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Nazario’s Fourth Circuit Arguments – 3/19/2024


March 21, 2024 by Tom Roberts, Esq.

Nazario Appeal Arguments before the United States Fourth Circuit Court of Appeals

On March 19, 2024, Nazario asked a three judge panel for the Fourth Circuit Court of Appeals for a new trial.  Civil rights attorney Jonathan Arthur of Thomas H. Roberts & Associates, PC argued that the finding of probable cause by the trial court on summary judgment was an error which detrimentally impacted the jury’s understanding of the case requiring a new trial.

Lt. Nazario attacked with pepper spray

Explanation for Non-Lawyers

What is “probable cause” and why does it matter?

“Probable cause” is best defined as “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a prudent and cautious man to believe that the accused is guilty of the offense with which he is charged.”

The Constitution prohibits “unreasonable” searches and seizures under the 4th Amendment. So, in simpler terms, probable cause means that there must be enough facts and circumstances known to the police officer that would cause a reasonable person to believe that a crime has been committed or is being committed by the individual targeted by law enforcement – giving them the right to stop, seize and search an individual.

The Issues on Appeal

As a result of the trial court’s determination of probable cause, the trial court had dismissed Nazario’s §1983 claims of unreasonable seizure, excessive force and deprivation of right in violation of the United States Constitution.  The trial court had found probable cause for eluding, obstruction of justice and failure to obey.  It also permitted the officers to be shielded by “qualified immunity” for misconduct.

As a result of the trial court’s determination of probable cause, the trial court dismissed Nazario’s claims of unreasonable seizure, excessive force and deprivation of right in violation of the United States Constitution.  The trial court had found probable cause for eluding, obstruction of justice and failure to obey the police officers.

The Fourth Circuit Court of Appeals decides the issues presented on summary judgment “de novo”, that is, anew without reference to any legal conclusion or assumption made by the trial court.

Explanation for Non-Lawyers

What is “§1983” and why does it matter?

Section 1983 refers to a specific provision within Title 42 of the United States Code, which is the compilation of federal laws. Specifically, Section 1983 is part of Chapter 21 of Title 42, known as the Civil Rights Act of 1871, also called the “Ku Klux Klan Act.”

Section 1983 provides individuals with a legal recourse when their constitutional rights have been violated by someone acting under the authority of state or local law, such as a police officer or a government official. It allows individuals to sue in federal court for damages or injunctive relief (an order to stop a certain action) when their rights protected by the United States Constitution or federal laws have been infringed upon.

The text of Section 1983 states:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”

In essence, Section 1983 is a crucial tool for enforcing civil rights protections and holding government officials accountable for misconduct or violations of individuals’ rights under the law. It has been used in a wide range of cases involving police brutality, unlawful arrests, violations of free speech rights, and other forms of governmental misconduct.

Explanation for Non-Lawyers

“de novo”

Since summary judgment motions are decided by simply applying the law to the undisputed facts, the trial judge is not in any better position to do that than the judges on the appeal court.  Therefore, the judges on the appeal court do not rely upon the trial judge’s impressions or reasoning.  (If the appeal were on an issue where the trial court’s observance of a witness’ credibility was relevant, then the appeal judge relies upon the trial judge giving the trial judge great “deference.” 

A “Hot Bench”

The Appeals Court panel was a “hot bench” meaning that the Judges were actively engaged in questioning the attorneys.

How can there be probable cause for “failure to obey” when the underlying statute does not apply to police officers?

Judge Stephanie Thacker grilled the defense, questioning how probable cause could be found for “failure to obey” where the underlying Virginia statute § 18.2-464 did not apply to police officer’s instructions.

In their brief the defense stated “The District Court properly held that probable cause existed to arrest Nazario for failure to obey lawful police commands under Virginia Code Section 18.2-464.”

Judge Thacker pointed out that in 2009, the Court of Appeals of Virginia in Tokora-Mansary v. Commonwealth, stated “law enforcement officers are not listed as conservators of the peace in that statute” and that the defendant in that case could not have been convicted under that statute for failing to follow the command of a police officer.

Explanation for Non-Lawyers

Why is the distinction between a peace officer and a police officer important?

When courts are deciding whether or not police acted unlawfully, they are to use an objective standard instead of a subjective standard.  It makes no difference what the officer subjectively was thinking – so even if an officer thought he was doing wrong or had no basis to arrest a person, the law examines whether under the facts and circumstances would a reasonable officer have understood that he had probable cause to stop, seize, detain or search an individual or use the amount of force applied.

Since Virginia Code §18.2-464 does not apply to police officers, the defense’s argument and claim that Lt. Nazario was guilty of a crime by failing to follow the directions of the police officers is not a violation of §18.2-464, and since it is impossible for him to have been convicted for such there certainly cannot be probable cause that he violated §18.2-464

Police claim everything is suspicious!

Judge Thacker also expressed concern that officers often claim every behavior is “suspicious”, going to fast, going to slow, looking at the officer, looking away – and expressed serious concerns that there was probable cause for eluding.

What is “probable cause”?

