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Despite Important Legislative Work on Policing Reform in 2020 and 2021, the Windsor Police Stop of Army Lt. Nazario Shows We Have More Work To Do

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by Cindy

It’s disheartening to see, despite the General Assembly working in earnest the past year to reform policing in Virginia, yet another news story with video of a police stop that should never have happened at all, and that most certainly shouldn’t have escalated to police pepper spraying and beating an Army Lieutenant, still in his uniform. For all the genuine good policy we’ve enacted, this is still happening.

According to the lawsuit filed on April 2 by Lt. Nazario in the US Eastern District Court in Norfolk, he was stopped on December 5, 2020 by two police officers from Windsor, Virginia, allegedly because they didn’t see a license plate on his newly-purchased car.

A 2020 special session bill from Delegate Hope and included in Sen Locke’s omnibus bill SB5030 eliminated a host of opportunities for police to stop cars on the basis of pretexts that are unrelated to public safety and have been used to racially profile Black and Brown drivers. These include having dangling items hanging from the rear-view mirror, having tinted windows, as well as the “odor of marijuana.”  Important steps, but these officers nevertheless found an excuse, so perhaps there’s more work to be done in this area. (It’s possible this stop would be illegal under the new law, which hadn’t yet taken effect in December, as one pretext eliminated is having a broken license plate light.)

By the time Lt. Nazario pulled over at a well-lit gas station, the officers admitted they knew he in fact had a paper temporary license plate attached to the car. Despite this, and being fairly certain that he was a person of color (based on the way that he waited for a well-lit area to pull over), the officers called it in as a “felony traffic stop” and a “high risk traffic stop,” and approached the vehicle with firearms drawn. [W]ithout justification or excuse, the Defendants chose to immediately escalate the encounter by threatening deadly force and a homicide.” They wouldn’t tell Lt. Nazario why they had stopped him, or why they had their guns drawn, just barked contradictory orders at him, asking him alternately to put his hands out the window, and to get out of the vehicle. One of the officers told him he was “fixin’ to ride the lightning,” a slang term for execution.

2020 special session bills SB5030 (Locke) and HB5109 (Hope) established compulsory training for all law enforcement in de-escalation techniques. This is great for officers who find themselves in escalated situations. But what can be done about officers like these who choose to escalate a situation that they could have easily handled without such escalation, without surrounding a car with guns drawn, shouting at the driver?

At this point, Lt. Nazario told the officer that he was afraid to get out of the vehicle. The officer menacingly said “yeah, you should be.” Then the officer attempts to forcibly remove Lt. Nazario from the car, and failing that, pepper sprays him multiple times, “choking and blinding him, causing his lungs and throat face and skin to burn,” and even causing his dog (gated in the back of the car) to choke. Once out of the car, the officers beat him with knee-strikes, until he was lying face down on the ground, and then continued to beat him. “On his face, in between the sobs of pain, betrayal, and fear, Lt. Nazario continually asked not about himself, but his dog.”

How do we know these details? Shockingly, in addition to the recording taken on Lt. Nazario’s phone, there is body cam footage from both officers, at two different angles. Just imagine, these cops behaved like this with the cameras on. It’s hard to think what would have happened had there not even been body cams. HB246 (Levine) during the 2020 regular session required localities to adopt and establish policies for use of body-worn cameras, and 2021 regular session bill SB1119 (Reeves) creates a grant fund to help localities purchase and maintain body-worn cameras. It’s important not to think of body cams as a panacea for all abuses occurring at the hands of law enforcement.

The officers then illegally searched Lt. Nazario’s vehicle for a firearm (he legally owned) that he told them was in the car. Possibly realizing at last that they might get in trouble for the unnecessary stop, use of force, and illegal search, the officers threatened that if he argued they would charge him with crimes that would adversely affect his job and his standing in the military, but if he “would ‘chill and let this go,’ they wouldn’t file charges and would take the handcuffs off and let [him] go.”

The next day the cops “submitted false narratives of the events in their official records, making near identical material misstatements of fact and omissions to support both their conduct and false charges against Lt. Nazario of inter alia, felony obstruction of justice with force, eluding, and assault on a law enforcement, charges they agreed to deploy should Lt. Nazario decide to not remain silent.”

Most defense attorneys and public defenders can tell you that implicit or explicit threats of this nature are not at all uncommon, that there are certain criminal charges that are quite often used to “stack” onto lesser crimes, in order to coerce an accused individual to accept a plea deal. Assault on a law enforcement, used here, is a very common one, because the way it’s defined in Virginia code is very broad, requires no actual physical harm to the law enforcement officer, and is a felony with a mandatory minimum 6 month sentence—for each incidence. So, if three officers arrest an individual, and the individual struggles and elbows the three officers in the process, not only might they be charged with whatever the original offense was, but also resisting arrest and ALSO three separate counts of assault on a law enforcement officer (one and a half years mandatory minimum).

