Attorney general files suit against Town of Windsor

Published 11:51 am Thursday, December 30, 2021

In what is being termed a first-of-its-kind lawsuit, Virginia Attorney General Mark Herring has sued the Town of Windsor, alleging the Windsor Police Department has operated in a discriminatory and illegal manner by engaging in a pattern of unconstitutional and discriminatory policing.

A press release from Herring’s office on Thursday stated that the months-long investigation, spurred by a traffic stop in which two Windsor police officers pepper-sprayed and held at gunpoint a Black and Latino man, had “revealed disturbing evidence of discriminatory, unconstitutional policing” and that the police department “has operated in a way that led to discrimination against African Americans and violated their constitutional rights.”

This is the first enforcement action against a law enforcement agency under a new state law empowering the attorney general to file suit to stop systemic violations of Virginians’ civil rights.

The Town of Windsor issued a statement Thursday afternoon denying the allegations, questioning the data used and asserting the lawsuit, and its timing, are politically motivated.

The traffic stop of Lt. Caron Nazario happened Dec. 5, 2020, and came to light in April after Nazario filed suit. He was pulled over on U.S. 460 for lack of a license plate, even though a temporary tag was displayed in the rear window. Officers Daniel Crocker and Joe Gutierrez both pulled their weapons, and Nazario was pepper-sprayed and knocked to the ground. After the video went viral, Gutierrez was fired, but Crocker remained on the force.

Herring’s lawsuit states that “at no time did Lieutenant Nazario use or attempt to use force against the officers,” and alleges other complaints in which force was improperly used against Black drivers, but without giving details of those other complaints.

“While our investigation was spurred by the egregious treatment against Lt. Nazario that we all saw in bodycam footage, we discovered that this incident was indicative of much larger problems within the department,” Herring stated in the press release. “Our months-long investigation uncovered huge disparities in enforcement against African American drivers, and a troubling lack of policies and procedures to prevent discriminatory or unconstitutional policing. We even discovered evidence that officers were actually being trained to go ‘fishing’ and engage in pretextual stops. That is why I have now filed suit to ensure accountability and to protect Virginians’ rights.”

In his suit filed Thursday in Isle of Wight Circuit Court, Herring alleges that the Town of Windsor “violated the Virginia Human Rights Act (‘VHRA’) and the Virginia Public Integrity and Law Enforcement Misconduct Act (‘VPLEM’) in its provision of law enforcement services through the Windsor Police Department.”

Among the findings uncovered by Herring’s investigation are:

Disproportionate traffic stops of Black drivers — Black drivers accounted for approximately 42% of the department’s traffic stops from July 1, 2020, through Sept. 30, 2021 (810 of 1,907 stops). During that time period, the town stopped Black drivers between 200% and 500% more often than would be expected based on the number of Black residents in the town or county.

Disproportionate searches of Black drivers’ vehicles — From July 1, 2020, through Sept. 30, 2021, the department searched more vehicles driven by Black drivers than White drivers, even though Black residents do not constitute the majority of the population of the town or the commonwealth.

Discrepancy in data reported to the Town Council and state authorities — For many of the examined months — July 2020 through July 2021 — there was a significant discrepancy between the number of traffic stops and citations reported to the Town Council and the number reported to the Virginia State Police for tracking and reporting purposes. In all instances, the numbers reported to the state were lower than those shared with the Town Council, and the discrepancy has not yet been explained.

The Town of Windsor issued a statement Thursday afternoon stating the decision by Herring to file a lawsuit so late in his tenure was “clearly political” and that the reason for the lawsuit was “perhaps for the sake of headlines.”

The statement said the town has practiced non-discriminatory policing both before and after the Nazario traffic stop, but has taken additional steps to increase training and accountability in recent months.

“None of those efforts are mentioned in the Herring lawsuit, even though his office and deputies were fully aware of them for several months,” the town’s statement reads. It states the town and attorney general’s office met as recently as Dec. 10 to discuss these efforts.

The statement says that Herring’s office issued an ultimatum just days after that meeting, “demanding immediate action or the threat of litigation.” The statement also says the data on traffic stops and searches Herring used is questionable.

The statement adds that the Town of Windsor is “stunned” that the suit was filed on Dec. 30, just hours before courts closed for the year, and that the matter should have been left to the incoming attorney general to pursue, “if it indeed had merit in the first place.”

The incoming attorney general, Jason S. Miyares, is a Republican and the state’s first Latino attorney general.

“We look forward to having a reasonable conversation with the next Attorney General regarding the Town’s law enforcement practices,” the town’s statement says in conclusion. “In the meantime, we reserve further comment until our attorneys and Town Council have had an opportunity to review Mr. Herring’s eleventh-hour action and present a formal response.”

Klarke Kilgore, spokesperson for Attorney General-elect Miyares, told The Smithfield Times: “Attorney General-elect Miyares has been reviewing all the cases being handled by the Attorney General. We look forward to reviewing the facts and applicable law for this suit once the Attorney General-elect takes office.”

Joel Rubin, a public relations professional assisting the Town of Windsor with the response to the lawsuit, said in response to questions that Windsor Police Chief Rodney Riddle and Town Manager William Saunders would not be providing their own statements or speaking with the media.

Rubin also provided details on the town’s claim of minority representation within the Windsor Police Department. He stated in response to questions that the officer hired to replace Gutierrez is African American, and that there is also a Latino officer.

Valerie Butler, president of the Isle of Wight NAACP, welcomed the news of the lawsuit.

“We’ve been waiting a long time for this,” she said in a telephone interview Thursday afternoon. “Based on the information the attorney general’s office has pointed out as far as the racial profiling, the disproportionate stops of Black drivers … that confirms the preliminary information we had gotten. This supports exactly what the policing has looked like in the Town of Windsor.”

Butler said she hopes the lawsuit is the beginning of positive changes.

“I’m hoping it will bring positive changes as far as civil rights and human rights are concerned,” she said. “I’m hoping going forward there will be some positive changes in the community in which I serve and the community in which I live.”

Butler said the Town of Windsor has not been forthcoming to sit down with her group and discuss their concerns.

“One of my concerns has been the Town of Windsor has not been very receptive to sitting down and speaking with us, and I was really concerned that maybe they were not treating our issues seriously,” she said. “I’m hoping this research that’s been uncovered will let them know the severity of things that are happening in their police department and possibly open the doors for sit-down collaboration between the both of us.”

The Isle of Wight NAACP also issued a written statement late Thursday night in which it called Windsor’s statement a “knee-jerk response.”

“The town’s knee-jerk response to the lawsuit is a reflection of the practice and culture of the town of Windsor and their police department,” the NAACP wrote. “Since the horrendous video of Lt. Nazario surfaced, the Town of Windsor has spent more time trying to salvage their image and reputation, instead of protecting the civil and constitutional rights of African Americans in the Windsor community.”

The statement goes on to call upon Miyares to pursue the lawsuit and promises more communication:

“Unlike the Town of Windsor, it is our hope that Attorney General-elect Jason Miyares will focus on protecting the civil rights of African Americans and fully pursue this lawsuit once his office takes over in January.

“The NAACP will continue to communicate to the public our next steps regarding this matter in the coming days.”

Herring’s lawsuit seeks a court order barring the Windsor Police Department from engaging in discriminatory law enforcement activities, as well as court-ordered policy changes within the department, a court-ordered period of third-party monitoring of the department and a civil penalty of $50,000 for each proven violation of the Virginia Human Rights Act.