as a military officer with the Army.
He told the jury that in Brooklyn he was racially profiled and stopped by undercover police on the pretense of a taillight out, which was not out. But explained that he never considered suing and even after that experience did not have concerns “driving while black”
He explained to the jury that serving in the military was his dream, because it was his privilege to serve and fight for this county.
He explained that in the military it was drilled into him, never point a weapon at anyone he was not prepared to kill or destroy. He also served as part of the honor guard.
He told the jury that he purchased a 2022 Chevy Tahoe in NY with factory tinted windows and that the dealer as customary had tapped the registration to the window.
On December 5, 2020, he was returning from active service with the United States Army as a medical officer evaluating the soldier’s medical readiness for a deployment then planned. He was returning to Petersburg still in uniform.
He had been stopped in Windsor for speeding about 1 month before, in the same vehicle with the same registration hanging in the window without having firearms pointed at him – but was particularly mindful of the speeding traps and was driving through Windsor on December 5, 2020 obeying all of the moving laws and regulations.
He saw a police car stopped for a traffic light as he passed by, but shortly thereafter, he saw blue lights and heard a siren behind him. Because he had been very intentional minding the speed limits, he did not think it was intended for him but thought the officer was responding to an emergency ahead. After a bit, when the officer did not pass him, he realized it was for him and immediately slowed his vehicle down to about 1/2 of the posted speed limit, identified the safest and brightest lit space ahead to pull over, and proceeded directly there at a slow speed, changing lanes slowly with his flasher and using his turn signal turned into the BP station and stopped his car.
He expected the officer to approach and was surprised when he saw in his mirror guns pointed at him.
He complied and turned his car off at the request of the officer.
Crocker’s body-worn camera video tape of the incident was played and admitted into evidence.
The body-worn camera video taken by Gutierrez was also played and admitted into evidence.
Nazario’s fiancee testified that shortly after the incident Nazario began to have nightmares, shouting out in his sleep “It’s the risk of driving while Black!”
She testified that these nightmares were so intense that he even urinated in the bed a few times.
She testified that he began to become obsessively conscious about safety and frequently carried his handgun even in the house.
She testified that after the birth of their son, she could not longer stand sleeping together at night due to the nightly disturbances from Nazario.
Video Deposition Excerpts of Crocker
Plaintiff played to the jury excepts of a deposition where Crocker was previously asked questions under oath. In it Crocker conceded that all three videos did not show Lt. Nazario slapping his hand which he wrote in a police report, but asserted it happened nonetheless.
Reading Deposition Excerpts of Gutierrez
In a significant blow to the plaintiff’s presentation of evidence, the video deposition of Gutierrez was unavailable as the videographer lost the video due to technology glitches apparently without a backup. So Lt. attorneys Jonathan Arthur read the questions while Tom Roberts sat in the witness box and read Gutierrez’ answers.
FEDERAL JURY TRIAL STARTS MONDAY 1/9/2023 AT 9:00 A.M. - RICHMOND FEDERAL DISTRICT COURT
On Monday, 1/9/2023 at 9:00 a.m., jury selection began in the civil rights trial of Lt. Caron Nazario v. Joe Gutierrez and Daniel Crocker for the horrible manner in which he was treated by officers from the Town of Windsor Virginia in a simple traffic stop. On December 5, 2020 Lt. Caron Nazario was pulled over because he had a temporary tag taped to the rear window of his vehicle. According to former Windsor Police Officer Gutierrez, 80% of the time it is minorities that drive to a well-lit area before stopping. Lt. Nazario reduced his speed and slowly traveled to the well-lit gas station ahead. When he stopped, officers Gutierrez and Crocker had guns drawn and were yelling inconsistent commands – to keep his hands out of the vehicle and to open his door and get out of the vehicle. Lt. Nazario could not do both, and so he kept his hands out of the window requesting repeatedly for the officer to explain why their guns were drawn and “what’s going on?” Officer Gutierrez told him he was “about to ride the lightning” and when Lt. Nazario said he was afraid to get out of the vehicle, told him “yeah, you should be!” Lt. Nazario was sprayed in the face and eyes with OC spray and then stuck to the ground where he believed he was about to die. Later his vehicle was illegally searched. Lt. Nazario was told that if he would “chill and let this go,” they wouldn’t file charges and would take the handcuffs off and let Lt. Nazario go. However, the nation has heard about the incident and now wait to see if they officers will be held accountable.
