Ex-Windsor PD officer files motion to dismiss lawsuit

Published 7:19 pm Friday, May 21, 2021

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Ex-Windsor officer Joe Gutierrez is asking a federal judge to partially dismiss a lawsuit accusing the former lawman of racially-motivated police brutality.

Army 2nd Lt. Caron Nazario, who is of Black and Latinx descent, filed the suit in Norfolk’s federal court April 2. It argues Gutierrez and Officer Daniel Crocker, who is named as a co-defendant, violated Nazario’s Fourth Amendment rights under the U.S. Constitution by holding him at gunpoint during a traffic stop last December and pepper-spraying him.

Body camera footage of the incident, which went viral online last month, shows Gutierrez at one point telling Nazario he was “fixin’ to ride the lightning,” which the lawsuit characterizes as a threat by Gutierrez to murder Nazario given that the phrase is a “glib reference to execution by the electric chair.” It further characterizes Gutierrez’s remark suggesting the Army could discipline him for the incident, and his subsequent offer to let Nazario go without charges if he would “let this go” as an effort to cover up their actions by extorting Nazario’s silence — thereby violating his First Amendment rights.

The motion Gutierrez’s attorney, John B. Mumford, filed May 14 asks that Nazario’s First Amendment claims be dismissed with prejudice, meaning if granted they cannot be brought up again. A brief in support of that motion, also filed May 14, argues Nazario has “failed to state a claim upon which relief can be granted” because he has not alleged facts demonstrating having suffered an injury that affected his decision to engage in protected First Amendment activities and because no criminal charges were filed against him.

In an accompanying line-by-line response to the lawsuit’s allegations, Gutierrez denies he or Crocker knew Nazario had a temporary New York license taped inside his rear window as they approached his vehicle with their guns drawn after pulling him over for “dark tinted windows” and an allegedly missing rear license plate. While he admits his “fixin’ to ride the lightning” remark was captured on video, he “denies the allegations … to the extent that they misstate or mischaracterize the contents of such video recordings” as a threat to murder Nazario.

Gutierrez further denies line No. 46 of Nazario’s lawsuit, which states he had “responded with knee-strikes to Lt. Nazario’s legs” after pepper-spraying him “to force an already compliant and blinded Lt. Nazario down on his face.” In the incident report narrative Gutierrez filed after-the fact, however, he does admit to delivering “2 knee strikes to his right thigh in an attempt to gain control and take him to the ground.”

Gutierrez then denies his offer to let Nazario go without charges was an effort to extort Nazario’s silence, as well as the lawsuit’s allegation that he and Crocker made “near identical material misstatements of fact and omissions” in their after-the-fact police reports.

He then argues that Nazario’s claims “are barred from any recovery under the doctrine of qualified immunity.”

According to the American Bar Association, qualified immunity shields government employees from liability for their misconduct, even if they break the law. Under the doctrine, police officers can never be sued for violating someone’s civil rights, unless they violated “clearly established law.”

Nazario’s lawsuit argues the defendants “lacked any legal justification or excuse for their conduct” and therefore are not entitled to immunity. Spurred by the viral video footage and Nazario’s lawsuit, state and local NAACP officials are now calling for an end to qualified immunity for Virginia law enforcement.

Crocker had until May 18 to respond to Nazario’s suit, having been given a nearly three-week extension to do so April 28. More updates will continue to be available on this case as they develop.