AG lawsuit seeks Windsor police records

Published 4:02 pm Friday, May 19, 2023

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Lawyers representing Virginia Attorney General Jason Miyares and the town of Windsor will be back in court on May 24 for a hearing on a lawsuit alleging an “unlawful pattern” of conduct by Windsor’s Police Department.

A 9:30 a.m. hearing in Suffolk’s courthouse is set to resolve the state’s request that the court compel Windsor to turn over records the town has deemed “privileged and protected.”

The requested records include complaints filed against WPD officers and the personnel records of two officers who, in 2020, held a Black Virginia National Guardsman at gunpoint and pepper-sprayed him during a traffic stop.

First Lt. Caron Nazario sued Officer Daniel Crocker and ex-officer Joe Gutierrez in 2021, the latter of whom was fired after video footage of the encounter went viral online and sparked accusations of racism. A nine-member jury, however, awarded Nazario only $3,685 – far less than the $1 million-plus Nazario’s attorneys had requested – after finding Gutierrez liable for assault and Crocker liable for having illegally removed a firearm from Nazario’s car.

A March 24 filing by assistant attorneys general assigned by Miyares to the case contends the town has “provided over 300 pages of documents” the state had contended were missing from the town’s original response to the state’s discovery efforts, “yet these are not all the missing documents identified by the Commonwealth.”

Attorneys for Windsor, however, contend in an April 3 filing that the remaining requested records are “in the exclusive possession and control” of Windsor Police Chief Rodney “Dan” Riddle and that the town “has no authority over these records.” The April 3 filing also asks that documents in the state’s possession “previously produced by Chief Riddle in 2021” be deemed “privileged” and that the state confirm in writing that it “has sequestered or destroyed all such documents.”

Town officials told The Smithfield Times in response to a 2021 Freedom of Information Act request for Gutierrez’s emails and text messages that the ex-officer had erased his town-issued cellphone on the day of his termination. Email correspondence dated April 12 between John Conrad, Windsor’s outside counsel from Richmond, and Assistant Attorney General Todd Shockley states the erased records have since been “retrieved from the phones of the recipients of his texts.”

Retired Judge H. Thomas Patrick Jr., himself a former police officer, refused to dismiss the case in October as lawyers for Windsor had requested.

The lawsuit, filed by former Attorney General Mark Herring 17 days before he left office, is Virginia’s first of its kind under a 2021 state law intended to stop systemic civil rights violations by law enforcement. When Miyares took over in mid-January 2022, the case saw a complete turnover in personnel and a near-total rewrite of its original claims.

Herring, a Democrat, had alleged Windsor was disproportionately stopping Black motorists, contending Black drivers had accounted for 42% of the WPD’s traffic stops from July 1, 2020, through Sept. 30, 2021, though Black people account for 21% of the town’s population and 22% of Isle of Wight County’s.

Miyares, a Republican, assigned new lawyers to the case after the three original attorneys of record under Herring left their employment with the Attorney General’s Office. The complaint still alleges “racially-biased traffic enforcement, searches, seizures, detentions and use of excessive force” but no longer includes the statistics Herring had cited.

Court documents provided by the town allege the WPD had used force 20 times since 2016, six of which involved someone of African American descent. The most recent is alleged to have involved a Black woman in April.

The Nazario incident was the town’s only documented use of force for 2020.

Crocker, then newly graduated from the police academy, pulled Nazario over for seemingly lacking a rear license plate. Gutierrez, who was serving as Crocker’s field training officer, responded to the scene when Crocker reported a “felony traffic stop” to dispatchers.

Nazario had a temporary, expired New York plate taped to the inside of his car’s rear window, but Crocker said he didn’t see it and accused Nazario of eluding police for driving roughly a mile down Route 460 to a BP gas station before stopping.

The footage of the incident shows Nazario ask the officers, “What’s going on?” several times as they shout at him to keep his hands out of the window and exit his car. It culminates with Gutierrez repeatedly pepper-spraying Nazario, forcing him onto the ground and offering to release Nazario without charges if he would “let this go.”