Federal Court rejects Windsor Police Officers’ bid to block claims of assault and battery and false imprisonment of Army Lt. Caron Nazario.
Court finds that the search of the vehicle violated the 4th Amendment and state law.
Judicially invented rule of “qualified immunity” remains a shield behind which police officers may hide and escape trial and liability for their misconduct.
Windsor Police Officers to face claims of assault and battery and false imprisonment of Army Lt. Caron Nazario before a federal jury. Court ruled search of the vehicle violated the 4th Amendment and state law.
On August 9, 2022, the U.S. District Court granted summary judgment finding that Windsor police officer Crocker violated the 4th Amendment and Virginia state law by unlawfully searching Lt. Caron Nazario’s vehicle without a warrant or consent. That issue will then go to a jury on damages. The court also ruled that Lt. Caron Nazario will be able to have his state claims for assault and battery and false imprisonment tried by a jury, explaining that the reasonableness of the officers’ actions was a matter for the jury to decide. Citing Cromartie v Billings, one of the cases won by Lt. Caron Nazario’s law firm in the Virginia Supreme Court, the court explained that Virginia only provides officers immunity for negligence–police officers are liable for gross negligence or intentional torts.
Virginia does not apply the judicially created doctrine of qualified immunity that prevents so many victims from obtaining relief for violations of their civil rights on the grounds that the federal law was not “clearly established” so that it would “be clear to a reasonable officer that his …conduct was unlawful in the particular situation that he …confronted.”
Although the U.S. District Court acknowledged that the U.S. Court of Appeals for the 4th Circuit has made it clear that a constitutional right is clearly established “not only when it has been specifically adjudicated but also when it is manifestly included within more general applications of the core constitutional principle invoked,” the court nevertheless ruled that the contours of the rights involved in this case were not so well defined that it would be clear to a reasonable officer that Gutierrez and Crocker’s conduct was unlawful. The court found that the Windsor police would be “shielded from liability” by qualified immunity for the Lt. Nazario’s civil rights claims of unlawful seizure and excessive force under the 4th Amendment to the United States Constitution. The court stated “the Court finds that there is neither controlling authority nor a consensus of persuasive authority for the proposition that there is a clearly established right prohibiting the aiming of firearms, the use of threats, or the use of OC spray against a suspect who has repeatedly refused to comply with lawful commands to exit a vehicle.” Tom Roberts, one of the attorneys on Lt. Nario’s legal team stated “the analysis of the court trips on the notion that Lt. Caron Nazario ‘repeatedly refused to comply with lawful commands to exit a vehicle’ which is at odds with the court’s acknowledgment that defendants did in fact give conflicting commands. It is simply impossible to ‘get out of the vehicle’ and to ‘keep your hands outside the vehicle,’ when Lt. Nazario was restrained inside the vehicle by his seatbelt. This will certainly be an appeal issue in the case.”
While the U.S. District Court previously determined on February 2, 2022, that a similarly situated person would have his speech chilled by a threatened arrest, again the U.S. District Court ruled that the Windsor police officers are entitled to hide behind the shield of qualified immunity, asserting that the U.S. Supreme Court has reiterated that probable cause analysis provides an objective inquiry. Tom Roberts stated “Even under the court’s analysis, the officers clearly lacked probable cause for all of the charges threatened against Lt. Nazario in an attempt to silence his 1st Amendment rights to protest. This too will be an appeal issue in the case.”
