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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

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

EXCERPTS:

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!

Subpoenas issued!

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>