“Probable cause” is best defined as “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a prudent and cautious man to believe that the accused is guilty of the offense with which he is charged.”

Explanation for Non-Lawyers

Damned if you do, damned if you don’t!

The defense’ argument is not objectively reasonable – that Lt. Nazario slowed down when the police officer turned on his lights and drove slowly to the brightest location in sight 1 mile ahead, gave the officers a reasonable justification to treat the minor traffic stop as a dangerous “felony” stop because it was, as they argued, reasonable to believe that slowing down was a way for a criminal to find a gun and load the gun to shoot the police officer.

Damned if you slow down, damned if you speed up!

What standard should have applied on the summary judgment?

Judge Robert King, repeatedly pointed out during the arguments that on a summary judgment motion against the plaintiff, the court is required to view the evidence in the light most favorable to Nazario together with all reasonable inferences.

Explanation for Non-Lawyers


In the United States, the Seventh Amendment to the Constitution guarantees the right to a jury trial in federal civil cases that involve disputes over money or property exceeding $20, as long as the parties involved request it.

However, where the facts are not in dispute, the judge may apply the law to the undisputed facts without the jury – “summarily.” 

The legal standard then requires the judge to look at the facts in the light most favorable to the “non-moving” party–that is to the party against whom the motion to enter a summary judgment was made.

So in this case the defendant’s invitation to view the facts in a light unfavorable to Lt. Nazario should not have been accepted by the trial court.  When the Court of Appeals looks at the videos and the evidence it should reject the defendant’s slanted view and look at the evidence in the most favorable way to Lt. Nazario.

If there is a doubt, that is if the uncontroverted evidence can be viewed in two different lights, then the issue belongs with a jury.

When does the police officer’s conduct violate the U.S. Constitution?

Judge Allison Jones Rushing pointed out that not all inappropriate behavior by police officers rises to the level of a constitutional violation.

Attorney Arthur responded by saying that wherever that line was to be drawn, the officers in this case crossed it by miles. Judge Rushing seemed to suggest that the officers in this case were merely “too gruff” without having crossed the constitutional line.

Nazario’s attorney Jonathan Arthur argued that the brandishing of the firearms for a minor traffic stop that didn’t even rise to the level of a misdemeanor in Virginia, the yelling of threats of harm to a United States Army Officer, spraying him with OC spray, striking him with their knees and handcuffing him on the ground was objectively unreasonable and the police officers should not be shielded for their misconduct by “qualified immunity.” Qualified immunity is a shield constructed by the courts which protects police officers from misconduct if their misconduct was not clearly proscribed by the law at the time. Often courts have required that plaintiff must show that a court ruled that conduct in almost identical circumstances was wrong to before it finds the law “clearly established.”

Attorney Arthur agued to Judge Rushing that such a granular and particularized showing should not be used, but rather an objective standard in which under the facts and circumstances facing the police officer a reasonable officer would know that his conduct was wrong.

Attorney Arthur argued that the U.S. Supreme Court provided clear guidance in Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872 (1989). The key factors for an objective standard are the following:

  • the severity of the crime at issue,
  • whether the suspect poses an immediate threat to the safety of the officers or others, and
  • whether he is actively resisting arrest or attempting to evade arrest by flight.

Under the facts in Nazario, the alleged crime was not even a crime – it was a traffic infraction (and not the claimed eluding, obstruction or failure to obey a peace officer which the police officers were not! Secondly, Nazario was not a threat to anybody with his hands outside of the car. Thirdly, Nazario was sitting in a parked car with the engine not running, in a well-lit space making no effort to flee. Therefore, pointing guns at Nazario, threatening him with violence, telling him that he was fixing to “ride the lightning”, that he should be afraid to exit his vehicle, spraying him with OC spray, striking him with knees and dragging him to the ground in the uniform of the United States Army was excessive and a disgrace.

Explanation for Non-Lawyers

Not every impropriety by a police officer rises to the level of a Constitutional violation – but in this case it certainly did!

The U.S. Supreme Court in Hudson v. McMillian, 503 U.S. 1 (1992) explained “[n]ot every push or shove” violates a [citizen]’s constitutional rights.” Thus, even if a use of force is deemed unnecessary after the fact; if it was both de minimis and ‘not of a sort repugnant to the conscience of mankind,’ it will not sustain an excessive-force claim under the Fourth Amendment to the United States Constitution.

In this case, Lt. Nazario agreed with that principle of law in the abstract, but responded to Judge Rushing that that abstract principle of law is not at all relevant to this case, where the officers’ conduct well exceeded the line between “gruff” or “uncivil” behavior and Constitutionally “unreasonable”.

Listen to Oral Arguments!

The Small Virginia Civil Rights Law Firm Battles On Protecting Citizens from Abusive Police Actions

Thomas H. Roberts & Associates, PC has been fighting for Constitutional Rights of citizens since 1986.  Often these battles are long and drawn out.  If you would like to help build a war chest for defending civil liberties like this case, consider donating to Freedom Works Foundation — (Not to be confused with a later organization with a similar name operating NORTH OF RICHMOND!)

More about the Nazario Case!


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