Viral police stop in small Virginia town renews focus on qualified immunity

By: and - April 13, 2021 12:03 am

Valerie Butler, President of the Isle of Wight Chapter of the NAACP, spoke Monday across the street from a gas station in Windsor where town police pepper sprayed an Army lieutenant during a traffic stop. (Ned Oliver/Virginia Mercury)

WINDSOR — Standing across from the gas station where an Army lieutenant became another viral example of aggressive policing directed at a person of color, members of the Virginia NAACP called Monday for lawmakers to hold a special session on an unfinished piece of the police reform agenda.

Though the Democratic-controlled General Assembly twice failed to approve legislation rolling back qualified immunity, some say what happened to Black and Latino Army Lt. Caron Nazario in this small town demands that policymakers try again. 

To tell us that a Black Army second lieutenant in uniform can have that type of treatment imposed upon him, imagine what happens when the body cameras are off,” said NAACP Executive Director Da’Quan Marcell Love. “Imagine what happens on dark roads across the length and breadth of this commonwealth.”

While passing through Windsor on Dec. 5, just over a month after the General Assembly finished a special session on police reform, Nazario was pulled over for what an officer thought was a missing license plate. After waiting to pull off in a well-lit BP station, a move that apparently aroused suspicion, Nazario was confronted by two officers with guns drawn, given conflicting commands, pepper sprayed and forced to the ground, according to a timeline laid out in his federal civil rights lawsuit against the two officers who stopped him. 

Nazario’s lawyers obtained body camera footage of the stop, first reported by the Virginian-Pilot, which drew national attention and outrage as it spread across social media. That video shows Nazario remaining still as the officers repeatedly yell at him to exit the vehicle and keep his hands up. When he told the officers he was afraid to step out, Officer Joe Gutierrez, who has since been fired, responded: “You should be.”

Though the police reported they initiated the stop because Nazario’s SUV was missing a license plate, they later acknowledged he had a temporary, New York-issued plate taped in the rear window of the newly purchased vehicle. Noting in a report they “coached” Nazario on how to handle the effects of the spray, the officers released him without charges.

Attorney General Mark Herring sent a request for a range of information Monday from the Windsor Police Department. “He believes that the manner in which the officers of the Windsor Police Department conducted themselves was dangerous, unnecessary, unacceptable and avoidable,” his office said in a statement. Herring’s opponent in the Democratic primary, Del. Jay Jones, D-Norfolk, on Saturday called for an “immediate investigation” into the traffic stop.

When Virginia Democrats took up police reform last year, few items on their to-do list were more controversial than rolling back qualified immunity, a legal doctrine that can shield officers from civil rights lawsuits.

Efforts to give citizens more power to sue when they feel wronged by law enforcement failed two sessions in a row, with Democrats divided and vocal opposition from Republicans and police groups who said it would demoralize officers trying to do a difficult job.

Gov. Ralph Northam has called for a State Police investigation into the Windsor stop, and his office said Monday “there is more to do to ensure all Virginians are treated safely, and with basic respect, in interactions with police.” With Northam’s term running out, it may fall to his successor to continue that effort.

Despite the difficulties in the legislature, all five Democrats running for governor now say they support reforming qualified immunity.

Former Gov. Terry McAuliffe, the perceived frontrunner in the race who had a largely pro-police record during his first term, weighed in on the issue for the first time this week in a statement to the Mercury.

For far too long, Virginia’s criminal justice system has unfairly targeted Black and brown people, and the horrific act against Army Lt. Caron Nazario is one of too many that show the critical need for continued reform,” said McAuliffe spokesman Jake Rubenstein. “Terry believes Virginia must increase police accountability and transparency in incidents of misconduct, improve training, expand body-worn camera programs, and end policies like qualified immunity that can prevent accountability when heinous acts are committed against Virginians.”

The four other Democratic candidates for governor — former Del. Jennifer Carroll Foy, Sen. Jennifer McClellan, Lt. Gov. Justin Fairfax and Del. Lee Carter — had all endorsed ending qualified immunity at a forum last month McAuliffe did not attend. 

The debate over police reform represents one of the most rapid shifts in Democratic politics since McAuliffe left office in early 2018. Though almost all Democratic lawmakers have stressed they have no intention of heeding activist calls to “defund the police,” they approved a package of major policing changes last year in a special session following George Floyd’s death and the nationwide racial justice protests that followed.

