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Nazario Establishing Law in the Fourth Circuit

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June 2, 2024 by Tom Roberts, Esq.

Nazario Continues His Fight For U.S. Freedoms

To read the full opinion click here:

Fourth Circuit Opinion 5-31-2024

To read the petition to rehear click here:

Petition to Rehear 6-14-2024

Lt. Nazario attacked with pepper spray

Nazario Petitions the Fourth Circuit to apply Virginia's obstruction law into its analysis.

Background:

Lt. Caron Nazario filed suit against two Town of Windsor police officers for violations of his civil rights under the Ku Klux Klan Act of 1871 (42 USC 1983), following a simple traffic stop gone wrong.

Fourth Circuit Court of Appeals reverses District Court and removes qualified immunity which previously shielded Gutierrez for violation of Lt. Caron Nazario’s Fourth Amendment for unreasonable seizure and his claim under the Ku Klux Klan Act of 1871 (42 U.S.C. 1983).

Fourth Circuit Court of Appeals - Take Aways

On 5/31/2024, the Fourth Circuit Court of Appeals weighed in on the events.  These are a few of the takeaways:

The court reversed the district court’s grant of qualified immunity to Gutierrez for Lt. Caron Nazario’s claim that Gutierrez violated his Fourth Amendment for unreasonable seizure and his claim under the Ku Klux Klan Act of 1871 (42 U.S.C. 1983) violating clearly established law and will not be shielded by qualified immunity.

The court reversed the district court’s grant of qualified immunity to Gutierrez for the violation of Nazario’s Fourth Amendment for unreasonable seizure and his claim under the Ku Klux Klan Act of 1871 (42 USC 1983).

The trial court could not summarily preclude Lt. Caron Nazario’s claim that Windsor Police Gutierrez and Crocker did not have “probable cause” and a reasonable and prudent person would not have believed that Lt. Caron Nazario was eluding when he lowered his speed, travelled about a mile and for less than two minutes, continued straight and pulled into the best-lit location

The district court erred when it found “probable cause” for misdemeanor eluding under Virginia law, where Lt. Nazario (1) lowered his speed well below the speed limit, (2) travelled approximately a mile and for less than two minutes, (3) made no turn off the main highway, (4) pulled into the best-lit location available, and (5) parked his vehicle — a reasonable and prudent person would not believe that Nazario was intending to willfully and wantonly disregard Crocker’s signal.

The trial court could not summarily preclude Lt. Caron Nazario’s claim that the Windsor Police Gutierrez and Crocker did not have “probable cause” and a reasonable and prudent person would not have believed that Lt. Caron Nazario failed to obey a conservator of peace since Virginia law is clear that police officers are not “conservators of peace.”

The district court erred when it found “probable cause” for the misdemeanor offense of “failing to obey a conservator of the peace” in violation of Va. Code Ann. § 18.2-464, since Virginia has supplied us an exhaustive statutory definition of what constitutes a “conservator of the peace,” outlined in Va. Code Ann. § 19.2-12, since that statute simply does not apply to orders by police officers. Specifically absent from that definition are State, County, City, or local law enforcement officers. Id.; see also Tokora-Mansary v. Commonwealth, No. 2494-08-4, 2009 WL 5083540, at 5* (Va. Ct. App. Dec. 29, 2009) (ruling that defendant cannot be found guilty under Va. Code Ann. § 18.2-464 “because law enforcement officers are not listed as conservators of the peace in that statute”).

The trial court could not summarily preclude Lt. Caron Nazario’s claim that the Windsor Police Gutierrez and Crocker were wrong to point their guns at Lt. Caron Nazario for the simple traffic stop!

Nazario had sufficient evidence to prove a Fourth Amendment violation. Put simply, to point a firearm at a person is a threat with deadly force, and is therefore likely to instill fear, which could manifest into panic and a rash reaction. If unwarranted, the pointing of firearms in a traffic stop situation can needlessly escalate the stop, making it more dangerous for everyone involved. The Fourth Amendment, which is grounded in reasonableness, can be transgressed by an unwarranted threat of deadly force. Thus — although we may not have heretofore adopted the principle — we are satisfied that it can be unconstitutional to hold a person at prolonged gunpoint when he is compliant and presents no danger to the public or law enforcement officers.

It is still the law in the Fourth Circuit that government officials escape liability when they take away your civil rights in violation of the U.S. Constitution if they do it in a novel way not previously addressed by the court.

Government officials can escape liability for violating the Constitutional Rights of citizens and liability under the Ku Klux Klan Act of 1871 if they do so in a novel way, that is if the law is not clearly established at the time that they do so, permitting them to hide behind the shield of “qualified immunity”.

Where the Fourth Circuit Missed the Point:

Even under Pennsylvania v. Mimms, the U.S. Supreme Court did not determine that in all traffic stops officers can order every person out of the vehicle.

The court’s opinion is framed by its analysis, “The touchstone of our analysis under the Fourth Amendment is always “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Terry v. Ohio, 392 U.S. 1, 19 (1968). Reasonableness, of course, depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975).

Pennsylvania v. Mimms, 434 U.S. 106, 108-109 (1977)

In this case, unlike Mimms, given the unreasonable use of force with guns drawn, the death threat by Gutierrez “What is going on is you are fixing to ride the lightning, son,”  that Gutierrez told Lt. Caron Nazario that he should be afraid to get out of the car, this was a serious intrusion upon the sanctity of the person, not described as “de minimus.”   Under these facts, Mimms does not authorize the officers to order him out of the car, and more importantly the refusal is justified.

