Army officer pepper-sprayed by a cop wins right to jury trial, but judge also grants cop some immunity

NORFOLK, Va. (AP) — A U.S. Army lieutenant who was pepper-sprayed, struck and handcuffed during a traffic stop in Virginia can present his claims of false imprisonment and assault and battery to a jury, a federal judge has ruled.

But the summary judgment Tuesday said federal immunity laws shield the two officers involved from facing Caron Nazario’s claims that they violated the Black and Hispanic soldier’s constitutional protections against excessive force and unreasonable seizure, as well as his right to free speech by allegedly threatening him with arrest if he complained about their behavior.

U.S. District Judge Roderick C. Young also ruled that the officer who initially pulled Nazario over is liable for illegally searching for a gun in the soldier’s SUV in violation of the U.S. Constitution and Virginia law, leaving the question of damages on that point up to a jury. Nazario had a concealed carry permit.

The December 2020 traffic stop of the uniformed military officer in the small town of Windsor drew national attention and outrage after Nazario sued in April 2021, citing police body camera images and his cellphone video of the encounter. He was never charged with a crime.

Nazario had been driving home in the dark from his duty station when Officer Daniel Crocker radioed that he was attempting to stop a vehicle with no rear license plate and tinted windows, the lawsuit says. Body camera video later showed that a temporary tag was taped to the inside of the rear window.

“It appeared to Lt. Nazario that there was no good location in the immediate vicinity to stop safely. So, for the benefit of the officer’s safety and his own, Lt. Nazario continued slowly down US 460,” the lawsuit says. Nazario drove below the posted speed limit for less than a mile until he reached the well-lit parking lot of a BP gas station, it says.

Crocker said the driver was “eluding police” and he considered it a “high-risk traffic stop,” according to a report cited in the lawsuit. Another officer, Joe Gutierrez, was driving by and joined him.

The lawsuit says both officers escalated the situation by immediately pointing their guns at Nazario and trying to pull him out of the vehicle while he kept his hands in the air. Gutierrez pepper-sprayed Nazario multiple times as the officers yelled for him to get out.

At one point, Nazario said he was afraid to get out, to which Gutierrez replied: “You should be.”

When Nazario did get out and ask for a supervisor, Gutierrez responded with “knee-strikes” to his legs, knocking him to the ground, where the two officers struck him multiple times and then handcuffed and interrogated him, the lawsuit says.

Officer Gutierrez was later fired for failing to follow department policy during the stop. A special prosecutor concluded late last month that Gutierrez should not be criminally charged under Virginia law, but should be investigated by the U.S. Justice Department for potential civil rights violations.

The federal judge ruled Tuesday that the officers had probable cause to pull Nazario over for an improperly displayed license plate, and to charge him with eluding police as well as obstruction of justice and failure to obey when he refused to exit the vehicle.

The judge also wrote that Nazario’s claims under the U.S. Constitution of unlawful seizure and excessive force present questions about the officers’ conduct that could be put before a jury. But Young threw out the allegations under the federal doctrine of qualified immunity, which balances accountability with the need to shield officials who reasonably perform their jobs.

For example, the judge wrote that there is not 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.”

The allegation that Nazario’s free speech was violated was also tossed under the federal immunity doctrine.

However, Young said Nazario’s claims under state law, false imprisonment and assault and battery, can move forward. The judge wrote that Virginia law “only provides local officials immunity from suits alleging negligence.”

Explaining his summary judgment on Crocker’s search for the gun, Young wrote that “the firearm was not relevant evidence for the crimes of eluding or obstruction of justice.” However, he said Nazario’s claims that Gutierrez knew about the search and failed to intervene could proceed to trial. Gutierrez has argued that he knew nothing about the search.

Jessica Ann Swauger, an attorney listed for Gutierrez, did not immediately respond to an email seeking comment.

Jonathan Arthur, one of the attorneys representing Nazario, said the judge’s ruling is a victory even though three of the federal claims were tossed.

“Whether it’s under federal law or whether it’s under state law, the jury is going to speak,” Arthur said. “And we hope that the jury is going to stand up and say that this behavior will not be tolerated.”

Anne C. Lahren, an attorney for Crocker, said the remaining questions are “classic” issues for a jury, rarely decided at this stage in a civil suit. She also noted that the judge found the stop itself and the officers’ ensuing commands to be lawful.

“Lt. Nazario’s own actions gave rise to the unfortunate, but lawful, escalation of force …,” Lahren wrote. “Had Lt. Nazario simply followed the lawful commands of the officers from the outset of the traffic stop, none of this would have been necessary.”

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