RICHMOND, Va. (CN) — A Fourth Circuit majority ruled Friday that officers who pepper-sprayed a Black and Latino Army lieutenant are immune from excessive force and First Amendment retaliation claims but not unreasonable seizure.
Army Lieutenant Caron Nazario sued two Virginia police officers after they pepper-sprayed, threatened and handcuffed him on the ground during a stop for a minor traffic violation. A lower court dismissed Nazario's claims of unreasonable seizure, excessive force and deprivation of rights, finding the officers had probable cause for eluding, obstruction of justice and failure to obey.
The majority affirmed most of a lower court's judgment. Still, it reversed the court's award of qualified immunity to police officer Joe Gutierrez on a Fourth Amendment claim for an unreasonable seizure.
"To point a firearm at a person is a threat with deadly force, and is therefore likely to instill fear, which could manifest into panic and a rash reaction," the opinion penned by U.S. Circuit Judge Robert King, a Bill Clinton appointee reads. "Gutierrez's conduct, combined with his death threats against Lt. Nazario, was a clear violation of the Fourth Amendment that lies outside the protection of qualified immunity."
Attorney Jonathan Arthur of Thomas H. Roberts & Associates, representing Nazario, said that while he's disappointed with the court's affirmation of probable cause, the ruling has some wins.
"We've been able to establish a noncontact excessive force claim, right, simply by pointing a firearm at a compliant citizen, which will be very useful moving forward holding the law enforcement accountable," Arthur said in an interview. "We've expanded the confines of when we can and cannot use pepper spray. So all of these are wins, I think."
U.S. Circuit Judge Allison Rushing, a Donald Trump appointee, wrote a dissenting opinion, finding that the lower court had adequately awarded immunity to Guterrez's unreasonable seizure claim. Rushing found the threatening comments and gun pointing failed to rise to the level of an unreasonably prolonged traffic stop.
"The majority admits there is no precedent holding that an officer's comments during a traffic stop unreasonably prolonged the stop or otherwise violated a driver's Fourth Amendment rights," Rushing wrote.
At 6:30 p.m. on December 5, 2020, in Windsor, a town of less than 3,000 residents in the Hampton Roads region of southeastern Virginia, police officers Gutierrez and Daniel Crocker stopped Nazario. The incident came after a summer of civil unrest sparked by the killing of George Floyd.
Crocker initiated the traffic stop because he believed Nazario lacked a rear license plate. Nazario's recently purchased vehicle had a temporary license plate taped behind the tinted back window.
Nazario turned on his blinker and drove slowly for a minute and forty seconds before pulling into a well-lit gas station. Attorneys representing the officers told a three-judge panel in March that Nazario passed two banks, a pharmacy and a restaurant before ultimately pulling into the gas station.
Nazario argued his failure to pull over didn't constitute eluding because he followed traffic laws and slowed his vehicle in an effort not to cause any danger. Friday's opinion finds the officers had probable cause for the misdemeanor of obstruction of justice but not for the misdemeanor offense of eluding. The court also found that absent an order from a conservator of the peace, the lower court erred in concluding that there was probable cause that Nazario failed to obey such an order.
"We are unable to say that a prudent person would believe that Nazario committed the misdemeanor offense of eluding under Virginia law," the opinion reads. "Driving slowly is a recognized way to show an intention to comply with a police officer's signal to pull over."
Despite not witnessing a crime, Crocker made the call to conduct a high-risk traffic stop, finding Nazario's driving and tinted windows suspicious.
The lower court awarded summary judgment to Nazario on his claims for an unconstitutional search and a search violating Virginia law, but only as to Crocker. A jury awarded no damages for Crocker's unconstitutional search and found him liable for only $1,000 in punitive damages for the search violating Virginia law.
As Crocker and Gutierrez exited their vehicles, guns drawn and shouting orders, Nazario set his phone on the dashboard to film the stop. The officers claim Nazario failed to follow 40 orders.
Things escalated as Gutierrez made threatening comments to Nazario. With his hands in a visible position, Nazario explained that he was scared to leave the vehicle, to which Gutierrez replied that he should be.
King noted Gutierrez's threats as unreasonable.
"The pointing of firearms at Lt. Nazario by the policemen was unreasonably exacerbated by the verbal death threats made by Gutierrez," King wrote. "When these threats were made, the policemen only had probable cause to stop a vehicle for a traffic infraction, and Nazario had not threatened them."
The video shows Crocker attempting to open the car door and Nazario using his elbow to lock it and keep it shut. Despite finding the threats made unreasonable, the majority found Nazario's failure to exit the vehicle rose to disobeying a conservator of the peace. The use of his elbow is also the reason the majority found the officers not liable for excessive force.
"The orders to Nazario to step out of the vehicle were lawful because the policemen had probable cause to stop Nazario's vehicle for failure to clearly display a license plate," King wrote.
Crocker moved away from the door, and Gutierrez sprayed Nazario through the open car window. Gutierrez was found liable for assault, and the jury awarded Nazario $2,685 in compensatory damages.
As medics arrived, the footage shows Nazario explaining that he didn't comply with the officer's orders to get out of the vehicle because he didn't expect them to approach him with their guns drawn.
"As counsel for officer Daniel Crocker, we are pleased that the 4th Circuit Court of Appeals affirmed the trial court findings on all counts," attorney Anne Lahren of Pender & Coward, representing Crocker said in an email. "Law enforcement officers must make split second decisions without the benefit of hindsight and qualified immunity is necessary for them to safely perform their jobs. With regard to Officer Crocker, the appeals court held that he acted appropriately under the circumstances and the trial court’s grant of qualified immunity to him was correctly affirmed in its entirety.”
U.S. Circuit Judge Stephanie Thacker, a Barack Obama appointee, joined King in the majority. Arthur said he and his office will continue reviewing the opinion and formulating a plan for moving forward.
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