Qualified Immunity Doctrine -- Conflict With Justice
In The Estate of Armstrong v. Village of Pinehurst 810 F3d 892 (4th Cir. 2016), Judge Thacker of the Federal 4th Circuit Court of Appeals, where Virginia sits, wrote:
“What may not be quite so obvious, but is in fact far more important, is the degradation of constitutional rights that may result when constitutional tort claims are resolved solely on grounds of qualified immunity. This degradation is most pernicious to rights that are rarely litigated outside the context of [42 U.S.C.] § 1983 actions subject to qualified immunity — rights like the Fourth Amendment protection against excessive force at issue here. For such rights, the repeated invocation of qualified immunity will reduce the meaning of the Constitution to the lowest plausible conception of its content.”
Jonathan Arthur, lead counsel for Lt. Nazario, stated “Defendants launched a challenge to deny Caron justice. The Court saw through their cynical attempts and stopped it cold. Beyond that, in an opinion that does not often occur in civil rights litigation, the Court determined that Daniel Crocker violated Lt. Nazario’s clearly established right to be free from an unreasonable search.”
Attorney Arthur explained the history of qualified immunity, stating, “The Supreme Court invented Qualified Immunity to protect officers who make split second decisions in grey areas. Over the years, this well-intentioned doctrine has morphed into something quite different and quite dangerous.”
Attorney Arthur further explained the application of the pernicious qualified immunity doctrine that shields police officers from misconduct, stating, “The judicially created doctrine of qualified immunity should bother persons of all political ilk and Constitutional persuasion: For those that lean towards “substantive” due process, because it shields officers from liability and leaves many wrongs unaddressable at the Federal level; For the textualists and originalists, because it is judicially created and completely absent from the text of the statute as congress passed it – 42 U.S.C § 1983; For all of us because it reduces the meaning of the Constitution to the lowest plausible conception of its content.” He continued, “Qualified Immunity is an abomination unto Lady Justice. It should not exist. But this will not change until the Supreme Court decides to do so. Until then, our Federal District Courts and our Federal Appellate Courts will be forced to apply the doctrine notwithstanding their clear understanding of its destructive pernicious nature.”
We expect a jury to have the same reaction to the officer’s actions against Lt. Nazario that our nation demonstrated – that they will say “This has to stop!” This incident rocked Lt. Nazario’s world and continues to be a very disturbing event in his life.
State Special Prosecutor Closed His File
We agree with the special prosecutor that “Gutierrez’s statements throughout the entire ordeal…would lead a reasonable person to wonder whether underlying bias was at the root of how and why [Lt.] Nazario was treated in like manner.”
It is unreasonable to give conflicting commands, impossible to comply with both, and use noncompliance with one of the inconsistent commands as an excuse to claim the need to use force!
We applaud the Commonwealth’s Attorney for requesting that the US Attorney’s office to investigate whether or not Gutierrez violated Lt. Nazario’s civil rights.
However, it is not the place of the Commonwealth Attorney to determine that “no violation of state law occurred” – especially when in the same breath he refers the matter to the U.S. Attorney’s Office formerly requesting an investigation whether Gutierrez violated the civil rights of Lt. Nazario.” See 18 USC § 242 It is ultimately the role of the judge or jury to determine whether there was a violation of state (or federal) law. The role of the Commonwealth Attorney is to determine whether or not he believes based upon the evidence that the Commonwealth can prove each element of an alleged offense “beyond a reasonable doubt” or to exercise prosecutorial discretion not to prosecute a crime. It is not clear whether the special prosecutor presented the evidence to a grand jury under Va Code § 19.2-200!
