4th Circuit: No immunity for officer for alleged death threats

By Nick Hurston

The 4th U.S. Circuit Court of Appeals has reversed a grant of immunity to a police officer who allegedly made death threats after a driver questioned the reasons for a traffic stop.

Faced with an issue of first impression in the 4th Circuit, U.S. Circuit Judge Robert B. King said “‘we need not … assume that government officials are incapable of drawing logical inferences, reasoning by analogy, or exercising common sense.”

“If police officers have been informed that they are not to extend a traffic stop beyond its primary mission of issuing a traffic ticket, it is obvious that they should not prolong the stop by making unwarranted death threats,” he wrote.

U.S. Circuit Judge Stephanie D. Thacker joined King in reversing and remanding Nazario v. Gutierrez, et al.

U.S. Circuit Judge Allison Jones Rushing dissented, saying the officer’s comments didn’t measurably extend the duration of the traffic stop.

The traffic stop

In a well-publicized incident, Caron Nazario, a uniformed Army officer, was pulled over by Windsor Police Officer Daniel Crocker for failing to display a license plate. Nazario initially did not stop his vehicle for almost two minutes until finding a well-lit gas station.

Crocker aimed his pistol at Nazario while giving inconsistent demands to both exit the vehicle and keep his hands outside the vehicle’s window. Officer Joe Gutierrez eventually joined Crocker and threatened that Nazario was going to “ride the lightning,” referring to his Taser.

After Nazario refused to exit his vehicle, Gutierrez pepper-sprayed him in the face. Once out of the vehicle, Nazario accepted the officers’ offer to “chill” and “let this go,” rather than be arrested for obstruction and failure to display a license.

The trial court awarded qualified immunity to Crocker and Gutierrez on Nazario’s claims for unreasonable seizure, excessive force and illegal search in violation of the 4th Amendment, as well as retaliatory arrest under the First Amendment.

Nazario appealed.

Eluding

The trial court found that “failing to immediately pull over can constitute [misdemeanor] eluding” according to Manners v. Cannella from the 11th U.S. Circuit Court of Appeals.

But the 4th Circuit had never ruled on whether probable cause exists in Nazario’s circumstances.

“And assessing the facts known to the Policemen here — in the light most favorable to Lt. Nazario — we are unable to say that a prudent person would believe that Nazario committed the misdemeanor offense of eluding under Virginia law,” King said.

Declining to follow sister circuit rulings, the judge said “[d]riving slowly is a recognized way to show an intention to comply with a police officer’s signal to pull over” and noted the distance and time that elapsed here were “relatively minor.”

“Additionally, Nazario’s delay in pulling over is even more innocuous because it was a dark early winter evening in eastern Virginia, and the BP station was the most well-lit location visible and available,” he said.

King found that any suspicion of eluding should have dissipated when Nazario pulled over because “the fact that the driver of the vehicle was looking for a safe place to pull over was then obvious.”

Because a reasonable and prudent person would not believe that Nazario intended to willfully and wantonly disregard Crocker’s signal, the District Court erred in finding probable cause existed for eluding.

Obstruction

King acknowledged that failure to comply with police directives might constitute obstruction.

“That is, obstruction of justice can include ‘passive direct obstruction, where the officer seeks to make the defendant act directly and the defendant refuses or fails to act as required,’ so long as ‘the obstructive behavior clearly indicates an intention on the part of the accused to prevent the officer from performing his duty,’” the judge explained.

King found that probable cause for obstruction of justice existed here and that the defendants’ orders for Nazario to step out of the vehicle were lawful because they had probable cause to stop him for a license plate violation under Pennsylvania v. Mimms.

Unreasonable seizure

Although the 4th Circuit had not yet adopted the principle, King was “satisfied that it can be unconstitutional to hold a person at prolonged gunpoint when he is compliant and presents no danger to the public or law enforcement officers.”

Here, Nazario’s refusal to exit the vehicle “seemed necessary in order to comply with the directives of the Policemen to keep his hands outside the vehicle” and was largely in reaction to the defendants’ actions and inconsistent commands.

But King agreed with the trial court’s award of qualified immunity to Crocker.

“Although our sister circuits have made rulings that provide some guidance, the law in this Circuit was not sufficiently developed at the time of Lt. Nazario’s encounter with the Policemen for them to reasonably know that pointing firearms at Nazario in these circumstances would violate the Fourth Amendment,” he wrote.

“In fact, our precedent provides that[, ‘I]t is well established that officers performing a lawful stop are authorized to take such steps as are reasonably necessary to protect their personal safety thereafter,’” he said. “Plus the Fourth Amendment does not require a police officer ‘to wait until a gun is pointed at [him] before [he] is entitled to take action.”

Thus, King reversed the trial court’s award of qualified immunity to Gutierrez and remanded for proceedings on Nazario’s unreasonable seizure claim.

Outstanding motions

Richmond litigators Tom Roberts and Jonathan Arthur, who represented Nazario, were happy to have “finally established in this circuit that pointing a firearm at a compliant citizen who was not a danger to the officers or others can be excessive force under the Fourth Amendment.”

“It is well past the time to remove the stain of ‘qualified immunity’ created by the U.S. Supreme Court during the Jim Crow era as a defense to the Ku Klux Klan Act — also known as § 1983 claims — a defense that didn’t exist for 90 years after the act was passed,” Roberts told Lawyers Weekly.

Arthur, meanwhile, believes the 4th Circuit needed to go further here.

“The Fourth Circuit did not complete the analysis, looking at Virginia’s obstruction of justice statute and law which requires that Lt. Nazario acted ‘without just cause,’” he said.

In their petition for rehearing, Nazario’s attorneys argued the finding of probable cause was erroneous because he had “just cause” not to get out of the car to expose himself to the officers in light of their threats.

Anne Lahren of Pender & Coward, who represented Crocker, was pleased with the decision and said Gutierrez also moved for rehearing.

“Law enforcement officers must make split-second decisions without the benefit of hindsight,” she told Virginia Lawyers Weekly. “Qualified immunity is necessary for them to safely perform their jobs.”

Also outstanding is Crocker’s motion for almost $25,000 of costs under Federal Rule 68. Nazario rejected Crocker’s $50,000 offer of judgment two weeks before the trial; the jury awarded him only $1,000 for Crocker’s illegal search.