March 19 appeal set for National Guardsman who sued Windsor police

Published 4:51 pm Friday, February 23, 2024

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Lawyers representing Virginia National Guard 1st Lt. Caron Nazario and the two Windsor police officers he sued for holding him at gunpoint and pepper-spraying him during a 2020 traffic stop will each make their cases on March 19 to a panel of federal judges as to whether Nazario should be granted a new trial.

Nazario had sought more than $1 million in damages from officers Daniel Crocker and Joe Gutierrez, the latter of whom was fired in 2021 after videos of the incident went viral online and sparked accusations of racism. A Richmond jury largely sided with the officers last year, awarding Nazario only $3,785 after finding Gutierrez liable for assault – but not battery – and Crocker liable only for having illegally removed a firearm from Nazario’s car.

According to the appeals court’s docket, Nazario’s case will be heard at 9:30 a.m. at the Lewis F. Powell Jr. United States Courthouse in Richmond. Nazario’s attorney, Jonathan Arthur, will have 13 minutes to make his opening argument. Crocker’s attorney, Anne Lahren, and Gutierrez’s attorney, Jessica Swauger, will then each have 10 minutes to respond. Arthur will then be given another 7 minutes to make a rebuttal argument.

According to Arthur, the appeal will be before a panel of three judges.

“We will not know who is on the panel until the day of argument,” Arthur said.

Arthur said it is “possible” but “extremely improbable” that the panel will issue a same-day ruling. More likely, he said, the judges will rule sometime within the six months following the hearing date.

In a court filing last October, Arthur argued the jury’s minimal award was the result of U.S. District Court Judge Roderick Young having “erred” in his pre-trial rulings in 2022, and his having given the jury instructions unfavorable to Nazario based on those rulings.

Young had granted qualified immunity, which shields police officers from most lawsuits, to Crocker and Gutierrez after ruling in 2022 Crocker had “probable cause” to pull Nazario over for appearing to lack a license plate, though Nazario had a temporary, expired New York tag taped to the inside of his car’s rear window.

Young had also ruled Crocker would have had cause to charge Nazario with eluding police and obstructing justice for his having driven roughly a mile down Route 460 to a BP gas station before stopping, and then refusing to exit his car.

Crocker, then newly graduated from the police academy, had approached Nazario’s car with his gun drawn. Gutierrez, who was Crocker’s field training supervisor at the time, responded to the scene after Crocker reported a “felony traffic stop” to dispatchers.

Body camera footage and a video Nazario recorded on his cellp[hone recorded the guardsman repeatedly ask the officers for an expiation for the stop while the two shouted conflicting commands at him to keep his hands outside his car’s window and to exit the vehicle.

Gutierrez at one point told Nazario he was “fixiin’ to ride the lightning,” a phrase Gutierrez contended was in reference to a taser but Nazario contended was a colloquial expression for an execution.

“I’m honestly afraid to get out,” Nazario told the officers, to which Gutierrez replied, “Yeah, you should be.”

Lahren, last October, characterized Arthur’s appeal as “blatantly misrepresent(ing)” what is known on the body camera footage. Swauger did not immediately respond to The Smithfield Times’ request for comments.

“The judge and the jury saw the videos, heard witnesses, and overwhelmingly ruled in favor of the officers,” Lahren said in an emailed statement to the Times. “The trial court correctly determined that the officers had probable cause to believe the plaintiff was eluding them at the outset of the traffic stop and then obstructing them from performing their lawful duties. The judge diligently and fairly presided over the trial and properly instructed the jury based on the facts and law at issue in the case. The trial court was correct in its rulings on every issue that is now up on appeal. We expect the appellate court to find no error in the rulings of the trial court both on summary judgment and in the instructions to the jury.”