HAMPTON, Va. - The Hampton Commonwealth's Attorney's office said no state laws were violated by the Town of Windsor Police officers who allegedly pepper-sprayed, threatened and assaulted a second lieutenant in the U.S. Army during a traffic stop in December 2020.
Video of the officers pulling Lt. Caron Nazario over went viral, as the officers could be seen drawing their guns, pointing them at him and using a slang term to suggest he was facing execution.
Officer Joe Guiterrez was fired after the video went viral. The other officer, Daniel Crocker, remains on the force.
A source with knowledge of the investigation shared a letter from Hampton Commonwealth's Attorney Anton Bell, in which Bell said "no violation of state law" occurred during the traffic stop.
"During the investigation, I have reviewed the Virginia State investigative report, reviewed videos of the contested event and discussed the investigation with the Virginia State Police Special Agents. Moreover, I have completed an exhaustive review of Virginia State law in forming my opinion as to whether charges are warranted in this matter," the letter reads. "As such, taking all facts and law into consideration, I have concluded that I have found no violation of state law occurred on the date in question."
Bell said he found the video "very disturbing and frankly upsetting," but said the officer's use of force did not violate state law. He also said he has reached out to the United States Attorney's Office for the Eastern District of Virginia to formally request the office open an investigation into whether the officer violated Nazario's civil rights.
An attorney for Nazario released the following statement in response to the decision.
"We applaud the Commonwealth’s Attorney for requesting that the US Attorney’s office to investigate whether or not Gutierrez violated Lt. Nazario’s civil rights.
"It is not the place of the Commonwealth Attorney to determine that 'no violation of state law occurred' - especially when in the same breath he refers the matter to the U.S. Department of Justice. That is the role of the Judge or jury. The role of the Commonwealth Attorney is to determine whether or not he believes that the Commonwealth can prove each element of an alleged offense “beyond a reasonable doubt” or to exercise prosecutorial discretion not to prosecute a crime.
"It is not clear why the release came out on July 29, 2022. The statute of limitations for any misdemeanor offenses that Gutierrez or Crocker may have been suspected of having committed expired long ago under Virginia law – Va Code § 19.2-8 (even with COVID tolling) – thus even if he were to have determined now, on July 29, 2022, that there were sufficient facts to support the criminal prosecution of Gutierrez for misdemeanor assault, he would not be able to prosecute because misdemeanors must be prosecuted if at all within 1 year of the offense under Virginia law.
"Special Prosecutor Anton Bell appears to narrowly focus on the traffic stop itself. There is no mention of whether the force was excessive in light of the conflicting commands to keep his hands out of the vehicle (which Lt. Nazario obeyed throughout) and to exit the vehicle, (“he had given multiple commands for Nazario to exit the vehicle”) or the fact that the license was visible from the window when the car stopped in the well-lit gas station or of the statements that both officers placed in their official paperwork regarding actions that they allege occurred, and which the videos (theirs and Lt. Nazario’s) do not support. There is no mention of the fact that this was a simple traffic stop, that Lt. Nazario was not a threat and was not fleeing. Additionally, there is no mention or analysis of the search of Lt. Nazario’s vehicle without a warrant. See Va Code § 19.2-59.
"All too often, when it comes to law enforcement violating the laws, we see our Commonwealth’s Attorneys fail to apply the same zeal at prosecuting law enforcement as they do with other offenders. This repeated and systemic failure undermines the confidence in the criminal justice system and the legal system as a whole. Everyone, from the police, to the Commonwealths Attorneys need to realize that for the law to function, for the citizens to have faith in it and the people sworn to uphold it and enforce it, those in power must apply the law equally to all. The blindfolds depicted on statutes of Lady Justice are needed now more than ever."
The Virginia NAACP also released a statement in response to the decision:
“It is inconceivable that Hampton Commonwealth Attorney Anton Bell could justify or excuse the actions and conduct of former Windsor Police Officer Joe Gutierrez during an encounter with Caron Nazario, a Black second lieutenant in the United States Army. The video of this encounter has been widely circulated and provides the disturbing evidence of the bias held by this former officer. This video also adds yet one more piece of irrefutable evidence that demonstrates the need to immediately change the culture of policing so that Black people will not continue to be placed at great risk by the implicit bias of law enforcement officers. We call upon the Office of the Attorney General to review the evidence in this case to ensure that the rights of all Virginians are upheld and protected equally under the law.”