It is not clear why the release came out on July 29, 2022. The statute of limitations for any misdemeanor offenses that Gutierrez or Crocker may have been suspected of having committed expired long ago under Virginia law – Va Code § 19.2-8 (even with COVID tolling) – thus even if he were to have determined now, on July 29, 2022, that there were sufficient facts to support the criminal prosecution of Gutierrez for misdemeanor assault, he would not be able to prosecute because misdemeanors must be prosecuted if at all within 1 year of the offense under Virginia law. Va Code § 19.2-8 (even with COVID tolling)
Special Prosecutor Anton Bell appears to narrowly focus on the traffic stop itself. There is no mention of whether the force was excessive in light of the conflicting commands to keep his hands out of the vehicle (which Lt. Nazario obeyed throughout) and to exit the vehicle, (“he had given multiple commands for Nazario to exit the vehicle”) or the fact that the license was visible from the window when the car stopped in the well-lit gas station or of the statements that both officers placed in their official paperwork regarding actions that they allege occurred, and which the videos (theirs and Lt. Nazario’s) do not support.
There is no mention of the fact that this was a simple traffic stop, that Lt. Nazario was not a threat and was not fleeing. “Even if an officer has the right to stop a vehicle and order its occupant to exit, they do not have carte blanche to use any and all force to effect the detention. Rather, if the officer escalates the interaction unnecessarily, it triggers the citizen’s right to self defense and the officer has ceded the right to use force. In Virginia, an officer has no right to use excessive force. It is an assault under Virginia law. Va Code § 18.2-57. “ Jonathan Arthur, Esq.
Additionally, there is no mention or analysis of the search of Lt. Nazario’s vehicle without a warrant. See Va Code § 19.2-59.
Jonathan Arthur, stated “All too often, when it comes to law enforcement violating the laws, we see our Commonwealth’s Attorneys fail to apply the same zeal at prosecuting law enforcement as they do with other offenders. This repeated and systemic failure undermines the confidence in the criminal justice system and the legal system as a whole. Everyone, from the police, to the Commonwealths Attorneys need to realize that for the law to function, for the citizens to have faith in it and the people sworn to uphold it and enforce it, those in power must apply the law equally to all. The blindfolds depicted on statutes of Lady Justice are needed now more than ever.”
Question: Is it a violation of the Fourth Amendment for an officer to aim his loaded weapon at a person where the alleged crime at issue is minor and nonviolent, the suspect does not pose an immediate threat to the safety of the officers or others, and he is not actively resisting arrest or attempting to evade arrest by flight?
Answer: Yes, probably. However, the answer is very fact specific, and the appropriate level of force should be judged from the perspective of an officer on the scene, rather than with the 20/20 vision of hindsight.
TRIAL DATE = CONTINUED
The defendants made it clear that they would seek an interlocutory appeal to the 4th Circuit when the U.S. District Court denies their summary judgment motion, the defendants’ “Hail Mary” attempt to make the officers immune from suit under the doctrine of “qualified immunity”. Upon the joint motion, by order dated March 24, 2022, ECF # 110, the trial date of May 2, 2022, was continued and the deadlines were stayed to prevent unnecessary filings leading up to the trial date that would be necessarily continued by an interlocutory appeal.
(Plaintiff if ready otherwise ready for trial – once the defendants’ appeals are denied, he will file in preparation for the trial his discovery designation, witness list, and exhibit list).
The delay will result in increased costs and expenses – to assist this effort, please click here!2
Location of Trial – Richmond, Virginia
Federal District Court
The Court extended the time previously set for Defendants to designate their medical experts, over the objection of the plaintiff, necessitating a short delay in the trial date.
Defendants undoubtedly would file an interlocutory appeal to the 4th Circuit Court of Appeals on issues of qualified immunity === this would result in a further delay of the trial.
U.S. DISTRICT COURT REJECTS DEFENDANTS' MOTION TO DISMISS 1ST AMENDMENT CLAIM
BY MEMORANDUM OPINION 2/2/2022 – The U.S. District Court rejected the defendants’ motion to dismiss the 1st Amendment Claims! (EFC No. 102)
Referencing the standard for a Rule 12(b)(6) motion to dismiss, the Court stated “The court construed the facts in the light most favorable to the plaintiff and found police would not normally arrest third parties that criticize the officers during an arrest of another person. Id. at *6 “(Citing page 6 of a U.S. District Court from Maryland, Higgenbotham v Brauer, No. 19-1067, 2020 WL 4569520, at *6 (D. Md. Aug. 7, 2020)
Although, rejecting the defendants’ motion on the grounds that the plaintiff did properly allege the absence of probable cause, the court made it clear that on this standard of review, it would not be necessary, stating
Virginia Attorney General Files Suit Against Town of Windsor for discriminatory traffic stops and traffic searches
The state suit against the Town of Windsor is based upon state laws of the Virginia Human Rights Act and the Virginia Community Policing Act.
