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Windsor Police Officer Daniel Crocker is asking a federal judge to stay Army 2nd Lt. Caron Nazario’s lawsuit against him until related investigations by the Virginia State Police, Attorney General Mark Herring’s office and the FBI are completed.

Nazario, who is of Black and Latinx descent, filed the lawsuit in Norfolk’s federal court April 2. It names Crocker and ex-Windsor officer Joe Gutierrez as co-defendants, accusing each of violating Nazario’s First and Fourth Amendment rights under the U.S. Constitution during a traffic stop last December when both officers held the lieutenant at gunpoint and Gutierrez pepper-sprayed him.

Gutierrez was fired April 11, but Crocker remains on the force.

Crocker’s attorney, Anne C. Lahren of the firm Pender & Coward P.C., argues in a May 20 court filing that defending a civil lawsuit in the face of an active investigation that could potentially result in criminal prosecution presents “a serious hardship to Officer Crocker.”

If Crocker chooses to exercise his Fifth Amendment right not to testify during the civil proceeding, “the jury will almost certainly draw a negative inference from his silence,” Lahren writes. But if he chooses to testify during the civil trial he would waive that right in any subsequent criminal proceedings to come out of the pending investigations.

“Denial of the stay could force Officer Crocker to invoke his Fifth Amendment right in the civil proceeding to avoid waiving his right to do so later,” she writes.

Multiple non-parties also stand to be harmed “if this highly-publicized case is brought to trial before the investigations are complete,” she argues, namely the Windsor Police Department, Windsor’s town government and the Commonwealth of Virginia.

Gov. Ralph Northam had ordered on April 11, shortly after the officers’ body camera footage of the incident began going viral online, that the Virginia State Police begin its own independent investigation of the matter. Hampton Commonwealth Attorney Anton Bell has been named a special prosecutor for the investigation. As such, he will receive the state police’s criminal investigative file once it’s complete, and be tasked with deciding what if any charges to bring against Crocker or Gutierrez.

Herring’s Office for Civil Rights is also conducting a separate “pattern and practice” investigation that will look for any pattern of discriminatory or abusive policing over the past 10 years in Windsor. Windsor Police Chief Rodney “Dan” Riddle also confirmed during an April 14 press conference that a federal FBI investigation of the incident is also pending.

Gutierrez and his legal team are supporting Crocker’s request for a stay, but Nazario’s legal team is opposing it.

“Neither defendant Gutierrez nor defendant Crocker asserted the 5th Amendment in their answers [to Nazario’s initial court filing],” writes attorney Thomas Roberts of the firm Thomas H. Roberts & Associates P.C., which is representing Nazario. Instead, the two defendants have argued in their filings that their conduct was completely legal.

“They cannot have it both ways,” Roberts writes. “If they have done nothing wrong, nothing they say will incriminate them and there is no 5th Amendment concerns and no reason for a stay.”

A stay would also prejudice Nazario’s ability to depose each defendant and gather evidence through the subpoena powers afforded a plaintiff during a lawsuit, Roberts argues.

“Defendant Gutierrez has already begun the process of illegally destroying evidence relevant to the criminal investigations and the civil suit,” Roberts writes, referring to Windsor Town Manager William Saunders’ statement in a May 12 Suffolk News-Herald story that Gutierrez had wiped his town-issued cell phone after learning of his termination, before returning the device to town officials. As such, text messages the newspaper had requested from the town under Virginia’s Freedom of Information Act were lost.

Crocker joins motion to dismiss

Crocker’s attorney also recently filed a brief in support of Gutierrez’s motion to dismiss the First Amendment claims in Nazario’s suit.

The suit argues Gutierrez’s offer to let Nazario go without charges and without informing his military command if he would “let this go,” was an effort to cover up his and Crocker’s actions by extorting Nazario’s silence with a threat to his Army career — thereby violating the lieutenant’s First Amendment right to free speech. In a line-by-line response to the lawsuit’s allegations, Crocker argues Nazario’s First Amendment rights “have clearly not been ‘chilled’ as evidenced by the filing of this lawsuit, the lack of any charges filed against him by either of the Defendants, the Plaintiff’s ability to establish a GoFundMe account, and an Instagram account concerning the December 5, 2020 traffic stop, and the extensive press and television interviews given by the Plaintiff’s counsel on his behalf.”

As of May 26, the GoFundMe.com page set up by Roberts & Associates for Nazario’s legal expenses had raised $16,279 of its $50,000 goal from 305 donors. An additional GoFundMe page for Nazario organized by Anthony Ziolkowski of Cumberland, Rhode Island, had raised $1,465 of its $25,000 goal from 29 donors by that same date.

In Crocker’s line-by-line response, the first-year officer denies his conduct the night of the traffic stop was improper “given the way the situation developed based on the Plaintiff’s own conduct.” He denies the suit’s claim that he could see the temporary New York license plate taped inside the rear window of Nazario’s vehicle while following Nazario to the BP gas station where he ultimately stopped, and disputes Nazario’s claim that he had been looking for a well-lit area to pull over while continuing to drive down Route 460 for about a mile after seeing Crocker activate his patrol car’s flashing blue lights. Nazario, Crocker argues, chose to drive by “numerous well-lit locations where he could have pulled over, including Farmers Bank, Anna’s Ristorante Italiano & Pizzeria, the fire station, and the CVS.”

Crocker further argues that his removal of Nazario’s legally-owned firearm from his vehicle while he checked its serial number to see if it was stolen “was not a seizure” as Nazario’s lawsuit claims, but rather was “tantamount to a ‘frisk.’”

Gutierrez response deficient?

Meanwhile, Nazario’s attorneys have taken issue with the line-by-line response Gutierrez filed, in which the ex-WPD officer repeatedly stated that the body camera recordings referenced in the suit’s allegations “speak for themselves” but denied the allegations “to the extent they misstate or mischaracterize the contents of such video recordings.”

Nazario’s legal team argues that per federal rules of civil procedure, defendants in a lawsuit must state in short and plain terms their defenses to each claim asserted, and any denials must fairly respond to the substance of the allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

But because of the way Gutierrez responded to the allegations referencing body camera footage, Nazario’s lawyers will have to “guess at which allegations in the complaint are undisputed or irrelevant … and which will have to be proven by a preponderance of the evidence.”

As such, Nazario’s legal team is asking that the court strike from the record Gutierrez’s responses that state the videos “speak for themselves,” and declare him as having admitted to the associated allegations in Nazario’s initial court filing.

“Alternatively, and only if the court is not willing to grant the foregoing,” Nazario’s legal team asks that Gutierrez be required to provide answers “consistent with the obligations” of the federal rules of civil procedure.