DIVISIONS OVER COPS’ ACTIONS
How could police have handled the Windsor traffic stop differently?
Body camera footage that went viral last month captured two Windsor police officers pointing their guns at a U.S. Army lieutenant in a traffic stop, as they ordered him out of his SUV. Then, after Lt. Caron Nazario would not comply with their shouted orders, an officer pepper sprayed him several times in the face — followed by both officers forcing him to the pavement.
While legal and policing experts say police had the authority to pull Nazario over and force him out of the car, there’s some division on whether the Windsor officers handled the situation correctly that night.
Charles J. “Joe” Key, a retired Baltimore police lieutenant who testifies as a use of force expert in cases across the country, contends the Windsor officers acted appropriately under the circumstances.
“I don’t want to sound preachy, but in watching this, I don’t see what else the cops could do,” Key said after viewing the video at the request of the Daily Press.
After Nazario “failed to stop for a police vehicle that had its lights and sirens activated,” Key said, he “decides he’s not going to obey their commands” to get out of the Tahoe.
“I don’t see fear,” he said. “I see a kind of resolution that he’s not going to do it.”
“The lieutenant says, ‘I don’t have to get out of the car, it’s a traffic stop,’ ” Key said. “He’s mistaken. He’s legally required to do it. So the
officers are acting within the law.”
‘Defusing the situation’
But Joseph Giacalone, a retired New York Police Department sergeant and an instructor at the John Jay School of Criminal Justice in New York, said the officers should have found ways to “bring this thing down a few notches” at the gas station.
For one thing, he said, the officers should have told Nazario why he was being stopped. They could have informed him from a distance, or even over the police car loudspeaker, if they felt endangered.
The law doesn’t require that someone is immediately told why they are being pulled over, he said, but it’s typically good policing to do just that.
“A lot of times telling people why you pulled them over can defuse the situation,” Giacalone said after reviewing the full video of the incident.
“I hate the word ‘de-escalation,’ because it really has to do with mutual respect sometimes,” Giacalone said. “But as the guys from the police, you have to come out with that. Because when you don’t, that person is going to dig their heels in even more.”
“This should have been an ordinary traffic stop,” Giacalone said.
When Nazario asked why he was pulled over, Giacalone said, the conversation could have begun with, “I’m pulling you over, sir, because we couldn’t see your paper plate in the window. We just saw it now under the lights, but I just need to see your paperwork to make sure the car’s registered.’ ”
“That’s it,” Giacalone said. “This would have never wound up on YouTube or any news channel whatsoever.”
The video became public as part of a pending excessive force lawsuit filed in U.S. District Court in Norfolk, with Nazario contending the officers violated his constitutional rights.
“The onus falls on the police to bring this down to a respectable level. You can’t come out in combat mode every time you pull somebody over unless you have a damn good reason.”
— Joseph Giacalone, retired New York Police Department sergeant and instructor at the John Jay School of Criminal Justice in New York
Difficult case to win?
Adam Gershowitz, a criminal law professor at the College of William & Mary School of Law, said the lawsuit could be an uphill climb for Nazario.
“I think most people would look at this and say, ‘This is appalling behavior, it’s unnecessary, it’s excessive,’ “Gershowitz said of the officers’ actions. “But even with all that in mind, it’s still actually a hard case for him to win.”
Virginia state law allows officers to pull people over for not having a license plate on the center bracket.
Moreover, drivers are required to pull over and stop “as quickly as traffic and other highway conditions permit” if an emergency vehicle pulls up behind them with lights or sirens on.
And once someone is pulled over, a 1977 U.S. Supreme Court decision gives police discretion to order people out of their cars at traffic stops. The court cited dangers to officers at such stops, and called the step a “minor inconvenience” to those in the car.
Police can use some level of force to get someone to comply with an order, Gershowitz said. But even if that force is deemed “excessive” and “disproportionate” to the situation, he said, “that’s not enough” for the claim to succeed.
There’s also the “qualified immunity” hurdle, which protects police officers from legal claims if a “reasonable officer” — without the benefit of 20⁄20 hindsight — “could have believed” his conduct was lawful.
To overcome those protections, Gershowitz said, “he’s going to have to show not only that the force is excessive, but that there’s clearly established precedent that says the officers can’t do this. And that’s often hard to do.”
“This case is a good example ... of how much the deck is stacked against people who are trying to get relief for misconduct by the police department,” Gershowitz said.
‘What’s going on?’
As Nazario drove his 2020 Chevrolet Tahoe west on U.S. 460 at 6:34 p.m. Dec. 5, a Windsor police officer attempted to pull him over near a Food Lion in the tiny Isle of Wight County town.