2020 special session bill SB5032 (Surovell) attempted to eliminate the mandatory minimum for assault on a law enforcement officer, to require an investigation by another law enforcement officer and approval by the Commonwealth’s Attorney before it could be charged, and to give the judge discretion to reduce to a misdemeanor. Unfortunately that bill failed, as did the similarly-intentioned 2021 session SB1306 (Morrissey).

So, despite the work we’ve done, we haven’t yet been able to prevent travesties of this type from happening, haven’t been able to stop racist police from stopping Black and Brown drivers with no good reason, and harming or even killing them. According to a statement just released by the Windsor Police Department, one or both of the officers were allegedly terminated after internal review of the event, although the information on this is unclear. Prior to this year, he could still just move on to another jurisdiction and apply for a job in law enforcement there. Thanks to 2020 special session bill HB5051 (Simon), there is now a process for decertifying police officers for misconduct (previously only existing for criminal convictions). Hopefully these two are both fired and decertified. Additionally, under the 2021 HB1948 (Levine) that didn’t pass, anyone who observed this wrongdoing (including either one of the two officers) would have been obligated by law to report this and to render aid.

But clearly there need to be repercussions for the officers and the locality they work in when these incidents occur. Internal review isn’t good enough for communities that are harmed and sometimes grieving from the behavior of officers.

2020 special session bills HB5072 (Lopez) and SB5024 (Lucas) authorize the Attorney General to investigate a locality and/or file civil suit against the locality on the basis of believed patterns or practices that deprive individuals of their civil rights. That is one avenue for oversight, and should definitely be used here if this appears to fall under the definition of “pattern or practice.” Criminal charges are very rarely brought against law enforcement, relying on local Commonwealth’s Attorneys (who work with the relevant law enforcement daily) to bring those charges. 2020 special session SB5040 (Ebbin) would have given the Attorney General authority to assist in the prosecution of such cases, but it failed.

In addition, in the future, localities such as Windsor may have civilian oversight bodies, approved and defined by 2020 special session bills HB5055 (Herring) and SB5035 (Hashmi). Unfortunately, these are not mandatory for every locality, and are not allowed for sheriff’s offices, despite a valiant attempt to include them in 2021 session bill HB2291 (Williams-Graves). So there’s still room for improvement in the area of law enforcement oversight.

Finally, when everything we’ve done to prevent these abuses from occurring has failed, individuals who’ve been victims of this police behavior can sue the locality or the officers themselves in civil court, just as Lt. Nazario is doing, for violating their constitutional rights. It’s one reason why Congress passed the Civil Rights Act in the first place. In this case, Lt. Nazario argues that his 4th Amendment (unreasonable seizure, excessive force, and illegal search), and 1st Amendment rights (by extorting his silence) were violated by the officers.

Sometimes hindering this ability to sue is a notion of “qualified immunity.” The US Supreme Court has stated that law enforcement officers (along with many government officials) can claim qualified immunity from civil suits for conduct that occurred in the line of duty. According to 4th Circuit Appeals Court judge James A. Wynn, qualified immunity “subverts the Civil Rights Act of 1871.” 

2020 special session bills HB5013 (Bourne) and SB5065 (Morrissey), and 2021 bill HB2045 (Bourne), which failed to pass, would have carved out a state civil action for deprivation of rights that a plaintiff could take to get around the potential federal immunity claim.

Although it is a powerful way for officers to avoid responsibility for their actions, studies have fortunately shown that qualified immunity often isn’t enough to get cases dismissed. The most comprehensive study, conducted by a UCLA law professor, found that out of 979 cases from federal court dockets in 2011 and 2012 where qualified immunity could have been raised, only 3.9% of the cases were dismissed on that basis. Nevertheless qualified immunity certainly has a chilling effect on the likelihood that wronged individuals sue, and making it easier to hold police accountable through civil action would surely give such officers pause.

So despite a 2020 special session dedicated partly to policing reform, as well as important work in this area done during the 2020 regular session and 2021 session, it’s clear that the problems haven’t all been solved. What solutions do you think might work to end these horrific events? Should we rethink which police need to carry guns? End traffic policing altogether? Make oversight programs mandatory? End qualified immunity? Invest in more training? Pay police more, or less? Be sure to make your voice heard to your representatives on these issues, and on what solutions you want to see.

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