The outgoing AG threw down a gauntlet on discriminatory policing. Will his successor pick it up?

January 5, 2022 5:02 pm

Valerie Butler, President of the Isle of Wight Chapter of the NAACP, spoke in April 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)

Mark Herring, the soon-to-be former Virginia attorney general, has thrown down the gauntlet against the policing practices in the small town of Windsor. 

The question is whether Jason Miyares, Herring’s successor, will take it up – ensuring fair treatment of Blacks, Latinos and other people of color during traffic stops by law enforcement agencies. We’ll have to wait and see, based on Miyares’ noncommittal response on the issue. 

More on that later.

You’ll recall that Windsor, population only 2,600, was the scene of an ugly, videotaped police stop in late 2020 involving Army Lt. Caron Nazario. The police department fired one of the two officers who detained Nazario, who’s Black and Latino – but not until the tape was aired repeatedly. (Nazario filed a lawsuit in federal court in Norfolk against the officers. A jury trial is scheduled in March.) 

Herring announced in mid-April an investigation into how Windsor police conduct traffic stops, including searches of cars and trucks. His decision came days after the video was released publicly. 

“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,” he said in a statement last week announcing a lawsuit against the town. “We even discovered evidence that officers were actually being trained to go ‘fishing’ and engage in pretextual stops.”

The Attorney General’s Office said Black motorists accounted for roughly 42 percent of the Windsor 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 percent and 500 percent more often than would be expected based on the number of Black residents in the town or county.”

It also said the department searched more vehicles driven by Black drivers than White drivers, even though Black residents weren’t the majority of the population in Windsor or Virginia. 

This particular finding didn’t surprise me, since studies in California and elsewhere have had similar results. 

The Sentencing Project reported in 2018, for example, that Black and Hispanic drivers were three times as likely as Whites to be searched nationwide (6 percent and 7 percent versus 2 percent, respectively), and Blacks were twice as likely as Whites to be arrested. “These patterns hold even though police officers generally have a lower ‘contraband hit rate’ when they search Black versus White drivers,” the report noted.

Windsor officials didn’t take the findings lying down. They issued their own statement, saying Windsor officers always practiced non-discriminatory policing; “increased training and accountability” after the Nazario incident was publicized; and met as recently as Dec. 10 with the AG’s Office to discuss developments.

They sniffed that Herring’s action was “clearly political” coming so close to the end of his term. The issue “should have been left to the incoming Attorney General to pursue, if it indeed had merit in the first place,” the statement said.

Joel Rubin, a spokesman for the town, questioned Herring’s statistical analysis in an interview with me. He said investigators should’ve looked at all motorists using U.S. 460 through the town, instead of the population of Windsor alone. “In my view, it’s phony” the way the data was used, Rubin said.

Let’s assess those arguments.

Windsor police officers pepper sprayed U.S. Army 2nd Lt. Caron Nazario during a traffic stop in December that resulted in a lawsuit, the firing of one officer and outcry across Virginia and elsewhere. (NBC 12)

The fact the department had to deal with the fallout after the Nazario incident means town officials knew they had to change procedures. Later reporting, by The Virginia Mercury’s Ned Oliver, The New York Times and others indicated some communities – like Windsor – lean too heavily on traffic fines to boost their budgets. 

The practice thrusts police into the uncomfortable role of generating money to finance local operations. It’s a conflict of interest. The Times said Windsor officials have since pursued ways to slow traffic “while reducing police and citizen contacts,” including using rumble strips.

Herring could’ve kept his mouth shut, but he initiated the probe and decided to file suit before his term ended. 

I’m sure that before Election Day, Herring thought he had more time. Miyares’ 26,500-vote victory, out of more than 3.2 million votes cast statewide, probably changed the calculus. 

That doesn’t mean Herring should’ve remained mute. He had statistics and comments from concerned residents. Many Virginians want to feel safe – not merely targets for municipal coffers – when traveling through communities like Windsor. The situation is important, no matter who holds the title of attorney general.

“We have additional pattern/practice investigations under way right now, but we are not in a position to discuss them yet,” Michael K. Kelly, chief of staff for Herring’s office, said by email Wednesday. “We hope this suit sends a clear signal to any agencies or jurisdictions that may be acting inappropriately that the AG’s office is watching and will hold them accountable when necessary.”

He added: “We attempted to resolve these matters with the town, but we could not accept its continued efforts to delay and drag this process out, and we therefore filed suit to help protect Virginians’ rights.”

The complaint about the racial statistics is interesting. Town officials question whether the pool truly reflects only local drivers; it probably doesn’t, because U.S. 460 isn’t just a local route. 

The numbers, however, could easily skew to more White drivers – rather than Black or Latino ones – traversing the roadway. In any event, I don’t fault Herring’s office. It used the available baseline it had of the racial backgrounds of local and county residents. 

Besides, what the AG’s Office found has been replicated in other studies. The results aren’t that surprising. 

A better question is why they’re repeated so often.

That brings me to Miyares, a Republican, who takes over the job Jan. 15. Herring is a Democrat, and Blacks and Latinos vote overwhelmingly for Democrats. Miyares ran as a law-and-order guy, and Herring’s move could put Miyares in a political bind.

That doesn’t mean Herring should’ve refrained from weighing in. The issue he investigated is serious, and police stops have been a source of strife between people of color and police around the country. A new state law gave the attorney general the power to file suit against agencies and stop systemic civil rights violations.

Victoria LaCivita, a spokeswoman for Miyares, told me he’s reviewing all the cases handled by Herring. “We look forward to reviewing the facts and applicable law for this suit once the attorney general-elect takes office,” she said by email.

LaCivita declined to answer my other questions, about where such suits rank on Miyares’ list of priorities, and how he will ensure Blacks, Latinos and others are treated fairly by police.

Those are important concerns. Herring was right to press ahead – even if his actions leave others uncomfortable.

This column has updated to include a comment from Herring’s office.

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Roger Chesley
Roger Chesley

Longtime columnist and editorial writer Roger Chesley worked at the (Newport News) Daily Press and The (Norfolk) Virginian-Pilot from 1997 through 2018. He previously worked at newspapers in Cherry Hill, N.J., and Detroit. Reach him at [email protected]