Count 1 – unlawful race based discrimination;
Count 2 – unlawful pattern and practice violating the Virginia Human Rights Act
Count 3 – unlawful pattern and practice violating the 14th Amendment in violation of the Virginia Human Rights Act.
Count 4 – unlawful pattern and practice violating the Virginia Community Policing Act
Reaction to Virginia's Suit Against The Town of Windsor:
“We are pleased to see that the State of Virginia has taken the December 5, 2020 incident as seriously as we do & used its resources to uncover the statistical evidence supporting our concern that race was a significant factor in the violations of Lt. Caron Nazario’s constitutional right to be free from excessive use of force and unlawful search. We have focused on the violations of the U.S. Constitution. The Attorney General’s suit is based upon violations of state law, the Virginia Human Rights Act and the Virginia Community Policing Act/Virginia Public Integrity and Law Enforcement Misconduct Act.
“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” That was the first indication that this was not just a case about excessive force — his own statement suggested that race played a role. Now the State of Virginia has disclosed significant statistical information supporting our concerns.”
Tom Roberts, Esq.”
“We even discovered evidence that officers were actually being trained to go ‘fishing’ and engage in pretextual stops. That is why I have now filed suit to ensure accountability and to protect Virginians’ rights.” Virginia Attorney General’s Office
The Town of Windsor objects to the Virginia Attorney General’s use of the local population as a basis for stating that the number of traffic stops are disproportionately more minorities. The Town of Windsor points out that a larger number of minority may be passing through the town —- BUT THIS FAILS TO EXPLAIN OR ADDRESS THE SIGNIFICANTLY HIGHER INCIDENT OF SEARCHES OF MINORITY VEHICLES STOPPED!!!!
Copy of Lawsuit – Circuit Court Isle of Wight
26. On or about December 5, 2020, the Department stopped a driver, Lieutenant Caron Nazario, in what the Department indicated was a “felony stop”.
27. The Department does not have a policy on what constitutes a felony stop.
28. Upon information and belief, the Department has executed other such felony stops.
29. During the stop of Lieutenant Nazario, officers of the Department pointed their firearms at Lieutenant Nazario and subsequently deployed aerosolized pepper spray repeatedly on the Lieutenant. At no time did Lieutenant Nazario use or attempt to use force against the officers.
30. Lieutenant Nazario is a Black, Latino man.
31. The Department has received and investigated other complaints in which force was allegedly improperly used against Black drivers.
The complaint alleges discrepancies between reports to the town and those required to be made to the state.
Statement from the Town of Windsor December 30, 2021 with this Firm’s comments.
The decision by Attorney General Mark Herring to file a lawsuit against the Town of Windsor on the eve of the new year and just 17 days before he leaves office is clearly political.
Windsor, including its police department, remains vigilant in protecting the rights of all residents of the Town, Isle of Wight County, Commonwealth of Virginia and nation, regardless of race or gender, who pass through its limits. Both before and following the incident that occurred over a year ago involving Lt. Caron Nazario, which purportedly prompted the Herring investigation, Windsor practiced non-discriminatory policing, but it still took additional steps in the spring, following media coverage and statements by citizen groups at multiple public hearings, to increase training and accountability. FIRM COMMENT: We are pleased to see steps taken by the Town of Windsor —we believe these steps should have been taken before the tragic encounter with Lt. Caron Nazario, and certainly after we notified the Town of Windsor of our concerns. It should have done so immediately. It should have issued an immediate apology to Lt. Caron Nazario and the nation. It should not have taken our lawsuit to incentivize the town to follow the law. None of those efforts are mentioned in the Herring lawsuit, even though his office and deputies were fully aware of them for several months. Additionally, representatives of the Town and the Attorney General’s office met as recently as December 10 to discuss these advancements.