Virginia lawmakers get mixed reviews on police reform efforts

In the Democratic primary, the three Black candidates, Carroll Foy, McClellan and Fairfax, have made the case they’re all too familiar with issues of systemic bias. Carter has sought to distinguish himself as perhaps the only prominent Virginia Democrat willing to support reducing law enforcement funding as a solution to police misconduct.

“Ultimately, the only way to guarantee that someone is not brutalized by police is to not have that person interacting with police,” Carter said in an interview. “You can’t fix the crisis of overpolicing by increasing their budgets.”

The Nazario case, Carter said, shows why many on the left are questioning whether armed officers should be involved at all in minor issues like license plates.

“It doesn’t make sense to have a man with a gun doing traffic stops,” Carter said. “This is basically the clearest evidence that you could possibly get of that.”

In a statement, Carroll Foy, a former public defender competing with Carter to win over the party’s most progressive voters, said she doesn’t support defunding the police, noting she “saw traffic stops turn violent” in her legal work and would be “committed as governor to properly funding the hiring of highly qualified officers” receptive to training on de-escalation techniques, implicit bias and use of force.

“I am deeply committed to real police reform to ensure justice and accountability,” Carroll Foy said.

In a statement released Monday night, McClellan’s campaign pointed out she was one of just a few Democratic senators who took a committee vote in favor of a qualified immunity reform bill during the special session on police reform. She called the incident in Windsor “unacceptable” and said she’ll continue to work toward a system where “no Virginian will fear a traffic stop may be their death sentence.”

On Sunday evening, Fairfax called for a federal investigation into the Windsor stop, saying Nazario’s fear that night is “a fear that exists throughout Black and brown communities based on a long, lived history of racism and brutality.”

The response from Republican candidates for governor has been more muted. The campaigns for Glenn Youngkin and Pete Snyder did not respond to a request for comment. Sen. Amanda Chase said she hadn’t heard about the stop of Nazario. Former House Speaker Kirk Cox was the only candidate to directly address it, calling the incident “deeply concerning.”

“Lt. Caron Nazario has every right to pursue justice under federal and state law, and the matter should be thoroughly investigated by the State Police or other appropriate authority,” said Cox campaign spokeswoman Elizabeth Gregory.

Though Nazario filed a federal lawsuit, reforming qualified immunity doctrine at the state level would potentially give him more recourse to sue under Virginia’s laws.

Police-reform advocates say Virginia made big strides on the issue last year by banning no-knock warrants, limiting chokeholds, allowing civilian review boards with meaningful enforcement powers, creating a statewide code of conduct for police officers and establishing mental-health teams to respond to people in crisis.

They also downgraded a variety of minor traffic infractions to secondary offenses, a move meant to stop racial profiling and prevent police from using problems like broken taillights as a reason to stop and question drivers. That bill also dealt with lights meant to illuminate license plates, though it’s not clear how it might apply to vehicles with a missing or hard-to-see plates.

Another new law requires police officers to intervene if they see a colleague using excessive force, a rule Sen. Scott Surovell, D-Fairfax, said could have potentially applied to the officer in Nazario’s case who wasn’t fired.

Many of the new laws passed in the special session that might have had a bearing on Nazario’s case didn’t take effect until March 1, months after the controversial stop.

Laying out clearer rules for police in general, Surovell said, will make it harder for officers to raise qualified immunity as a defense if they don’t follow them.

“You can’t assert qualified immunity if you’re breaking the law,” Surovell said.

At the NAACP event in Windsor, Del. Jeff Bourne, D-Richmond, a chief proponent of ending qualified immunity, said there’s no “end-all, be-all” solution. But, he said, he and others will keep pushing the issue.

“Unfortunately, it was too late for Lieutenant Nazario,” Bourne said. “Thankfully it won’t be too late for other drivers.”

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Graham Moomaw
Graham Moomaw

A veteran Virginia politics reporter, Graham grew up in Hillsville and Lynchburg, graduating from James Madison University and earning a master's degree in journalism from the University of Maryland. Before joining the Mercury in 2019, he spent six years at the Richmond Times-Dispatch, most of that time covering the governor's office, the General Assembly and state politics. He also covered city hall and politics at The Daily Progress in Charlottesville. Contact him at [email protected]

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association. Contact him at [email protected]

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