RICHMOND, Va. (CN) — A Black and Latino service member who police pepper sprayed during a stop for a minor traffic violation asked the Fourth Circuit to strip the two responding officers of qualified immunity.
Army Lieutenant Caron Nazario claims two Virginia police officers violated his constitutional rights when they pepper sprayed, threatened and handcuffed him on the ground. A lower court dismissed Nazario's claims of unreasonable seizure, excessive force and deprivation of rights, finding the officers had probable cause for eluding, obstruction of justice and failure to obey.
Attorney Jonathan Arthur of Thomas H. Roberts & Associates, representing Nazario, says that the officers do not qualify for immunity from excessive force claims under the Supreme Court's 1989 decision in Graham v. Connor.
In Graham, the high court ruled that an objective reasonableness standard — asking whether, given the facts known at the time, a similarly trained and experienced officer would respond similarly — should apply to a civilian's claim that law enforcement officials used excessive force.
There is plentiful footage of the traffic stop, but the parties dispute one another's interpretations of what happens on the videos.
"Nazario's narrative version of events is so wholly contradicted by the video record that it seems implausible that Nazario is describing the same incident," the officers' attorneys wrote in their brief. "Because the video is clear, Nazario's narrative should be disregarded."
At 6:30 p.m. on December 5, 2020, in Windsor, a town of less than 3,000 residents in the Hampton Roads region of southeastern Virginia, police officers Joe Gutierrez and Daniel Crocker stopped Nazario. The incident came after a summer of protest against police brutality sparked by the killing of George Floyd.
Crocker claims he initiated the traffic stop by turning on his emergency lights because he believed Nazario lacked a rear license plate. Nazario had recently purchased a Chevrolet Tahoe, with the temporary license plate taped behind the tinted back window.
Nazario turned on his blinker and drove slowly for a minute and forty seconds before pulling into a well-lit gas station. Attorneys representing the officers told the three-judge panel that Nazario passed two banks, a pharmacy and a restaurant before ultimately pulling into the gas station.
Arthur said that his client's failure to pull over does not constitute eluding because he followed traffic laws and slowed his vehicle in an effort not to cause any danger.
U.S. Circuit Judge Stephanie Thacker made no secret of her belief that officers sometimes use their suspicions to justify possible constitutional violations.
"In the time I've been on this court, I have heard law enforcement say that going slow is suspicious, going fast is suspicious, he looked directly at me, that's suspicious, he looked away, that's suspicious," the Barack Obama appointee said. "It's not adding up for me on the eluding."
Attorney Anne Lahren of Pender & Coward, representing Crocker, pointed to the notorious O.J. Simpson case, who methodically drove his Ford Bronco 45 minutes on the highway, leading police on a slow-paced chase.
Gutierrez told Nazario, while he was receiving medical treatment, that minorities often wait to pull over until in a well-lit area.
"With the race relations between minorities and law enforcement, I get it, OK," the video shows Gutierrez telling Nazario while uncuffing him. "Lieutenant, that happens all the time."
Despite not witnessing a crime, Crocker made the call to conduct a high-risk traffic stop, finding Nazario's driving and tinted windows suspicious.
As Crocker and Gutierrez exited their vehicles, guns drawn and shouting orders, Nazario set his phone on the dashboard to film the stop. The widely circulated footage from Nazario's phone and the body cameras show Nazario repeatedly asking what's happening.
"Why are your weapons drawn?" Nazario asks in the video, wearing his field uniform. "I'm serving this country, and this is how I'm treated?"
The officers claim Nazario failed to follow 40 orders. Arthur described the commands for Nazario to keep his hands outside the window while demanding he step out of the car as conflicting orders.
Things escalated as Gutierrez made threatening comments to Nazario. With his hands in a visible position, Nazario explained that he was scared to leave the vehicle, to which Gutierrez replied that he should be.
"What's going on is you're fixing to ride the lightning, son," Gutierrez said, taser in hand.
U.S. Circuit Judge Robert King, a Bill Clinton appointee, seemed particularly distressed that the officers would use such threatening language on a man in uniform.
"How do you handle that?" King asked Lahren. "An officer used death threats to a military officer in his vehicle."
The video shows Crocker attempting to open the car door and Nazario using his elbow to lock it and keep it shut. Crocker moved away from the door, and Gutierrez sprayed Nazario through the open car window.
Since he had not been told why he was pulled over, Nazario continued to ask why he was being treated in that way as he was pulled from the vehicle and put on his hands and knees.
As medics arrived, the footage shows Nazario explaining that he didn't comply with the officers' orders to get out of the vehicle because he didn't expect them to approach him with their guns drawn.
Footage also shows Gutierrez offering a handcuffed Nazario a chance to walk away from the incident without a charge that could potentially end his military career so long as he doesn't attempt to fight over their action.
Nazario agreed, and the officers removed the handcuffs and remained with him at the scene as the effects of the peppery spray diminished to a point where they felt it was safe for him to drive.
U.S. Circuit Judge Allison Jones Rushing, a Donald Trump appointee, said inappropriate officer behavior is not always a constitutional violation.
"We can agree that there is a difference between violating the Constitution, violating someone's constitutional rights and bad officer behavior, right?" Rushing asked. "Saying things that are inappropriate, acting in a way that's too gruff, that can happen without crossing the constitutional line, right?"
Arthur responded that the constitutional line is far from what the officers did.
A jury found Gutierrez innocent of Nazario's common law battery, false imprisonment and illegal search claims. Still, it returned a verdict against Gutierrez for a common law assault claim and awarded $2,685 in compensatory damages, a far cry from the $1 million initially sought.
"The force the officers used — including brandishing firearms, yelling threats, deploying OC spraying, delivering knee strikes and employing handcuffs — was objectively unreasonable," Nazario's attorney wrote in his brief.
Nazario, who sat in on the argument wearing his formal army service uniform, seeks a new trial without the probable cause determination. The attorneys did not respond to a request for comments.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Justices likely to limit anti bribery law for gift-giving April 15, 2024 -