Despite the Town’s cooperation and progress, the Attorney General’s office, just days later, issued an ultimatum demanding immediate action or the threat of litigation, knowing the Town Council would not meet again to address this until January 11 – a mere four days prior to Mr. Herring leaving office. Given that the Complaint cites questionable data on the quantity and nature of traffic stops and searches, as well as its reporting, the suit lacks any context as to what the Town has done over the past year to address any concerns. The Town is stunned that this suit was filed on December 30, just hours before Courts closed for the year. This matter certainly should have been left to the incoming Attorney General to pursue, if it indeed had merit in the first place.
The Town of Windsor and its seven member police department, which includes minority representation, assures the entire Commonwealth of Virginia that despite the accusations in the lawsuit:
all traffic stops are conducted in a constitutional bias free, non-pretextual manner
the use of force is consistently applied and that use of force incidents are properly reported
the public can file complaints and have them taken seriously
Therefore, there was no need for Mr. Herring to file this lawsuit, except perhaps for the sake of headlines, which he will surely receive. That said, the Town is always willing to review its policies and make changes in order to adhere to state law or be in accordance with accepted policing procedures. We look forward to having a reasonable conversation with the next Attorney General regarding the Town’s law enforcement practices. In the meantime, we reserve further comment until our attorneys and Town Council have had an opportunity to review Mr. Herring’s eleventh-hour action and present a formal response.
December 2021 – discovery has now closed (with one exception – the court has permitted defendant Crocker to take a late deposition of a treating physician)
On November 23, 2021 – the parties have a court-ordered settlement conference.
On November 12, 2021 – Plaintiff designated expert witnesses for trial.
Discovery Continues with a protective order in place related to certain information produced in discovery.
The court unleashed plaintiff's counsel to begin discovery!
7-20-2021–Court Record – Docket Text: Minute Entry for proceedings held before District Judge Roderick C. Young: Initial Pretrial Conference held on 7/20/2021. Plaintiff present and appeared through Jonathan Arthur and Thomas Roberts. Defendants appeared through Coreen Silverman and Anne Lahren. The matter was set for a final pretrial conference and 5 day jury trial. The Court is to issue a scheduling order. Court in recess. (Court Reporter Jill Trail, OCR.) (jjon)
DISCOVERY: Counsel for Lt. Caron Nazario will issue subpoenas to various parties requiring them to produce documents likely to lead to admissible evidence, and to demand that defendants Gutierrez and Crocker answer written questions under oath and produce various documents before their depositions are taken.
1st Round of Interrogatories and Request for Production issued to defendants!
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!
U.S. DISTRICT COURT REJECTS DEFENDANTS' MOTION TO DISMISS 1ST AMENDMENT CLAIM
BY MEMORANDUM OPINION 2/2/2022 – The U.S. District Court rejected the defendants’ motion to dismiss the 1st Amendment Claims! (EFC No. 102)
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.”
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.
4/8/2021 – Story Breaks
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>
Category Assault & Battery, Assault & Battery, Civil Rights, Excessive Force, Fourth Amendment, Freedom of Speech and Press, General, Litigation, Personal Injury Law | Tags: Andrew Bodoh, attorney tom roberts, crocker, daniel crocker, gutierrez, joe gutierrez, jonathan arthur, Lt. Caron Nazario; update Lt. Caron Nazario; town of windsor; windsor, Lt. Nazario jury verdict, Lt. Nazario v Windsor jury verdict, Nazario jury verdict, Nazario v Windsor trial update, Thomas H. Roberts, tom roberts, trial update, update Lt. Nazario, windsor police, windsor police department, windsor virginia
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