The officer, Daniel Crocker, noticed there was no license plate on the Tahoe’s rear bracket as required — with the officer not initially noticing that the newly purchased vehicle had a paper license plate in its rear window.
Crocker hit his lights and sirens, and Nazario put on a turn signal and slowed to about 18 mph on the road, where the limit is 35. He drove about three quarters of a mile, passing some other businesses, to a well-lit BP gas station. Another officer, Joe Gutierrez, followed in another car.
What happened after that — and the lawsuit Nazario filed — have become national news.
Videos of the encounter show police approaching Nazario at the gas pumps, ordering him out of the SUV at gunpoint. Nazario refuses to get out, putting his hands out the window and repeatedly asking,
“What’s going on?”
The footage then shows Nazario getting pepper sprayed, forced to the ground and handcuffed, and also captures the ensuing conversation between Nazario and the officers.
Giacalone said the officers could have done things much differently — including not drawing their guns immediately and instead telling Nazario to roll down his windows as they walked up.
“The onus falls on the police to bring this down to a respectable level,” Giacalone said. “You can’t come out in combat mode every time you pull somebody over unless you have a damn good reason.”
He said that police pursuit was at low speeds — “like the O.J. Simpson case” — and Nazario “actually has a good reason” for not pulling over immediately on U.S. 460, including the possibility that someone was impersonating a police officer.
“Going into a well-lit gas station, I can’t hold that against the guy,” Giacalone said. “It actually makes everybody safer, believe it or not, because the cops have light and can see what’s going on with the driver.”
“I understand that they probably got their adrenaline pumped up because he wasn’t pulling over right away,” he added. “But they need to come down off of that high when they when they get into the gas station.”
Telling drivers why they were pulled over, Giacalone said, “tends to drop the volume” on both sides. “When you know how to talk to people, you can disarm a lot of different things,” he said.
Proper police tactics?
Key, for his part, said it’s always easy to Monday morning quarterback situations. “Where does it stop?” he asked. “At what point does the cop have to be shot?”
“We can come back and say, ‘Well, he’s a lieutenant in the Army,’ ” Key said. “So what?” The fact that someone is dressed in fatigues, he said, doesn’t prove anything. “Camouflage is not an unusual dress pattern for people in the state of Virginia,” Key said.
Key cited cases in which active duty military personnel around the country have shot and killed police — and he pointed out that Nazario actually had a handgun in the driver’s seat.
Nazario had ample warning that he would be pepper sprayed before it was done, Key said, and police are trained to force non-compliant people to the ground as a way of gaining control.
“Putting him on the ground reduces the necessity to use more force,” Key said. “So when he fails to go to the ground, he’s taken to the ground. All of this comes back to him.”
Key was critical of Gutierrez for some of the comments he made — such as that Nazario was “fixing to ride the lightning” as the officer pointed a Taser at him, or that Nazario “should be” afraid to get out of his SUV when he voiced concern about doing so.
“I don’t think that’s appropriate for the cop to say that, and I don’t know why he said it,” Key said. “I’m not defending everything that they did.”
He also said Windsor Police Chief Rodney “Dan” Riddle should have come to speak to Nazario when he later showed up at the scene, rather than waiting in the car.
“Could they have approached it differently?” Key said. “Sure. You can always do that ... But you can speculate the other way too.
What if the lieutenant turned out to be a real nutcase, and his idea that day was to kill a couple of cops?”
‘Could have ended differently’
Toward the end of the 30-minute video, Gutierrez leaves briefly to talk to Riddle in his car.
When Gutierrez came back, he gave Nazario a choice between letting him go after the pepper spray wore off — or “pushing the issue” and charging him for resisting arrest and failing to have the license plate in the proper place.
“If you want to just chill, let this go, and no charges filed … we’ll sit here until you feel comfortable driving,” Gutierrez tells him. Charging Nazario, the officer said, would require police to notify the lieutenant’s Army command about the incident.
Nazario declined taking the charges, though he said he would notify his command about the incident either way.
Key said it didn’t make sense for the police to appear to be “negotiating” with somebody they had just pepper sprayed for non-compliance. “If you’re legally entitled to do what you did, there is no stepping back from that,” he said.
But Giacalone said he saw that as the police’s way to get Nazario not to complain later about his treatment. “I think they realized that he overstepped his boundaries and then (were) just trying to make things go away at that point,” he said.
“I just wish the Gutierrez we see later on in the video was the one who showed up in the beginning of the video,” he said. “Because I think this could have ended differently.”
Body cam footage of the Dec. 5 incident is available at the Town of Windsor’s police department home page, with combined footage available at the PoliceActivity channel on YouTube.