While Lt. Caron Nazario conceded that Town of Windsor police officers Crocker had probable cause to initiate a traffic stop for failure to display a license plate, because that license plate taped to the window by the dealer was difficult to see in the dark, that probable cause disappeared when Lt. Caron Nazario pulled into the well-lit space of the BP gas station and Crocker saw the license plate.  Therefore, there was no longer a basis for the traffic stop and the continued detention of Lt. Caron Nazario was unlawful and the officers had no right to direct him out of the vehicle under See Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977)  (per curiam) (“[O]nce 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”).

 

 

Virginia’s obstruction statute expressly and deliberately exempts a citizen who acts with “just cause.” Va. Code § 18.2-460(A); Rogers v. Pendleton, 249 F.3d 279, 291-92 (4th Cir. 2001). This is an essential element of the offence, Thorne v. Commonwealth, 784 S.E.2d 304, 309 (2016), that the court must consider in a probable cause determination, Hayes v. Seat of Pleasants, 469 Fed. Appx. 169, 171-72 (4th Cir. 2012). The opinion failed to analyze this element.

Without probable cause for the continued detention, the officers would have no justification to order Lt. Caron Nazario out of the vehicle and Lt. Caron Nazario could not “obstruct” the officer who without a justification for the stop would have had no right to open Lt. Caron Nazario’s door.

Interview with Jonathan Arthur, Esq. and Tom Roberts, Esq.:

Q.  Mr. Arthur, as counsel for Lt. Caron Nazario, what is your reaction to the decision from the Fourth Circuit Court of Appeals?

A. We are proud of our work for Lt. Caron Nazario, in his fight to secure the rights of citizens under the U.S. Constitution, in keeping with his oath as an officer in the United States Army.  The opinion from the Fourth Circuit advances that cause in several ways.  

Q.  Can you explain?

A.  Sure.  We are happy to have finally established in this Circuit that pointing a firearm at a compliant citizen who was not a danger to the officers or others can be excessive force under the Fourth Amendment.  The Fourth Amendment protects citizens from unreasonable searches and seizures — when the facts of a case show it to be unreasonable to use such deadly force the Fourth Amendment is violated.

Q. What about the use of pepper spray?

A. We are happy to have more firmly established that deploying pepper spray can also be excessive force in violation of the Fourth Amendment.

Q. Why is this important to Virginia citizens?

A. We, and others like us, will be able to use these precedents to continue to protect the citizens of this country from the excesses and brutality of its law enforcement; as a check on power.  It is good to see a court express that they should not have to tell an officer it is not appropriate to threaten a citizen with death over minor traffic violations – as those are clearly outside the bounds of not only acceptable behavior as set forth by the Fourth Amendment but outside the bounds of conduct that any civilized society should tolerate.

Q. Were you disappointed that the Fourth Circuit Court of Appeals did not go far enough to correct the injustice to Lt. Caron Nazario?

A.  We are disappointed in the Court’s determination that the officers had probable cause to believe that Lt. Nazario had obstructed justice.  As the Fourth Circuit recognized in its opinion, obstruction requires action “without just cause”.  However, the Fourth Circuit also recognized in its opinion, by the time that Lt. Nazario had “obstructed justice” the constitutional torts of excessive force – and the death threats and the firearm display on a compliant, non-threateneing citizen had already occurred, that Lt. Nazario had already been told he was afraid to exit the vehicle, that the officers had already issued completely inconsistent commands.  We believe Lt. Nazario had “just cause.” We feel that the court did not complete the analysis by a discussing the just cause element of obstruction of justice. Using the summary judgment standard, we believe it was error for the District Court and the Court of Appeals to either ignore the just cause facts or to decide them against Lt. Nazario.

Q.  Will the Virginia law firm of Thomas H Roberts & Associates continue to press this civil rights battle forward?

A.  Absolutely, we have filed a motion to rehear to give the United States Court of Appeals for the Fourth Circuit the opportunity to address head-on the contours of Virginia’s obstruction law which includes an important element “without just cause”.  The Fourth Circuit did not squarely address that element in its opinion. Our petition requests that they do so in this important case.  We have made a copy of this petition available online for the public to stay abreast of the developments.

Q.  Mr. Roberts, what about “qualified immunity”?

A. Unfortunately, this is another example of a long line of cases applying a pernicious doctrine first created by the United States Supreme Court to protect Jim Crow actors in Pierson v Ray, 386 U.S. 547 (1967), which created out of thin air, a defense to the Ku Klux Klan Act of 1871.  No such defense existed for 90 years after the act was passed.  The defense created by the court turned the protections of the act upside down.  As the Supreme Court made clear recently in Dobbs v. Jackson Womenʹs Health Org., 597 U.S. 215, 241 (2022), the fact that its has been around for years is no reason not to overturn bad law.  The Fourth Circuit has followed that precedent–but we believe its past time for courts to reject this bad law.  We would be remiss if we didn’t recognize a UVA graduate sitting as a federal judge in Mississippi that has done this very thing – Green v. Thomas, 2024 U.S. Dist. LEXIS 90805, *13-14 (May 20, 2024).  See Editorial we recently posted.

Thomas H. Roberts & Associates, PC
105 S 1st St
Richmond, VA 23219
804-783-2000
804-783-2105 f


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