WINDSOR, Va. — The former Windsor Police officer fired after pepper-spraying a U.S. Army lieutenant during a traffic stop is asking for a judge to dismiss part of the $1 million lawsuit against him.
The complaint filed Friday alleges Lt. Caron Nazario fails to support his allegation that Joe Gutierrez's conduct discouraged or affected Nazario from engaging in an activity protected by the First Amendment.
Nazario filed a lawsuit in April against Windsor Police Officer Daniel Crocker and former officer Gutierrez, saying his First Amendment and Fourth Amendment rights were violated during the December 2020 traffic stop.
Nazario’s lawyers point to a 2006 case where a Fourth Circuit Court of Appeals ruled that retaliatory action in the nature of speech that threatens, coerces or intimidates establishes a violation of an individual's First Amendment rights.
A portion of the body camera video recorded during the stop captures Gutierrez speaking to Nazario after tensions calmed and he was waiting for the effects of the pepper spray to wear off.
At one moment, Gutierrez said to Nazario, “If you want to fight it and argue it — and I don’t mean that disrespectfully, okay... you have that right as a citizen— if that’s what you want, we’ll charge you, have you go to court, notify the [military] command, do all that, or we can take time out of our night, which is not a problem, we’re being paid to take care of you. We’ll sit here with you. Get your eyes back… you and Smoke [Nazario’s dog] can get on down the road.”
Tom Roberts, one of Nazario’s lawyers, says this conversation is at the crux of the lawsuit.
“[Gutierrez] acknowledged it was [Nazario’s] right. What was his right? It was [Nazario’s] right to protest, his right to push this thing further, to carry it further, to make a grievance, to continue his protest and [Gutierrez] made it clear that if [Nazario] was willing to just let it go, then Gutierrez was not going to push forward and charge him with these bogus crimes,” said Roberts.
News 3 reached out to Gutierrez’s attorneys and did not hear back.
Sonny Stallings is a criminal lawyer in Virginia Beach. He agrees that Nazario has a case.
“It sounds like the officers in Windsor were trying to make an agreement with Lt. Nazario. ‘If you don’t say anything, we won’t say anything,’ implying that, ‘If you do, we’re going to charge you with something.' Now that clearly would be a violation of Lt. Nazario‘s constitutional rights."
Nazario was ultimately let go without charges.
Officers claimed the traffic stop escalated because Nazario didn’t stop immediately and his rear license plate couldn’t be seen; it was posted on the inside of the rear windshield.
Monday night, News 3 learned Crocker has joined Gutierrez asking a judge to dismiss the complaint regarding the claim for First Amendment violation. Neither have asked for the other claim, the Fourth Amendment violation, to be dismissed.
Per court documents posted on Nazario's lawyer's website, Crocker also "moves to stay proceedings on the Complaint filed by Plaintiff Caron Nazario (“Nazario”) until the completion of on going state and federal investigations, or in the alternative, for a period of ninety days."
A judge will decide whether there is merit to throw out the First Amendment claim in the case. If not, it will go on to a jury.